Rich Gibson wrote:

As before, I will of course go along with the collective's decision, but as my initial response to the Yoo invitation would predict, I don't agree with this letter to the leadership of SHAFR. 

I repeat I am not a member of SAHFR, won't be in Columbus, and I know I have been mistaken about things in the past, so I do not hold high ground, but I do hold some.

My concerns DO center on his political views, which created his legal positions, which then caused him to take actions that make him a fascist war criminal. I do not use any of those words loosely. I know what they mean.

I DO want to silence him because of his political views, just as I would want to silence any notorious racist.  I know what Yoo is. I don't want to ask him about it. I don't want to raise "legitimate questions" about Yoo. I want his appearance stopped. If it happens, then I want to create oppositional conditions where we can offer other people a real analysis of our current conditions, what strategies we might take up, and what tactics might work---not a legal analysis of why his views on the law are not good.

I agree his invitation stands outside good academic discourse. Why, then, would we want to debate him?

I do object to Yoo because, mainly, he is an architect of the imperialist wars which the US ruling classes are using to protect their narrow interests about oil and regional control at home and around the world. I oppose that, not because it is illegal, but because it is not in the interest of the mass of people in the US and around the world. I oppose him because he personifies a social system that stands failed for all to see. That he is one of a band of criminals is secondary to me. Why those wars happened, and had to happen, is far more important to explain.

What is it that people learn from this letter? Well, it is always hard to project what people learn from anything, but it appears to me that we are placing a great deal of unwarranted faith in the law, breaking it, and not attacking Yoo for what he should be attacked for.

I have been a lawbreaker and I urge others to break the law all the time. Rejecting the Marine's draft was breaking the law and put me in jail. Breaking anti-strike laws put me in jail. Seizing welfare offices against welfare cuts was breaking the law and put me in jail. Fighting cops on school worker picket lines put me in jail. Fighting UAW goons on the Detroit newspaper strike that they tried to break was against the law and put me in jail. Sitting in front of the White House driveway when Bush the first did the initial invasion put me in jail. I have been jailed repeatedly for doing illegal things, often while a government employee, although, under appeals, I remain un-convicted (which means I do like some lawyers).

However, right now, I am urging teachers to engage in illegal strike activity, to seize buildings, drive the military recruiters off their campuses. We know that, really, the only illegal strike is one that fails.

One of  my closest friends is a convicted felon. SAHFR would have far more to learn from him than John Yoo.

I don't think we should offer anyone to debate Yoo. We should seek to stop his appearance and, failing that ,disrupt it if possible. We should treat him not as some kind of respectable opponent but a life and death enemy who is more than willing to spill blood to defend his position.

If our only case against him is that he violated the law (for which he is not charged and, in my Casandra eyes he never will be charged) while a government official, would we say that Daniel Elllsberg might be an iffy presenter to SHAFR.? As far as I am concerned, Daniel did violate the law, and good for him. Military awols violate the law, as do mutineers. Good for them. The more the better.

The point is that Yoo is on the wrong side.

Is it because we tactically do not want to offend SHAFR's leadership too much that we focus so much on the law? Does that not set us up for being unable to broaden this argument later? Do we estimate that the people who invited Yoo in the first place, surely knowing who he is, deserve that much respect?

Has the left abandoned our critique of capitalist democracy, even today, when its partisan nature is ever more apparent, an executive committee and armed weapon of the rich which shields itself with laws that serve its interests, and that abolishes those laws or violates them whenever the law truly stands in the way of those interests---though which can be influenced by mass action? The law is a method of class rule. That critique, which I would want people to understand and act on, is not here.

When is it proper to say, "capitalism"?

What other pedagogical lesson is built into this request to SHAFR? Well, it appears to me that another main message is that when faced with people like Yoo, the main thing to do is get a lawyer.

But, really, getting a lawyer is not going to do a lot of good now. Who thinks filing a brief is going to change the minds on the Supreme Court? As far as I know, most labor and civil rights laws are long evaporated. The avenue to win a restoration of those laws, or concessions from elites, is a mass of people fighting for that. Such a notion does not appear here, as  far as I can see, it rarely appears anywhere.

The notion that we are responsible for our histories, if not our birthrights, and that we can make change, collectively, through our own action, is not here except in the premise that HAW writing this letter will change the SHAFR mind. The idea that nobody is going to save us but the collective us is key to make in a society steeped in the thousand kinds of selfishness that make class rule possible. We need to show people that resistance groups like HAW or the Rouge Forum or whoever can offer them a chance to be whole, creative, caring, and more effective---that they can comprehend and change their lives through it.

From what I hear, there are community groups already planning to protest Yoo. In this case, again from second hand information, he will be appearing in public space within Ohio State, not the private space that is the University of San Diego, which opens up more possibilities. We should work with those groups and try to make that protest powerful, adding our knowledge of the historical appearance of fascism to the work they do, making both sides more powerful. I hope this letter is just a prelude for HAW doing that.

I am troubled by the dispassionate, detached tone of the letter. Part of changing peoples minds is reinvigorating passion (which this system cannot stand, other than to sell it), connecting that to reason and that to power, criticizing along the way. The letter reads like a brief. Perhaps that will appeal to the leadership of the SHAFR, and if that is our only audience, then fine, but I think our audience is everyone else that we want to read it. I am not too concerned about the impression we give to people who invite John Yoo to speak to them. I would want this letter to be more a piece of public agitation.

My usual disclaimer: if this somehow violates the Patriot Act, or any related law, I did not write it. If I did write it, I did not mean it. If I did mean it, they made me do it under terrible duress. 

I am aware that this letter to SHAFR took a lot of work from people who, despite my quarrels, are doing all they can to bring a more equitable and just world. I surely appreciate that. And if most people choose otherwise, I will go along with the group in good cheer.

Below is the flyer the Rouge Forum and others distributed at Yoo's San Diego appearance. I understand it is not representative of what HAW would want to do, just offer it as a piece of what we did---while surrounded by cops, private goons, and government lawyers.

All the best, r

At 01:58 PM 3/7/2008, you wrote:

Below please find the final version of the proposed HAW letter to SHAFR on Yoo.  The draft went through edits by Staughton, Rusti, and Beth, most of which I incorporated.  I added some additional material in the final version and trimmed down some of the earlier language.  JVB

Historians Against the War
PO Box 442154
Somerville, MA 02144

The Society for Historians of American Foreign Relations
Thomas A. Schwartz, President
Via Email: thomas.a.schwartz@Vanderbilt.Edu

Re: SHAFR 2008 Annual Meeting, Second Plenary with Professor John C. Yoo on “Presidential Power and the War on Terrorism.”

March 5, 2008

Dear Professor Schwartz:

The Steering Committee and membership of Historians Against the War (HAW) feel compelled to express our concern about the invitation to Professor John Yoo to the upcoming 2008 SHAFR Annual Meeting. Our concern centers not on Yoo's political views, but on his having provided advice, while Deputy Assistant Attorney General in the Office of Legal Counsel of the Department of Justice, to the Department of Defense, and thereby to the White House, to evade and violate the law.

We applaud SHAFR for the diverse range of panels and speakers it has assembled for its 2008 conference. However, we believe that Yoo, because he has engaged in the promotion of illegal activities while in government office, falls outside the bounds of reputable academic discourse.

Specifically, Professor Yoo co-authored a memorandum on January 9, 2002 with Special Counsel Robert J. Delahunty that purported to address “the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan.” (John Yoo & Robert J. Delahunty, “Memorandum to William J. Haynes, General Counsel, Department of Defense on Application of Treaties and Laws to al Qaeda and Taliban Detainees,” January 9, 2002, available at

The Yoo/Delahunty memo argued that the President was not bound by international laws in the war on terror. The memo stated that “any customary international law of armed conflict in no way binds, as a legal matter, the President or the US Armed Forces concerning the detention or trial of members of al-Qaeda and the Taliban.” (Id.) Thus, the memo approved and promoted violations by the U.S. of long-standing international laws and treaties.

This memo is also widely viewed as having sparked the abuse and torture of prisoners by members of the U.S. military. According to news reporter Michael Isikoff, “Critics say the memos' disregard for the United States' treaty obligations and international law paved the way for the Pentagon to use increasingly aggressive interrogation techniques at Guantanamo Bay -- including sleep deprivation, use of forced stress positions and environmental manipulation -- that eventually were applied to detainees at the Abu Ghraib prison in Iraq.” (Michael Isikoff, “Double Standards? A Justice Department memo proposes that the United States hold others accountable for international laws on detainees--but that Washington did not have to follow them itself,” Newsweek, May 21, 2004 (updated May 25, 2004), archived at

Isikoff wrote: “Kenneth Roth, the executive director of Human Rights Watch, who has examined the memo, described it as a 'maliciously ideological or deceptive' document that simply ignored U.S. obligations under multiple international agreements. 'You can't pick or choose what laws you're going to follow,' said Roth. 'These political lawyers set the nation on a course that permitted the abusive interrogation techniques' that have been recently disclosed.” (Id.)

Jordan J. Paust, Professor of International Law at University of Houston Law Center wrote about the memo: “Yoo and Delahunty knew that their claim [about the application of the Geneva Conventions] was completely contrary to developments in the customary laws of war recognized by the International Court of Justice and the International Criminal Tribunal for Former Yugoslavia, but they thought their reliance on a fifty-three-year-old text and 'historical context' was preferable...” (Jordan J. Paust, Beyond the Law: The Bush Administration's Unlawful Responses in the 'War' on Terror, p. 10, Cambridge University Press, 2007. )

Another eminent law professor, Stephen Gillers, at New York University School of Law noted that: “Explicitly and by omission, then, the lawyers [Yoo and Delahunty] told the government it could treat detainees from Afghanistan as though they existed outside the rule of law.” While the Memo purported to consider the effect of international treaties and federal law on the treatment of detainees from Afghanistan, it “ignore[d] duties imposed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which the United States ratified with reservations in 1994) and the federal torture statute, which creates criminal liability for U.S. nationals who commit torture abroad under color of law.” (Stephen Gillers, “Tortured Reasoning,” at As further explained by Scott Horton, president of the International League for Human Rights, the Yoo and Delahunty memo “is not only wrong, it lays the groundwork for the commission of war crimes.,” (Quoted in Gillers article.)

It should be noted that “war crimes” are not just crimes under some vague view of unenforceable international law subject to dispute by civilized nations. Nor are they just crimes under accepted international laws; they are also crimes under U.S. federal domestic law. (See, War Crimes Act, 18 U.S.C. s.2441 (as amended by the 2005 Military Commissions Act), at .)

Mr. Yoo not only laid the groundwork for the commission of war crimes by others, but his “legal advice” was itself a promotion of crime. His memo clearly provided advice on how to break the law and avoid prosecution. His continued endorsement of the views expressed in his memo could be construed as continued promotion of unlawful activities, which could subject him to criminal prosecution.

Yoo's efforts to exempt U.S. officials and soldiers from liability for interrogations is itself a breach of basic requirements of the 1907 Hague Convention, which states that “it is especially forbidden ... [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” (Laws and Customs of War on Land (Hague IV); October 18, 1907, Art. 23, Grave breaches of the Hague or Geneva Conventions constitutes war crimes, by definition, under the 1996 War Crimes Act. (War Crimes Act, 18 U.S.C. s.2441, .)

Beyond the issue of Yoo's direct liability for aiding and abetting crimes is the question whether the Yoo/Delahunty memo has misled other departments or branches of the government. In November 7, 2005 blog entry, Horton raises the question: “Has the Department of Justice been corrupted by its 'torture memoranda'?” and notes that “ following the issuance of high-level legal advice [eg., the Yoo/Delahunty and other memos] ... command authorities in Iraq no longer considered the Geneva Conventions to restrain them in their handling of detainees.” (Scott Horton, “The Return of Carl Schmitt,” at .) Professor Paust points out: “What is particularly disturbing is the attempt to mislead and abuse the judiciary to further the denial of required rights and protections.” Paust points to at least one instance where a court has been misled. (Paust, Beyond the Law, p. 19.)

In view of this background, it is difficult to understand the SHAFR decision to make Mr. Yoo a featured speaker and possibly to give him an honorarium, presumably from general membership funds. HAW urges SHAFR to reconsider its invitation, or, at the very least, to ensure that there are other paid panelists who can provide some balance by raising legitimate questions about Yoo's views, including the important question of whether the Yoo/Delahunty memo in fact promoted unlawful activities by the U.S. government..

We will be happy to discuss this matter further.