Newly released emails, which were designated “confidential” by the Senate Judiciary Committee but posted online by Sen. Cory Booker (D-NJ), reveal that Supreme Court nominee Brett Kavanaugh lobbied to make John Yoo, the author of the infamous torture memos, a federal appellate judge.
In the first email, dated November 29, 2001, Kavanaugh suggested that Bush nominate Yoo and Jay Bybee, a co-signer of many of the torture memos that Bush eventually did appoint to the federal bench, to vacant seats on the United States Court of Appeals for the Ninth Circuit.
On January 10, 2002, Kavanaugh received an email informing him that Yoo does not want the seat on the Ninth Circuit, and wished to be considered for appointment as CIA general counsel. Kavanaugh responded by suggesting that Yoo is first appointed to the CIA job, and then later nominated to the Ninth Circuit.
As journalist Mike Sacks points out on Twitter, this exchange occurred one day after the date of one of Yoo’s torture memo drafts.
Yoo’s torture memos are widely viewed as one of the worst examples of legal malpractice in American history. Under the United Nations Convention Against Torture, which the United States ratified in 1994, unlawful torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for reasons including “obtaining from him or a third person information or a confession.”
In one of his memos, Yoo said that intentional pain inflicted upon another does not constitute “severe pain and suffering” unless the victim experiences “intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant bodily function would likely result.” Yoo also claimed that the torturer must intend to inflict such a high degree of pain for their actions to violate the Convention.
According to Harold Hongju Koh, a Yale Law professor who served as an Assistant Secretary under President Clinton and as Legal Adviser to the State Department under President Obama, Yoo’s memo “is perhaps the most clearly erroneous legal opinion I have ever read.”