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A double standard on war crimes?

The liberal line on anti-terrorism measures has changed now that their guy is in the White House

By Alex Beam
Globe Columnist / November 4, 2011

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John Yoo is famous, although probably not for the reasons he would like. As the author of the notorious 2003 “torture memo’’ that authorized American forces to waterboard enemy combatants, the University of California law professor earned himself a special place in liberal hell.

I’ll spare you the heavy breathing from the central press and public radio, and cut directly to a statement issued by Marjorie Cohn, president of the National Lawyers Guild: “John Yoo’s complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act. John Yoo should be disbarred and he should not be retained as a professor of law at one of the country’s premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.’’

OK. So if Yoo is a war criminal, then please explain the status of Harvard Law School professor David Barron and Georgetown University law professor Martin Lederman.

According to New York Times reporter Charlie Savage, it was Barron and Lederman who drafted the secret memo that enabled the Obama administration to kill Al Qaeda chieftain Anwar al-Awlaki in Yemen. Why did the Obamaites need special legal cover to assassinate super-bad guy al-Awlaki? Because he was an American citizen, born in New Mexico. (A second US citizen was killed by the same drone attack.) The targeted killing of an American citizen, Savage writes, flies in the face of “an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights, and various strictures of the international laws of war, according to people familiar with the analysis.’’

Oh, those.

So, which is the greater crime against the Constitution that all three men swore to uphold? Waterboarding Al Qaeda suspects or killing US citizens? Yoo has been vilified from Marin County to Munich for his legal opinion. If the Obama lawyers are facing job loss or tenure revocation, I haven’t heard about it. This is not a subject they care to discuss.

Two points. First, I’m all for waterboarding Al Qaeda bad guys, and the disappearance of al-Awlaki and his ilk by whatever means necessary bothers me not a whit. My interest in the civil rights of Arab terrorists took a dive when a bunch of them passed a knife across journalist Daniel Pearl’s neck. Second, you’ve got to be pretty naive if you’re plotting your life course according to the moral compass of lawyers, regardless of their stellar pedigrees. If you’re former deputy attorney general Eric Holder and you need to dream up a reason for Bill Clinton to pardon megacrook Marc Rich, you find one. If you work for current attorney general Holder, as Barron and Lederman did, and you need to gin up a rationalization for killing a US citizen overseas, you do it.

These are men whose allegiance is ruled by expedience. In 2008, Barron and Lederman were whining that “the Bush Administration has claimed the constitutional power to defy a number of extant statutory restrictions on executive war powers that would otherwise cabin [cramp, confine] the Commander in Chief’s discretion.’’ Once inside Obama’s Department of Justice, they changed their tune. Statutory restrictions? What statutory restrictions?

In an e-mail, Yoo calls the killing of al-Awlaki “legal and appropriate.’’ And he recognizes the asymmetrical reaction to his work, and to the Obamaites: “This shows how much of the opposition to the Bush war on terror was really about petty partisan politics. Killing an American citizen with a drone missile without any effort to arrest him and without any imminent threat of attack on the US seems to me a far worse deprivation of civil liberties than waterboarding three undisputed top Al Qaeda leaders. . . . If critics were principled, they would be filing lawsuits, protesting, demanding their firing, investigations. . . .’’

I’m ceding the last word to Mary Ellen O’Connell, professor of international law at Notre Dame, who has written extensively on these subjects. She’s dismissive of Yoo’s work for Bush, which she calls “absurd.’’

“I do think the two cases call for a different level of criticism,’’ she says. “Isn’t killing worse than torture? Even if the arguments to support torture are weaker arguments, it seems to me that the US should err on the side of the strictest compliance of the law when it comes to taking somebody’s life.’’

Where is the outrage, I asked? It won’t come from the right, she pointed out, “because the policies that Obama is pursuing are basically the same policies that Bush pursued.’’ So where are the principled men and women of the left? “Some of the people who criticized Yoo and his colleagues are in the administration,’’ she answered. “Marty Lederman was a critic of John Yoo, and now he’s writing the memos. So he’s not going to criticize himself.’’

Alex Beam is a Globe columnist. His e-dress is beam@globe.com.