John Yoo, law professor and notorious former Deputy Attorney General in Office of Legal Counsel (“OLC”), is a sleazebag attorney. As the Bush Administration’s de facto head of war-on-terrorism legal issues, Yoo penned a series of memoranda that legally justified torture at places like Guantanamo Bay. Because of his unconscionable advice, some liberal commentators have proclaimed that Yoo himself should be criminally prosecuted and locked up in prison. I disagree. Though, in my humble opinion, Yoo can go fumigate himself, I still do not advocate prison time as punishment for his sins.
Don’t get me wrong. In politics, I lean left and believe wholeheartedly in human rights. I therefore detest Yoo’s OLC opinions. I do not defend, for example, his view that inflicting pain during interrogation is perfectly legal up until the point where the physical pain is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Though dressed up as legal analysis, this garbage really mocks the rule of law. So why am I against criminal prosecution and incarceration?
The first reason is ideological consistency. Last week, I argued here that defense attorney Lynne Stewart should not be imprisoned for her zealous advocacy on behalf of her unpopular client, Sheikh Rahman. Though distinctions can be made, I still regard Yoo’s misbehavior as essentially arising from zealotry while representing a despicable client – the Bush administration. So if you support Stewart’s prosecution, I believe fairness demands that you also should support Yoo’s prosecution. On the other hand, I recognize that what’s good for the goose is good for the gander. Since I advocate leniency for Stewart, calling for Yoo’s head on a platter would strike me as hypocritical.
Beyond consistency, my opposition to prison time for Yoo stems from a deeper commitment to fight mass incarceration. I believe that our current prison and jail population of 2.3 million stands as a great moral outrage that shames our “Land of the Free.” To effectively fight this beast, I urge liberal-minded folks to resist siren calls to lock up “bad people” whenever possible. This is not easy to do; some people – say, those who justify torture or advocate hate – clearly deserve punishment. But to change society’s general mindset about prison, we must lead by example in rejecting its usefulness in all but the most grave criminal circumstances.
For Yoo then, I would advocate seeking more poetic justice. Perhaps we should dock his pay and divert it to Human Rights Watch’s work against torture. Perhaps Change.org readers have even more creative ideas. No matter what, we should think outside of the (prison) box.
Photo: aroddick