I have to ask how someone as obscure (until recently) as John Yoo, former law clerk to Justice Thomas, currently a law professor at UC Berkeley’s Boalt law school, is in the position of writing innovative legal rationales for the U.S. Justice department advocating denial of legal rights to U.S. prisoners at Guantanamo Bay, Cuba, and allowing torture of anyone deemed to be a “terrorist”. President Bush would rather not discuss these grave matters with us but we are still free to discuss them among ourselves. Here is a beginning…
A memo written by John Yoo, circa 2001, on why prisoners at Guantanamo Bay military prison are not legally privileged under U.S. law:
We conclude that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at GBC [Guantanamo Bay, Cuba].
Yoo’s “great weight of legal authority” is this: Johnson v. Eigentrager, 339 U.S. 763 (1950). According to Yoo, this case supports his case that an “enemy alien” held outside the United States has no right to legal proceedings of the United States civil courts. In that case it was German nationals accused of war crimes for assisting Japan after the surrender of Germany, but prior to the surrender of Japan. They got a military trial but claimed Fifth Amendment violations.
Interestingly, three of the Supreme Court Justices (Black, Douglas, and Burton) dissented in the majority opinion. Here is what Justice Black, writing for the dissent, had to say about granting “enemy aliens” the right of habeas corpus….
Not only is United States citizenship a “high privilege,” it is a priceless treasure. For that citizenship is enriched beyond price by our goal of equal justice under law–equal justice not for citizens alone, but for all persons coming within the ambit of our power. This ideal gave birth to the constitutional provision for an independent judiciary with authority to check abuses of executive power[my emphasis] and to issue writs of habeas corpus liberating persons illegally imprisoned.
Despite these objections, the Court now proceeds to find a “war crime” in the fact that after Germany had surrendered these prisoners gave certain information to Japanese military forces. I am not convinced that this unargued question is correctly decided. The petition alleges that when the information was given, the accused were “under the control of the armed forces of the Japanese Empire,” in Japanese-occupied territory. Whether obedience to commands of their Japanese superiors would in itself constitute “unlawful” belligerency in violation of the laws of war is not so simple a question as the Court assumes. The alleged circumstances, if proven, would place these Germans in much the same position as patriotic French, Dutch, or Norwegian soldiers who fought on with the British after their homelands officially surrendered to Nazi Germany. There is not the slightest intimation that the accused were spies, or engaged in cruelty, torture, or any conduct other than that which soldiers or civilians might properly perform when entangled in their country’s war. It must be remembered that legitimate “acts of warfare,” however murderous, do not justify criminal conviction.
And one might ask, would those French, Dutch, or Norwegian soldiers fighting against the Nazis be considered “terrorists” in some alternate universe where the definition of war has been deemed to be a state of mind?