Editore"s Note
Tilting at Windmills

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April 2, 2008
By: Kevin Drum

THE TORTURE MEMO....The infamous John Yoo torture memo has finally been released, and it's pretty remarkable. (Part 1; Part 2.) Basically, it says that criminal law doesn't prohibit torture because it doesn't apply to the military. Treaties don't prohibit torture because they only apply to uniformed enemy soldiers. Ditto for the War Crimes Act. And federal statutes prohibiting torture don't prohibit torture because they don't apply to conduct on military bases.

We already pretty much knew that this was what the memo said. But Yoo doesn't stop there. Not only do none of these things apply, but there's no way to make them apply even if we wanted to:

Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President....Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

And the Convention Against Torture? If the president orders someone to be tortured, that automatically suspends CAT:

Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.

And this:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

So that's that. Basically, the president can authorize any action at all as commander-in-chief in wartime. Congress can't bind him, treaties can't bind him, and the courts can't bind him. The scope of power the memos suggest is, almost literally, absolute. And since this is a war without end, the grant of power is also without end.

As we all know, this memo was eventually rescinded. So in a sense it's moot. But Marty Lederman asks a good question: now that we know what was in the memo, what justification was there for classifying it in the first place? It wouldn't have been moot in 2003, and there was nothing in it that compromised national security either then or now. The only thing it compromised was the president's desire not to have to defend his own policies — policies that led directly to the abuses at Abu Ghraib, among others.

Kevin Drum 2:28 AM Permalink | Trackbacks | Comments (78)

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This asshole needs to be disbarred, not teaching at one of the most prestigious schools in the country. UUUUUuuggggghhhhhh....

Posted by: Tom on April 2, 2008 at 2:36 AM | PERMALINK

This is the Republican authoritarian mindset, spelled out and made explicit. Al Qaeda and UBL aren't the U.S. constitution's greatest enemies.

No one who had anything to do with creating these memos ought to be allowed to have any position of any kind with the federal government.

Posted by: jimBOB on April 2, 2008 at 2:39 AM | PERMALINK

Is this any surprise? The reason for secrecy is often to prevent the American people from knowing what's going on. Consider the "secret bombings" of Cambodia. To whom were they secret? Given that they killed about a half million people, it obviously wasn't secret to anyone in Cambodia. China most have known because they had significant involvement there. Vietnam obviously knew because they rerouted the Ho Chi Minh trail countless times to avoid the bombing. No doubt they told their Soviet advisers, so the Soviets must have known. It's only slightly possible that the Lao didn't know, but only because they were being bombed as well, and communications might have been difficult. But even that's unlikely. So all our enemies were aware of the bombings. And Thailand was certainly aware of it because the airstrikes were launched from there. So from whom were we keeping the information? Finland? Or did they just not want to have Congress and the American people knowing about it? Whenever secrecy increases, there's only one reason why: the American people must be prevented from knowing what our enemies already know.

Posted by: fostert on April 2, 2008 at 2:42 AM | PERMALINK

Couple that with Mukasey's continued insistence that anything any of his aides discuss is privileged information (apparently even if what they discuss involves actions which violate the law and the Constitution) and his defense of wiretapping without warrants and renditions without habeas corpus and we're not all that much different than the folks who routinely arrested, intimidated and imprisoned people like Andre Sakarov and Alexander Solzyneitzen. They called their prison system a gulag (a vast series of secret islands hidden from the world where torture and mistreatment could be undertaken away from the eyes of "good citizens.")

And we're different from that system how?

Posted by: dweb on April 2, 2008 at 2:44 AM | PERMALINK

And the real joke?

Only Congress has the power to declare war, according to Article One, Section Eight of the Constitution.

And as war has not been declared, the entire exercise in justifying what the founders would recognize as tyranny is based on deception.

Again - the United States is not in a state of war, which means that the commander in chief does not have any war time powers.

But so what? Americans are still engaged in torturing people (some innocent, some guilty) in secret prisons, and the legality of their actions is no longer important, apparently.

The latest lie being that torture did occur, for a few months, long ago in the past.

Why bother with the lies? The U.S. is actively engaged in torturing people, and quite honestly, no longer cares whether that torture is legal or illegal. As noted earlier in the reign of the Bush Administration, they are creating a new reality, one where other concepts can simply be dismissed. At least in this case, they were absolutely right - America is now known worldwide as the country with its own proudly maintained facilities for torturing anyone that the American government feels should be tortured.

Posted by: not_scottbot on April 2, 2008 at 2:50 AM | PERMALINK

And this guy (sic) John Yoo, is teaching at Berkeley? Someone remind me again why Berkeley is considered a liberal university/town? I'd hate to find out what kind of law professors they have at a right wing school.

Posted by: ppk on April 2, 2008 at 2:53 AM | PERMALINK

what justification was there for classifying it in the first place?

During time of war, the president's classification decisions cannot be questioned or reviewed.

Posted by: jayackroyd on April 2, 2008 at 6:21 AM | PERMALINK

Only Congress has the power to declare war, according to Article One, Section Eight of the Constitution.

Yoo's position is that power is not the power to initiate a war, but to recognize the existence of a war that has already started. It's a diplomatic and formal power rather than the actual authority to start engaging to the US in armed conflict.

This is actually a not so subtle upping of presidential powers. Previously in the 20th century, wars like Vietnam and Korea were not called "wars" but "conflicts" or "actions" so as to not run afoul of the Congressional warmaking power. Yoo's assertion, in his book, takes this power away completely. In the past, such a memo would not have so boldly called an undeclared war a "war."

Posted by: jayackroyd on April 2, 2008 at 6:26 AM | PERMALINK

Uh, what more evidence do the Democrats in Congress need to file Articles of Impeachment against this reptile???

Posted by: The Conservative Deflator on April 2, 2008 at 6:40 AM | PERMALINK

Isn't the attempt by a government to cover up evidence of its war crimes also in itself (the cover-up) a war crime?

Next year in The Hague!

Posted by: Leila Abu-Saba on April 2, 2008 at 7:01 AM | PERMALINK

I suggest the first act of President Obama/Clinton be to torture John Yoo.

Posted by: matt on April 2, 2008 at 7:06 AM | PERMALINK

Uninteresting.

Posted by: garyb50 on April 2, 2008 at 7:12 AM | PERMALINK

Here's a snippet that will set your teeth on edge as you drink your morning coffee and try to wake up:

Dobson and probably most of the Republican evangelists are holding off supporting John McCain because he hasn't been pro-torture enough.

From the WSJ [McCain Has Yet to Win Over Key Conservatives] today:

James Dobson, founder of Focus on the Family, once said he would stay home rather than vote for Sen. McCain. He has softened his tone, but he has yet to warm to the Arizona senator.
Mr. Dobson took issue with a litany of Sen. McCain's positions, including support for embryonic-stem-cell research and opposition to a Constitutional amendment to ban same-sex marriage. Those stances, plus Sen. McCain's discussion of global warming and his push to outlaw torture and shut down the U.S. prison in Guantanamo Bay, Cuba, have "frustrated" conservatives "whom McCain seems to have written off," Mr. Dobson said.

Posted by: Jan in Stone Mtn on April 2, 2008 at 7:43 AM | PERMALINK

So the President can decide there's already a war going on, and once he does, his powers are unlimited and unlimitable? Sounds like Joe Stalin's wet dream to me.

By this action, conservatives, the Republican party, the right in all of its metastases and all of its supporters forfeits the right to call themselves American. There's nothing American about a totalitarian dictatorship.

Posted by: CN on April 2, 2008 at 7:49 AM | PERMALINK

Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President....

Sole vesting of the Commander-in-Chief authority in the President precluding Congressional regulation?

The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval Forces . . .

What part of Art. I, Sec. 8 do you not understand, Prof. Yoo?

Posted by: rea on April 2, 2008 at 8:15 AM | PERMALINK

Whatever happened to article 1, section 8 that gives congress the right to "make Rules concerning Captures on Land and Water"?

Posted by: exgop on April 2, 2008 at 8:31 AM | PERMALINK

Follwing the Yoo Doctrine, would President Bush really be required to leave office in January 2008?" After all, if he felt that his duties as Commander in Chief required his continuation in power, wouldn't that trump a mere article of the Constitution?

PS: I'm not a lawyer, so maybe I'm wrong, but isn't the legal reasoning in that memo basically just a lot of crap?

Posted by: Paul Gottlieb on April 2, 2008 at 8:32 AM | PERMALINK

Sounds like impeachment is congress' only recourse, according to Yoo. Let's do it!

Posted by: annon on April 2, 2008 at 8:32 AM | PERMALINK

Judging by the third grade clubhouse-logic, I'd be suspicious that 1) their fingers were crossed when they rescinded it and 2) there exists a new secret memo identical to the last with a few bloody thumb prints at the bottom.

Posted by: B on April 2, 2008 at 8:58 AM | PERMALINK

It's truly nauseating and mind-bending stuff. How this guy continues to be an attorney is beyond me. And how they were allowed to get away with it all is also beyond me. Reading the Post article this morning has ruined my whole day.

Please Kevin. In light of this, I'm literally begging you: Please don't post about the Maureen Dowd colum today where she AGAIN writes about how feminine Obama is. I just can't freaking handle it. That woman is a total crackpot. Please.

Posted by: Pat on April 2, 2008 at 9:03 AM | PERMALINK

Is there ever going to be a penalty for classifying to avoid potential legal oversight or avoid embarrassment?

Posted by: B on April 2, 2008 at 9:11 AM | PERMALINK

"These principles of community for the University of California, Berkeley, are rooted in our mission of teaching, research and public service. They reflect our passion for critical inquiry, debate, discovery and innovation, and our deep commitment to contributing to a better world. Every member of the UC Berkeley community has a role in sustaining a safe, caring and humane environment in which these values can thrive.
We place honesty and integrity in our teaching, learning, research and administration at the highest level.
We recognize the intrinsic relationship between diversity and excellence in all our endeavors.
We affirm the dignity of all individuals and strive to uphold a just community in which discrimination and hate are not tolerated.
We are committed to ensuring freedom of expression and dialogue that elicits the full
spectrum of views held by our varied communities.
We respect the differences as well as the commonalities that bring us together and call for civility and respect in our personal interactions.
We believe that active participation and leadership in addressing the most pressing issues facing our local and global communities are central to our educational mission.
We embrace open and equitable access to opportunities for learning and development as our obligation and goal."

I fail to understand how this institution's alumni and faculty still do not call for Yoo's ouster. The man would likely be considered a war criminal in every civilized society, yet he is allowed to influence the young at a school that professes the above principles. Shame on you, Berkeley Nation.

Posted by: bubba on April 2, 2008 at 9:37 AM | PERMALINK

Well, when the president does it that means that it is not illegal.

Posted by: Jeffrey Davis on April 2, 2008 at 9:37 AM | PERMALINK

Yoo stopped reading the Constitution after Article I. If he had kept reading, he might have noticed that all those powers that he thought the Constitution implicitly gave to the President were instead explicitly given to Congress.

No wonder he's a law professor(not to impugn all law professors by association). I can't imagine this hack in a big time legal practice. No one could trust his advice with real money on the line.

Posted by: Phil on April 2, 2008 at 9:38 AM | PERMALINK

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

Although I do tend to agree, to some extent and assuming many unlikely facts, with this comment. It would require, at a minimum, very close relationship in time with a prior attack on the US, and some significant other facts that would cause a reasonable person to truly believe that the US was about to be attacked in a manner that would cause significant harm. This statement does not make the conduct legal, or claim that the conduct is above the law or within the law, but instead provides a very small exception, almost a "heat of battle" exception that can only be raised in very limited circumstances.

Posted by: bubba on April 2, 2008 at 9:42 AM | PERMALINK

Yep, somebody needs to remind me why Boalt Hall is still considered to rank among the best law schools. Of course, we may be missing the point. In the Brave New World to come John Yoo will be the Chief Justice. He is just working on his technique now.

Posted by: redterror on April 2, 2008 at 9:50 AM | PERMALINK

If you've read "Takeover" by Charlie Savage, none of this should come as a surprise. In war, the president can do whatever he wants to whomever he wants whenever he wants.

Posted by: Bill on April 2, 2008 at 9:54 AM | PERMALINK

Through Yoo's memo President Bush granted himself the same powers as Osama bin Laden. What a wonderful celebration of democracy!

Conservatives believe that the Constitution does not serve their interests. They feel it is their duty to push the boundaries of legality and Constitutionality to the extremes, typically until someone or something pushes back. With such a pliant Congress and Supreme Court during Bush's first term, there was no pushback.

The issue is not moot -- just mothballed until conservatives are back in the driver's seat. Congress should take this opportunity to forcefully condemn the torture policy outlined in Yoo's memo. Congress should make clear that any American citizen -- soldier, reservist, contractor, CIA agent -- found to have tortured or aided and abetted torture either directly or by proxy will be brought to justice.

If we can conduct surveillance so thoroughly why do we need torture? It doesn't speak well of our government's ability to violate an individual's right to privacy. If taxpayers are paying billions of dollars to violate privacy we want results!

Posted by: pj in jesusland on April 2, 2008 at 9:57 AM | PERMALINK

What's the big deal about torture?

Don't forget that the president has also claimed the right to kill anyone, anywhere, anytime for any reason seen fit as part of 'defending the US'.

As far as I know, the only other government to claim this 'right' is Israel... which leads us to a forbidden topic of discussion... that the policies of the US government have basically been hatched in Tel Aviv.

Posted by: Buford on April 2, 2008 at 9:59 AM | PERMALINK

I'll say this again. Wake up and smell the coffee. These people are a group of evil criminal thugs. They have absolutely no regrets about sticking it to the american public and the rest of the world for that matter.

I believe that we the people should insist that once bush is out of power that these criminals be prosecuted and jailed. We have to wait till hes out so that he can't pardon anyone.

Posted by: Gandalf on April 2, 2008 at 10:02 AM | PERMALINK

Liberals' holier than thou attitude on torture conforms to their elitist attitude towards the white male blue collar types who will not find anything wrong with what Yoo says in the memo. I discuss all this at great length in my book.

Posted by: Jonah Lucianne on April 2, 2008 at 10:13 AM | PERMALINK

on john yoo's legal thinking:

lawyerly evasion of the law

lawyerly lying

lawyerly immorality

lawyerly organization-supporting construal of the law

Posted by: orionATL on April 2, 2008 at 10:23 AM | PERMALINK

Glenn Greenwald is saying -- while recognizing that prosecution is highly unlikely -- that John Yoo is quite literally guilty of war crimes. Anyone care to dispute that?

It would interesting to see how Clarence Thomas would disagree given that he previously wrote this (the original context was the trial of a man accused of being a driver for bin Laden):

"[T]he experience of our wars," Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission...
Posted by: Crust on April 2, 2008 at 10:42 AM | PERMALINK
But Marty Lederman asks a good question: now that we know what was in the memo, what justification was there for classifying it in the first place? It wouldn't have been moot in 2003, and there was nothing in it that compromised national security either then or now.

Clearly, you forget that this administration in 2003 (and 2001, 2002, 2004, 2005, 2006, 2007, and 2008) was casting criticism of the administration as equivalent to support for al-Qaeda, Saddam Hussein, and every other bad figure on Earth. Any release of information that could conceivably form a basis for criticism of the administration, therefore, would from the perspective they embraced assist enemies of our Nation and threaten our national security.

From the perspective of the Bush Administration and its followers, there is no middle ground between blind submission and treason.

Posted by: cmdicely on April 2, 2008 at 10:46 AM | PERMALINK

...and the courts can't bind him.

So we get to the point about how Bush's oath of office doesn't bind Bush either apparently but I'm sure it will bind Democratic Presidents, the 5 Repug Supreme court justices want have a problem with that. What Bush did is an impeachable offense. And we all know that five members of the Supreme Court, non-Christianly hold that Republican politics to can morphed into anything it so desires and no law need ever apply, no strict constructionism added to court docs either. In fact I'm sure Chief Justice Roberts believes woefully in everything John Yoo just made-up for Bush to practice without regard to any laws, any stupid oath of office. The US Constitution is not a suicide pact and Republican Justices dispense with any part of it the very moment any Republican Prez decides to dispense with it all together too. Under such partisan practices, the US Constitution is a worthless piece of paper.

BTW, I see that Karl Rove is trying to help Hillary, with the same ugly tactics of projectionism the Rove used on Bush's opponents.

Rove says, "...Obama is "very smart," but says that as a result, the Illinois senator "doesn't do his homework." What's more, he says, "Obama is very arrogant."

But really, doesn't such comments describe McCain better than Obama, because McCain NEVER does his homework as we all noticed, and McCain is therefore very arrogant, talking before he even knows what he is talking about. Bush never bothered with any homework either, was very arrogant in that way too.

Looks to me like Rove is hoping to use Hillary to destory Obama, and this is a problem with Hillary staying in the race. To get ahead, she must trash Obama and this could certainly destory Democratic chances for the Whitehouse.

Posted by: me-again on April 2, 2008 at 10:46 AM | PERMALINK

"With every law he can dispense
No ties the furious monster hold."

John Yoo and Bush don't bother me as much as the fact that checks and balances are quaint today. Illegal wiretapping?--make it legal. Court review?--nobody can show he is a victim.

What part of illegal wiretapping don't you understand? (Subtle dig there. Snicker.)

The sheeple don't seem to particularly care. I thought we were a freedom loving people, but maybe this is just traditional rhetoric from the Founding Fathers that has lost its momentum, or maybe kids today in school are only taught political correctness as life's guiding principle.

Posted by: Luther on April 2, 2008 at 10:59 AM | PERMALINK

The only solace I gain from reading Yoo's policy memo comes from the fact that this, and other similar documents, will serve to create a binding historical record that will, I believe, play a central role in how history remembers this administration. In time, the spin and rhetoric will diminish, and these documents will form the basis for our understanding of this era. This period in our history will rightly be regarded as a time of tragic folly.

Posted by: JG on April 2, 2008 at 11:12 AM | PERMALINK

Some people are born with an authoritarian mindset.

They can't help it. They must never be allowed to come near legal or political power.

But maybe there is a silver lining to this dark cloud. I think we may have found a way to use this, to wit:

"If you don't eat your broccoli you'll embolden Al Qaeda and President Bush will torture you!"

Kids everywhere will obey in an instant!

Posted by: Tripp on April 2, 2008 at 11:14 AM | PERMALINK

Their wanton disregard even for American lives shows in this:

Any presidential decision to order ... would amount to a suspension or termination of those treaty provisions.

Meaning that the President could, whenever he fucking feels like it, suspend or terminate a treaty that also protects Americans. Way to support the troops, guys.

Impeachment Time. No More Excuses.

Posted by: thersites on April 2, 2008 at 11:24 AM | PERMALINK

JG

You are right. This is a document that will damn both Bush and Yoo for all time.

Posted by: Ron Byers on April 2, 2008 at 11:30 AM | PERMALINK

"Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield."
1. So what Yoo means is that the President can personally torture anybody he wants. No indication here that this authority extends beyond Bush himself.
2. Whatever happened to Strict Construction?
3. Regarding Tripp's comment, above,
"If you don't eat your broccoli you'll embolden Al Qaeda and President Bush will torture you!"
The first President Bush singled out broccoli as a food he wouldn't eat. Will W be torturing him?

Posted by: Capn Chucky on April 2, 2008 at 11:32 AM | PERMALINK

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network.

Oh yeah?

But Marty Lederman asks a good question: now that we know what was in the memo, what justification was there for classifying it in the first place?

Just PR for the president. It's a pretty offensive idea, that the president can torture any non-uniformed "enemy combatant" he wants, as long as he does it through the military, and no authority can stop him unless they organize an impeachment. It's like turning him into a fascist dictator. Of course people would be concerned that releasing the memo could make him look like that. The more interesting question, then, is why is it coming out now- to try to push the enveloped of what people are willing to accept a little further? Or because it was out of Bush's hands?

Posted by: Swan on April 2, 2008 at 11:46 AM | PERMALINK

It's the old "orders are orders" argument. If the president orders it, it's OK. We hanged Nazi's for this kind of stuff.

Posted by: fafner1 on April 2, 2008 at 11:47 AM | PERMALINK

No doubt some savvy law review editor is already planning a peer-review of Yoo's memo, after which he'll be a joke in the law community. I don't know which is better, letting him stay at Berkeley, under the contempt of his students and peers, or taking that post at Pepperdine or Hillsdale. Maybe Oral Roberts U. or Liberty can use him.

Posted by: Steve Paradis on April 2, 2008 at 11:50 AM | PERMALINK

John Yoo refered to the Clinton Admin. as the "Imperial Presidency.." John Yoo is hypocrite, a mental midget, and nothing more than a modern day Robespierre. And apologies to insulting midgets.

Posted by: Andy on April 2, 2008 at 11:55 AM | PERMALINK

It's the old "orders are orders" argument. If the president orders it, it's OK. We hanged Nazi's for this kind of stuff.

Yeah-- remember the Nuremberg trials (with all their publicity and transparency), and how well we treated the Nazis prisoners before an official inquiry? It's always better to do it like that, when you can, instead of having to be a Resistance Fighter or a vigilante, which is what you do when you lose control of the courts to the Nazis.

We didn't do it like the Nazis and the Gestapo, who abducted and tortured those who they considered threats to their regime. Thank God for our civilization and progress- hopefully it will stand up better against these slimeballs soon.

Posted by: Swan on April 2, 2008 at 12:00 PM | PERMALINK

Capn Chucky,

The first President Bush singled out broccoli as a food he wouldn't eat. Will W be torturing him?

Really? Why what a coincidence. And what, you don't think having W as your son bumbling the job of President is torture?

Methinks Poppy has had about all he can handle. Babs as a wife and W as a son. Good gravy. Who says the rich have it easy?

Posted by: Tripp on April 2, 2008 at 12:05 PM | PERMALINK

One could argue Squire Yoo's memo defending harsh interrogation techniques advocates for the use of those interrogation techniques against him.

Posted by: Brojo on April 2, 2008 at 12:14 PM | PERMALINK

Swan: We didn't do it like the Nazis and the Gestapo, who abducted and tortured those who they considered threats to their regime

Think again
and again.

We can thank God for our civilization and progress, but we have to fight to preserve it, too.

Posted by: thersites on April 2, 2008 at 12:31 PM | PERMALINK

Not for the squeemish: When war is authorized, as the Congress has repeatedly done with respect to legislation authorizing and funding military aggression in Afghanistan, Iraq and generally in the "global war on terror", to say nothing of Somalia and other places, then torture, historically being an integral part of war, will exist. You also get rape, wanton killing of innocents, use of citizens as cannon fodder -- it's a package deal and there's no use picking on any part of it. No use at all. Give it up. John Yoo is only reflecting reality.

By the way, the US is currently under three continuing executive declarations of national emergency for Iran, terrorism and WMD, uncontested by the Congress. These are truly dangerous times. And Obama is a Muslim.

Posted by: Don Bacon on April 2, 2008 at 12:53 PM | PERMALINK

Yoo bases his argument on the alleged constitutional authority of the president to protect the US. There is no such constitutional authority. The only times the word protect occurs in the constitution are in the president’s oath, where he swears to protect and defend the constitution, not the country, and later where it says the US (not the president) must defend the states against invasion. The congress is just as responsible and authorized here as the president is.

It’s like when Bush talks about being commander in chief. He is commander in chief of the armed forces, not the country.

Posted by: anandine on April 2, 2008 at 12:53 PM | PERMALINK

am on April 2, 2008 at 12:27 PM:

Funny thing is that the sentence contains a link to a blog posting which doesn't even attempt to substantiate that sentence.

What's even more funny is that the posting does 'attempt' to do just that...

..the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo.

Plus, you could click on any of the links provided, including this pretty good one in The New Yorker from 2006...Fact is, Cheney and Addington needed someone to make up some form of legal justification for what they wanted to do, which was torture people. Yoo was (is) a willing tool to that end.

Complete and utter lie.

On your part, am? Yes.

Posted by: grape_crush on April 2, 2008 at 1:01 PM | PERMALINK

John Yoo is a South Korean who believes that his country was saved by Truman's going outside the authority of Congress to declare war. From his opinion, however, he is also declaring that the American president has the same power as the North Korean leader. Yoo shows he has zero understanding of or appreciation for democracy. His email, for those whose contempt for Yoo equals his contempt for American law is yoo@law.berkeley.edu and that of his dean cedley@law.berkeley.edu
Neither deserves their job

….this is a problem with Hillary staying in the race. To get ahead, she must trash Obama …. me-again at 10:46 AM
Not matter what the topic, some Obamican will use it to tout The One despite all facts to the contrary. Anyone thinking that Rove has the interest of the Democratic Party at heart is being naïve.
Note that Yoo's memo would not have justified the conduct at Abu Graib; it says the President may ignore various laws, but it don't give that same power to anyone else….. ex-lax at 12:19 PM am at 12:27 PM
Au contraire, fools. As Bush would be happy to point out, commanders command through the chain of command. Posted by: Mike on April 2, 2008 at 1:05 PM | PERMALINK

Don Bacon on April 2, 2008 at 12:53 PM:

By the way, the US is currently under three continuing executive declarations of national emergency for Iran, terrorism and WMD, uncontested by the Congress. These are truly dangerous times. And Obama is a Muslim.

You have a bad calendar, Don...April Fool's was yesterday...

But I'm convinced that Dick Cheney is Smedley Butler's evil twin.

Posted by: grape_crush on April 2, 2008 at 1:07 PM | PERMALINK

What a neat legal circle the Bush Administration has defined for us on the issue of torture.

President Bush says he implemented torture policies on the advice of his attorneys. These same attorneys say torture is OK because the President ordered it. I wonder which came first, the advice or the order.

There has to be an end to this complete disregard for the rule of law.

Posted by: pj in jesusland on April 2, 2008 at 1:12 PM | PERMALINK

Thersties (as usual) you didn't understand my comment. I mean that after WWII, we didn't do to the Nazis and to the Gestapo what the Nazis and the Gestapo did to people they considered their opponents during WWII. I didn't at all mean that we don't do those kinds of things today, which of course, I am well aware of that we do.

Posted by: Swan on April 2, 2008 at 1:19 PM | PERMALINK

ex-liberal,

(Yoo's Memo) says the President may ignore various laws, but it don't give that same power to anyone else.

Good news. So the trials against AT&T and the other buggers may begin?

Posted by: on April 2, 2008 at 1:26 PM | PERMALINK

Seriously, why does Yoo still teach?

Look at my law school orientation, the speaker was the faculty adviser for the Federalist society. And the very first fucking day we read something by Yoo and I asked how he could possibly write the President = Your God memos that he does and even he could not answer.

Posted by: MNPundit on April 2, 2008 at 1:40 PM | PERMALINK
"Torture at Guantánamo was sanctioned by the most senior advisers to the president, the vice president, and the secretary of defense, according to the international lawyer and professor of law at University College London Philippe Sands, who has conducted a forensic examination of the chain of command leading from the top of the administration to the camp at Guantánamo," Vanity Fair will report on newstands today.
Posted by: trex on April 2, 2008 at 1:42 PM | PERMALINK

"Basically, it says that criminal law doesn't prohibit torture because it doesn't apply to the military. Treaties don't prohibit torture because they only apply to uniformed enemy soldiers. Ditto for the War Crimes Act. And federal statutes prohibiting torture don't prohibit torture because they don't apply to conduct on military bases."

Perhaps Kevin or others can more fully explain their opposition to the memo, but I do not see anything legally incorrect in this summation of Yoo's position.

There is no question that federal criminal law, which is clearly civilian in nature would not apply to members of the armed forces who are governed by the Uniform Code of Military Justice while on active duty.

There is no question that treaties do not apply to those who are not signatories to them or to those who do not adhere to the laws of war as defined in the Geneva Conventions, i.e., illegal combatants.

I'm unfamiliar with "federal statutes prohibiting torture" but I find it highly unlikely that any federal statute would give any "rights" to non US citizens regarding their treatment by the US government that would be enforceable in the federal court system, which is also limited to civilian matters.

And while it is true that the Constitution gives Congress the power to "make Rules concerning Captures on Land and Water," I don't think that there is a claim that Bush is or has violated any "Rule" regarding the capture of suspects that is currently on the books.

As I have pointed out on previous occasions, other wartime Presidents have exercised their powers as Commander in Chief far worsely against American citizens without objection than Bush has against non-citizens in the current "War on Terror."

For those of you who have your panties in a bunch over Yoo's memo, I suspect your distress comes from the fact that you know that he's probably right on these legal and constitutional questions. Since the only rebuttal to his legal argument that can be gleaned from the comments thus far amounts to nothing more than wailing and the gnashing of teeth.

Posted by: Chicounsel on April 2, 2008 at 2:01 PM | PERMALINK

"It's a pretty offensive idea, that the president can torture any non-uniformed "enemy combatant" he wants, as long as he does it through the military, and no authority can stop him unless they organize an impeachment. It's like turning him into a fascist dictator."

Posted by: Swan on April 2, 2008 at 11:46 AM

Yes, Swan. That's exactly what U.S. citizens of Japanese descent were thinking when the "fascist dictator" who sent them to concentration camps and confiscated their property was none other than liberal icon FDR, with the full blessing of the Supreme Court.

Posted by: Chicounsel on April 2, 2008 at 2:12 PM | PERMALINK

"That's exactly what U.S. citizens of Japanese descent were thinking when the "fascist dictator" who sent them to concentration camps and confiscated their property was none other than liberal icon FDR, with the full blessing of the Supreme Court."

Citing an episode that's one of our nation's biggest mistakes and shames does not exactly bolster your case.

Posted by: PaulB on April 2, 2008 at 2:20 PM | PERMALINK

Another wacko professor who hates his country.

Any way to get John Yoo fired from his cushy job at UC Berkeley Law School?

Heck, they fired Ward Churchill, a tenured prof, from the U of Colorado for saying the 9/11 victims were akin to Nazis.

Isn't Yoo something of a Nazi himself?

Posted by: Fran, the latte-drinking, upper east-side limousine liberal on April 2, 2008 at 2:20 PM | PERMALINK

"Perhaps Kevin or others can more fully explain their opposition to the memo, but I do not see anything legally incorrect in this summation of Yoo's position."

Since you have already firmly established that you know nothing about Constitutional law, it is not exactly a surprise that you would find nothing incorrect in the "reasoning" Yoo used. Suffice to say that even the Bush administration couldn't support this radical reinterpretation of the Constitution and the memo was rescinded, that Constitutional scholars of all stripes vehemently take issue with Yoo's stupidity, and that there is no legal precedent for such a radical reinterpretation of presidential authority.

"There is no question that treaties do not apply to those who are not signatories to them"

Moron, the U.S. is a signatory to the treaties in question..

"or to those who do not adhere to the laws of war as defined in the Geneva Conventions, i.e., illegal combatants."

This is, of course, untrue, which is why you don't bother to try to support it.

"I'm unfamiliar with 'federal statutes prohibiting torture' but I find it highly unlikely that any federal statute would give any 'rights' to non US citizens regarding their treatment by the US government that would be enforceable in the federal court system"

LOL.... CC, we already know you're abysmally ignorant; you don't need to continue to prove it!

"As I have pointed out on previous occasions, other wartime Presidents have exercised their powers as Commander in Chief far worsely against American citizens without objection than Bush has against non-citizens in the current 'War on Terror.'"

No, actually they haven't. The difference is one of degree, not of substance. And, of course, none have had the sheer unmitigated gall to claim unfettered presidential authority on such flimsy justifications. Moreover, those examples you cite are all cases where America is, justifiably, ashamed of its actions. Citing those cases is not a point in your favor.

"For those of you who have your panties in a bunch over Yoo's memo, I suspect your distress comes from the fact that you know that he's probably right on these legal and constitutional questions."

ROFL.... You just keep thinking that if it makes you feel any better. Of course, the fact that you cannot actually defend Yoo just makes this assertion look silly, but then, that's par for the course with your posts.

"Since the only rebuttal to his legal argument that can be gleaned from the comments thus far amounts to nothing more than wailing and the gnashing of teeth."

Moron, there are some arguments that are so supremely silly, so self-evidently false, so enormously stupid, so completely lacking in logic, reason, or evidence, that no rebuttal is required. Case in point: your post. [So why am I responding? Because your ignorance is hilarious.]

Posted by: PaulB on April 2, 2008 at 2:30 PM | PERMALINK

"... we're not all that much different than the folks who routinely arrested, intimidated and imprisoned people like Andre Sakarov and Alexander Solzyneitzen. They called their prison system a gulag (a vast series of secret islands hidden from the world where torture and mistreatment could be undertaken away from the eyes of "good citizens.")

And we're different from that system how?

Posted by: dweb on April 2, 2008
----------------------------------

Well, at least it's sunny with clear skies at Gitmo and not snowy and cold like in the old Soviet gulag.

I wonder if they got to surf in shark-infested waters off the Gitmo beaches.

Maybe they got to lay out on Gitmo beaches, staked out for the local vermin to feast on.

Isn't it amazing how Bushies can turn any heaven into a hell. And, America is headed that direction under their leadership.

Posted by: MarkH on April 2, 2008 at 3:05 PM | PERMALINK

The ONE THING that really stands out for me about this document is the "shock the conscience" standard, which is the only thing that apparently makes torture tortune. And the only way something can shock the conscience is if you can see into the heart of the torturer and divine that he was "inspired by malice or sadism." Therefore, reasonably, torture can NEVER be proved, NEVER be demonstrated.

Ah, for those younger, more innocent days when hanging someone from the ceiling for 5 days and beating his legs black and blue was prima facie evidence of torture and malice and sadism.

Posted by: Anon on April 2, 2008 at 3:43 PM | PERMALINK

The justifications set forth in the memo remind me of Jimbo on South Park who would always yell, "It's coming right at me!" so he could shoot endangered species in self defense. It's nice that our US policy for torture is what we find amusing (i.e. absurd) in comedy. Depressing.

Posted by: Julene on April 2, 2008 at 4:34 PM | PERMALINK

Dweb,

Excellent insight.

I hope an enterprising author is proposing his/her new book topic to the editors: "George Bush and the American Gulag."

Posted by: pj in jesusland on April 2, 2008 at 4:45 PM | PERMALINK

"The ONE THING that really stands out for me about this document"

There's another, I think, and that is that the document really appears to cover the "ticking timebomb" scenario more than it does ordinary conflicts. I.e., in a "ticking timebomb" scenario, you have a limited amount of time to learn information that is crucial to the survival of a city or of the United States itself. But nowhere does Yoo actually specify what dangers or what immediacy would genuinely require, and possibly legitimize, the use of torture. So you end up, as intended, with it applying to all scenarios and prisoners.

For a great discussion of just how we ended up in this position, see this Vanity Fair article. One brief segment that stood out for me:

"[Michael] Dunlavey [in charge at Guantanamo during some of these events] held eye contact for more than a comfortable moment. He said, 'This guy may have been the key to the survival of the U.S.'"

The survival of the U.S.?? The mind boggles at the self-deception in those words.

Posted by: PaulB on April 2, 2008 at 5:03 PM | PERMALINK

Worst President Ever. This whole administration shocks the conscience. (Of those who have one.)

Posted by: brooklyn on April 2, 2008 at 5:05 PM | PERMALINK

I think in a civil court, Woo's argument would be deemed frivolous, It certainly doesn’t rise to the level of being considered specious.

Posted by: Ex - Republican Yankee on April 2, 2008 at 7:05 PM | PERMALINK

guilty of war crimes

There is no way Mr. Yoo could withstand the trial and punishment of a Nuremberg-like court. He was too close to the power. His words and their consequences would haunt him into the gallows. Had the perpetrators of the Vietnam Abuse been subjected to such a court it might have saved what happened to the Iraqis. If we do not try the W. Bush regime in the same light of justice, its abuse will be repeated.

Posted by: Brojo on April 2, 2008 at 9:51 PM | PERMALINK

"And while it is true that the Constitution gives Congress the power to "make Rules concerning Captures on Land and Water," I don't think that there is a claim that Bush is or has violated any "Rule" regarding the capture of suspects that is currently on the books."

You seem to be arguing that the rules that congress makes don't affect the disposition of the captured. That is absurd. If not the disposition, then it must govern how they are captured which you would surely argue falls under the CinC clause. Sorry chico, but you've been arguing that nobody can tell the president how to conduct the war but this clause must mean something.

Please tell us what it means.

Posted by: exGOP on April 2, 2008 at 11:43 PM | PERMALINK
Perhaps Kevin or others can more fully explain their opposition to the memo, but I do not see anything legally incorrect in this summation of Yoo's position.

This part is completely inaccurate, for one thing: "Treaties don't prohibit torture because they only apply to uniformed enemy soldiers."

There is no question that treaties do not apply to those who are not signatories to them or to those who do not adhere to the laws of war as defined in the Geneva Conventions, i.e., illegal combatants.

That's perhaps the worst use of equivocation (regarding the phrase "apply to", which is apparently used, though only appearing once in the sentence, in two different and opposing senses) I've seen in a while.

Its quite true that treaties are only binding against those who have ratified them; since the US has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and all four of the Geneva Conventions of 1949, its not an argument against them applying to the U.S.

It's not true that "treaties", as a class, do not protect to so-called "unlawful combatants". That status (when determined by an appropriate tribunal as provided for in the Third Geneva Convention) has considerable effect on the applicability of the provisions of the Third Geneva Convention itself. It has no effect whatsoever on the protections of other relevant treaties, particularly the Convention Against Torture, etc., under which the only status relevant to protection is that of "person".

I'm unfamiliar with "federal statutes prohibiting torture" but I find it highly unlikely that any federal statute would give any "rights" to non US citizens regarding their treatment by the US government that would be enforceable in the federal court system, which is also limited to civilian matters.

You should have stopped at your admission that you have no idea what you are talking about.

And the US federal court system is not "limited to civilian matters"; I'm amazed that you could have passed an introductory course in American government, or even a typical 8th grade civics class, much less Con. Law, with such gross ignorance. Please review Article III of the Constitution.

And while it is true that the Constitution gives Congress the power to "make Rules concerning Captures on Land and Water," I don't think that there is a claim that Bush is or has violated any "Rule" regarding the capture of suspects that is currently on the books.

I would suggest that Articles 93, 97, 118, 119, 124, 125, and 128 of the UCMJ all constitute rules that are currently on the books; the allegations against Bush's torture policy appear to involve violations of all of those if conducted by persons subject to the UCMJ.

I would suggest further that 18 USC Chapters 113C (Torture), 118 (War Crimes), and others also constitute rules on the books; the allegations against Bush's torture policy also appear to involve violation of those if committed by persons subject to them, which include members of the Armed Forces serving overseas, among others. (See 18 USC Chapter 212.)

Posted by: cmdicely on April 3, 2008 at 10:59 AM | PERMALINK

"That status ... has considerable effect on the applicability of the provisions of the Third Geneva Convention itself."

Correct, but contrary to Chicounsel's ill-informed speculation, the Geneva Conventions specifically do allow for "unlawful combatants". They are not entitled to the stronger provisions afforded by official POW status, but they are entitled to the other protections afforded by the Conventions.

Posted by: PaulB on April 3, 2008 at 11:16 AM | PERMALINK

Among the very odd ideas of the ignorant, badly educated and malicious Prof. Yoo is his assumption that a "Commander-in-Chief" has, or should have, absolute powers in a constitutional government. His views may be more Bonapartism than Stalinism, but in any case they are contrary to Anglo-American constitutional thought since at least 1689. A constitution is meaningless if anyone in the state exercises absolute power under any circumstances.

Posted by: Vile Whig on April 3, 2008 at 5:53 PM | PERMALINK

If I had ut my way, Prof. Yoo would be incarcerated in a dark, cold cell for at least 60 days. Then he would be water-boarded. Then we get nasty.

Posted by: kthomas on April 4, 2008 at 12:02 AM | PERMALINK

Yoo is just one person with an opinion.Not the ultimat judge and jury. Why doesn't someone challenge him in a court of law to get him disbarred for being the architect of a crime against humanity. Moral Turpitude is the gross disregarding of moral standards expected of a human being while doing some activity(advising the president) or crime.
As was said about the holocaust applies here: What have you done to us, you freedom-loving peoples, guardians of justice, defenders of the high principles of democracy and of the brotherhood of man? What have you allowed to be perpetrated against a defenseless people while you stood aside and let it bleed to death, without offering help or succour, without calling on the fiends to stop, in the language of retribution which alone they would understand.

Posted by: Jim Carolan on April 5, 2008 at 11:39 AM | PERMALINK




 

 

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