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March 11, 2008

To: Thomas A. Schwartz, President, The Society for Historians of American Foreign Relations

From: Jim O’Brien and Margaret Power, co-chairs, Historians Against the War
jimobrien48@gmail.com and power@iit.edu

Re: SHAFR 2008 Annual Meeting, Second Plenary with Professor John C. Yoo on “Presidential Power and the War on Terrorism.”

Dear Professor Schwartz:

The Steering Committee of Historians Against the War (HAW) feels compelled to express our concern about the invitation extended to Professor John Yoo to the upcoming 2008 SHAFR Annual Meeting. Our concern centers not on Yoo’s political views, but on his having provided advice, while Deputy Assistant Attorney General in the Office of Legal Counsel of the Department of Justice, to the Department of Defense, and thereby to the White House, to evade and violate the law. This message incorporates points made by Steering Committee members in our discussion, with citations where appropriate.

We applaud SHAFR for the diverse range of panels and speakers it has assembled for its 2008 conference, but we agree with and endorse those in SHAFR who have already objected to Yoo. We believe that because Yoo has engaged in the promotion of illegal activities while in government office, he falls outside the bounds of reputable academic discourse.

Specifically, Yoo, while Deputy Assistant Attorney General, co-authored a memorandum on January 9, 2002, with Special Counsel Robert J. Delahunty that purported to address “the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan.” (John Yoo & Robert J. Delahunty, “Memorandum to William J. Haynes, General Counsel, Department of Defense on Application of Treaties and Laws to al Qaeda and Taliban Detainees,” January 9, 2002, available at http://www.texscience.org/reform/torture/.)

The Yoo/Delahunty memo argued that the President was not bound by international laws in the war on terror. The memo stated that “any customary international law of armed conflict in no way binds, as a legal matter, the President or the US Armed Forces concerning the detention or trial of members of al-Qaeda and the Taliban.” (Id.) The memo purported to deny the protections of international laws to detainees and to exempt from liability those who denied such protections.

The memo thus approved and promoted violations by the U.S. of long-standing international laws and treaties.

This memo is also widely viewed as having sparked the abuse and torture of prisoners by members of the U.S. military. According to news reporter Michael Isikoff, “Critics say the memos’ [the Yoo/Delahunty memo, along with several other memos Yoo participated in crafting1] disregard for the United States’ treaty obligations and international law paved the way for the Pentagon to use increasingly aggressive interrogation techniques at Guantanamo Bay – including sleep deprivation, use of forced stress positions and environmental manipulation – that eventually were applied to detainees at the Abu Ghraib prison in Iraq.” (Michael Isikoff, “Double Standards?” Newsweek, May 21, 2004 (updated May 25, 2004), archived at http://www.texscience.org/reform/torture/.)

Scott Horton – an expert on human rights law and the law of armed conflict, a professor at Columbia University School of Law, a commentator for Harper’s Magazine, and a partner at Patterson, Belknap, Webb & Tyler LLP in New York – wrote that “ following the issuance of high-level legal advice [eg., the Yoo/Delahunty and other memos] ... command authorities in Iraq no longer considered the Geneva Conventions to restrain them in their handling of detainees.” (Scott Horton, “The Return of Carl Schmitt,” at http://balkin.blogspot.com/2005/11/return-of-carl-schmitt.html.)

Isikoff wrote: “Kenneth Roth, the executive director of Human Rights Watch, who has examined the memo, described it as a ‘maliciously ideological or deceptive’ document that simply ignored U.S. obligations under multiple international agreements. ‘You can’t pick or choose what laws you’re going to follow,’ said Roth. ‘These political lawyers set the nation on a course that permitted the abusive interrogation techniques’ that have been recently disclosed.” (Id.)

Jordan J. Paust, Professor of International Law at University of Houston Law Center, wrote about the memo: “Yoo and Delahunty knew that their claim [about the application of the Geneva Conventions] was completely contrary to developments in the customary laws of war recognized by the International Court of Justice and the International Criminal Tribunal for Former Yugoslavia, but they thought their reliance on a fifty-three-year-old text and ‘historical context’ was preferable...” (Jordan J. Paust, Beyond the Law: The Bush Administration’s Unlawful Responses in the ‘War’ on Terror, p. 10, Cambridge University Press, 2007.)

Another eminent law professor, Stephen Gillers, at New York University School of Law, noted that: “Explicitly and by omission, then, the lawyers [Yoo and Delahunty] told the government it could treat detainees from Afghanistan as though they existed outside the rule of law.” While the Memo purported to consider the effect of international treaties and federal law on the treatment of detainees from Afghanistan, it “ignore[d] duties imposed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which the United States ratified with reservations in 1994) and the federal torture statute, which creates criminal liability for U.S. nationals who commit torture abroad under color of law.” (Stephen Gillers, “Tortured Reasoning,” at http://www.law.com/jsp/article.jsp?id=1086989271507.) As further explained by Scott Horton, the Yoo and Delahunty memo “is not only wrong, it lays the groundwork for the commission of war crimes.” (Quoted in Gillers article.)

It should be noted that “war crimes” are not just crimes under some vague view of unenforceable international law subject to dispute by civilized nations. Nor are they just crimes under widely accepted international laws; they are also crimes under U.S. federal domestic law. (See War Crimes Act, 18 U.S.C. s.2441 (as amended by the 2005 Military Commissions Act), at http://www.law.cornell.edu/uscode/18/usc_sec_18_00002441----000-.html.)

Mr. Yoo not only laid the groundwork for the commission of war crimes by others, but his “legal advice” was itself a promotion of crime. His memo clearly provided advice on how to break the law and avoid prosecution. His continued endorsement of the views expressed in his memo could be construed as continued promotion of unlawful activities, which could subject him to criminal prosecution. (See Paust, Beyond the Law, p. 20.)

Yoo’s efforts to deny rights to detainees is itself a breach of basic requirements of the 1907 Hague Convention, which states that “it is especially forbidden ... [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” (Laws and Customs of War on Land (Hague IV); October 18, 1907, Art. 23, http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm.) Grave breaches of the Hague or Geneva Conventions constitute war crimes, by definition, under the 1996 War Crimes Act. (War Crimes Act, 18 U.S.C. s.2441, http://www.law.cornell.edu/uscode/18/usc_sec_18_00002441----000-.html.)

Beyond the issue of Yoo’s direct liability for aiding and abetting crimes is the question of whether the Yoo/Delahunty memo has misled other departments or branches of the government. In a November 7, 2005, blog entry, Horton pointedly asked: “Has the Department of Justice been corrupted by its ‘torture memoranda’?” (Scott Horton, “The Return of Carl Schmitt,” at http://balkin.blogspot.com/2005/11/return-of-carl-schmitt.html.) Given subsequent revelations of the Justice Department’s improper “politicization” and firings of U.S. attorneys, the effect of Yoo’s memos seems highly relevant.

Professor Paust, who calls the Yoo/Delahunty memo “manifestly erroneous,” “unprofessional,” and “subversive,” states: “What is particularly disturbing [about the Yoo/Delahunty and other memos and DOJ legal briefs based on them] is the attempt to mislead and abuse the judiciary to further the denial of required rights and protections.” Paust points to at least one instance where a court has been misled. (Paust, Beyond the Law, pp. 19-20.)

In view of this background, it is difficult to understand the decision to make Yoo a featured speaker and possibly to give him an honorarium, presumably from general membership funds.

HAW urges SHAFR to reconsider its invitation, or, at the very least, to ensure that there are other paid panelists who will raise the legitimate issue of Yoo’s promotion of unlawful activities by the U.S. government.

We would welcome the opportunity to discuss this matter further.


Jim O’Brien and Margaret Power

co-chairs, on behalf of the HAW Steering Committee

1. For all the so-called “torture memos” and other “Interrogation Documents,” see http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/.