I will make two predictions: 1) Few lawyers who have expertise in the areas covered by the recently released Yoo Memorandum (part I here, part II here) will defend it as sound and persuasive legal analysis; 2) No more than a handful of such lawyers will agree with John Yoo's characterization of the memo as "near boilerplate."
One question this raises is the point at which one can fairly say that a given memorandum or opinion is unreasonable. But I want to focus on a different point: if my assumptions above are correct, this creates a great opening for opportunistic conservative legal bloggers/commentators. A majority of conservatives still support President Bush's conduct of the war, and the Yoo Memorandum authorized techniques that were part of that conduct. Some supporters of Bush's conduct will want to distance themselves from the sorts of activities that the Yoo Memorandum authorizes, but many diehard Bush supporters will presumably want to stand by their man, and the conduct of the war. So the very small percentage of lawyers who will defend the Yoo Memorandum, combined with the greater percentage of Americans who will defend the conduct authorized by that memorandum, presents a chance for legal commentators seeking prominence: take the unpopular position and infuriate most people, but gain the everlasting gratitude of a nontrivial segment of the conservative community.
Of course, the wisdom of this bet depends in part on that segment of the conservative community continuing to have power, and perhaps expanding their power. Will the Yoo/Addington/Gonzales wing of the conservative legal establishment have power in the future? If you think so, and your desire for power is greater than your qualms about endorsing what looks to be quite shoddy legal reasoning, then now is your chance to write an op-ed/blog post on why the Yoo Memorandum is right. I'll be curious to see who seizes the opportunity.
Related Posts (on one page):
- The Payoffs of Defending the Yoo Memorandum:
- Constitutional Limits of Coercive Interrogation:
- The John Yoo Torture Memos Released:
Yet if God wills that it continue, until all the wealth piled by the bond-man’s two hundred years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid with another drawn with the sword, as was said three thousand years ago so still it must be said, “the judgments of the Lord, are true and righteous altogether.”
though somehow I doubt John Yoo's blood will be drawn.
As they say, "Ethics, shmethics."
That sounds like a good law school paper assignment to me. A good lawyer should be able to defend just about anything. Mental agility, people...
You'd better have a great amount of fortitude to survive it. As they say in Japan, the nail that sticks up is the one that gets hammered.
It's been thirty-plus years now and I'll be curious when I see someone on the left debate Vietnam on factual grounds rather than ideological and oft-repeated boilerplate.
Will any of Professor Yoo's liberal critics actually read the memorandum before declaring the arguments offered therein to be legally unreasonable?
Your threadjack-fu is weak, grasshopper. When you can snatch the first post from my hands, then it will be time to troll.
Will any of Professor Yoo's liberal critics actually read the memorandum before declaring the arguments offered therein to be legally unreasonable?
Will Yoo deny knowledge of all the binding authority he convneiently left out of his memo when he is cross-examined on the subject at the war-crimes tribunal?
How is this one: the one thing that ticked me off the most about the thing is on page 57-58. The basic idea is that, even though the Convention against Torture explicitly says that you can't plead self-defence or necessity as a defense ("No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture."), mr. Yoo concludes that that somehow doesn't count, because "it is likely that under international law no treaty could prevent a nation from taking steps to defend itself". (Quoting from an earlier OLC memorandum.)
Is that specific enough? (Although admittedly somewhat off-topic.)
Another thing that opportunistic bloggers might do is to preemptively accuse Yoo's defenders of bad faith before they even start defending him.
As the above post demonstrates, it's quite easy to do this without even commenting on the legal analysis in the memo.
I think that probably overstates the case; I consider myself a "conservative" (although that label has nearly lost all real meaning these days; I'm an agnostic libertarian conservative, as opposed to the "religious right", whom I do NOT consider truly conservative in any meaningful sense of the word), and while I still believe that it was the right call to go into Iraq, I think the manner in which the Iraq War was conducted by Bush, Rumsfeld, Cheney, et al. was very badly bungled in the first 180 days, leaving us in a mess today with only bad or costly options.
These are quite radical interpretations of the Constitution. What would Yoo's defenders be conserving?
Still looking for some analysis that says why people think the memo is "shoddy legal reasoning". You know, other than the magnificent Yoo=Nazi that's been a staple of the Left for a while now.
Because so far the actual legal analysis of the memos has been pretty weak.
Because so far the actual legal analysis of the memos has been pretty weak.
The classification of the report has somewhat hindered the ability of anyone to analyze said report.
Are you still going around stating that there was nothing improper about the White House designating U.S. Attorneys to be fired for failing to prosecute Democrats the White House wanted targeted?
Why would any conservative lawyer stick their neck out to defend the memos if they are going to subjected to such thuggish behavior from the Left? If there was a hope that there is ever going to be a rational discussion of the legal persuasiveness of the memos, I'd think that there might be plenty of conservative lawyers who might defend the memos. But in this world, where there is no hope whatsoever of a rational discussion of them, where even Jack Goldsmith, of all people, has been hassled, why would any conservative go out of their way to defend the legal reasoning?
Stuart Benjamin must be out of his mind to say that defending the memos presents a "great opportunity".
Which White House did this? Certainly not the Bush White House.
As to the lack of analysis so far - yes, of course. But it is people like Stuart Benjamin making the claim that the memos are "shoddy legal analysis", so I assume that Stuart Benjamin has actually read them and determined why they analysis is so shoddy, but has simply not deigned to post that determination yet. I am making no claim about the legal analysis in the memos one way or another, not have done more than skim them so far.
There's actually more common ground in the memo than we think. Yoo's position with a slight modification comes close to that of many liberals, including Bill Clinton, who do see torture as permissible in certain situations.
Basically, many of us are concerned with an *empirical* question framed beautifully by Mr. Clinton:
"If you have any kind of a formal exception, people just drive a truck through it, and they'll say, 'Well, I thought it was covered by the exception,'" Clinton said.
"When Bauer goes out there on his own and is prepared to live with the consequences, it always seems to work better," he said."
In other words, if we grant them wholesale immunity from criminal prosecution, government agents will engage in much more torture than is necessary.
That brings us to the obvious question: should we punish someone who engages in torture that does *in fact* save an incredible number of lives?
I don't think we should. Clinton seems on the fence here, saying vaguely that the Bauer-esque agent should be "prepared to live with the consequences."
Woo, on the other hand, creates a legal solution that links the benefit of any conducted torture to any punishment for engaging in it. His only errors are as follows:
1. He assumes the *intention* of benefiting national security is enough to "immunize" an agent from criminal prosecution
and
2. He assumes that ALL instances of potentially criminal interrogations are intended to bring some tangible benefit to national security.
Consider:
From Yoo:
"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."
If you change "he would be doing so" to "he may be doing so," you eliminate error #2 above. If you modify it further to "he may present further..." you get rid of the intention problem and make the link between "immunity" and prosecution one based on what the interrogation did *in fact*
Again, the point here is that Yoo creates this link in the first place, a link that is necessary for the positions of conservatives and liberals alike to be viable. There are obvious problems with the link based in fact that I mentioned above (for example, intentions, of course, are of crucial import to determining whether or not a crime was committed, and the mere question of whether or not the interrogation benefited national security could in many cases constitute reasonable doubt rendering the position as "immunizing" as it currently is). But again, it delves into issues that both sides agree need a viable legal solution.
If you're going to defend practices that are typical of the Nazis, Stalin and other anti-democratic dictators all over the world, you should expect criticism from those of us defending the Constitution and U.S. and international law.
I am constantly called a socialist, even though I am not one.
Sometimes violations of Godwin's Law are justified.
Mkay. Enjoy your reality bubble while it lasts.
The memo is fairly boiler plate if you begin with the assumption that as CiC the president cannot be constrained from indefinite detention, warrantless surveillance, suspension of habeus corpus, torture, due process violation and murder.
Anything and everything Bush does to "protect" america in this "war" on terror is perfectly constitutional because it is the president doing it.
Oh. So you don't think Marty Lederman read the memo before criticizing it?
Why don't you go to Balkinization and tell Prof. Lederman that yourself, Bart? I'm sure he's dying to hear from you.
That is created out of whole cloth and completely contrary to U.S. and international law.
@Shiva: I rather like Jack Goldsmith's position, as he outlined it in his book on this whole saga, where he advocates that in some circumstances presidents should be willing to break the law and place their fate in the hands of the people. He gives FDR's boats for bases decision as an example. At the minimum, though, that requires that the President fess up honestly throughout. Where the President takes morally and legally dodgy decisions and a the same time tries his best to hide this fact as well as possible, that's where Americans should get suspicious.
Unless I'm missing something, Lederman hasn't criticized the legal reasoning in the memo yet (and said he wouldn't even have a chance to go through it until later). He's just whined about it being classified until now.
If an agent of the US government thinks it necessary to torture someone to stop a 'ticking time bomb' scenario, that agent should sign a confession to the crime of torture, hand it to their superior officer, do the deed, and go to jail. If the information thus obtained really saves lives that were in imminent danger, I'll be first in line demanding that the President pardon the agent, and I wager I won't be the last.
This proposal works within our existing constitution rather than Yoo's fantasy constitution. It deters unnecessary torture. It allows for Jack Bauer to save us all. Why would anyone argue for anything else?
And then political movements and radio talk shows and the rest latch onto the bad arguments as if they are good ones.
* Legislative history of Section 2340;
* American case interpreting Section 2340;
* American case interpreting the rest of the statute;
* American case interpreting another torture statute;
* Law review article or treatise discussing Section 2340;
* Dictionary providing a contrary definition;
* International or foreign case interpreting the relevant treaty or any implementing statute;
* Authority of any kind interpreting the health benefits statutes he cites;
* Other authority I haven't mentioned here; or
* Counterargument
In short, other than those three dictionaries and the text of those health benefits statutes, he doesn't discuss any of the authorities a lawyer knows to research and cite when writing a memo, or any potential argument against his position. Granted, I've only read the one section I'm discussing, but if the rest of the memo is anything like this bit then there's no way this qualifies as sound legal reasoning even if the bottom line happens to be right.
The Executive was always intended to be at the apex of his powers when it came to foreign affairs and prosecuting a war. Today, most people think the President's job is to feel your pain and get the checkbook out as soon as something doesn't go right. And, they think that you have to get the approval of some career lawyers before you can act. The whole point of placing that kind of power int he Executive was to avoid the natural inefficiency of having to go through several layers of people before you can act.
If Yoo is wrong, I can live with that.
exchange from a public debate (not the notorious memos)
Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.
The clear implication for me is that there is NO action by a President
that Yoo will declare unconstitional. And with our current
administration the "rule of law" seems to mean that some lawyer,
such as Yoo, says the actions are OK. That makes
the constitution a meaningless document, and the "rule of law"
an empty shell. What tyrant could fail to find a "lawyer" to
justify his actions?
Nick Patterson
So, if I'm writing a brief on that subject, should I cite "Brian G," or should I rely on, say, Youngstown?
Shame that Yoo didn't have Brian G's comment when he was writing his precious little memo -- he probably would have cited it as an authority.
thanks
That brings us to the obvious question: should we punish someone who engages in torture that does *in fact* save an incredible number of lives?
Speculation. Begging the question, this would involve proving a negative, that something didn't happen as a result of torture.
"...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."
As noted above, both self-defense and the ticking time-bomb Bauer Exception are explicitly addressed in the Convention Against Torture.
Brian G said: my liberal classmates could say with the staunchest conviction that something that didn't agree with was unconstitutional but could never actually point their finger to the portion of the Constitution that was violated.
Just off the top of my head? (And in the order in which they appear in the Constitution.)
"The Congress shall have Power
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
- To exercise exclusive Legislation in all Cases whatsoever, (...) over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;--And
- To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
- The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
- Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''
- This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
For a real-life example, see Philippe Sands' article in Vanity Fair, discussing the first Gitmo commandant, one Dunlavey:
In June, the focus settled on Detainee 063, Mohammed al-Qahtani, a Saudi national who had been refused entry to the United States just before 9/11 and was captured a few months later in Afghanistan. Dunlavey described to me the enormous pressure he came under--from Washington, from the top--to find out what al-Qahtani knew. The message, he said, was: “Are you doing everything humanly possible to get this information?” He received a famous Rumsfeld “snowflake,” a memo designed to prod the recipient into action. “I’ve got a short fuse on this to get it up the chain,” Dunlavey told me, “I was on a timeline.” Dunlavey 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.”
Got that? Not "the key to preventing another 9/11." Not even "the key to preventing a nuclear attack on LA or NYC."
But "the key to THE SURVIVAL OF THE U.S." Yeah. Right.
Stuart's point is an interesting one, and I know of anecdotal tales of law school students who became conservative Federalists out of strategic career plans. But I assume that the vast majority were sincere in their beliefs.
An unnecessary conflation and a parlor game. I can support the necessity of the war in Iraq and its general conduct. I can support not caving in to those who would take some potential action [that some call torture] off the table, leaving doubt in the minds of prisoners. I can support a President setting policy not to torture [That was Washington's position and it served him well]. I can do all this and not have to defend the Yoo Memorandum or oppose it.
Cute list, but only persuasive if you accept that Yoo is Hitler's grandkid. Most of the bullet cites of the Constitution are questionable here, but the last two, the most debatable. Yoo spent a lot of time splitting hairs on when the 5th Amdt. and criminal statutes might apply, and I have yet to see any support for that Amdt. protecting non-Americans not in the U.S.
You also skip right around Yoo's point that the President's power is at its highest (under the Youngstown concurrence) when acting as CiC when conducting a war. You also ignore that the oath you cite is commonly interpreted to mean that the president's primary duty is to preserve, protect and defend the country, esp. from foreign aggression.
Please cite the page where Yoo discusses Youngstown. Thanks!
The oath: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
I'm sorry -- got any cites to those "common interpreters"? Would those be "originalists," or "textualists"?
Because the oath that I'm reading doesn't say "the U.S.," it says "the Constitution of the U.S." And I think that quite possibly the Framers knew what they were saying.
I'm underwhelmed. Seems like pretty basic criminal defense arguments. Remember, Yoo was tasked with (among other things) determining whether DOD's interrogation policies could possibly subject soldiers conducting the interrogations to criminal prosecution. And he pulled out all the usual stops (the old "my intent was to get essential information, not to inflict pain") in answering the question. If Yoo is the devil incarnate, I guess his right-hand man in hell is Kunstler.
As for the analysis of our international obligations (remember, I'm talking about Part I only): it's pretty standard stuff; the kind of stuff John Norton Moore has been arguing for, oh, 40 years now. An awful lot of scholars disagree with Moore's take on presidential war powers, but it's certainly not a "bad faith" argument. Reasonable minds may, and do, differ.
In other words, I don't see anything damning about the analysis in Part I. Yoo can, and should, defend it as a perfectly sound piece of legal reasoning.
@Bruce Hayden: I certainly didn't mean to give a carefully parsed out list, but simply to blow the suggestion out of the water that I might not be able to point to specific clauses in the Constitution.
As for the 5th amendment, I was thinking of mr. Padilla, who, by my knowledge, is still in the brig in NC somewhere, and somewhat more strenuously, of GITMO and any other place where the US government has de facto control and uses it to detain people indefinately and incommunicado.
Have you reviewed the memos?
Not sure you read me clearly, Adam. The President has to follow the rule of law. I believe, as Washington did, that the best practice was to avoid the use of torture, making the issue moot. Washington did not make it illegal; he forbade his army to use it. It did not become law, it became a wise policy decision.
Here is something for you. Now refute it, accept it as truth, or continue living a lie (your choice)...
Let's look at Yoo's discussion of "severe pain." It takes up all of 2 pages (38-39) in the memo. Here is how it should have been reasoned:
1. Ordinary meaning. "Observer" made a smart alec remark, above, but his remark only showed an ignorance of this canon or statutory construction. Legislative language will usually be given its ordinary meaning.
Thus, if you, me, and Dupree would think that having a baton rammed up your nether region would cause severe pain, maybe, in fact, it would have. Yoo just cites the dictionary (which supports you, me, and Dupree) and then moves on without any other discussion of whether the ordinary meaning rule should or should not apply.
2. Legislative meaning/term of art. Is "severe pain" a term of arm? That is, we don't look to ordinary meaning, since it's something specifically defined somewhere. Well, it's not defined anywhere. It's briefly mentioned in the Aliens and Nationality title in the context of emergency medical situations. But that's it. "Severe pain" is not specifically defined (it's actually mentioned in a parenthetical).
Yoo doesn't say why this "definition" he gleaned from the Alien and Nationality Act should apply. He just says, "It does."
3. Case law. There are about 10,000 cases mentioning "severe pain." All anyone has to do is type a variation of that strand into Westlaw or Lexis. Lots of cases will pop up. A consciousness researcher would have looked to court cases and discussed them.
So Yoo's memo is just poorly reasoned. He doesn't look to cases arising under state or federal law that discuss what "severe pain" might be. He doesn't discuss counter-arguments. He doesn't explain why the emergency medical language from the Aliens and Nationality title should apply. He just says, "It does."
It's hard to explain how bad Yoo's memo is, since it's hard to explain how legal reasoning and thinking should be done to people who aren't trained in it. But, generally, as with all argument, you consider and (where applicable) dismiss counter-arguments. You actually explain why you're relying on something. You support your assertions. Yoo, a Yale educated lawyer and Boalt Hall law professor, did nothing of the sort in his memo.
You don't just ignore counter-arguments and state conclusions. There's not a law professor (even those who support Yoo) who would give his discussion of "severe pain" a grade higher than a "C" if he had been a student discussing the issues for class.
(And yes, I read the thing. Would anyone like to defend footnote 13 to me on the merits, or the still-absurd use of the medical benefits statute for the "organ failure" standard?)
Based on that fact alone, I can confidently state that if Yoo had turned this memo in to any of my Consitutional Law professors, he would have received a failing grade. And had he offered the memo as a pleading before a court, without acknowledging relevant contrary authority, he would have faced disciplinary proceedings before the bar.
Isn't that, roughly at least, the standard a Florida University (FSU?) used in the case of Sami Al-Arian, a professor with ties to Palestinian Islamic Jihad? Or was it Hamas or Fatah? Or all three?
But of course we want to "understand" a Sami Al-Arian, no doubt.
As mentioned above, commenter Dilan has done exactly this on Balkinization. I'd copy/past his comments, but I suspect that would be a violation of netiquette.
Basically, I don't know whether the "moral turpitude" provision is meaningless boilerplate that amounts in practice to "we can fire you if you're convicted of a felony," or something else. It's not clear to me that's what it does or should mean (though I would want to be very careful about how to apply that phrase, obviously).
Now, first let me state that I disagree with some of Yoo's more sweeping conclusions, particularly those involving the UN CAT (we signed it and ratified it, and I can't see that our RDUs somehow exempt us from adherence to the very object and purpose of that treaty).
But again: at least in the portion linked to as "Part I," Yoo was (in general) answering a more limited question: what is the potential criminal liability, and what possible defenses to a criminal action would U.S. servicemen have?
And I just don't think the memo is outside the bounds of traditional advocacy in this area. If you think it is, then you no doubt think that criminal appellate defense attorneys are, per se, unethical.
Whether Yoo should have resigned his post rather than providing cover for some of the Administration's more out-there policies is a different question. Yes, I think he probably should have resisted the attempts by the Administration to turn OLC from its traditional role (as impartial legal advisor) into a more aggressive advocacy role. So too Bybee.
But let's not crucify Yoo here. The President and his AGs (Ashcroft/Gonzales) clearly saw the role of the OLC differently, and Yoo made a very difficult argument in (I believe) a fair and ethical manner.
The Administration was wrong as a matter of policy, and I believe wrong (on the big ticket issues) as a matter of law. Blame them, not Yoo.
The point being certain political factions would be positively gleeful to see a Rove or Yoo "frog marched" while remaining silent or even actively supporting a case such as al-Arian represents. It's a telling contrast: gleeful schadenfreude in one set of cases vs. apathy or even support in another.
Imagine the boldface sentence, below, had been written by John Yoo:
That was Judge Posner in 2005.
It seems to me Posner is pretty soundly rejecting the Yoo/Bush position, in that he is saying that torturers' techniques don't need to leave marks. Isn't one of the Bush Administration's main arguments that the techniques they use do no permanent damage, and isn't that reflected in the Yoo memorandum in the "organ failure" discussion?
My first thought is that it would depend on the level of force used. Caning was a common punishment for misdemeanors in the British Empire, and the use of "the birch," to punish, for example, drunk and disorderly young men, on the Isle of Man wasn't eliminated until the 1970s, under pressure from the European Human Rights Commission. Readers may remember a young American was caned for tagging cars in Singapore.
You are correct. In a different case, Posner rejected the Government's argument that a killing is not "torture." I quoted the Posner opinion simply to show that it is not a given that even something as extreme as "whipping" fits within the CAT's definition of torture. We'd need to look at the severity/duration, etc. of the whipping before reaching that conclusion. (And FWIW, I don't think we'd need to find repeated, blood-drawing whippings over the course of several days. In fact, I think the standard would be met very quickly indeed.)
By the way, I've read a number of your comments. They are insightful and (although I'll need to do some digging) on point.
I differ only on one point: I don't think Yoo did anything unethical here. Ill-advised? Yes. A disservice to America? Maybe so. But it was well within the realm of permissible advocacy.
The ethical issue, to me, turns on the difference between lawyer as advisor and lawyer as advocate.
One could argue that Yoo could advocate these positions in court on behalf of the government (though I think a few of them might cross the line to frivolousness).
But when advising one's clients, the ethical standard is higher. I might be allowed to argue to a court a proposition that only has a 20 percent chance of success, but when advising my client, I am required to set out the argument that has an 80 percent chance and advise caution, including setting forth the major weaknesses in the legal justification for what the client wants to do.
Yoo didn't do anything like that. He wasn't an advisor. He was a cheerleader.
I would wager a c-note that Marty did not. Indeed, he was foremost in my mind when I posted my challenge.
Those who think the opinion has merit, might do well to deepen their researches on the subject - it is not beyond the bounds of possibility that the gentlemen in question may have need of competent counsel one day.
Even a former head of state does not benefit from immunity once out of office - see the Pinochet judgments of the House of Lords.
I'll echo Dilan's point. Yoo was (thoeretically) engaged in advise not advocacy. If I work for a criminal defendant I can propose some pretty unlikely defense if I think that's all he's got. The standard is different if someone is asking me whether what they plan on doing is illegal.
@Litigator-London: Not only that, but the ban on torture is part of international ius cogens, meaning that it applies always and everywhere, regardless of whether the state in question actually signed onto the Convention. (And regardless of any reservations.)
Cf. Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002):
Yikes. Don't tell Mukasey that, he'll start tearing up again.
I'm sorry, I feel like I should quote that ruling some more, just to emphasise how much this Memorandum is at odds with generally accepted principles of international law:
(Footnotes removed.)
The tribunal then continues by defining torture with reference to the Convention. (Which implies that the US reservation to that Convention has very little, if any, effect under International Law.)
(Again, footnotes removed.)
The only thing is, under The Paquete Habana, the US can violate customary international law (not the Torture Convention) if there is a controlling executive act, i.e., if the President authorizes it. (Yoo, interestingly, doesn't mention this in the memo.) So if Bush actually authorized the torture, perhaps that gets them off the hook as far as domestic application of the jus cogens norm is concerned. I still wouldn't travel if I were them, however.
@Dilan Esper: I think actually Yoo does mention it. [Checking the text...] Yes, on p. 73-74.
Yoo's opening conclusion that the 5th and 8th Amendments are restricted to civilian judicial matters and not to the prosecution of wars and certainly not to foreign enemy combatants detained overseas in a foreign war appear to be well supported by Supreme Court precedent. If anything, Yoo could have beefed up his citations. Indeed, I am unaware of any precedent in the past 600 years of Anglo American law which extended the rights of citizens protected by our 5th and 8th Amendments to foreign enemy combatants during wartime.
Yoo's applications of various canons of statutory construction are more of a mixed bag.
Article I expressly grants Congress the power to set rules for captures and thus regulate military treatment of captured enemy combatants. Yoo's citation to court commentary about the President's pre-eminent role as CiC in directing military operations to imply that the President has plenary power over the treatment of captures is willfully inapposite.
Further, it is amusing that Yoo argues that specific military law such as the UCMJ trumps the general civilian criminal code when DOJ argued (properly IMHO) that the UCMJ does not apply to foreign unlawful combatants.
However, Yoo is on much firmer ground arguing that Courts have been reluctant to hold that Congress intends to use civilian laws of general applicability to regulate military matters unless the statute expressly states this is Congress' intent.
Yoo is also completely correct to note that application of a civilian criminal code to warfare would be absurd because nearly all military actions would be rendered criminal.
Further, I thank Yoo for providing citations to multiple treatises which note that the protections of the law of war traditionally do not extend to enemy combatants who act outside the law of war. I based my prior observations of that rule of law on my readings in military history and it is nice to have the legal authority to buttress my argument.
It is also interesting to note that Yoo did not invent his definition of severe pain as physical damage the equivalent of death, organ failure or permanent impairment of a significant bodily function. Rather, Yoo was attempting the impossible task of objectively defining "severe pain" by noting other definitions of that term in the US Code as it applies to health benefits. Yoo admitted that referral to these definitions is imperfect, but then again Congress (intentionally I think) gives no workable objective definition of "severe pain" for a President or a lawyer advising a President to use.
One may or may not philosophically agree with Yoo's analysis of what does and does not constitute "torture," but his legal analysis of what is required by the hopelessly vague torture statute and whether international law is applicable outside US enabling statutes is comprehensive and thorough.
When Yoo tells the Washington Post that most of his analysis is boiler plate, it appears that he is referring to the raft of prior DOJ opinions dating back to the Civil War to which he adopts in his memorandum.
It would be interesting to see actual legal counter arguments rather than the superficial dismissals which have been offered in this blog and others.
Precisely with which of Yoo's arguments do posters disagree and what is their legal counter authority fo the counter argument?
We are not talking about philosophical discussions of what the law ought to read, but rather what the law actually states.
- If you want to know what the law is, read my quotes above.
- Please point to where the Geneva Conventions describe the legal status of "unlawful enemy combatans". As far as I can see, the position of the Bush administration on this point has always been akin to Cheney's position regarding whether or not he belongs to the executive branch: it depends on what conclusion they're trying to reach.
Hint: Here they are. The one you'll probably want to look at is number 3.
Hint: You might feel that, under art. 4 (2) of the 3rd Convention, many "detainees" do not qualify for protection.
Hint: Unfortunately, that merely means that they cannot be considered Prisoners of War.
Fortunately, there is also a Convention about civilians.
Hint: Why not take a look at art. 5 of the 4th Convention.
One final hint, before I go to bed:
Yes, and while you're much applauding your high moral standing, you Brits and Euros also have reason to be proud of the manner in which you've rearranged your backbone in order to accomodate even notably radical Islamicists, such as is represented in Hizb ut-Tahir; or likewise accomodating - and 'accomodating' is in fact the proper term - violence systematically perpetrated against Muslim women by Muslim men.
But one suspects such a concerted lack of backbone is not a crime by UK or EU standards. Hence Rwanda, while Belgium and the EU stood aside - and it was a Belgium colony most recently - or Bosnia, in your own backyard. So you can't handle domestic issues with sufficient backbone, can't handle mass murder perpetrated in your own backyard, can't handle mass murder perpetrated in your former colonies - yet you much relish the chance to demonstrate that high moral office you occupy by going after someone like a Yoo. Perhaps a million or more might perish on your watch, but you're ever on the lookout for a Yoo and are eager to take a stand against all perceived acts of torture to boot. Seemingly, spinelessness requires such a veneer; pretense absent substance? Harrumph.
Differently put, if negligence in such affairs ever becomes a crime within the E.U. establishment, a bunch of you folk best be seeking a country that has no extradition treaty. Then again, there's little chance negligence, in such affairs, will ever rear its head with any degree of probity, given the fact its been redefined, at least so in de facto terms, within the E.U. as a virtue, one widely practiced and much acclaimed. Hence the need for that veneer.
I said "apex" of his powers, I didn't say the President has unlimited powers.
Problem with arguments like yours and others in this thread remind me so much of law school. Many people confuse bad policy with illegality.
Funny that when John McCain was an unprivileged enemy combatant under the Geneva Conventions (In a civil war, only insurrectionist citizens are privileged; US had not declared war on Vietnam), the US argued he was -- and the North Vietnamese bought it
Unpleasant memories for you, apparently.
There was once a time in America when Conservatives were persons of honour. Even in disagreement with them, they could be held with upmost respect, because they based their political views upon the very bedrock of immutable truth, and would stand firm upon their foundation, even when it meant they were bound to lose in an upcoming political contest for it. Conservatism was the deep steadying rudder of The Nation, as it traversed the storms of change. One of the fundamental axioms of truth that Conservatism adhered to then was that freedom and liberty were rights of humankind; Natural Rights.
Contemporary Conservatism has now sown the seeds of moral relativism into the howling winds, all in defense of a president's vast overreaches into the realm of Natural Liberty. Do not expect Contemporary Conservatives to step up to responsibility's plate, when time comes to reap the whirlwind, as they do not truly believe that accepting personal responsibility is indeed a core belief of their political ideology. It is instead a brutal tactic, which enables them to stand on a cardboard soapbox, providing elevation from their sandbox, from which they can then game the vicissitudes of public opinion, pontificating with deprecatory commentary, about the other side of the Political Bipolarity's moral failings. Bro, about that mote; better go to the mirror.
What underlies this reprehensible defense of human torture is the denial of Natural Rights' existence. It is founded upon the belief that rights are not preeminent and preexistent to the state, but originate as gifts from a magnanimous state to its citizenry. This also is a direct threat to freedom, as it asserts that there is no liberty which is secured through its possession by the people. Additionally, as the wheel turns, and it assuredly will, this argument will be used as a method for diminishing rights that Contemporary Conservatism hold dear, when their time at the top have reversed. Property rights and The 2nd Amendment come quickly to mind.
Admittedly, I am just a paleogeek, not versed in the Priestly Judiciary's artful rituals of auguring of The Constitution's entrails for Original Intent, but I am still American born, and Friend of Liberty, and will have my say as to the Constitutional Rapine being advanced in defense of a governmental imprimatur upon acts of human torture.
U.S Constitution Article VI; Clause 2 states:
Clearly, the Geneva Conventions are a treaty made "under the Authority of the United States", and as such are the "supreme Law of the Land". Furthermore, any Federal Judge, who has issued a determination otherwise, has proven himself to be unbound by this clause, and as such is guilty of an impeachable offense, even the Chief Justice.
The U.S. Constitution; Fourteenth Amendment, Article 1 states:
The set of anyplace subject to The U.S. Government's Jurisdiction, minimally includes Guantanamo Bay, as well as rear positions held by the U.S. Military in a foreign war theatre. Arguably, it could also include anyplace in which a presidential decree is carried out by an agent of the United States.
You would be well-advised to rethink your position of torture as a tenet of conservatism. It could well be fatally toxic for the political ideology. Torture is held by True Friends of Liberty to be a non-negotiable prohibited act of a legitimate state. If your argument prevails, America is lost. No quarter will be extended in the coming battle for the Nation's Dreamtime.
While the Poles were outclassed by the German military machine there was a Polish problem that exacerbated the situation. The Polish parliament required a 100 percent vote to get anything done. One person could deadlock everything.
Lawyers - If it was up to you we would still be debating how to answer the Japanese attack on Pearl Harbour.
a knight,
You're operating with a thin reed of truth and attempting to morph it into something it simply ain't, aka a strawman. Some have argued, including myself, that waterboarding under some specific circumstances may be warranted. Others have argued in some other specific but still limited and restricted vein. No one - as in no one - has argued in a manner reflective of your hyperbole. Too, those arguments, if in the more limited sense, have not been limited to conservatives.
McCain was right to raise the issue, thus the standard, but the notion anyone has even remotely conceived of a "tenet" or "litmus test" is prima facie absurd to the point it begins to sound like Chomsky-lite.
Saying that, I like your spirit, but a thin reed is not a slab of granite and a highly tailored and narrowly focused discussion is not a wholesale argument, much less a tenet or a litmus test. You can forward such arguments and analogs to Bush/Blair=Stalin/Hitler themes - and it may make some people feel might moral about themselves, but it has nothing to do with reality, conservative or otherwise.
Coda I, War itself is a tortuous experience on any number of levels, so if you genuinely wish to stand against torture on a wholesale level, broaching no further discussion (i.e. no application of the mind ), then you may as well take an equally dogmatic and absolutist stand against war itself, e.g., in the manner of some anabaptist and others.
Coda II, If you're genuinely ardent concerning the subject, then be sure to affirm the Iraq effort, in some part initiated against Saddam & Sons' human abattoirs, rape rooms, etc.
What you "heard about the Polish parliament during the German invasion of Poland prior to WWII" or perhaps what you remember about what you heard is entirely wrong.
And I just don't think the memo is outside the bounds of traditional advocacy in this area. If you think it is, then you no doubt think that criminal appellate defense attorneys are, per se, unethical.
That would be a pretty fair description if torture was already taking place when he wrote this memo, but as I read it, he's instructing the military on how they can torture and get away with it. Not only that, he's doing them quite a disservice because he reads the torture statute in a way that no sensible court could, and offers all kinds of crazy necessity defenses and good faith defenses that I don't think would wash.
Michael B commented: “Yes, and while you're much applauding your high moral standing, you Brits and Euros also have reason to be proud of the manner in which you've rearranged your backbone in order to accomodate even notably radical Islamicists, such as is represented in Hizb ut-Tahir; or likewise accomodating - and 'accomodating' is in fact the proper term - violence systematically perpetrated against Muslim women by Muslim men.”
Both assertions are in fact untrue and seem to me to be introduced on this thread purely to pander to prejudice.
Returning to the point at issue, see the the speech of Lord Hope of Craighead in Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [2000] 1 AC 147, [1999] UKHL 17, in particular the following passage:-
“Read with the broad definition which the expression "torture" has been given by Article 1 of the Convention and in accordance with ordinary principles, the offence which section 134 lays down must be taken to include the ancillary offences of counselling, procuring, commanding and aiding or abetting acts of torture and of being an accessory before or after the fact to such acts. All of these offences became extra-territorial offences against the law of the United Kingdom within the meaning of section 2(2) of the Extradition Act 1989 as soon as section 134 was brought into force on 29 September 1988.”
[Emphasis added]
His Lordship went on to hold that the ancillary offences could be tried in England no matter where they took place.
The question is therefore whether the Yoo Memorandum could properly lead to a charge of “counselling, procuring, commanding and aiding or abetting acts of torture and of being an accessory before or after the fact to such acts”..
As I understand it, this Memorandum purported to be legal advice to those in government service. I question whether it was compatible with his duty as Counsel, whether he should remain a member of the bar and whether he should be permitted to teach those who may have to give advice in the future.
Interestingly, both the Pinochet Case and the Furundzija case were decided years before Yoo wrote his memorandum. (1999 and 1998, respectively.) Which begs the question why Yoo didn't, at the very least, mention them.
BTW, apart from what Litigator-London already cited, the Pinochet ruling also says this:
(Lord Browne-Willkinson)