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I Debated a War Criminal

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I Debated a War Criminal
Professor Peter Jan Honigsberg

In September 2005, the Federalist Society at the University of San Francisco School of Law, where I teach, invited me to debate Professor John Yoo of Berkeley Law School on the legitimacy of the term "enemy combatant." Professor Yoo had just written a book promoting his theory of executive power, and the Federalist Society was sending him around the country to promote not only his book, but also the Bush Administration's platform.

Professor Yoo has been in the news this past week as one of the authors of the "torture memos" used to justify the "harsh interrogations" of people captured in the war on terror. While earlier memos were released during the Bush administration, President Obama declassified additional memos last week. In the memos, torture was very narrowly defined as organ failure or death. Anything less was not torture, no matter how cruel or inhumane.

When I arrived in the classroom, Professor Yoo was waiting, as were over 150 people. It was standing room only. Professor Yoo went first.

He was a very smooth speaker. To people in the audience who were not versed in the subject, he sounded eminently reasonable. I realized that his seductive tone was powerful and could trump anything I said if I were not careful in how I presented my case. Professor Yoo argued that enemy combatant was a legitimate term and that the executive had the plenary power as commander in chief to do whatever he needed to prosecute the war. And that included the power to mistreat combatants in any way necessary.

When it was my turn, I explained that enemy combatant was a generic term that had no established meaning, and that the definition was altered frequently to suit the administration's objectives. I described how the term had been used to circumvent the Geneva Conventions and allow the mistreatment, sensory deprivation and torture of detainees. After my talk, we took questions from the audience. Professor Yoo never lost his cool.

When the debate ended, the students invited me to join Professor Yoo and them for lunch. Yoo talked about his work as a clerk for Supreme Court Justice Clarence Thomas. It was at the lunch that I saw another side of John Yoo. He was not quite the same appealing person. Off stage, he boasted about his terribly important role as clerk to the Justice. His hubris peeked through his smooth veneer. I have no doubt that it never crossed his mind that one day his writing of the torture memos might come back to haunt him.

My parents almost died at the hands of the Nazis. They told me stories of those times, and in my youth I often wondered what a war criminal looked like. Meeting John Yoo showed me. I now understand what Hannah Arendt -- one of the leading political theorists of the 20th Century who, as a Jew, fled Nazi Germany -- meant when she wrote on the banality of evil and how unthinking bureaucrats facilitate evil. When you meet him, Yoo appears as a normal and pleasant person, as someone who cares for his family and his dog. However, he will willingly sign a torture warrant when you leave.

Friends said I "won" the debate. But who really cares who won? What I took away from that day debating John Yoo was something much more important and something I will never forget: I had never expected that I would meet the kind of war criminal bureaucrat my parents had spoken about. That day, I did.

Peter Jan Honigsberg's book, Our Nation Unhinged: The Human Consequences of the War on Terror, published by the University of California Press, has just been released.