Yesterday evening UC Berkeley held its annual Constitution Day lecture (this year a part of the Jefferson Memorial Lectures) by Judge Atsushi Wallace Tashima of the US Ninth Circuit Court of Appeals. His topic: The War on Terror and the Rule of Law.
I attended in part because of my past work supporting political asylees, who increasingly since the late 1990's -- as US immigration policies tightened down on provisions for asylees --have had to take their cases to the 9th Circuit Court of Appeals (those who were lucky enough to be on the West Coast). I saw a lot of reasonable decisions by that court, saving the lives of some of my clients. I wanted to see one of the faces of that court. Judge Tashima proved to be an impressive speaker (if soft-spoken--- losing some intensity in the acoustically unfit room at the top of Barrows Hall).
This topic was on my mind after my "Leadership and Social Change" GSPP class earlier in the day. Our assignment was to read about the lack of checks and balances around the infamous "Torture Memo," and another key policy memo supporting harsh treatment of detainees, which (in the reading I learned) were the work of (now) UC Berkeley law professor John Yoo.
Judge Tashima stands in opposition to the current US administration's illegal detention practices at Guantanamo Bay. He knows something about the US history of illegal detentions, having been detained with his family for three years in a Japanese-American internment camp during WW II. He wrote about the connection between his experience and Guantanamo in a 2005 article "Play it Again, Uncle Sam."
At yesterday's lecture Judge Tashima opened by saying that the Bush administration is at war with the rule of law. He listed the grim progression of legal actions taken by the US government to deprive detainees at Guantanamo of any protections under either the Geneva Conventions (being called "unlawful combatants" instead of enemy soldiers) or under the US Constitution (being offshore). Somewhere between 300-500 prisoners are in perpetual legal limbo, where they have been imprisoned for six years, according to Judge Tashima. He made the point that if these are enemies from the battlefield, after six years of wringing information out of them how useful could they be at this point? (I thought- really, their intelligence is six years out of date by now!) At this point there can be no good argument, in his view, of denying these prisoners their day in court. Judge Tashima ended on a hopeful note, saying that he it may soon become politically expedient for the US Congress to take up the cause of the detainees. Even though the Japanese-American detainees only got an apology 40 years after the fact, still, there was an apology: maybe this time it will come sooner.
When confronted with a question about how students could get Professor John Yoo, one of the authors of the "Torture Memo," arrested for crimes against humanity, Judge Tashima said that he would challenge the ideas of the man who wrote that memo (someone he has never met), but it is not up to the students to render a judgment on whether the man is a criminal or not.
Want to learn more about the lack of checks and balances around the "Torture Memo"? Read "The Memo" by Jane Mayer, The New Yorker, 27 Feb. 2006. (Our class reading assignment, a fine piece of investigative reporting.)
Here is an excerpt from that article: (US Navy General Counsel Alberto J. Mora on reading a key opinion by John Yoo)
- [The opinion] 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. ... Yoo believed that the President's role as Commander-in-Chief gave him virtually unlimited authority to decide whether America should respond militarily to a terror attack, and, if so, what kind of force to use. ... In Yoo's opinion, he wrote that at Guantanamo cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.
