"American Takfiris": The US Proponents of Torture (and Why It Matters)

Adam Serwer writes in The Atlantic:

The theological justification for al Qaeda's wholesale slaughter of civilians was provided by Sayyid Imam al-Sharif, also known as Dr. Fadl, one of the founding fathers of al Qaeda. Because the murder of innocents is forbidden in Islam and the murder of Muslims in particular, Ayman al-Zawahiri and Osama bin Laden required some sort of theological framework for justifying terrorism. This was provided by al-Sharif, who essentially argued in his book, "The Compendium of the Pursuit of Divine Knowledge," that apostates could be murdered, and that approach, takfir (which has come to be known as takfirism) allowed al Qaeda to, for all intents and purposes, kill anyone they wanted without violating the laws of Islam by declaring them to be apostates. In other words, Dr. Fadl helped provided a theological justification for something that everyone involved knew was wrong.

War on Terror Flashback: Bush’s Lawyer Yoo “Civilians Can Be Massacred”

The legal memos justifying torture aren't very different in terms of reasoning--it's clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism. They worked backwards from this conclusion, and ethics officials at the Department of Justice, we now know, decided that they they had violated professional standards in doing so. Whereas al-Zawahiri and bin Laden turned to al-Sharif for a method to circumvent the plain language of the Koran, Bush and Cheney went to Yoo and Jay Bybee to circumvent the plain language of the law. Most Islamic scholars, just like most legal experts, reject their respective reasoning as unsound.



The torture memos--indeed, all of the pro-torture arguments rest on a similar intellectual themes to the takfiris. Suspected terrorists are "illegal enemy combatants", outside the framework of laws that would otherwise guide us. Just as the takfiris justify the killing of even self-identified Muslims by excommunicating them as "infidels", torture apologists argue that even American citizens like Jose Padilla who are accused of being terrorists become legal "apostates" without any rights the president is bound to respect. These are extraordinary circumstances, this is an extraordinary war--and so, the Bush administration turned to Yoo, a man who believes the president is bound by no laws during wartime: he can murder a village of innocent civilian non-combatants just as surely as he can crush the testicles of a child or deploy the military against residents of the United States. The architects of torture are the intellectual mirror image of their declared enemies, depending on the perceived inhumanity of their foes to justify monstrous actions. It's worth noting however, that the Bush administration did not take full advantage of the wrongs that the lawyers in their Office of Legal Counsel would have enabled. My point is not to equate the deeds of AQ with the deeds of the Bush administration--merely to point out justification for acts that are on their face unjustifiable take a similar intellectual path.

From his cell in an Egyptian prison, al-Sharif denounced his former colleagues in al Qaeda, declaring that the killing of innocents was wrong. He essentially renounced his earlier work providing the theological basis for politically motivated murder and destruction, declaring, "There is no such thing in Islam as ends justifying the means," now arguing that the murder of innocents, Muslim or otherwise, was sinful. Whatever theological cover al-Sharif's original arguments provided were meaningless against the body count of mostly Muslim innocents amassed by al-Qaeda in their war against the "West", which by the numbers has been a war against fellow Muslims. In combination with the furious efforts of moderate Muslims and even committed Islamists like al-Sharif, al Qaeda and its methods have been largely discredited, to the point where, as Fareed Zakaria writes, we don't fear "a broad political movement but a handful of fanatics scattered across the globe."

I confess to being bothered that we haven't seen a similarly backlash against the architects of torture here--part of the reason we haven't, is because even though innocents were tortured, we still see them as fundamentally alien. Few Americans directly suffered as a result of what Yoo and Bybee did--although I think we have yet to understand that damage that's been done to our society as a whole. Bolstered by ideological partisans and powerful figures looking to avoid accountability for their actions, men like John Yoo and Jay Bybee have yet to be held responsible for the crimes they enabled--and I'm not sure they ever will be--although I'm less concerned with their punishment than with the permanent American rejection of torture. The Justice Department's David Margolis overruled the original conclusions of the Department's ethics lawyers that Yoo and Bybee had, in ignoring legal precedents and sanctioning behavior that was likely illegal, had committed "professional misconduct". That would have triggered professional sanctions for Yoo, a tenured professor at Berkeley, and Bybee, a sitting federal judge, but Margolis' memo instead concludes that they had excercised "flawed legal reasoning" that could be forgiven in part because of the context in which the memos were written, months after the 9/11 attacks. Margolis though, does not endorse their reasoning, and as for Yoo, he writes that whether or not he deliberately gave bad legal advice is a "close question."  Al-Sharif will never be able to wash the blood from his hands, but while this founding father of al Qaeda has recoiled from the fruits of his labor, the American architects of torture continue to argue that their reasoning is legally sound.

The American conscience, when it decides to act, is mighty--but it is also sluggish and vain. Americans are crushed by the weight of not fulfilling their own high expectations--so the shameful acts of one generation are often rectified by a subsequent generation unencumbered by their own complicity in such acts. So the compromise the Founding Fathers reached on the issue of slavery, in defiance of the spirit of the documents they authored, was eventually righted by the Civil War. The slavery by another name of reconstruction was ignored by a nation weary of conflict after nearly being rent in two--but eventually gave birth to the civil rights movement. The suffragettes were forced to accept a compromise on the 14th Amendment that denied them the vote--but they would ultimately prevail. Roosevelt interned Japanese Americans, Reagan gave them reparations. The American conscience is often slow to action, but not because it cannot recognize evil--but because our view of ourselves as a people guided by justice is so important to who we are that when confronted with proof of our own shortcomings, we recoil in shame and precious vanity. Eventually, with the big stuff, we usually find our way--we see this with our slow, staggering, but inevitable march towards full personhood for gays and lesbians.  And while those who stained America's honor with war crimes have escaped accountability for now, these American takfiris will eventually be judged by history with a clarity we cannot muster today.

The arc of the universe is long...you know, all that stuff.

War on Terror Flashback: Bush's Lawyer Yoo "Civilians Can Be Massacred"

From Michael Isikoff and Mark Hosenball at Newsweek:

The chief author of the Bush administration's "torture memo" told Justice Department investigators that the president's war-making authority was so broad that he had the constitutional power to order a village to be "massacred," according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department's internal watchdog office to conclude last year that he committed "intentional professional misconduct" when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.


The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and "unambiguous" standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only "poor judgment."

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration's war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official—Attorney General John Ashcroft—even suggested that President Bush issue "advance pardons" for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney's legal counsel, that the president's wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally—"

"Yeah," Yoo replied, according to a partial transcript included in the report. "Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."

"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.

"Sure," said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn't matter what the fine print of the congressionally passed law said: The president's authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in "self defense" in order to save American lives.

The original torture memo was prompted by concerns by John Rizzo, the CIA's general counsel, that the agency's officers might be criminally prosecuted if they proceeded with waterboarding and other rough tactics in their interrogation of Abu Zubaydah, an allegedly high-level Al Qaeda-linked operative who had been captured in Pakistan and in the spring of 2002 was transferred to a CIA "black site" prison in Thailand. Rizzo wanted the Justice Department to provide a blanket letter declining criminal prosecution, essentially providing immunity for any action engaged in by CIA officers, a request that Michael Chertoff, then chief of the Justice Department's criminal division, refused to provide. It was at that point that Yoo began crafting his opinion, the contents of which he actively reviewed with senior officials at the White House. "Let's plan on going over [to the White House] at 3:30 to see some other folks about the bad things opinion," he wrote in a July 12, 2002, e-mail quoted in the OPR report.

The report describes two meetings at the White House with then-chief counsel Alberto Gonzales and "possibly Addington." (Addington refused to talk to the OPR investigators but testified before Congress that he did in fact have at least one meeting with Yoo in the summer of 2002 to discuss the contents of the torture opinion.) After the second meeting, on July 16, 2002, Yoo began writing new sections of his memo that included his controversial views on the president's powers as commander in chief. When one of his associates, Patrick Philbin, questioned the inclusion of that section and suggested it be removed, Yoo replied, "They want it in there," according to an account given by Philbin to OPR investigators. Philbin said he didn't know who the "they" was but assumed it was whoever it was that requested the opinion (technically, that was the CIA, although, as the report makes clear, the White House was also pressing for it).

Yoo provided extensive comments to OPR defending his views of the president's war-making authority and disputing OPR's take that he slanted them to accommodate the White House. He did not immediately respond to NEWSWEEK'S request for comment Friday night.