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Before the Law

Here's a pretty old post from the blog archives of Geekery Today; it was written about 18 years ago, in 2006, on the World Wide Web.

If you were listening to Morning Edition on NPR a couple of days ago, you had a remarkable opportunity to hear the Banality of Evil demonstrated concretely for you, within your own earshot. I’m talking about Steve Inskeep’s interview with John Yoo, a former lawyer for the Bush administration. Here are some of his remarks on the recently-passed Star Chamber law. I’ll reprint them, but you really must listen to Yoo to understand it fully–there is no way to convey the sheer blandness of Yoo’s plain-spoken, calm explanation and apologetics for the most despicable sort of Stasi-statism.

Inskeep: Now [if you’re a citizen accused of being an enemy combatant] you can challenge your status in court, but if you lose that, are you entitled to a trial, as a U.S. citizen?

Yoo: No, and that’s something that the Supreme Court made clear two years ago, is that if you are an enemy combatant, there is no constitutional requirement that you get a criminal trial. You can be held until hostilities are over.

Of course, the rules for imprisoning enemy soldiers were developed in a context where hostilities meant wars between two or more particular States, which had declared beginnings and definite endings. How long will it take for these hostilities, which are part of an undeclared global war waged against a vaguely-specified enemy with no identifiable central authority, and pursued with no defined conditions for victory, for surrender, or for truce, to count as over? But we’d best hurry along. Now that you are being held, quite possibly until you die in prison….

Inskeep: Now what if you’re a non-citizen, what happens then? Same scenario. The government has some suspicions about you, they think you’ve done something, they arrest you, they say you’re an enemy combatant, you disagree. What can you do?

Yoo: Well, first, according to the law passed by Congress last week, I’d have the right to go to what’s called a combatant status review tribunal, which is set up by the Defense Department, where I’d have a hearing, where I could challenge the evidence against me, that I’m an enemy combatant.

Oh, well then. That sounds reasonable enough.

Inskeep: –Wait, let me stop you for a second. When you go to that hearing, do you get a lawyer?

Yoo: I believe you don’t get a lawyer. You have representation from an officer, but not necessarily one who’s a military lawyer.


Inskeep: And when you say that you could challenge your detention, how would you gather evidence to show that you’re not an enemy combatant?

Yoo: Well, first you can tell your own story, and also I think you would have the abliity to see unclassified evidence against you, and to challenge it.


Inskeep: You said unclassified evidence. So classified evidence, that the government says, We have evidence against you and we can’t share it with you, that’s the end of the story?

Yoo: I believe so. I believe that classified evidence is not provided to the defendant. It’s not even provided under the military commissions, or often in civilian trials, even, for terrorism or spying.


Inskeep: If you’re an enemy combatant, who decides if you ever get a full-blown trial–a military commission trial as it’s been called?

Yoo: That’s ultimately up to the President. I think it’s still up to the President and the Secretary of Defense who’s going to be tried by a military commission.

Inskeep: The government will decide that when it’s in the government’s best interest, a trial will be held, and when it’s not, the person will be held without a trial?

Yoo: That’s right.

Full stop.

Then Inskeep asks the next question.

Inskeep: Do you think it’s inevitable that some people who are innocent are going to end up in this system, spending years and years at Guantanmo Bay?

Yoo: There’s no perfect system. I agree, Steve, there’s always the chance that there will be people who are detained who are not enemy combatants. The same is true of our criminal justice system. There’s no doubt that we have people in the criminal justice system who are innocent. That’s why we have all these processes, that’s why we have all these appeals levels, is to try to correct any mistakes that were made, and prevent errors.

Inskeep: You said there’s always the chance. I mean, isn’t a certainty, especially given that some cases have already been found, to be almost indisputably cases of people who were innocent being held at Guantanamo for a long time, or held elsewhere.

Yoo: I would say, look, in wartime, there’s always going to be people who might be picked up. It’s also the case in wartime that you have mistaken targets attacked and people killed by accident. But my only point is that you also have that in the criminal justice system. No system is going to be perfect.

Inskeep: Do you, as a lawyer who’s worked in the Bush administration, and obviously thought about these isues, think that this law does everything possible to prevent error?

Yoo: Well, I think we could probably do a lot more, but it would be a lot more expensive. I think what we have here is something that’s very close to the civilian system.

Inskeep: Are you saying it would be too expensive to give habeas corpus protection to non-citizens?

Yoo: Yeah, I think that’s what Congress decided when it passed this law last week, is that, you could have the possibility of hundreds and hundreds of habeas corpus proceedings, and they do impose a cost. They impose a cost on our judicial system. They impose a cost on our government, on our military. Think about… you’d have to pull in witnesses in from abroad, you’d have the cost of potentially releasing classified information… all this process does have a cost on our system. It’s not free.

Inskeep: John Yoo is author of War by Other Means, which is out this week.

Good night, and good luck.

2 replies to Before the Law Use a feed to Follow replies to this article · TrackBack URI

  1. brownfemipower

    Holy smokes, thanks for posting this. I’ve read all the write ups on the great new laws we’ve enacted, but i haven’t been able to stomach listening to an explanation or justification of them as of yet. I don’t think it’s possible to feel more disturbed at the moment…

  2. The Grouch

    John Yoo never ceases to amaze me. In a debate at Notre Dame with some other professor, he said it would be perfectly okay for the president to crush the testicles of a five-year-old child if he felt he needed to do that in the War on Terror ™. Where do these mindless, complacent authoritarians come from?

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