UC Berkeley tenured law professor John Yoo epitomizes the failure of the conservative movement in America. Known as "the torture professor," Yoo penned the Department of Justice (sic) memos that gave a blank check to sadistic Americans to torture detainees at Guantanamo and Abu Ghraib. The human rights violations that John Yoo sanctioned destroyed America’s reputation and exposed the Bush Regime as more inhumane than the Muslim terrorists. The acts that Yoo justified are felonies under US law and war crimes under the Nuremberg standard.
Yoo’s torture memos are so devoid of legal basis that his close friend and fellow conservative member of the Federalist Society, Jack Goldsmith, rescinded the memos when he was appointed head of the Justice Department’s Office of Legal Counsel.
Yoo’s extremely shoddy legal work and the fervor with which he served the evil intentions of the Bush Regime have led to calls from distinguished legal scholars for Yoo’s dismissal from Berkeley’s Boalt Hall.
I sympathize with the calls for Yoo’s dismissal. In the new edition of The Tyranny of Good Intentions, my coauthor and I write: "Liberty has no future in America if law schools provide legitimacy to those who would subvert the US Constitution."
However, John Yoo is but the tip of the iceberg. Scapegoating Yoo diverts attention from a neoconservative movement that has become the greatest enemy of the US Constitution.
In theory conservatives adore the Constitution and seek to protect it with appeals to "original intent." In practice conservatives hate the Constitution as the protector of homosexuals and abortionists. Conservatives regard civil liberties as coddling devices for criminals and terrorists. They see the First Amendment as a foolish protection for sedition. The neoconservative magazine, Commentary, has called for the New York Times to be prosecuted for informing Americans that President Bush was illegally spying on them without warrants.
The conservative assault on the US Constitution is deeply entrenched. The Federalist Society, an organization of Republican attorneys from which the Republican Party chooses its Justice Department appointees and nominees to the federal bench, was organized as an assault on the checks and balances in the Constitution.
The battle cry of the Federalist Society is "energy in the executive." The society has its origin in Republican frustrations from the days when Republicans had a "lock on the presidency," but had their agenda blocked by a Democratic Congress. The Federalist Society set about producing rationales for elevating the powers of the executive in order to evade the checks and balances the Founding Fathers wrote into the political system.
With the Bush Regime we have seen President Nixon’s claim that "it’s not illegal if the President does it" carried to new heights. With the complicity of Democrats, Bush and Cheney have appointed attorneys general who have elevated the presidency above the law.
Just as liberals used judicial activism in the federal courts to achieve their agenda, the conservatives are using the Department of Justice to concentrate power in the executive branch in order to achieve their agenda. In America the Constitution has no friends. It is always in the way of one agenda or the other and, thus, always under threat.
For now, however, the threat is from the right. Conservatives have confused loyalty to country, which is loyalty to the Constitution, with loyalty to the Bush Regime. It is purely a partisan loyalty based in emotion — "you are with us or against us."
When I was a young man conservatives were frustrated that facts, reason and analysis could not penetrate liberal emotion. Today facts, reason and analysis cannot penetrate conservative emotions. When I write a factual column describing how we have been deceived into wars that are clearly not in our interest, self-described conservatives indignantly write to me: "If you hate America so much, why don’t you move to Cuba!" Conservatives have become so intellectually pathetic that they regard my defense of civil liberties as an anti-American act.
John Yoo was a willing accomplice of inhumane and illegal acts. But his greatest crime is that he was a willing participant in the Bush Regime’s assault on the Constitution, which protects us all. If Yoo is to be held accountable, what about George W. Bush, Dick Cheney and his aides, attorneys general Gonzales and Mukasey, Yoo’s Justice Department boss, now federal judge Bybee, Rumsfeld, Rice, Hadley, and the legion of neocon brownshirts that comprise the regime’s subcabinet? Is Yoo any more culpable than anyone else who served the corrupt, evil, and anti-American Bush Regime?
The ease with which the Bush Regime has run roughshod over the law and Constitution indicates that the brownshirt mentality to which many Americans have succumbed has sufficient attractive power to cause a professor from one of the country’s great liberal institutions to serve the cause of tyranny. The conservative movement has produced a cadre of brownshirts that might yet succeed in destroying the American Constitution.