Sotomayor Doesn't Suit Yoo

As Republicans mull their response to the naming of a Latino woman to the Supreme Court, they have the benefit of legal scholarship from John Yoo, who suggests that Sonia Sotomayor would be "voting her emotions and politics rather than the law."

George W. Bush's torture expert is troubled by the nominee's lack of legal "firepower." He points out, "There are no opinions that suggest she would change the direction of constitutional law as have Antonin Scalia and Clarence Thomas on the Supreme Court, or Robert Bork and Richard Posner on the appeals courts."

Disregarding for the moment the murmurs of "Thank God!" from the Left, Yoo's commentary may reflect a shrewd legal strategy in his own self-interest. As the lawsuit against him by convicted terrorist Juan Padilla winds its way through the courts, Yoo may be setting the stage for asking Judge Sotomayor to recuse herself if it reaches the Supreme Court.

Padilla is suing Yoo as one of the architects of unlawful policies that led to his designation as an "enemy combatant," detention in a military brig and the interrogations he underwent there.

Ironically, the Obama Justice Department is siding with Yoo in deeming a civil suit an inappropriate vehicle for this issue, however much the Administration has reversed and repudiated his legal judgments on torture during the Bush era.

Just in case the suit continues and reaches the Supreme Court, Yoo could claim that his dismissive opinions on Justice Sotomayor's qualifications might prejudice her against him from the bench.

In the alternate universe John Yoo inhabits, that makes as much sense as the rest of his thinking.

The Damage Bush Is Still Doing

Frank Rich's New York Times column today, headed "Obama Can't Turn the Page on Bush," is a sad symptom of America's best and brightest still obsessing over eight years of a national nightmare to the detriment of what needs to be done now.

With an economy in shambles and the Mideast a potential nuclear tinderbox, the Obama Administration has its hands full without "a new commission, backed up by serious law enforcement, to shed light on where every body is buried."

Although the Bush gang--Cheney, Rumsfeld et al--was a disaster, the American people elected them twice (originally with the help of some of the now-outraged idealists who voted for Ralph Nader), but they are gone.

The only power they have now (pace Cheney) is to control our consciousness with debates over past torture that Obama has now outlawed, with squabbles over what Nancy Pelosi knew and when she knew it, with new "revelations" that Rumsfeld was an arrogant, lying son of a bitch.

Nobody wants to forgive and forget, particularly those of us who spent years blogging and howling about Bush abuses, but living in the past is no recipe for undoing it.

Instead, it channels our passion into recrimination and self-righteousness when we should be getting on with the battles over health care reform, regulating Wall Street and the banks, finding the best balance of military power and diplomacy in the Middle East and the mind-numbing dilemmas that eight years of non-government have given us.

It will take brains not bile to concentrate on those issues, and that's where our energy should be going now.

What Bush, Cheney and the rest did was unforgivable, but the lessons of their folly are clear. Let them rant in interviews and memoirs as a sideshow like the political freaks they were and are, but get them off center stage. We don't need commissions to keep telling us what they did. The historians will do that job while we devote ourselves to cleaning up the mess and stop playing Madame Defarge.

The Banality of Torture

Like other true Bush believers, the lawyer responsible for the torture memos turns out to be a hair-splitting pursuer of the abstract rather than an impassioned advocate.

Judge Jay S. Bybee says his work as head of the White House Office of Legal Counsel was merely “a good-faith analysis of the law” and that the "central question for lawyers was a narrow one."

We are in Eichmann territory here, the bland leading the morally blind, the self-deprecating functionaries just doing their narrow jobs while following orders that lead to horrors.

Now a friend of Bybee's, anonymous of course, says "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context--of the enormous pressure and the enormous time pressure that he was under."

Bybee, however, managed to overcome his qualms and keep serving the Bush Administration until he was nominated to the Ninth Circuit Court of Appeals, where he is still analyzing the law and rendering judgements.

At the trial of Adolf Eichmann, the technician who ran the concentration camps, Hannah Arendt coined the phrase "the banality of evil," to describe how the Nazi hierarchy depended on ordinary, ambitious but morally obtuse people like him to implement their inhuman goals.

A fellow judge of Bybee's now says in a statement: “He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document.”

No, it isn't.

Twaddle About Obama's Toughness

Lyndon Johnson's appraisal of Richard Nixon comes to mind in the growing debate about President Obama's toughness or lack thereof.

"Not much here," said LBJ, pointing at his head. "Even less here," touching his heart, then lowering a hand to below his belt: "But enough down there."

Now there is clucking on both the Right and Left about how much Obama has "down there."

"In some of his earliest skirmishes," the New York Times worries, "Mr. Obama eventually chose pragmatism over fisticuffs" and quotes a former Clinton official: “The thing we still don’t know about him is what he is willing to fight for. The thing I worry about is that he likes giving good speeches, he likes the adulation and he likes to make people happy. It’s hard to think of a place where he’s taken a really hard position.”

Say what? Ramming through a stimulus bill and budget that could make or break his presidency? Pushing auto makers to the brink of bankruptcy if they fail to shape up? Ordering use of force to rescue an American captain in the Indian Ocean (too much, by Rush Limbaugh's lights)? Making public the torture memos (risky, says Bush's CIA chief as those on the Left complain about his refusal to prosecute former agents)?

The critics are confusing bluster with toughness. Republican Sen. John Ensign huffs, "I think it was irresponsible for the president to be seen kind of laughing and joking with Hugo Chavez" this weekend, but Obama shrugs off such posturing as politics that makes "no sense."

During the campaign, Maureen Dowd had asked Obama, "Do you worry that you might be putting yourself on a pedestal too much? Because people also want to see you mix it up a little. That’s how they judge how you’d be with Putin.”

“When I get into a tussle,” he answered, “I want it to be over something real, not something manufactured. If someone wants to get in an argument with me, let’s argue about how we’re going to fix the health care system or where we need to go on Iraq.”

Critics of all persuasions will have to learn to live with the style of a President who doesn't puff himself up as the Decider but actually goes about the hard work of making decisions by consensus if he can but unilaterally when he must.

CIA Health Care

The lawyers wrote the torture memos, but the medical profession was there to implement them.

According to the Washington Post, "documents show a steady stream of psychologists, physicians and other health officials who both kept detainees alive and actively participated in designing the interrogation program and monitoring its implementation...

"Most of the psychologists were contract employees of the CIA, according to intelligence officials familiar with the program."

The Bush Administration was apparently as active in corrupting doctors as lawyers in violating AMA policies that physicians "must not be present when torture is used or threatened" and may treat detainees only "if doing so is in their best interest" and not just to monitor their health "so that torture can begin or continue."

The Bush version of the Hippocratic Oath apparently interpreted health care as keeping patients alive and well enough to endure continuing abuse, an ethical position that would not have offended Dr. Josef Mengele of Nazi concentration camp fame.

With the economy taking up so much attention, it has been easy to forget just how bad the past eight years of lawlessness have been.

"The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology," says the chief executive of Physicians for Human Rights, an international advocacy group of physicians against torture. "All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again."

The next time you visit your family doctor, you may want to check his resume for a stint of government service in the past decade.

Painful Debate About Torture

In releasing the Bush memos, Barack Obama reaffirms that responsibility starts at the top by stopping practices that "undermine our moral authority and do not make us safer," absolving the practitioners who believed what they were doing was legal and making public the twisted thinking that sanctioned them.

But critics like Professor David Cole of the Georgetown University Law Center want more: "We must formally acknowledge that what was done was wrong, indeed criminal. At the very least, a credible independent investigation must be undertaken."

There is a good case to be made that American morality on torture should not depend on who is in the White House, but the argument collides with the realities that a President faces, that "in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security," as Obama put it in his statement.

His administration will not press criminal charges against CIA operatives who interrogated terrorism suspects during the Bush era. "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Attorney General Eric Holder Jr. says.

That position won't satisfy those who find a parallel with Nazis who were "only following orders" during the Holocaust, but 9/11 put Americans in a position where moral purity, or even the appearance of it, may be an impossible dream.

Meanwhile, the President has taken a step in the right direction by letting us see in detail just what was being done in our name and saying clearly that, on his watch, nothing like it will be done again.

After eight years of secrecy and lies by leaders who showed no doubts about their rectitude while abusing human beings, that's no small accomplishment.