Mandeville, LA – Exclusive Transcript – Kevin Gutzman – “That’s exactly right. This is the kind of thing that’s supposed to be decided by the Congress. The reason this is an issue is that we actually have statutes against torturing people. People have been saying these last few days: Of course they tortured them. You have to torture them. Look at the bad things they do. Of course, this assumes that everybody being held was actually Al-Qaeda. We know that at least  people who were being held. There were 26 people being held, including one Australian guy who was held for a decade, who had no connection to Al-Qaeda and were just kind of held by accident. Do you want those people to be tortured?”
Check out today’s transcript for the rest….
Begin Mike Church Show Transcript
Mike: Was Gonzales the AG at the time John Yoo crafted this despicable memo that not only enabled the Authorization for Use of Military Force and gave Bush Article I, Section 8 war-making powers, all of them, and also, I think, enabled the enhanced interrogation program? Your thoughts?
Kevin Gutzman: I think it was still John Ashcroft.
Mike: What about the Yoo memo? Did the Yoo memo lead to the rendition and the enhanced interrogation?
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Gutzman: I have been hearing people that have been part of the CIA over the last few days say: We didn’t do anything that the legal authorities at the White House didn’t tell us was legal to do. This is no doubt true. The problem is, of course, that John Yoo’s torture memos gave a definition of torture that had nothing to do with the way that word has been used in the English language, outside John Yoo’s torture memos. Essentially he said that torture only referred to various kinds of behavior that might cause death or organ failure. People in the CIA apparently decided anything we can do to people that we’re interrogating that doesn’t implicate the possibility of death or serious organ failure wouldn’t be torture.
If you stop and think about the way you heard the word torture used throughout your life, what kinds of things would be torture? Shoving bamboo up beneath somebody’s fingernails or hanging somebody from a rack, attaching wires to somebody’s testicles and running electricity through them. Shoving bamboo under somebody’s fingernails is not going to cause organ failure, yet nobody, I think, would doubt that that is torture. Hanging somebody from a rack, that’s actually an ancient form of torture. By John Yoo’s definition — it has to be a facetious definition. It’s just got to have been penned with an idea of giving people license to engage in various kinds of activities that everybody would have understood to be torture before the memo. Here’s the problem. Yoo wrote these memos and essentially gave people license. Then people in the lower reaches of the executive branch went out and acted on the basis of Yoo’s statements that this kind of behavior wasn’t torture.
So what does the Republican Party stand for when it comes to the rule of law? Well, we’re going to torture people if we want to. If we think it might be popular, we’re going to allow immigration amnesty, even though the law says you can’t do this. What difference is there between the Boehner / Jeb Bush wing of the Republican Party on the one hand and the Democratic Party led by Obama – Kevin Gutzman
Mike: And not only did they act upon that, but they seemingly, in the absence of being told not to do anything, invented all manner of new ways to think about these things. There are so many amazing things in this, I don’t even know where to start. If I go to Who Killed The Constitution?, your book with Tom Woods, in Chapter 10 you begin “From Chief Executive to Prince: The Presidency and Foreign Policy.” Chapter 11 we get to “The Phony Case for Presidential War Power.” The phony case for presidential war power is made by John Yoo, isn’t it?
Gutzman: Yoo has written an entire book elaborating on the phony case for presidential war power. This is a very interesting thing for me. In 1997, I met John Yoo. I was at a conference at the Heritage Foundation that was about two weeks long. What we did is, several young scholars interested in the American Revolution met at the Heritage Foundation for a couple weeks, under the guidance of a fellow I didn’t know at the time, Charles Kesler of the Claremont Institute. We talked about various documents related to the founding and the establishment of the U.S. Constitution, and then early Supreme Court decisions and so on. One evening we took a field trip to Mount Vernon. It happened that the Heritage Foundation’s chief Constitution guy, Matthew Spalding, had written a book about George Washington’s farewell address, so he was really interested in Washington. They decided to take us out to Mount Vernon. We got on a couple of buses and rode out there.
When I got on the bus, Yoo came and sat down next to me. I guess from hearing what I had said in our conversations as a group up to that point, he realized that I knew a lot about the founding of the country. It was my area of expertise. I was working on a dissertation, which became the book Virginia’s American Revolution. He sat down next to me and said: What do you know about the original understanding of the idea of executive authority? I said: Well, I could give you various examples of people in Virginia saying essentially that the executive authority was to be distinguished from the policy-making authority. I quoted him early Virginia documents, statements from Edmund Pendleton, George Mason, Thomas Jefferson, James Madison, and on and on.
Of course, everything that those guys said about what power the executive had when it came to war was totally unlike what Yoo later would say in his book, which was essentially that the president can make policy when it comes to war. He’s got essentially unfettered authority in this area. Yoo went Abraham Lincoln one better in the area of inherent authority of the executive. We began hearing all kinds of stuff about inherent authority of the executive and the president’s supposed power as commander in chief to make policy and so on. Yoo seemingly had forgotten — I’m being kind here — apparently he had forgotten everything I had told him. He didn’t cite any of it, early drafts of the Virginia State Constitution — actually, that’s of interest because the term executive authority appears in the early Virginia constitutions. The idea that James Madison’s view of what that phrase meant when it was put in the U.S. Constitution would have come from his experience as a member of the executive in the Virginia government is not far-fetched, shall we say.
The bottom line is, I think that Yoo’s whole account of the executive’s war powers in his book on this subject is entirely tangential. It’s typical of what you get from lawyers when they write about the Constitution. Almost always when lawyers — including law professors — write about the Constitution, they’re just pushing some agenda. They rarely come at things from a neutral position and try to find out what the truth is. Yoo did that essentially in these torture memos. He did that generally when it came to executive authority while a member of the Bush administration. And then he did that in his book. The problem, of course, is that what it amounts to is usurpation. The American president isn’t supposed to be a prince. The policies are supposed to be made by the Congress. The executive is supposed to, I don’t know, execute policy not make it.
Again, I think it had to be facetious for anybody to say that torture only includes kinds of behavior that could lead to death or organ failure. All of those types of mistreatment you and I were talking about a few minutes ago are classic examples of torture. Everybody knows that shoving bamboo under fingernails is torture and it’s not going to cause organ failure or death. Yoo’s idea here, as I said before, I think was just to give a green light to people in the CIA and the military and so on to go out and treat detainees this way. Now, am I saying, “Oh, poor detainees. I’m feeling sorry for Al-Qaeda”? No, I’m not saying that. I live an hour from ground zero. I don’t feel sorry for Al-Qaeda. The problem is, if you think that Al-Qaeda detainees should be subject to being tortured, that’s a matter for Congress to consider.
Mike: That’s exactly — let me jump in here real quick. Two things, number one, that is precisely the point I was hoping you were going to make. My first point is, you were talking about Virginia’s Constitution and early drafts. It’s fascinating to review this and to see that the men that drafted the Virginia Constitution, which was basically the first free constitution drafted by the people who were going to live under their own government in the history of the world, they so distrusted assigning power to an executive — they we relooking at Patrick Henry probably knowing that they were going to elect him the first governor — that they made as a part of the executive clause, they put this thing in there called a privy council just to make sure that he’d have a council to go to and have people to talk him out of being stupid. In the Federal Convention, one of the things that was proposed with the presidency — Edmund Randolph kept saying: I think we ought to have a council. Who’s to say that Randolph wasn’t correct? That’s number one.
Number two, Article I, Section 8 clearly defines three powers that Congress has in war, if not more. There are at least three: “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War (that’s one power), grant Letters of Marque and Reprisal (that’s two); and make Rules concerning Captures on Land and Water (that’s three).” My point in pointing this out, other than my moral objection to torturing people — because I think that if they’ll torture detainees, they’ll find an excuse to torture citizens someday. I don’t think any of us want to go there. My main point in making this is, in Article I, Section 8 — you people that complain about Obama abusing his power, you cannot provide moral and political cover to Bush and Cheney and Rove and the rest of the gang because they told the CIA to do this. If it was going to be done, then Congress should have written a uniform rule: Okay, when you catch them, this is how you have to treat them. If you’re going to interrogate them, this is what you can ask them and this is what passes for treatment. Right or wrong?
Gutzman: That’s exactly right. This is the kind of thing that’s supposed to be decided by the Congress. The reason this is an issue is that we actually have statutes against torturing people. People have been saying these last few days: Of course they tortured them. You have to torture them. Look at the bad things they do. Of course, this assumes that everybody being held was actually Al-Qaeda. We know that at least 23 people —
Mike: Twenty-six now.
Gutzman: — who were being held. There were 26 people being held, including one Australian guy who was held for a decade, who had no connection to Al-Qaeda and were just kind of held by accident. Do you want those people to be tortured? Even if you think torture is apt, it’s not for the president to say: I think torture is appropriate here, so I’m just going to ignore the statute. We’ve had, for weeks and weeks, conservatives complaining that Obama’s tendency is to say: I don’t like the law. I’m going to ignore it. From now on, I’m going to say it means the opposite. I’m going to pretend that it allows me to do things I want to do even though it says I can’t do them. This is exactly what these same people are saying now was okay for Bush and Cheney to do. John Yoo’s memo was all about torture is banned, but we’re going to say that all these kinds of torture aren’t really torture. Again, the bamboo, the rack, the whole thing.[/private]
Guess what, folks? Sometimes if you want the rule of law, it’s going to bite you. It’s not going to bite only the people in the other party. If we’re going to have a rule of law, we have to be willing to be subject to the law. If we control the executive, we have to follow the law even if we don’t like it. Then if we control the legislature, we have to hold the executive accountable. We can’t just say it wouldn’t be politics to defund immigration amnesty. Immigration amnesty is illegal so you can’t be funding it. That’s all there is to it. It’s the same kind of thing.
So what does the Republican Party stand for when it comes to the rule of law? Well, we’re going to torture people if we want to. If we think it might be popular, we’re going to allow immigration amnesty, even though the law says you can’t do this. What difference is there between the Boehner / Jeb Bush wing of the Republican Party on the one hand and the Democratic Party led by Obama on the other hand when it comes to these questions of the rule of law? What difference is there?
End Mike Church Show Transcript