I could almost swear that Glenn Greenwald does not like John Yoo:

The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we're now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does?

That does not mean that I don't realize torture is inevitable in times of war and in dire emergencies; I just don't think any legal precedent should be set which allows it, as that could lead to institutionalized torture.

But what exactly did John Yoo do that makes people consider him the latest Great American Satan? Did he issue any orders to carry out torture? Hardly. Not even his most vehement critics say that. Did he even approve torture? No. He argued as a Justice Department underling that there were no international laws or treaties which would apply to the president's dealing with illegal belligerent enemy detainees. Presumably, this would mean that the president could torture or even kill illegal belligerents if he wanted to. Yoo was either right or wrong in his analysis of whether the treaties were binding, but it's a far cry from the claim that he ordered or approved torture.

If I write a legal memo that it is legal to have sex with small children in country A, does that mean I approve of having sex with children, or that I "authorized" it?

Is the Supreme Court responsible for abortion? I don't think so. I realize that the communitarian view is that we are all responsible for the actions of others, but I think if a woman chooses an abortion, that is her responsibility -- and whether some lawyer or lawyers or judge or judges opine that she should go to jail for it is a separate issue. (I'll leave to others the question of whether performing an abortion on an unanesthetized fetus is a form of torture, lest I completely destroy whatever moral authority I once possessed.)

Greenwald (and many on the left) believe that Yoo is responsible for whatever acts of torture they say went on in Guantanamo or abu Ghraib (presumably including the illegal torture for which soldiers were punished) because of the famous "torture memo" he wrote in 2002. At the time, he was "a mere deputy assistant attorney general in the legal counsel office" (the headline shortened this to "junior aide"), and as such, he had no authority to issue orders to anyone, save his subordinates, his secretaries, and his staff. Obviously, there were a number of superiors in the chain of command -- in both the government and military hierarchy -- between him and whoever ultimately decided that his legal views should influence their thinking or their actions. Whatever Yoo's opinion was used for (and despite the screaming I'm not sure his critics know precisely), it was not because he was in any position to order it; his superiors would have had to adopt and ratify it. So, if we assume Yoo's analysis was incorrect, he bears responsibility for his legal errors, but only to the people who then ratified his work product. He's so far down in the chain of command that he's not even analogous to a clerk of a justice in the Supreme Court who might write a draft opinion which is then circulated and adopted into an opinion of the court.

But would anyone seriously maintain that, say, majority author Harry Blackmun's clerk (whoever that may have been) was responsible for Roe v. Wade, much less the decisions of women and their doctors?

(Yeah, I know. Many communitarians would say he was responsible, because we are all responsible. In fact, many communitarians would hold the secretary who typed Blackmun's clerk's opinion responsible. And the court printing office probably has the blood of the innocent on its presses.....)

Lest anyone think my analogy to the Supreme Court is misplaced, Yoo's opinion has been seriously said to have "approached the level of the notorious Supreme Court decision in the Korematsu v. United States, in 1944, which upheld the government's internment of Japanese-Americans during the Second World War." OK, for the record, I share their disdain for Korematsu, but a mere deputy assistant attorney general in the legal counsel office is simply not analogous to the Supreme Court.

As even Yoo's critics implicitly recognize, his argument was basically a view of presidential jurisdiction, and not a judgment on the advisability of torture:

"The memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority," Mora wrote in his account. Yoo's opinion didn't mention the most important legal precedent defining the balance of power between Congress and the President during wartime, Youngstown Sheet & Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President Truman from forcing the steel worker's union, which had declared a strike, to continue producing steel needed in the Korean War. The Court upheld congressional labor laws protecting the right to strike, and ruled that the President's war powers were at their weakest when they were challenging areas in which Congress had passed legislation. Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified.

In an e-mail response to questions this month, Yoo, who is now back at Berkeley, defended his opinion. "The war on terrorism makes Youngstown more complicated," he said. "The majority opinion explicitly said it was not considering the President's powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States." He also argued that Congress had ceded power to the President in its authorization of military force against the perpetrators of the September 11th attacks.

Mora concluded that Yoo's opinion was "profoundly in error." He wrote that it "was clearly at variance with applicable law." When we spoke, he added, "If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law." A few days after reading Yoo's opinion, he sent an e-mail to Mary Walker, saying that the document was not only "fundamentally in error" but "dangerous," because it had the weight of law. When the Office of Legal Counsel issues an opinion on a policy matter, it typically requires the intervention of the Attorney General or the President to reverse it.

Opinions are always subject to review and reversal, and Yoo's opinion was in fact "reversed" (if even that is the right word) in another opinion (which of course could also be reversed, as it binds no one). To say that these analytical opinions have the "weight of law" is a rhetorical stretch grounded in political considerations.

In any case, Yoo never "authorized" torture; according to his critics, he said that no law barred the president from authorizing it:

Walker wrote back, "I disagree, and I believe D.O.D. G.C."--Haynes, the Pentagon's general counsel--"disagrees."

On February 6th, Mora invited Yoo to his office, in the Pentagon, to discuss the opinion. Mora asked him, "Are you saying the President has the authority to order torture?"

"Yes," Yoo replied.

"I don't think so," Mora said.

"I'm not talking policy," Yoo said. "I'm just talking about the law."

"Well, where are we going to have the policy discussion, then?" Mora asked.

Mora wrote that Yoo replied that he didn't know; maybe, he suggested, it would take place inside the Pentagon, where the defense-policy experts were. (Yoo said that he recalled discussing only how the policy issues should be debated, and where. Torture, he said, was not an option under consideration.)

But Mora knew that there would be no such discussion; as the Administration saw it, the question would be settled by Yoo's opinion. Indeed, Mora soon realized that, under the supervision of Mary Walker, a draft working-group report was being written to conform with Yoo's arguments. Mora wrote in his memo that contributions from the working group "began to be rejected if they did not conform to the OLC"--Office of Legal Counsel--"guidance."

To call him the culprit -- as if he authorized, much less ordered torture -- is not logical. It's an exercise in the absurd, by people looking for a scapegoat. (Yoo's opinion can be read here and here.) What especially seems to bother Yoo's critics is this:

Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.

What makes Greenwald the supreme arbiter of morality, anyway? His former representation of a Nazi leader?

[NOTE: I should have said neo-Nazi leader above, as Greenwald's client was too young to have been a true Nazi in the historical sense.]

But in the very moralistic Greenwald doesn't stop there. In a more recent piece, he attempts moral linkage between Yoo and the "war crimes" (yes I am serious) of bloggers Megan McArdle and Daniel Drezner! Not because they support torture (they don't) but because they remarked the obvious -- that the American people are more interested in reading about Obama than Yoo right now. Greenwald's rant is so over the top that it isn't worthy of serious discussion, but I think Megan McArdle characterizes it pretty well:

Frankly, his assertions sound bizarre, even lunatic, to anyone who has ever met a journalist or a newspaper editor. And the later part of his rant, during which he accuses me and Dan of supporting the media establishment because it is helping us cover up our war crimes, ranges into the kind of frenzied conspiracy-theorizing that I generally associate with Ron Paul's more wild-eyed supporters. You know, the ones who tell you that when the rEVOLution comes, you'll be the first one with your back against the wall. The ones who aren't really arguing with you, but rather using you as a stand-in for everyone they've ever disagreed with, including the kids who made fun of them for wetting their pants in first grade. The ones who are filing their bizarrely capitalized missives from atop the massive stockpiles of canned goods and ammunition they have stored in an abandoned copper mine.

If that's moral derangement, I'm proud to be morally deranged.

Hey, can I be a war criminal too?

Not so fast.

Before anyone starts calling me a war criminal (or even a chicken hawk -- as Justin Raimondo snarked in a comment here), I should state for the record that I would have enlisted in the military, but the guys in the Justice Department never drafted the numerous legal memos which would have had to have been ratified to provide the "weight of law" which might have justified the necessary waivers which might have allowed such a thing. I know it's complicated, but I don't make the legal or moral rules.

Come to think of it, neither does John Yoo. Nor does Glenn Greenwald.

If that sounds like a moral comparison, it was unintentional.

(My apologies to John Yoo.)

MORE: Glenn Reynolds thinks it is mean to criticize "slick, geeky weasels or rancid, asexual cream puffs." And he says leftists get very upset when you talk that way. Fair enough. But I never said that Greenwald was a slick, geeky weasel or a rancid, asexual cream puff. For the record, I don't think he's slick, some of my best friends are geeks, and not only do I like both weasels and cream puffs, I think their moral authority is superior to his.

(The rancid and asexual sock puppets can scream "Don't you know who I am?" all they want.)

UPDATE: In a later post, M. Simon notes that Megan McArdle is being inundated with leftie commenters, which she is. As Simon notes, not only are they wrong, they're trying to wear her down:

In this war which side is known as the torturing side? Which side executes civilians at random as policy? Which side is notorious for using human shields?

So for all the fools screaming Yoo, Yoo, Yoo, Yoo, and Bush too, why no outrage at the random mass murder of civilians as a military tactic?

Because the other side is using a tactic well known. It is: give up or the puppy dies.

And the puppy murderers are the friends of so many of Megan's commenters. Not to mention the leftys in general.