Yoo Gotta Testify

Bush torture memo author John Yoo has been ordered to testify in the federal trial of Jose Padilla, but I sincerely doubt it will happen.

Yoo was one of several administration lawyers who authored legal memos which outlined a legal range for torture, a war crime under the Geneva Convention relative to the prisoners of war.

“Judge [Jeffrey S.] White denied most elements of Mr. Yoo’s motion and quoted a passage from the Federalist Papers that in times of war, nations, to be more safe, ‘at length become willing to run the risk of being less free,’” noted The New York Times.

Yoo, while at the Office of Legal Council in 2002, authored a majority of the department’s opinions on torture along with Jay Bybee, who now serves as a judge on the U.S. 9th Circuit Court of Appeals, and Steven Bradbury, the former OLC chief who now practices law in Washington, D.C.

In a Wall Street Journal editorial, John Yoo, the OLC’s former Deputy Assistant Attorney General, explained that the Bush administration’s torture techniques were initially designed to outwit crafty defense attorneys.

“The first thing any lawyer will do is tell his clients to shut up,” writes Yoo. “The [Khalid Sheikh Mohammeds] or Abu Zubaydahs of the future will respond to no verbal questioning or trickery — which is precisely why the Bush administration felt compelled to use more coercive measures in the first place.”

Scott Horton, a contributing editor to Harper’s, said Yoo’s memos “freed [the Bush administration] from the constraints of the Bill of Rights” during wartime “with respect to anything [Bush] chose to label as counter-terrorism operations inside the United States.”

Attempting to explain his theory on executive power in wartime to a reporter, Yoo also agreed with an analysis which posited the hypothetical situation in which the president might order a boy’s testicles “crushed” in order to affect a response from his parents.

On the legality of such an order, Yoo said, “I think it depends on why the president thinks he needs to do that.”

It's very telling that the first question I have right now is "Will the Obama/Eric Holder DoJ step in a prevent Yoo from having to testify under oath?" I would not put it past them to bring heavy pressure to bear to see that Yoo never speaks under oath in a public trial. After all, the Holder DoJ has been for the most part as bad as the Gonzales/Mukasey DoJ under Bush and in some very real ways, they have actually surpassed Bush-era perfidy.

Recent events must bear out the assumption that Obama, through Eric Holder, will want to prevent Yoo from having to testify.

Watch very closely what the reaction of the DoJ is to this order. I hope I am wrong and Yoo is forced to sing like a bird. My money is on the almost assured possibility that Yoo never even takes the stand.