Points for consistency

Regarding the President’s authorizing spying on Americans by the NSA, the Washington Post reports that…

The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times.

Mr. Yoo is one of the people who, while working as a deputy assistant attorney general for the Justice Department’s Office of Legal Counsel, argued, essentially, that torture was legal.

In a commentary in the San Jose Mercury News earlier this year, Yoo explained why the U.S. needn’t abide by the Geneva Conventions:

The Justice Department’s Office of Legal Counsel — where I worked at the time — determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians — violating the fundamental principle that war is waged only against combatants.

Hmm. Well, aside from the fact that torturing prisoners isn’t something any government claiming the moral high ground should condone, let alone take part in, this almost seems a reasonable argument. But note how, in the same commentary, Yoo bends over backwards to keep the Geneva Conventions from applying to the Taliban:

The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions’ requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.

I see. So by Yoo’s logic, if you violate the Geneva Conventions, other governments no longer need to abide by them when dealing with your citizens.

Yoo also had a hand in coming up with a very narrow definition of torture written in in 2002 by the Justice Department for the White House:

Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.

When that definition was leaked to the press, it sparked an outrage. The Justice Department then changed it to say that even acts that fall short of provoking excruciating and agonizing pain might be torture. But that wasn’t Yoo’s opinion.

Jump to today, when we learn that the President ordered potentially unconstitutional spying on American citizens. Why did he think he had the legal authority to do that? John Yoo — the guy who argued that we needn’t always abide by the Geneva Conventions, and that something is only torture if it inflicts pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

Methinks the administration needs to pick its attorneys more carefully.