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The story told by and about Professor John Yoo reveals an unexplainable irrationality on the part of those who should be leading our country to victory against the Islamofascist assault upon Western civilization that some call World War 4 (World War 3 was the Cold War).
To understand this irrationality and the importance of Professor Yoo, we must go back to the 1990s when Osama first began attacking US persons and property, and to al-Qaeda’s attack on the USS Cole (12 October 2000). President Clinton’s response was that these were criminal acts and the US would prosecute the criminals, working in partnership with nations having access to the perpetrators, in order to hunt them down and bring them to justice.
Such an approach to terrorist attacks and asymmetrical warfare stood in sharp contradistinction to the doctrine of “active defense” developed in the Reagan era by George Schultz, which included “active prevention, preemption, retaliation, and deterrence.”
With Clinton’s less aggressive approach, the FBI was dispatched to Yemen and Arabia to hunt down and bring to justice the perpetrators of the USS Cole bombing. Needless to say there was much consternation in the FBI, the State Department and White House when, much to their surprise, Saudi Arabia and Yemen were unwilling to cooperate. Such was the Clinton Doctrine.
After 9/11, President Bush formulated a different doctrine, relating back to Schultz and Reagan, but going farther:
The President adopted a set of principles to guide US policy: first, that serious terrorist attacks should be treated as acts of war, not merely as crimes; second, that states are responsible for terrorism emanating from within their borders; and third, that we must preempt attacks where possible, because of their potentially devastating consequences.
Obama has taken us back to Clinton, and beyond. He has not actually verbalized a doctrine. Rather he has a general style of foreign policy that eschews America’s uniqueness and status as a world power and relies on engagement, negotiation and collaboration. None the less, it seems clear that he has revived Clinton’s doctrine by dismantling the Bush Doctrine. When he proposed the closing of the American detention facility at Guantanamo Bay and the use of American civil courts (instead of military courts) to try Guantanamo detainees, ordered discontinuing the use of the term “Global War on Terror,” prohibited government publications from associating Muslim terrorist attacks with Islam, and delayed substantive response to Iran’s WMD progress by pressing instead for engagement, Obama was reversing the Bush Doctrine and, de facto, giving terrorist prisoners the status of American civilian criminals whose rights and person are protected by our constitution and centuries of social and criminal legislation.
And the status of terrorist prisoners is what Professor Yoo’s story entails.
On Wednesday, May 2, the Ninth Circuit Court of Appeals voted unanimously to reject the Obama doctrine and return to the Bush doctrine. The court dismissed the case against former Bush administration lawyer John Yoo, filed by convicted terrorist Jose Padilla. The case focused on Yoo’s immunity from the lawsuit and the definition of torture, since Padilla claimed that he was tortured while in military detention; and it was Yoo who had argued to the Bush administration that the interrogation techniques used on Padilla did not qualify as torture.
The ruling vindicates the principle that government officials are immune from private litigation for their national-security decisions. The ruling is also a watershed for repudiating sham tort claims whose goal is to intimidate government personnel who deal with terrorists as enemy combatants rather than as common criminals. But even more important, the court’s ruling reinforces the legal definition of enemy combatant as it applies to terrorists; and it is in this legal arena that the ruling reverses Obama.
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