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Sadly, the guarantees embodied in five of those first ten amendments and in the Constitution itself have been eroded by dubious theories promoted by Yoo, like his concept of an all-powerful "unitary executive" who can do whatever he wants to anyone unlucky enough to be judged an "enemy" by the leader during "wartime," even an open-ended, ill-defined conflict like the "war on terror."
Not even the Great Writ of habeas corpus escaped Yoo's sophistry -- the fundamental right, wrested from King John of England in 1215, to seek judicial relief from unlawful detention. Even King George III was constrained by habeas corpus, and Madison and Mason were careful to include that basic guarantee in the Constitution itself (Article One, Section 9).
But Yoo and some fellow lawyers saw the ancient legal right as impinging on President George W. Bush's unlimited powers.
After the 9/11 attacks, Yoo propounded theories that elevated Bush beyond the bounds of federal or international law. As Yoo has acknowledged, his opinions could allow the President to crush a child's testicles to get his father to talk, or to willfully annihilate a village of civilians.
"Sure," Yoo responded when a Justice Department investigator posed the latter hypothetical.
Many are aware of John Yoo's role in serving up legal "justification" for "enhanced interrogation techniques," including the near-drowning of waterboarding. But fewer know that the Convening Authority for the Military Commissions at Guantanamo, military judge Susan Crawford, has said that those techniques meet the "legal definition of torture."
Fewer still seem aware of Yoo's role in the run-up to the invasion of Iraq, when he focused on how to avoid the constitutional requirement for a declaration of war by Congress and advocated views totally at variance with those he had expressed while working as a Congressional staffer just a few years before.
Under Yoo's theories, "wartime president" Bush could do whatever he wanted, even if that meant ignoring Congress, the United Nations Charter, and the post-World War II Nuremberg Tribunal. Bush simply could brush aside prohibitions against aggressive war as he did by invading Iraq.
At Nuremberg, chief U.S. prosecutor, Supreme Court Justice Robert H. Jackson, called a war of aggression "not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
Nuremberg prosecutors also didn't let off Nazi lawyers who gave Adolf Hitler "legal advice" on how he could violate international law. The Nazi lawyers, too, were prosecuted at Nuremberg, and many served long prison sentences.
And Justice Jackson could not have been more explicit in insisting that the Nuremberg standard must apply equally to all.
War crimes, he said, are "crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
Torture, then, can be regarded as a derivative crime--part of the "accumulated evil" springing from the "supreme international crime" of a war of aggression. It is not necessary here to describe Yoo's attempts to "justify" torture, since that role is detailed in the 289-page report of the Justice Department's own Office of Professional Responsibility.
Suffice it to say that OPR concluded, among other things, that:
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