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The "Torture Memo" Goes to Court:

Lyle Denniston has the details on SCOTUSBlog here.

occidental tourist (mail):
Am I missing something here? They are introducing the Yoo memo as evidence that the enemy combatant designation/detention is wrongful? The memo doesn't discuss that. It discusses what rules govern interrogation of alien unlawful combatants held outside the United States.

Or maybe Al Marri's proposition is that a bunch of squishes gave up on the Yoo approach after the beautiful people made Yoo into nuclear property. So the court ought to be encouraged to second guess any assertion of executive authority based on the idea that there is no stable contour of that asserted power. Cute!

I agree that the memo with no counterpose represents the president at the zenith of warpowers in a manner that comes close to vacating the separation of powers. But it does not exist in a vacuum.

Most of the arguments the Yoo makes appear to thread this activity under precedent that might indeed call into question the nature of the applicability of the standards of say 18 USC 2340A, the torture statute.

We don't normally consider the military while conducting a war to be acting under "color of law". They are fighting a war. That is essentially the opposite of a circumstance where civil law prevails. At best they are acting under military law and this should be in the code of military justice if it is to apply to the military.

The prisoner context is murkier but it isn't so crystal clear that you can suggest Yoo is off the reservation.

I mean, if the congress wants this torture statute applied against the military during hostilities regardless of the status of detainees with regard to the Geneva Convention, they should say so specifically. Their power to make rules for military conduct would, I think, allow such a prohibition. The memo in suggesting that Congress failed to specifically apply the statute to the military essentially acknowledges the power of Congress to do that. There is a hint of the all powerful executive in dicta as to the question of what is the difference between military behavioral and disciplinary standards and what are tactical decisions left to the commander in chief, but at best this addressed hypothetically because Congress was opaque in crafting the statute.

As with a lot of Yoo's purported transgressions, this one seems a closer call intellectually than his detractors make out.

As he points out in the memo, he is not recommending anybody doing anything. I refuse to see this memo as leading to Abu Gharib. No one in their right mind would think the tactics there effective or useful to our effort even if they were legal. (I can however see more relevance to that argument than to the argument that this somehow relates to Al Marri's detention)

I concur that the sense of the executive branch as reading these precedents or exceptions to other statutes into statutes to which courts have not yet applied them is a strategy that exhibits quasi-judicial intent pushing the limits of executive power, simply on the checks and balances basis. Whether Yoo has written the song of Solomon or a sophmoric tome there is no check. But the check seems to be bringing cases in court and to the public.

I blame the Bush administration more for not coming to a quicker resolution of the strategic value vs. PR liability of these executive detentions and not doing more sooner to give them the character of having been subjected to review than for a sense of brash executive will exercised at the outset. In that light I just don't see the Yoo memo as such a big thing.
4.8.2008 4:38pm
J. F. Thomas (mail):
I mean, if the congress wants this torture statute applied against the military during hostilities regardless of the status of detainees with regard to the Geneva Convention, they should say so specifically.

We have over a hundred years of military law saying torture is illegal, plus the Geneva Conventions, saying it is illegal to torture anyone, regardless of their status, plus the Convention Against Torture. The Congress didn't specifically make laws applicable to the military because nobody would have dreamed seven years ago that there would be any question that the military, or anyone else operating under the legal authority of the U.S. government, could torture anyone under any circumstances. It was a laughable suggestion.

That Yoo contemplated it, and people actually think he made a reasonable argument, is absolutely astounding.
4.8.2008 5:07pm
PersonFromPorlock:

We don't normally consider the military while conducting a war to be acting under "color of law". They are fighting a war.

In actual combat, yes. But the notion that American officials holding prisoners taken in combat aren't constrained by law is absurd.
4.8.2008 5:30pm
Diplomatic Gunboat:
The military was directed to accept the torture memos as policy, not just theoretical musings, over much objection (see the memorandum for the record of the then-Navy General Counsel, Alberto J. Mora, available here, or try taking off your blinders and reading for yourself the multitude of other documents about it).

It is indeed 'such a big thing'--undermining not only the separation of powers but the rule of law. (Both are important, within the beltway the separation of powers is the larger concern because it involves power, the local currency, though in truth the rule of law is more fundamental to society).

A lawyer should not claim surprise that his professional legal advice is relied on. Prof. Organ-Failure-or-Death's professional legal advice resulted in inhumane treatment, disdain of law, and shame and dishonor to our nation. It probably resulted in illegal killings. It is documented that his legal opinions resulted in the abusive tactics at Gitmo, that these tactics were then officially applied to Abu Ghraib, and that the Abu Ghraib scandal resulted (and of course there was inadequate oversight--what kind of oversight over shameful abusive activity do you expect?).

Oh, and he concluded that the Fourth Amendment does not apply to the Executive Branch in wartime. Last time I checked, the Framers knew exactly how to put an exception for wartime into the Constitution--look at the Third Amendment. Do not insult the military by claiming that the written Constitution they took oath to support and defend, and the laws enacted thereunder, do not apply to them. The military is under the law, even in war, and this is a fundamental point. If you have never worn the uniform, you should at least try to educate yourself before dismissing these issues as 'PR liability'.

We may yet come to wish we had upheld and preserved the rule of law.
4.8.2008 6:50pm
occidental tourist (mail):

We have over a hundred years of military law saying torture is illegal, plus the Geneva Conventions, saying it is illegal to torture anyone, regardless of their status, plus the Convention Against Torture.


Maybe I signed in at the wrong spots on the yoo threads, but most of what I've seen are flat assumptions that yoo was wrong and no detailing of how the authorities you cite contravene his interpretation.

The Geneva convention stuff depends whether you think that applies to unlawful combatants - I'm not talking as a matter of policy or probity, but as a matter of law. I can't suggest I've read the Convention on Torture or the "reservations, understandings, and declarations" that according to the memo "ensure that our international obligations mirror the standards of 18 USC 2340A. It sounds like this is not a convention with principally military application either.

As far as 100 years of military law are you referring to some kind of common law analog in the military context or customary international military law? I haven't seen cites to any part of the Uniform Code of Military Justice that makes this military law other than the generic incorporation of US laws that are subject to a prison term greater than 1 year?

I'd like to see some argumentation, not blunt assertions.


In actual combat, yes. But the notion that American officials holding prisoners taken in combat aren't constrained by law is absurd.


I suggested that this was a murkier context. They are of course subject to military justice in this context as are the detainees themselves. I guess the goose and gander argument says that they are acting pursuant to the presidents orders under the highest law of the land, i.e. the constitution and its allocation of the commander in chief power to the president -- at least theoretically then both during hostilities and while detaining prisoners subsequently. So theoretically that is under the color of law, but that seems an odd context. To be fair,the memo was prepared in regard to CIA conduct at Guantanamo so I'm more than willing to concede that this is not a heat of battle, chaotic atmosphere. But it seems plausible to me that military law applies at these nonterritorial military bases and that the argument boils down to whether these detainees are covered by the geneva convention.

I am not resisting serious arugments of probity for treating them as if the convention applies, but that is different than whether it really does, and there is at least a countervailing argument that if people don't perceive any penalty for acting as non-parties to it, what is their motivation to observe the convention, the laws of war, or anything else.

Yoo was interviewed regarding the memo here. He says that an almost identical draft or opinion was released in 2004. Are there old links to that laying around.

Brian
4.8.2008 7:05pm
Crust (mail):
Have there been any prominent legal defenses of the Yoo memo since it was released? (I was surprised not to find anything at Bench Memos.) If yes, anyone care to pass judgment on Stuart Benjamin's predictions?
4.8.2008 7:22pm
occidental tourist (mail):

It is documented that his legal opinions resulted in the abusive tactics at Gitmo, that these tactics were then officially applied to Abu Ghraib,


His memo regards unlawful combatants. Yoo says in the link I just posted in the comment above that they did not apply in Iraq. Perhaps if abu gharib had a segregated population of unlawful combatants some might have applied the same reasoning but yoo maintains: "The memo released yesterday does not apply to Iraq. It applied to interrogations of al Qaeda detained at Guantanamo Bay. I don’t [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq."

I don't disagree from a technical standpoint that the memo could provide an intellectual foundation for shifitng its interpretaiton to later hostilities in Iraq with the representation that unlawful combatants there were tantamount to a continuation of the war on terror. ergo you import those standards to the parts of the Iraqi conflict and detentions to which it is applicable.

But the question of whether the memo equally justified the use of abusive tactics in Iraq is separate from the procedural and tactical decisions appurtenant to its actual use. Just because something can be done wrong doesn't make the power to do it illegitimate. Think the raid on the Davidian compound. They had the power to do it, but they would have a hell of a lot smarter to pick the guy up when he was eating breakfast in town.


If you have never worn the uniform, you should at least try to educate yourself before dismissing these issues as 'PR liability'.



I'm sorry if you understood me to be referring to any specific abuse as a pr liability. I was referring to the overall ineptitude of bring the detainment under the rule of law. Certainly when applied to any particularly galling or downright inhuman instance of our conduct in the history of these irregular detentions 'pr liabilty' is far too flippant.

Further, I'm moved by those military voices, e.g. mccain, who insist that if there is a loophole we not go through it. I'm not agreeing with Yoo's outcome, but whether its Net Neutrality or Torture Memo's the non-substantive vitrol around his contributions to the polity raises to such a level as to drown out any discussion. He is the devil and everybody else see's the light. So I guess you can just call me the devil's advocate. I'll have to go see if that stagename is taken here on the conspiracy.
4.8.2008 7:50pm
AntonK (mail):
Let's see, what would make us Better, Morally Superior People? Hmmm....Allowing tens of thousands of innocent people to die horrible deaths at the hands of terrorists so we don't have to endure the 'shame' of 'torturing' bloodthirsty terrorists, or...Saving tens of thousands of innocent lives by making a bloodthirsty terrorist feel 'entirely unpleasant' and 'uncomfortable.'

Gee, I'm gonna have to meditate on that one.
4.8.2008 9:04pm
frankcross (mail):
AntonK, can you explain which of the waterboarded terrorists would have caused tens of thousands of innocent people to die horrible deaths, save for the treatment he was afforded?

Do you find it odd that the Army proscribes such treatment of prisoners. Do you think the Army wants tens of thousands of innocent people in America to die? Shouldn't the President have done something about that, if the Army feels that way?
4.8.2008 10:04pm
PersonFromPorlock:

I suggested that this was a murkier context. They are of course subject to military justice in this context as are the detainees themselves. I guess the goose and gander argument says that they are acting pursuant to the presidents orders under the highest law of the land, i.e. the constitution and its allocation of the commander in chief power to the president -- at least theoretically then both during hostilities and while detaining prisoners subsequently. So theoretically that is under the color of law, but that seems an odd context.

OK, look, there's no such thing as "military justice" or "military law." What there is is federal law that applies to the military and it's just as much 'law' as any other federal law. Even in a military context, operating according to military regulations and orders (orders have the force of law) is operating "under color of law."

Also, I wouldn't make too much out of the President's being Commander in Chief. My take on that is that when he puts the brass hat on he places himself under Congress's Article I power to regulate the military; he loses, not gains, autonomy.
4.8.2008 10:40pm
devil's advocate (mail):
So I go off to get a new screen name and by the time I come back I find out I have to change sides.


...Saving tens of thousands of innocent lives by making a bloodthirsty terrorist feel 'entirely unpleasant' and 'uncomfortable.'

Gee, I'm gonna have to meditate on that one.


That of course is a false depiction of the choices as they get made in the real world, e.g. this bit, concededly from the NY Times but I don't think it has been exploded as Dan Ratheresque:


Dilawar had been chained to his cell ceiling by his wrists for four days and his legs pummelled by guards when he was brought to be re-interrogated at 0200 hours about an attack on a US air base, it says.

After the interrogation he was returned to be chained up and died before a doctor came to see him.

The report says most interrogators believed him to be an innocent taxi driver who simply drove past at the time of the air-base attack.


This to me is not some acceptable trade off. You're going to make some mistakes, it's not that I won't give them room for that, but most of the interrogators believed him to be an innocent taxi driver but didn't have the self discipline to cut him loose or at least cut him some slack while they confirmed that as best they could. And this fabled story is a stand in for plenty more I'm sure.

But that said, trying to portray this as 'John Yoo opened pandora's box' doesn't wash for me. Just because there is the possibility of this tactic being abused doesn't mean that every use is an abuse. (OK I saw the choice of words and decided to leave it, some will point out that every use is an abuse by definition, but of course I mean an instance of using this tactic in an abuse of discretion, unnecessarily, importunately, etc.)


I would agree that this aggressive interrogation probably has narrow practical application, maybe approaching none. We don't know if the way they questioned zubaydeh lead to saving 10,00 lives or not but there wasn't any question he was a bad guy.

So I think Zubaydeh was maybe a no brainer but as Yoo told Esquire, the policy/tactical choice is usually a much harder question than the legal question.

Brian
4.8.2008 11:01pm
Dan Hamilton:
For ALL of Yoo's Memo's, WHAT WAS DONE?

Two terrorist (without question) were waterboarded for less then a minute each.

There is a great question of weither or not waterboarding is torture. Since we have done it to people in military trainning.

Yoo's Memo was a legal opinion, that is all. It was not policy. If it was MADE Policy then whoever MADE it policy is the one you should be after. I have NEVER seen or heard of people attacking the opinion and showing how Yoo was wrong. All I hve seen or heard is screeming fits about torture. And of course how EVERYTHING is torture.

Those saying it is wrong to do anything even approching torture must then also agree that in the ticking A-bomb situation that they prefere that the bomb go off rather then use anything even approaching torture to get information to stop it. If they are honest they don't agree. They want to be morally superior but still have someone break the laws if nessary. They don't want to make the HARD decisions.

Yoo was talking about torture and when is it legal. You may not like his answer but wasn't it a great idea for the President to ASK THE QUESTION. Think about it!

Wasn't it right and proper for the President to ask?

And if you can't show that Yoo's Memo was outside the Law and that his opinion could not be supported by the Law, Yoo did nothing wrong!!! Disagree with him all you want. Show where he was mistaken. But stop trying to distroy him just because you don't like his opinion.
4.8.2008 11:05pm
Oren:
There is a great question of weither [sic] or not waterboarding is torture.
Patently false. In 1947 a US war tribunal sentenced Yukio Asano to 15 years hard labor for that same crime.
4.9.2008 12:33am
Oren:
Yoo's Memo was a legal opinion, that is all. It was not policy.
OLC memos are as good as policy because that DOJ will never prosecute an American official for a violation of the law countenanced by one.

I have NEVER seen or heard of people attacking the opinion and showing how Yoo was wrong.
See Balkinization (balkin.blogspot.com IIRC) for a detailed play-by-play. If you review the history on this blog, you'll see plenty of demonstration that, at the VERY MINIMUM, Yoo's memo was incomplete for failure to include contravening authority.

Those saying it is wrong to do anything even approching torture must then also agree that in the ticking A-bomb situation [blah blah]
Red herring, at best.

Yoo was talking about torture and when is it legal. You may not like his answer but wasn't it a great idea for the President to ASK THE QUESTION. Think about it!
We've thought about it quite a bit and either you were here and not commenting or, more likely, you just got here and assumed that this was the first post ever made on volokh about Yoo's memos (hint: no).

Wasn't it right and proper for the President to ask?
Absolutely.

Show where he was mistaken.
I suggest you go back and read those previous posts for a very detailed analysis. Try searching google for (no quotes) "yoo memo site:volokh.com" if you are having trouble finding reams and reams of specific detailed legal criticism.
4.9.2008 12:39am
davod (mail):
"Dilawar had been chained to his cell ceiling by his wrists for four days and his legs pummelled by guards when he was brought to be re-interrogated at 0200 hours about an attack on a US air base, it says.

After the interrogation he was returned to be chained up and died before a doctor came to see him.

The report says most interrogators believed him to be an innocent taxi driver who simply drove past at the time of the air-base attack."

What repirt?
4.9.2008 6:51am
AnonLawStudent:

In 1947 a US war tribunal sentenced Yukio Asano to 15 years hard labor for that same crime. [Thus waterboarding is torture.]


Oren: After reading Hamdan again recently, I have to ask how this can be asserted with such certainty. In his rush to throw out Yamishita and Quirin by limiting war crimes to those that are defined by the UCMJ and formal treaties, see Hamdan, 126 S.Ct. 2749, 2777-2782 (2006), didn't Justice Stevens also effectively eliminate the relevance of Asano? In other words, applying Hamdan, "torture" is limited to actions meeting the relevant statutory and treaty definitions, which Yoo analyzed in great detail. I disagree with Hamdan - war crimes certainly can be a common law offense - but its holding significantly undercuts the repeated citations to Asano as controlling authority.

Note to readers: I'm not looking for a repeat of the voluminous threads on Yoo generally; I'm seeking to address this narrow issue specifically.
4.9.2008 10:24am
devil's advocate (mail):

What repirt?


Sorry, the context of the NYT article is paraphrasing the content of the military's own inquery into Dilawar's detention (and the treatment of some other's, I think Dilawar's is probably the most strikingly improper as documented given that they pretty much had already figured he was just in the wrong place at the wrong time, I'm sorry I don't have link to the original military report or know if a legitimate version has been made public, if I find one I'll post it.)


Crust
Have there been any prominent legal defenses of the Yoo memo since it was released? (I was surprised not to find anything at Bench Memos.) If yes, anyone care to pass judgment on Stuart Benjamin's predictions?


I don't know if it would be considered high profile but Bart DePalma (don't know if that is nom de plume or not, sounds fairly mundane, might be an actually identifiable guy)does a very good job through a series of comments on the Balkin thread pointing to the Yoo Interview in Esquire
Here is a snip from one of depalma's posts:


There is another obvious reason why a torture statute has to be somewhat vague. If you try to comprehensively define every single act that it torture, inevitably someone will come up with some ingenious new form of torture that no one thought to ban, and then what.

The Torture Statute could be made effective with a list of things you are not permitted to do to the body and a catchall provision at the end. For example, you could knock out all the versions of waterboarding by simply prohibiting all acts which cause or simulate asphyxiation.

You could also limit interrogation to a defined set of techniques like those described in the Army Interrogation Manual.

Congress has attempted versions of both types of statutes because they realize that the current statute is next to useless.

I suggest that the reason why some folks will not make this pretty basic concession is because they need to believe that Yoo and dozens of others twisted a "clear" law so that the Bush Administration can fit their preconceived notion of a gang of Nazi war criminals who torture for laughs and giggles."



lot's more posts from depalma looking at the specifics of reservations to GC and CAT and thus substantively importing and discussing the content of Yoo memo. Considering that he is in the extreme minority of posters there is relatively little substantive response offering seriously competing authorities. Instead there are blanket assertions like CAT applies to all people (as ooposed to the cavet in GC regarding unlawful combatants), but that of course does not resolve the substantive contention that CAT does not apply because US reservations limit the extent of its definition of torture to our own legal definitions which line is, in many ways, simply a circular reference to the contentious point of the yoo memo which is what does US law and precedent say about waterboarding. I recognize the Oren's comment:


In 1947 a US war tribunal sentenced Yukio Asano to 15 years hard labor for that same crime [waterboarding].


and again ask where is the footnote. I would be glad to review and credible materials related to that proceeding and any further citations to the case as definitive of the question. Perhaps this is one of the famous contravening authorities. I hope you're still here and will give us a specific pointer instead of the generalized -see all previous threads.




Oren

I have NEVER seen or heard of people attacking the opinion and showing how Yoo was wrong.



See Balkinization (balkin.blogspot.com IIRC) for a detailed play-by-play. If you review the history on this blog, you'll see plenty of demonstration that, at the VERY MINIMUM, Yoo's memo was incomplete for failure to include contravening authority.


So I go looking for all this supposed obvious substantive cream that is going is typical of the response of the vast majority of commentors to the Yoo memo. I keep asking for the footnotes and they say go look at all the old threads, and I do, and what I find are comments like this.

by Tulkinghorn on the Benjamin thread here on Volokh:
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?


with no citation of what he means by "all the binding authority he conveniently left out"

I have checked Balkin also and I tend to find mostly ad hominem stuff, argument around the applicability of GC and CAT that we have reconvened here. I see no link to any comprehensive bibliography of these "contravening authorities".

Where is the anti-"yoo-memo" not the "anti-yoo" memo. This link would get us to the crux of the matter more quickly. Even in legal cases when counsel cites marbury v. madison, they don't roll their eyes at the judge and say everybody knows how to find it, they footnote it.

I can only conclude that these contravening authority are not as commanding as they are made out be so it is better to refer to their uncontested existence (see tactics of global warming alarmists), a fact know by all the beautiful people to be true. No need to explain which authorities we're talking about. And when anyone asks, you just say "all of them". Helpful.
4.9.2008 11:05am
devil's advocate (mail):

I wouldn't make too much out of the President's being Commander in Chief. My take on that is that when he puts the brass hat on he places himself under Congress's Article I power to regulate the military; he loses, not gains, autonomy.


Very good point, but I am not supporting an unlimited commander in chief power that knows no check and balance. I'm in agreement that the commander in chief power does not contravene congress's power to regulate the military. But I find the various authorities cited ambiguous as to congress's efforts in that regard and tend to agree with Depalma from the Balkin thread cited in my post above that congress was vague in its enactments on these questions as to their applicability to the military and as to the bright line definition of torture.

We can argue all we want about the yoo memo but they can pass a law tomorrow that says any detainees will be treated in accordance with the GC provisions for the treatment of POWs. They could pass a statute outlawing waterboarding and specifically make it applicable to the CIA and the military whereever they may be and with out regard to the laws of the jurisdiction where they are.

These are not the kind of laws they passed.

As to discussing the yoo memo till the cows come home, thank you anonlawstudent for this narrow query that gives context to Oren's Asano aside. :


In his rush to throw out Yamishita and Quirin by limiting war crimes to those that are defined by the UCMJ and formal treaties, see Hamdan, 126 S.Ct. 2749, 2777-2782 (2006), didn't Justice Stevens also effectively eliminate the relevance of Asano?


This is more specific and focused than my simple request in the post above that Oren give us context on the Asano matter as the only susbstantive "authority" opposing the Yoo memorandum I have found in any of these threads. (I'm not saying there are no more specifics but I have rolled through a lot of posts and a plethora of comments and it is the only citation I can recall. I hope he replies. This is the kind of discussion would be useful new territory in these threads.
4.9.2008 11:18am
M. Gross (mail):
Just a reminder, the Yukio Asano case doesn't appear to establish a clear illegality for waterboarding.

Summary of the Case

First of all, he was charged with mistreating protected Prisoners of War, not just random people. Secondly, water-boarding (or something analogous) was only one in a long list of offenses, the sum total of which earned him a 15 year sentence.

If anyone actually pulled the data reels, I suppose we could see what the court thought precisely on the subject.
4.9.2008 12:03pm
devil's advocate (mail):
trying to be fair to everyone because this has been substantive discussion. sorry personfromporlock. I had missed this post as it went up while I was writing another:


OK, look, there's no such thing as "military justice" or "military law." What there is is federal law that applies to the military and it's just as much 'law' as any other federal law. Even in a military context, operating according to military regulations and orders (orders have the force of law) is operating "under color of law.


point taken. and I more or less concede the color of law rule as even applying to the heat of battle but I think this all the more means that statutes which are meant to apply and have jurisdiction over military action should be crystal clear. But given that there is an area within the USCode where rules of military conduct are codified, why do we suppose that Congress has not insert and equivalent of 18 USC 2340A or cited to it.

It is unfair, as yoo told Esquire that the line for military conduct be blurry (this is especially so when it comes to split second decisions, I'm not saying we are generally discussing split second decisions here in the yoo memo context, but I don't think the clarity argument drops away.

Interestly, a commentor at Balkin tries to use this against yoo, because yoo speaks of the importance of clarity, in defending his articulation of what qualifies as severe pain. The commentor then belittles yoo because he later says that the difficult thing is making the 'policy' call as if yoo means by this interpreting the pain defintion. That of course is not what yoo means at all. What he means is in what tactical circumstances there is any merit to employing these interegations.

What Yoo could have said more clearly if he felt this way, is that if these decisions are so difficult that militates for moving them as far up the chain of command as possible in each individual case. That is certainly implied by his general treatment of the question of how this authority could be wisely used but I have not seen him to say so (although obviously he may have outside my knowledge).

So this is a context thing. Guys on patrol who capture somebody and have been underfire or ambushed might not be in a position to ask for a 5 star review of their decision to slap the guy around in seeking information about immediate threats. But in the Abu Gharib circumstance, I don't concede I've seen the smoking gun connecting the yoo-memo and Abu Gharib, there would be no excuse for not getting 5 stars on the bottom line for anybody subject to aggressive interrogation.

For all the truth that the military is concerned about yoo's interpretation and that there are plenty in the military who want it come out the other way, who want to treat everybody GC, etc., the military could have constructed the rules for application the corresponded to what I'm speaking of. Whoever was responsible for making the rules at Abu Gharib is the person to hang, not yoo.

Brian
4.9.2008 12:03pm
Anderson (mail):
Two terrorist (without question) were waterboarded for less then a minute each.

And you know this from ... watching the CIA's videotapes?

Of course, it's not just waterboarding -- that just seemed like a no-brainer, back when it appeared that "conservatives" might not all be secret KGB wannabees.

Forced standing, extreme sleep deprivation, hypothermia, and just good old fashioned beating the crap out of somebody ... these are STUPID techniques for effective interrogation. They are used by stupid people who have no clue what they're doing, and by evil people who are interested in terrorizing, not interrogating.

There are no exceptions to Geneva where torture is concerned. Those who argue otherwise are misinformed or misinforming. The War Crimes Act makes grave breaches of articles I through IV a felony, in or out of the U.S., whoever commits them. There is no exception for "unlawful combatants" or anyone else -- EVERYONE receives at the very least freedom from torture and "inhuman treatment."
4.9.2008 1:49pm
PersonFromPorlock:
devil's advocate:

What Yoo could have said more clearly if he felt this way, is that if these decisions are so difficult that militates for moving them as far up the chain of command as possible in each individual case. That is certainly implied by his general treatment of the question of how this authority could be wisely used but I have not seen him to say so (although obviously he may have outside my knowledge).

So this is a context thing. Guys on patrol who capture somebody and have been underfire or ambushed might not be in a position to ask for a 5 star review of their decision to slap the guy around in seeking information about immediate threats. But in the Abu Gharib circumstance, I don't concede I've seen the smoking gun connecting the yoo-memo and Abu Gharib, there would be no excuse for not getting 5 stars on the bottom line for anybody subject to aggressive interrogation.


Well, there aren't any five-star generals on active duty and may not even be any left alive, but that's a quibble. The real reason thorny problems like "should we interrogate-with-pain?" don't get kicked upstairs is that people who put their bosses on the spot don't prosper (and not just in the military).

I'm morally certain that somewhere there's a command-level policy letter that very carefully doesn't mention torture but does say "Commanders in the field are expected to show initiative in resolving interrogation issues...." which any veteran will easily read between the lines as saying "Use torture if you have to, but don't expect us to save you if you get caught."

The thing is, in the military there's a lot that's understood 'between the lines'. In part that's because the military often deals with wooly situations but it's also in part because the military is a bureaucracy with any bureaucracy's distaste for being pinned down. The Yoo memo may well have been deliberately vague to give the military room to manuever, and some of those manuevers may have taken place at Abu Ghraib.
4.9.2008 1:59pm
PLR:
We can argue all we want about the yoo memo but they can pass a law tomorrow that says any detainees will be treated in accordance with the GC provisions for the treatment of POWs. They could pass a statute outlawing waterboarding and specifically make it applicable to the CIA and the military whereever they may be and with out regard to the laws of the jurisdiction where they are.

People who continue to defend John Yoo's opinion despite the OLC's retraction of it and the near unanimous rejection of it by lawyers with no dog in the hunt, are not talking about The Law (of which they are ignorant), they're talking about something else.

I prefer discussions about The Law, and the proper sanctions for not following same.
4.9.2008 2:06pm
ObeliskToucher:

Dan Hamilton: There is a great question of weither [sic] or not waterboarding is torture.

Oren: Patently false. In 1947 a US war tribunal sentenced Yukio Asano to 15 years hard labor for that same crime.

Patently false yourself, Oren. Asano was charged with "...fastening him on a stretcher and pouring water up his nostrils." and "...by forcing water into their mouths and
noses;...". Although detailed descriptions of the waterboarding techniques used by U.S. interrogators haven't been provided, it's been made clear that the subject's face is covered in such a way that water can't enter the nose or mouth.
4.9.2008 2:23pm
AnonLawStudent:
devil's advocate,

You can't say that we didn't try. I've run into this problem on other thread with different topics. This stuff is wickedly complex if one actually approaches it from a legal standpoint:


(i) what judicial precedent exists;
(ii) what real-world precedent exists;
(iii) to what degree are i and ii still valid;
(iv) what do the applicable statutes say;
(v) what do the applicable treaties say, including
reservations;
(vi) how are iv and v properly interpreted; and
(vii) are iv and v problematic with regard to SoP,
i.e., can Congress bind the President in the
manner purported?

Note that I'm not even including the problems with facts: on the present topic, very few facts are in the public domain, and even fewer are primary information that hasn't been filtered through someone with an ax to grind.

In short, one has to have a significant degree of expertise in order to have a worthwhile opinion as to the law. One of the beauties of a blog or wiki is that - at least theoretically - a large number of people can contribute their small bits of knowledge (and rebuttals to other bits of knowledge) to form a greater whole. Unfortunately, the comment threads usually degenerate into X = evil = illegal, thus conflating policy and law. At best, one often sees an assertion that "Treaty T" or "Statute S" clearly makes "Action A" illegal, without citation to or interpretation of any relevant section. Moreover, it can take a substantial bit of time to track down a source that to refute even the most obvious idiocy. Good luck; sorry it didn't work out.
4.9.2008 2:32pm
Diplomatic Gunboat:
The 'signing statement' on your proposed statute would be impressive as well.

For your ticking A-bomb canard, if it truly happened one could always attempt the criminal defense of necessity. But there'd better be a bomb--the burden of proving the necessity is properly on the defendant, and necessity is and should remain a criminal defense, not a positive law authorizing abuse. I hate to think of the impact a fictional TV show has had.

As for court cases and publicity being an effective 'check', one can wish, but generous and self-serving grants of retroactive immunity and invocations of the dubious state secrets privilege have largely dulled that check.

I recognize that Prof. Organ-Failure-or-Death thinks we can't handle the truth--of course the Jack Nicholson-character in that Gitmo film was rightly arrested. The truth is, no one should be above the law. The founders were pretty clear on that point.

To quote Prof. Organ-Failure-or-Death:

Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President's constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.
(Emphasis added.)
It is fundamentally wrong and deceptive to suggest that laws should not be 'construed' to apply to Executive Branch national security activities. Even the wartime exception of the Third Amendment cited yesterday states 'nor in time of war, but in a manner to be prescribed by law.' He may be many things, but Prof. Organ-Failure-or-Death is not an originalist. You asked for authority that the Prof. was wrong. The Constitution of the United States, Article I, Section 8 directly gives Congress (not the President) the following enumerated powers, among others:

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 . . . 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.

(Emphasis added.)
Congress has the express constitutional power to 'regulate' the land and naval forces, and to 'make rules concerning captures' (in the same subparagraph as its powers over both declared war and unconventional war--Letters of Marque and Reprisal).

One who refuses to acknowledge the express relevant constitutional powers of Congress, and who further denies they exist, while authoring secret official advice to the Executive, is no friend of the Constitution.
4.9.2008 2:39pm
Anderson (mail):
Although detailed descriptions of the waterboarding techniques used by U.S. interrogators haven't been provided, it's been made clear that the subject's face is covered in such a way that water can't enter the nose or mouth.

True, we don't know the details. But let's think about it.

Water's poured over the face to induce a drowning sensation. How is that possible?

Either the air passages are sealed off, or they're not.

If so, as with the use of Saran Wrap (as some early rumors had it), that's asphyxiating. Try it home, with adult supervision. You can't breathe through Saran Wrap.

If not, as with the use of a towel, then some water *is* going to seep through. And again, once you've got a wet towel over your nose and mouth, you can't breathe.

Regardless, the whole point is making you feel as if you're drowning. It's unbearable, by design. As anyone who's ever come close to drowning can tell you, it's a physically intense experience, never mind the mental aspect.

"Tell us what we want to know, or we'll do that to you again" -- that's torture, folks. It's stupid, it's illegal, it's wrong. Ronald Reagan would roll over in his grave if he knew.
4.9.2008 2:55pm
devil's advocate (mail):
Anonlawstudent,

This has been the least 'devil made me no it' yoo thread I have followed and, at least in vignettes you can find thoughtfull questioning and answering in the others, it is just submerged beneath the absolutist surface.

I agree with you wholeheartedly that people want to boil very complex questions down to my way or the highway. These categorical assertions about yoo really strike me similarly to those about the putative risk and drivers of climate change.

In this case many people appear driven by a reasonable belief that torture of any sort is wrong, ineffective, barbaric and cannot be countenanced as legal in even the most cabined circumstances because of the slippery slope effect.

By that reasoning men should have a sperm sample taken when they're born and then be neutered. Society would be a safer place because hormonal behavior is a slippery slope.


People who continue to defend John Yoo's opinion despite the OLC's retraction of it and the near unanimous rejection of it by lawyers with no dog in the hunt


For the record, it seems to me that PLR equates looking for substantive refutation of various of Yoo's points with defending the memo. But assuming that he is speaking only to people who unquestioningly support its content and/or conclusion, Yoo says to Esquire and so far unrefuted, that the current OLC opinion is essentially the same excepting a fuzzier definition of torture as regards the infliction of severe pain. I don't call that a retraction in the broad sense, perhaps they retracted it, but if the reissued opinion was predominately the same with this exception then the so-called retraction is no grand repudiation of the undertaking from within the administration.

As to outside lawyers without a dog in the fight I think you may command a preponderance of the evidence, not of whether Yoo is wrong or right, but of whether they sat on their hands and very few came to his defense. This reminds me a bit of the position in the judicial spectrum held down by Clarence Thomas for whom yoo clerked, not incoincidentally I'm sure. Thomas is one of few who articulate the obvious conundrum posed by applying the language: "Congress shall make no law respecting an establishment of religion, or prohibiting the freee exercise thereoff" as applicable to the states. Very few lawyers with no dog in the fight have rallied to Thomas's point of view, but that fails to undermine its fundamental logic. I can only presume that the vast majority of lawyers have imported emerging cultural standards into their constitutional view such they they refuse to acknowledge this preeminently logical argument.

I am not suggesting that Yoo's path is as clear cut on the memo as is Thomas's on the 2nd amendment, but Thomas is right and current law and policy nonetheless is the opposite. So just because OLC choose a different policy does not make Yoo wrong.

Still waiting for Oren's bibliography. I agree again anonlawstudent that there tracking down all the relevant authority and interpretation is a herculean task, one probably underdone in Yoo's effort just as it appears to escape his critics as well. But when people speak about "all the authorities counter to Yoo's memo" I expect them to have a modestly encompassing list in mind. I'm not saying you can't add something you found later, I'm saying, what have you got for me now.

We have had two more challenges from MGross and Obelisktoucher to the categorical assertion that Asano is controlling here but no response from Oren. (I don't mean that drippingly. Maybe he has got a life. I just had hernia surgery so I'm sitting around anyway responding. On any other day it might take 24 hours before I got back so I'm waiting.) To everybody, thanks for playing.

Brian
4.9.2008 3:18pm
devil's advocate (mail):
Diplomatic Gunboat:


To quote Prof. Organ-Failure-or-Death:


Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President's constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.


Is this from the memo we are discussing? I can't find it in there. I agree this is the ultimate unitary executive theory and that in the context expressed it probably exceeds the bounds of the separation of powers although if Congress were to pass a law that the invasion of Iraq was begin from the south at a certain time on a certain date, would that be regulating the conduct of the armed forces or invading the commander in chief prerogative?

I do believe that Congress can adopt general standards under its enumerated prerogatives that would cabin the commander in chief power as to interrogations. I think there is a distinct boundary (distinct in theory no doubt more fuzzy in the field) between operational interrogration regarding immediate threats and strategic interrogation. This somewhat parallels the distinction between conduct on the battlefield on in that theatre and a POW setting. Nonetheless I think Congress still has the final word in either of these settings if it chooses to weigh in.

But the whole yoo memo only talks as you have quoted 'in dicta' which is to say that philosophy is not the operative support for the memo. Rather the support for the memo is that congress has not spoken directly and specifically to the question making clear that they subject military conduct to a specific regime. Yoo cites authority for that general premise. If you have countervening authorities, but all means we await.

Brian
4.9.2008 3:33pm
Oren:
AnonLawStuden write:
After reading Hamdan again recently, I have to ask how this can be asserted with such certainty. In his rush to throw out Yamishita and Quirin by limiting war crimes to those that are defined by the UCMJ and formal treaties, see Hamdan, 126 S.Ct. 2749, 2777-2782 (2006), didn't Justice Stevens also effectively eliminate the relevance of Asano?
That appears to be correct from a legal point of view. I concede that point but the fact remain that the Yoo memo has sought to legalize conduct that, when conducted by our enemies, was considered criminal.

I agree this is the ultimate unitary executive theory
This has absolutely nothing whatsoever to do with the theory of the unitary executive, which is a theory about the distribution of power within the executive branch. The inclusion of 'unitary' can only be a cynical attempt to piggyback novel (and, IMO, indefensible) theories about the balance of power on the back of an eminently reasonable theory about the executive branch. It adds nothing to the discussion whatsoever.

Nonetheless I think Congress still has the final word in either of these settings if it chooses to weigh in.
USC1340 not clear enough?
4.9.2008 4:11pm
AnonLawStudent:

USC1340 not clear enough?


No, it isn't. The entire point of the Yoo memos is to interpret the relevant statutory and treaty texts. To illustrate, in Section 1340, Congress modified the words "pain" and "suffering" with the adjective "severe." Likewise, the word "death" is modified by "imminent." So, even on just a cursory textual reading, one can undertake actions that colloquially qualify as *torture* without satisfying the elements of the crime specified in section 1340. Congress chose specific words; each and every one of those words must be given meaning.

[T]he fact remain[s] that the Yoo memo has sought to legalize conduct that, when conducted by our enemies, was considered criminal.

As other commenters have noted, what is important is law not policy. Pre-Hamdan, you might have had a case. On the other hand, there is precedent for changing the laws of warfare ex poste in response to changed conditions of warfare. See Hamdan, Thomas, J. (dissenting); cf. Judgement at Nuremberg: Karl Doenitz (guilty of authorizing unrestricted submarine warfare in violation of London Naval Treaty, but no penalty assessed because all parties to conflict engaged in unrestricted submarine warfare).
4.9.2008 4:49pm
Anderson (mail):
Pre-Hamdan, you might have had a case

What understanding of Hamdan is *that* based on? Asano is neither here nor there; it is ridiculous to argue that waterboarding does not violate the War Crimes Act or is not torture under the Torture Act (which covers only areas outside the U.S.).

What Hamdan *does* make clear is that Geneva applies to our prisoners, and that therefore torture and inhumane treatment of those prisoners is a grave breach of the Geneva Conventions, punishable under the War Crimes Act.

In other words, applying Hamdan, "torture" is limited to actions meeting the relevant statutory and treaty definitions, which Yoo analyzed in great detail.

His analysis is notoriously laughable -- it was taken down in detail when the first torture memo came out.
4.9.2008 5:33pm
Anderson (mail):
Ah, wish one could edit comments -- Marty Lederman explains why waterboarding violates the Torture Act, here and here.

It's fun to imagine arguing Yoo's position against Lederman's before the Supreme Court, but I would not want to be the client of whoever was doing so. The War Crimes Act provides for penalties up to life imprisonment or, where the victim was killed, death.
4.9.2008 5:38pm
AnonLawStudent:

What understanding of Hamdan is *that* based on?

The part that limits war crimes to those existing under applicable treaties and statutes, to the exclusion of common-law offenses. Not that I'm sure the latter would be available anyway where, as here, Congress has expressly defined the elements of the crime.

His analysis is notoriously laughable -- it was taken down in detail when the first torture memo came out.

Certainly not in these threads - they consisted entirely of the "Yoo is evil, ergo his conclusions are wrong" and the "Yoo did't cite to [contrary authority X]" variety. Yoo's memos appear to be concerned with the issue of exactly how far interrogations can arguably go under existing law, to the exclusion of whether they should go there as a matter of policy.

Marty Lederman explains why waterboarding violates the Torture Act, here and here.

Which I will substantively criticize for two reasons: First, he makes the fundamental error of citing pre-UCMJ convictions as applicable authority post-Hamdan. Second, his textual analysis consists solely of the absence of a "duration requirement for severe physical suffering." He makes no analysis of the requirement for "severe . . . physical pain;" his commentary consists entirely of "The whole point of waterboarding is to induce severe physical suffering. Therefore it is torture, even under the limited definition in U.S. law." Nowhere does he grapple with the definition of "severe" set forth by the administration. Indeed, he just repeatedly asserts that it is wrong.
4.9.2008 6:16pm
Diplomatic Gunboat:
Mr. Advocate,

The quote is to be found on page 13 of the 81 page March 14, 2003 'Memorandum for William J. Haynes II, General Counsel of the Department of Defense' signed (solely) by the infamous then-Deputy Assistant Attorney General of whom we speak. If you don't have the original, a copy is available here. Alternatively, the memo is available via Lyle Deniston's SCOTUSblog entry noted in Jonathan Adler's short original post above.

After the quoted section, the next sentence and footnote dismisses summarily Congress's Art. I Sec. 8 powers because interrogations are 'a core element of the President's power to successfully prosecute war[,]' citing no constitutional authority other than another OLC memo (asserting ludicrously that Congress cannot pass legislation on military commissions) and a grossly misleading misstatement of Quirin (claiming that the Court had 'reserved' this issue when in fact the Court found that Congress had explicitly authorized military commissions and held in favor of the commissions because of that statutory authorization, reserving instead the issue of what scope of jurisdiction could be constitutionally granted to military commissions.)

You seem to conflate the unitary executive theory with the plenary executive power assertion. UCBerkeley's Professor sometimes conflates these ideas as well, but I recommend against it as the two, though related, are distinct in basis and effect. You may want to read some of the prior Volokh discussions on this.

Your claim earlier that the memo was only intended to apply to CIA activity is highly doubtful. It was not addressed to Mr. Rizzo but to Mr. Haynes, and I understand--though I haven't seen the tapes--that most personnel involved were military. The memo expressly addresses military operations and military personnel. It does not specifically state that it does or does not apply to Iraq, but it does address conduct on 'permanent U.S. military bases outside the U.S.' citing GTMO as an example (probably also contemplating Guam, etc.), contrasted with temporary bases in Afghanistan (page 35).

Among its other woeful, probably intentional inadequacies, the memo also fails to mention that the Uniform Code of Military Justice directly prohibits military personnel from committing maiming, assault, sexual abuse, murder, etc., and that Article 134 of the UCMJ further expressly assimilates the federal criminal code ('all crimes and offenses not capital'--See, e.g., U.S. v. Ford, U.S. Court of Appeals for the Armed Forces, 1999). The breadth of UCMJ jurisdiction, particularly in light of Article 134's assimilation, has been rightly used to argue that the ICC should almost never have jurisdiction of active duty U.S. military personnel due to complementarity (See Prof. Robinson Everett's article here).

Your hypothetical about the southward attack statute is silly, and another red herring. Congress has the enumerated constitutional power to make rules concerning captures in time of war. For example, 'Don't beat them.' Despite this, Prof. Organ-Failure-or-Death asserts that Congress cannot constitutionally prohibit the beating of captured persons in time of war. And he concludes therefore that the laws cannot apply. (Congress does not need to pass another law to test this, his memos claim that any such law would be unconstitutional as applied to interrogating detainees in wartime.) You seem to defend his position, though it is contradicted by the plain language of the Constitution. (You sound like Al Gore: 'There is no controlling legal authority'--when the then-Veep's conduct violated the plain language of the statute at issue.) Prof. Organ-Failure-or-Death's work has directly undermined the Constitution and the rule of law.

But rather than your asking us to post briefs addressing your hypotheticals (see the extensive work of Prof. Marty Lederman, Prof. Benjamin Davis and others, though you apparently are not satisfied by them), I instead suggest the burden should be on those who claim there is any good faith basis for Prof. Organ-Failure-or-Death's official advisory opinions.

I have found none.
4.9.2008 7:05pm
Oren:
First, he makes the fundamental error of citing pre-UCMJ convictions as applicable authority post-Hamdan.
Given that Hamdan was quite recent, it appears that there is no possible way for us to make our case. We can't cite precedent (since Hamdan obliterated all that came before it) and we can't argue based on the plain meaning of the text of the law (since that's just "repeated assertion") - what is left?

FWIW, I've nearly drowned before (due to my own stupitiy) and I would describe the entire experience as qualifying as somewhere between "severe" and "unbearable". Physiologically, the CO2 in your lungs is forming carbonic acid which is essentially burning your lungs from the inside.
4.9.2008 7:09pm
DB Schwimmer:
This discussion is truly laughable. Most of the legal analysis I've seen follows the ridiculous path of "proving" that waterboarding a prisoner is an assault, and thus a crime, and therefore OMG, it's Torture!

Am I the only one here who has actually been to the Water Board? I underwent the training someone mentioned above. I thought everyone in special forces did, too. I was subjected to it, learned how to deal with it in minutes, and have subjected myself to it since. It usually has positive effect whenever I have a serious head cold. I frankly don't care what the legal precedents say; the thought that it qualifies as "torture" is patently absurd.
4.9.2008 7:13pm
AnonLawStudent:

Given that Hamdan was quite recent, it appears that there is no possible way for us to make our case. We can't cite precedent (since Hamdan obliterated all that came before it) and we can't argue based on the plain meaning of the text of the law (since that's just "repeated assertion") - what is left?


It merely means that you actually have to do quality legal research rather than relying on soundbite cases cited three-discussions removed by some talking head. For example, binding authority for crimes under the UCMJ is limited to convictions occurring after May 31, 1951 (the effective date of the UCMJ). Convictions occurring prior to that date are highly persuasive to the degree that they applied identical language appearing in the Articles of War (a fairly common occurrence). Convictions under various treaties are likewise limited. Precedent is a bitch. Many people celebrated Justice Steven's dodging of precedent in Hamdan; sometimes you get what you ask for. Likewise, I'm sure many people celebrated passage of the various anti-torture statutes, but these statutes use very specific words with very specific modifiers. Again, sometimes you get what you ask for.

Interpreting statutes without precedent can be quite difficult, but courts do it all the time. Start with a dictionary, semi-contemporaneous documents using any terms of art, and the legislative history. It's unfortunate that Marty Lederman took such a cavalier attitude in doing so. I would greatly appreciate seeing a good textual analysis, but a bald assertions that "X meets the definition because I say so" doesn't cut it.
4.9.2008 7:36pm
Diplomatic Gunboat:
Abu Ghraib was 'Gitmo-ized'. And there are U.S. servicemembers in prison today. Some detainees are dead. I strongly suspect these resulted from Prof. Organ-Failure-or-Death's advisory opinions.
I do not share your sense of humor.

On the undermining of the Constitution and the rule of law: As recently as November 2007, Mr. Haynes barred an active duty Marine Lieutenant Colonel (former Gitmo prosecutor) from obeying a Congressional request to testify--despite Congress's enumerated constitutional power and oversight authority.
4.9.2008 7:44pm
Anderson (mail):
Which I will substantively criticize for two reasons: First, he makes the fundamental error of citing pre-UCMJ convictions as applicable authority post-Hamdan.

And this affects which part of his analysis?

As for "failing" to "argue" that waterboarding is "severe physical pain," please don't feign stupidity. Why, exactly, do you think it coerces people into (supposedly) spilling their guts? Because it's just kinda sorta painful? Like a hangnail?

If you really are interested in the MANY critiques of Yoo's 2002 memo re: "severe physical pain," you can certainly google them yourself. But I doubt that you are; you wouldn't need me to suggest that to you.

Last, a word of advice: don't waterboard any detainees and then use your foregoing arguments in your own defense. Because I daresay you will spend a long while in prison if you do.
4.9.2008 8:00pm
Anderson (mail):
I frankly don't care what the legal precedents say; the thought that it qualifies as "torture" is patently absurd.

Foolish SERE instructors! Why did they even think that waterboarding should be included in their program? Who needs to be prepared against such laughably feeble methods, which are so far removed from inflicting any discomfort that they are absolutely essential for forcing detainees to yield information vital to our national security?

Apparently, waterboarding may have actually relieved KSM's suffering, if he had a cold at the time. I hope we sent him a bill -- I don't want to provide gratuitous medical care to these monsters at my expense as a taxpayer.

For that matter, if waterboarding's such a great treatment, why don't Medicare and Medicaid cover it? Why does the government care more about KSM than about Aunt Flo down at the nursing home? She's got a mighty nasty head cold ....
4.9.2008 8:06pm
Oren:
AnonLawStudent: How the hell are we suppose to cite precedent if Hamdan moots every single piece of precedent that came before it?

Why, exactly, do you think it coerces people into spilling their guts?
Terrorists are hydrophobic (that's why they live in the desert).

Last, a word of advice: don't waterboard any detainees and then use your foregoing arguments in your own defense. Because I daresay you will spend a long while in prison if you do.
My money is on a mass pardon before the inauguration irrespective of whether it's McCain or Obama being sworn in.
4.9.2008 8:10pm
AnonLawStudent:

And this affects which part of his analysis?

His citation to that case in support of his analysis indicates that he hasn't studied the subject adequately to render a qualified opinion. As I noted at 1:32 P.M., this is a "wickedly complex" area of the law. Lederman missed an elementary aspect of it; that certainly impacts the level of trust one should place in the rest of his ipse dixit. To put it in perspective, if a small town lawyer said that you can't create a contract unless you put it in writing, you probably shouldn't rely on him to draft one.

Foolish SERE instructors! Why did they even think that waterboarding should be included in their program? Who needs to be prepared against such laughably feeble methods, which are so far removed from inflicting any discomfort

Novelty of a situation and lack of training in how to respond to it tend to incite panic. While I haven't been waterboarded, I have been thrown in a pool with my hands and legs tied - I was trained how to calmly respond to the situation, and now it doesn't phase me. Let me do the same to you, and you'll probably panic, and answer anything I ask. Is that torture, even colloquially? I certainly don't think so: it doesn't cause me to respond other than to engage in the ways I was trained to deal with it. There are countless other analogous examples: spinning aircraft, tear gas, gunfire.

NB: You are one of the people I had in mind when I wrote the last paragraph of my 1:32 P.M. post.
4.9.2008 8:35pm
Oren:
I wouldn't hesitate to call throwing a hogtied prisoner in the pool torture but perhaps it's merely CID . . .
4.9.2008 8:43pm
AnonLawStudent:

perhaps it's merely CID

Which is why line officers detest staff corps. ;)
4.9.2008 8:49pm
Oren:
Zing!
4.9.2008 9:42pm
devil's advocate (mail):




I agree this is the ultimate unitary executive theory



This has absolutely nothing whatsoever to do with the theory of the unitary executive, which is a theory about the distribution of power within the executive branch.

...

You seem to conflate the unitary executive theory with the plenary executive power assertion. UCBerkeley's Professor sometimes conflates these ideas as well, but I recommend against it as the two, though related, are distinct in basis and effect. You may want to read some of the prior Volokh discussions on this.


Sorry, I should have used single quotes around that phrase 'ultimate unitary executive'. I full well understand that the plenary unchecked executive as commander in chief claim is quite distinct from the unitary executive theory but at least some, as one commentor noted, have accidentally and repeatedly conflated the ideas under this single term, thus by custom I used this mistaken convenience.


The quote is to be found on page 13 of the 81 page March 14, 2003 'Memorandum for William J. Haynes II, General Counsel of the Department of Defense'



Thank you for the citation to page 13 of the memo. I don't have text searchable version and ran through my printed copy several times looking for the language, but when I read it at first I thought, partly from the triumphant presentation, I read it quickly to be absolute assertion of the proposition when in fact it is just the reference in dicta to which I have referred repeatedly. Yoo doesn't say that a congressional enactment on interrogation tactics would violate the separation of powers, but that it might. In other words, its not the basis of this memorandum it is dicta. Because the memorandum finds that Congress hasn't done so.


Your claim earlier that the memo was only intended to apply to CIA activity is highly doubtful. It was not addressed to Mr. Rizzo but to Mr. Haynes


FYI - it was not my claim. I was pointing to that assertion by Yoo, however the timing of the memo makes such a claim sensible. Yoo suggests the motivation for its prepartion was the capture of Zubaydeh, so in other words they had a high value target being taken to an offshore military facility. It was a facility being run by the military who presumably had the final say (and responsibility) for what happened there even if working cooperatively with CIA, so I don't find that a persuasive refutation of yoo's representation.


there are U.S. service members in prison today. Some detainees are dead. I strongly suspect these resulted from Prof. Organ-Failure-or-Death's advisory opinions.



So, if only Daniel Pearl had been in the military they wouldn't have chopped his head off.

I respect the do unto others rule as a reasonable convention but unless you're telling me that you're talking about North Korea or North Vietnam still holding Americans and then killing them after they obseved our conduct towards a minority of detainees in the war on terror/iraqi and afghani conflicts, you can't possibly be talking about soldiers held by a force that even claims to adhere to the rules of war --


his memos claim that any such law would be unconstitutional as applied to interrogating detainees in wartime.


no they don't. They fail to surrender that claim but do not make it. This is the type of spurious assertion about the memo and its purported sweeping absurdities that is simply untrue. You quoted the section yourself and it says "raises serious questions". I don't think "raises serious questions" at least as regards the range of subject matter and detail available for congressional regulation of military conduct is an absurd reservation.

I have given several examples of legislation on individualized strategic matters, for instance congress legislating on when, from what direction, and with what strength to attack. I can certainly think of instances that cross the line established by the commander and chief power. I don't tend to think upon quick consideration that a statute clearly prohibiting waterboarding would be unconstitutional as a separation of powers matter. But I don't think that is so damned obvious as to allow dismissing the reserveration made in the Yoo memo.

I have read Ledermen's two posts on waterboarding and I tend to agree with anon law student and with Yoo, that the 30 pages boil down to how to define "severe physical pain" as it relates to waterboarding and the materials Ledermen introduces are not authories that guide or cabin that decision. They are full of laborious 'torture' handbooks and anecdotes of various eras that seem to suggest that the current technique has enormous psychological effect and ancillary pain. I don't think the fact that it obviously causes great distress means per se that it amounts to "severe physical pain". If those Ledermen posts are the best that Yoo's detractors have to offer I might have to concede he is right.

As far as whether I'd be worried about reliance on yoo's arguments if I relied on them in acting near these lines, if my case was heard by someone stampeded like the lemming lawyers lining up against Yoo, yeh, sure I'd be worried.
4.10.2008 12:24am
devil's advocate (mail):

Oren:
I wouldn't hesitate to call throwing a hogtied prisoner in the pool torture but perhaps it's merely CID . . .

AnonLawStudent:

perhaps it's merely CID

Which is why line officers detest staff corps. ;)

Oren:
Zing!


thanks for a little levity :)
4.10.2008 12:42am
Anderson (mail):
As I noted at 1:32 P.M., this is a "wickedly complex" area of the law.

Uh, no. There are some wicked people who desperately need to argue that, but they are mistaken.
4.10.2008 10:34am
devil's advocate (mail):

As I noted at 1:32 P.M., this is a "wickedly complex" area of the law.

Uh, no. There are some wicked people who desperately need to argue that, but they are mistaken.


well anonlawstudent, you can't please all of the people all of the time. This argument seems to me to be the classic case of over simplification in terms of legal argumentation. If you're talking moral propositions I'm with Anderson but if you're talking the law I'm with anonlawstudent. Not because I wish the law to be that way but because it is. Wishing the law otherwise is just another moral proposition at his point.

Combining the levity front with wickedly not complex, this never went anywhere on the starbucks thread so I keep throwing it in till I find someone who agrees with me that it is funny (caution adult language)

and on the content front I had a revelation, which is that Yoo implicitly conceded that the commander in chief power can be cabined by congressional enactment for the very obvious reason that he went through all this discussion about statutory interpretation of "severe physical pain". If he believed that Congress clearly could not regulate the president's choice of interrogation techniques simply because the president is commander in chief he doesn't even need to argue about that definition. He just says as an after the fact signing reservation that the executive will not apply the statute to strategic conduct of conflicts under the commander in chief power and he doesn't bother to discuss the parameters of an interrogation technique that might be considered an assault but might not rise to the definition of severe physical pain. You're not even discussing these interpretations of statute if you think the president is above the law.


Brian
4.10.2008 1:39pm
devil's advocate (mail):
BTW and staying true to my latest nom de legume, the actual basis for Yoo's reasonable conclusion regarding what represents severe pain, see 'Yoo memo'C.2.b., page 38, was not reasonably arrived at in my opinion. His resort to the statute providing the minimum threshold for not refusing emergency medical care that includes the phrase "severe pain" and then equating severe pain with the extent of physical maladies that could not be refused treatment simply does not follow as a way of statutorily defining severe pain. It is probably the weakest link in the whole thing.

I don't think Yoo has chosen a poor threshold to define severe pain, I just think you can't get there by the route he takes. Maybe you can defend it as an abstract standard drawn from educated thin air. If there is no cabin other than the dictionary the executive still gets a bite at the apple.

Brian
4.10.2008 2:05pm
Diplomatic Gunboat:
You mischaracterize the memo. Prof. Organ Failure-or-Death's spurious separation-of-powers argument denying that Congress has any legitimate authority here is not mere dicta, but is an essential basis for the opinion. But don't take my word for it, I encourage all to read the memorandum itself. For example, one could expect to find the fundamental basis for his opinions under the heading 'Conclusion':

For the foregoing reasons, we conclude that the Fifth and Eighth Amendments do not extend to alien enemy combatants held abroad. Moreover, we conclude that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad. Were it otherwise, the application of these statutes to the interrogation of enemy combatants undertaken by military personnel would conflict with the President's Commander-in-Chief power.
We further conclude that CAT defines U.S. international law obligations with respect to torture and other cruel, inhuman, or degrading treatment or punishment. The standard of conduct regarding torture is the same as that which is found in the torture statute, 18 U.S.C. §§ 2340-2340A.
Moreover, the scope of U.S. obligations under CAT regarding cruel, inhuman, or degrading treatment or punishment is limited to conduct prohibited by the Eighth, Fifth and Fourteenth Amendments. Customary international law does not supply any additional standards.
Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability.
Please let us know if we can be of further assistance.

(Emphasis Added.)
In the first paragraph above he doesn't use the word 'might'--he finds that it would conflict with the Commander-in-Chief power. Prof. Organ-Failure-or-Death 'construes' the laws in such a way that they do not apply to interrogation in wartime, because he finds that they could not constitutionally apply to interrogation in wartime. This finding is not dicta or 'reserved' as an open question. It is the direct, fundamental basis for his advice.

He states it plainly also on the first page:

In Part II, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly-authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander-in-Chief power solely to the President.

(Emphasis added.)
This finding is the fundamental basis for his advice that general federal criminal law does not apply. He states this fundamental basis in his introduction as to Part II, expounds on it throughout his analysis in Part II, and again repeats and reaffirms it in the conclusion. The 'dicta' defense of Prof. Organ-Failure-or-Death is unavailable.

Next issue: in the opening sentence of the memo he states that he was asked 'to examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States.' Yet he fails to analyze or discuss the applicability of any specific provision of the Uniform Code of Military Justice. Perhaps he thinks the UCMJ would be unconstitutional if applied to prevent abuse of captured persons during interrogation (perhaps, but he does not say this); perhaps he thinks the UCMJ exempts all criminal liability pursuant to 'just following orders' (look at Rule for Courts-Martial 916(d), certainly worth addressing). Perhaps he thinks the UCMJ applies completely and absolutely (except apparently for Art 134 clause 3). We do not know. Although the UCMJ contains the most direct 'legal standards governing military interrogation[,]' he utterly neglects to address them, thus failing to provide the guidance most directly relevant to the topic requested.

Instead, in mentioning the related but distinct Military Extraterritorial Jurisdiction Act, he dismissively says: 'Nothing in that provision, or its legislative history suggests an intention to impose general criminal liability on the military for properly-authorized acts undertaken in the prosecution of a war.' This sentence sounds nice, particularly the 'properly-authorized' part, but when you examine it you see that he is attempting to transform the 'just following orders' defense (discarded at Nuremburg) into a positive exemption.

Later, without addressing any specific UCMJ provisions at all, e.g., Art. 93 'cruelty and maltreatment', or notably Art 134's uncontroversial assimilation of general federal criminal law, he attempts to use the UCMJ as a 'specific' statutory scheme precisely to exempt military personnel from general federal criminal law. (Which, as I noted, the UCMJ expressly assimilates.) Trite trickery does not make for good analysis.

Prof. Organ-Failure-or-Death states that he is 'delimiting the legal boundaries' of military interrogations, yet he failed to analyze the provisions of the UCMJ. The UCMJ was passed by Congress, signed into law and has been repeatedly adopted and expanded upon by Presidential Executive Order) into the Manual for Courts-Martial. (This makes it difficult to assert it would be unconstitutional to apply the UCMJ to military interrogations.) In advising that general federal criminal law is inapplicable to military interrogations, Prof. Organ-Failure-or-Death also fails to mention that the UCMJ expressly and uncontroversially assimilates general federal criminal law.

Shoddy lawyering happens every day and surprises no one. But this was different: This was authoritative lawyering in the name of the government of the United States. It was contrary to, and directly undermining of, the Constitution and the rule of law. It was classified and kept from public view, and from the knowledge of directly relevant government officials. It also happened to be terribly shoddy.

Expressions of opposition to such are fully appropriate.
4.10.2008 2:15pm
devil's advocate (mail):
Diplomatic Gunboat,

thank you - this is argumentation, citation, reasoning etc.


I concur that yoo did use the strong military executive, i.e. CiC, theory to hold that the executive would be unconstitutionally infringed by simply assuming without specific language that congress intended generally applicable statutes to manage the limits of conduct of military operations performed under the chain of command from the CiC.

That is to say that the importation of the general statutes to the UCMJ means that you can't kill your bunkmate. But that the prohibition on murder was not meant to apply to the battlefield where you would have to then be tried every time you killed an enemy soldier and could defend yourself on immient grevious harm or death and inability to retreat and so forth. That would be an absurd result, such as he described in suggesting the cops should be tried for speeding to apprehend a criminal.

Nobody necessarily thinks its a good idea that cops should go around flaunting the speed limit but the fact that they have some license to break that law is implicit in our understanding of their role and the context.

The portions of the opinion you quote are all for the proposition that generally applicable statutes imported to the military context do not apply to the strategic conduct of military operations. This is a lesser -- we can debate have much lesser -- version, no where near as categorical as the assertions I've more often seen that the memo holds the president is not bound by a laws specifically intended to control the conduct of military operations.

Indeed as I pointed out recently infra Yoo clearly acknowledges various criminal provisions as incorporated and applicable, e.g. 18 USC 2340A. This is the very reason he discusses at length what the defintion of "severe physical pain" is. If he didn't believe that the statute was applicable or likely applicable he didn't even need to argue about that defintion.

So I acknowledge that a measure of CiC theory prevails in parts of the opinion but not to exclusion of congressional authority or at the controversial point of discussing the line over which interrgation may not go.
4.10.2008 3:55pm
Diplomatic Gunboat:
The prohibition on murder applies directly to the battlefield. Several soldiers and a few Marines have faced murder prosecutions stemming from actions in hostile areas in Iraq under UCMJ Art. 118 (Murder). Many more have faced investigations and resulting discipline under UCMJ Art. 119 (Manslaughter).

It is not an easy thing to say that our servicemembers are subject to second-guessing and possible punishment for a mistake in a war zone, to which they have been ordered to go. But they are, and you deceive yourself to think otherwise. It is a difficult situation we put so many 19 year olds in, and you may think it an absurd situation, but it is the reality.

A U.S. servicemember in Iraq who kills a person after making positive identification that such person had hostile intent, is not committing murder. A killing cannot be murder if it is legally justified. Killing the enemy in combat is justified. But of course we can all suggest a million hypotheticals where the issue is unclear--unclear situations happen often in real life for servicemembers in Iraq and Afghanistan--and that is the hard part.

Several Iraqis have been killed by Americans in manners which were determined afterwards to have been unjustified. This unfortunately will happen in every war. The debate over the Haditha case is an illustration of what is unclear in retrospect, and who knows how it looked at the time: whether the killings done by Americans, immediately after suffering a deadly car bomb attack, were justified.

This is not a similar issue as to whether the police may in hot pursuit fulfill their duty by exceeding the speed limit. This is not even the same issue as whether the police, in legitimately seeking to apprehend Rodney King, may beat him viciously, though that is a closer but still flawed analogy. Verbal confusion of police and war is dangerous (see 'War on Drugs', 'the conflict in Vietnam is a Police Action', etc.).

Also, previously I mentioned that servicemembers are currently in prison as a result of Prof. Organ-Failure-or-Death's memos. I was referring to the U.S. prosecutions and incarcerations of soldiers after the Abu Ghraib scandal. I believe that scandal was a result of these memoranda, regardless of the Professor's intentions. I also believe that certain deaths of persons in U.S. custody are a result of these memoranda. These are some of the results of his advice.
4.10.2008 4:53pm
AnonLawStudent:
Diplomatic Gunboat,

Thanks for the analysis. Don't take this as a snide remark, but you do yourself a disservice by referring to Yoo as anything other than "Yoo." It's a bit childish, unprofessional, and smacks of the BDS that turns off thoughtful readers.
4.10.2008 6:21pm
devil's advocate (mail):
Diplomatic gunboat
Best post yet. Yes, it was simplistic to equate the necessary pretext for justified killing with police speeding to apprhend someone, but not as totally as you might think. I thought of writing a longer post to indicate that. For instance, police behavior is not unregulated by law. It may not be by the speeding law, but should they choose to chase somebody who doesn't pose an immediate threat to anyone and the chase itself becomes a threat and results in harm or death, police can find themselves subject to internal discipline as well as criminal prosecution in rare cases.

Thank you for clarifying your post on American service men in jail, or just beating me over the head enough so I understood your original quip.

You may consider that I withdraw my earlier response (about midway through this post above.

First of all Yoo says the memo didn't apply to Iraq, meaning to say a conflict of mixed apprehensions of former Iraqi irregulars and possibly hostile iraqi citizens during assualt and occupation of that country.

I'm not saying I've seen documentation of his assertion that he transmitted this understanding in several external circumstances but the memo by its very own circumscription applies to "Military Interrogation of Alien Unlawful combatants Held Outside the United States". It doesn't apply to living conditions, regular operating rules for prisons or to personal who were not conducting interrogrations.

Come on, while I ache for those folks who got caught up in putting leashes on prisoners and making posed sex photos -- which is all degrading, but for crying out loud can't hold a candle to waterboarding -- I cannot accept the notion that they are in jail because of the Yoo memo, I am 99.9% sure that none of them ever read it until the rest of us did a few days ago.

They were not conducting military interrogation.

If what you mean to say to me is they are in jail because the commandant at Abu Gharib got a copy of this closely held memo and concluded that it insulated military at the facility from prosecution for various of these degrading 'softening up' activities that didn't inflict severe pain, if the target was either not a former iraqi soldier or militia member, i.e. professed no formal recognized adherence to any military force in Iraqi and/or was not an Iraqi,and the commandant goes to these kids and turns them loose, that is the guy to hang not Yoo.

The kids don't get the 'devil made me Yoo it defense', I understand and they were sold out, but not by Yoo that I can see.

I just don't believe that people going off the reservation, even if they did so pursuant to their own understanding or misunderstanding of the yoo memo is a per se indictment of the memo's reasoning or findings.

As to folks ending up dead, I posted the bit about the taxi-driver Dilawar. I don't think it is an exceedingly unfair representation to say that an element of the memo's allowances may have been on display in this afghanistan case whether yoo orginally intended the findings to apply to such circumstances or not (this having more to do with GC applicability not really covered in the memo itself) The instance in afghanistan did apparently involve interrogations of possibly unlawful combatants. You didn't have a determination as you did with Zubaydeh that this was an unlawful combatant, but maybe they would argue exegency and agency in that regard. So in a few circumstances I think you are probably right, and yoo's reasoning contributed to the deaths. But anybodies reasoning in war contributes to civilian deaths, that doesn't mean that their reasoning is wrong but rather there is a cost to having an opinion and a cost to going to war.

I was no fan of doing iraq although have been churchillian since they started it. So there are deaths attributable to that philosophy. Our guys and the other guys. Yeh, my responsibility is far more attenuated. Yeh, I bet Yoo gets to grapple with it. I'm not really convinced that he doesn't take that seriously.

I would not say I have solemn evidence that he does, but I have seen him speak seriously and contemplatively around the contours of some of these issues, debating Richard Epstein and in another setting debating Bob Barr and I have to say these were some of the more enlightening debates I have heard on the topic -- esp. the one with Epstein (there were a couple others onstage who weren't exactly lightweights, Roger Pilon and Geoff Stone.)

The great thing about it was that the disputants Epstein/Stone Pilon/Yoo were adamantly opposed to each others point of view but they were throwing precedent, constitutional text and context, federalist papers, founders statements etc. at each other in a very serious discourse, not simply saying my opponent is a nutjob.

I happen to think that Richard Epstein is probably one of the brightest lawyers, or just plain brightest people walking the planet and I'm already half in the bag for his point of view when he's on the agenda, but I still walked away thinking I didn't know what side I was on when it was over.

If you have an hour to sit by the computer I commend that link to you.

Brian
4.10.2008 8:26pm
devil's advocate (mail):
Anonlawstudent


Diplomatic Gunboat,

Thanks for the analysis. Don't take this as a snide remark, but you do yourself a disservice by referring to Yoo as anything other than "Yoo." It's a bit childish, unprofessional, and smacks of the BDS that turns off thoughtful readers.


BTW I agree with this, not only by way of an attempt to give friendly advice to a fellow commentor, but it really detracts from some of the decent points he was making the absurd hyphenated reference he was making to Yoo. It breaks up the reading. To throw in once to demonstrate how you feel, OK, everytime, you're making my eyes bleed.

PS

Anonlawstudent, click my mail link and give me a way to get in touch with you. I was going to forward a couple future events.

Brian
4.11.2008 7:18pm
Diplomatic Gunboat:
Greetings all,

Mr. Advocate: Thank you for the debate link, I look forward to listening to it. (I was disappointed that Prof. Goldsmith had to bow out of the FedSoc Convention this past fall.)
I also appreciated it when you posted on Dilawar's case, I think that is directly relevant. I do not ache for terrorists who are lonely in their isolation cells, nor do I believe that Charles Graner should be sprung because somebody in DC wrote a memo. However, I am persuaded (I am not here saying I can prove beyond a reasonable doubt, but simply that I am persuaded) that the Abu Ghraib scandal, Mr. Dilawar's death in Afghanistan, and certain other instances of detainee mistreatment are a result of these memoranda primarily authored by Prof. Organ-Failure-or-Death. I am not saying he intended them to occur nor that he endorsed those events, but I am saying that such detainee mistreatment was foreseeable, and should have been foreseen, by the author of these memoranda. You note that the author has stated that he intended these memoranda to be applied only to the facilities at Guantanamo (though he neglected to put such a proviso in the memos, and the reasoning of the memoranda in no way suggests a limit to Gitmo, nor does it suggest at all that the Geneva Conventions would apply to insurgents in Iraq). But, anyway, here's a brief outline of some of the facts and my thinking on this: The memos assured SecDef Rumsfeld that he was loosened-up from the various prohibitions against 'cruel, inhumane or degrading' (CID) treatment of detainees, and even that 'torture' would be difficult to do so long as one had intel reasons for doing it (I know, I know, this is an overly concise summary of the memos--of course). SecDef Rumsfeld implemented those loosened-up policies at Gitmo directly through officers such as Major General Miller. Being satisfied with the implementation at Gitmo, but seeing that Iraq was going badly and intel gaps were part of that, SecDef Rumsfeld then moved Major General Miller from Guantanamo to Iraq in order to, according to Miller at the time, 'Gitmo-ize interrogation operations' in Iraq and 'rapidly exploit internees for actionable intelligence'--and in order to do so Major General Miller recommended that Military Police personnel become 'actively engaged in setting the conditions for successful exploitation of the internees.' This is a reversal of ordinary policy and Army doctrine: the MPs serving as guards ordinarily have a job description and chain of command totally separate from the intelligence/interrogations personnel, specifically to prevent abuses like this. The guards' job includes humane treatment and reporting violations. Major General Miller reversed that, and directed that the MPs job description be changed to, in the words of one Army officer, 'treat the detainees like s--t until they will sell their mother for a blanket, some food without bugs in it and some sleep.' They did. Also, the government hired private civilian contractors for much of the interrogation work, both at Abu Ghraib and at Gitmo (one wonders how many contractors had experience at both sites). The contractors repeatedly asked the MPs to 'soften up' various detainees prior to questioning. I would not be too surprised to learn that Major General Miller and SecDef Rumsfeld were repulsed by the sadism displayed by Graner and other Abu Ghraib MPs in carrying out these new duties--or by the treatment and homicide of Mr. Dilawar the Afghan taxi driver. They, with Prof. Organ-Failure-or-Death, may honestly be able to say they did not intend for these things to happen. But those things did happen, and I am persuaded that they happened as a result of these memoranda (and obviously the related policies, but this post is about the memos, specifically the March 2003 memo).
I cannot find any reasonable legal merit in the most important points of these memoranda. If the memoranda were done in a good faith legal analysis, then--even if I disagreed with or disliked the conclusions--it would not be 'such a big thing' that deaths could be said to result from it. For example, an objectively reasonable legal analysis from OLC opining in advance that the 2003 invasion of Iraq would not violate the law of war (I have heard of some memo somewhere, but I do not know whether it came from OLC) would be valid, even if you or I reasonably disagreed with it. A silly example on the other end is a memo opining that the Commander-in-Chief can exercise his power to order his military escort to rob the bank down the street (I only use this as an example of a legal memo that is plainly not made in good faith, and is objectively unreasonable, not as an analogy). When deaths, or takings, or other forseeable and significant violations of law result from the silly example memo I just described, then it is a big thing, and the author of the memo should justly be criticized for it (even ridiculed if that appears to be the worst that will come of it for a guy with a cushy tenure endowed position at a top-tier institution).

For the reasons I have set forth in the various postings above and elsewhere including at Opinio Juris, I believe that the subject memoranda by Prof. Organ-Failure-or-Death are objectively unreasonable, and not made in good faith.

Ms. Law Student: Shaming is an important and appropriate tool in society. Ridicule is not usually appropriate for someone receiving criminal punitive measures, but that appears very unlikely to occur in these cases, nor would I expect it likely to succeed if it were attempted, though Prof. Benjamin Davis has thought a lot about it. I try to be reasonable and articulate (and sometimes succeed), and I try to refrain from ad hominem attack except when truly appropriate and worthwhile. I have taken an oath concerning the Constitution. I am persuaded that Prof. Organ-Failure-or-Death has actively undermined the Constitution and the rule of law. And he will probably never be disciplined for that except to be insulted. My insult is mild indeed, it merely uses his own words, the most concise summary of one of his most egregious 'opinions'--to refer to him. I would cease using it if he renounced these memos, humbly apologized, and expressed remorse (I'm certainly not threatening anyone, please don't misunderstand). But that's not much to ask. These memos were beyond the pale. And they weren't just thrown together on September 12, 2001. They were part of a lengthy project, fully intentional, by very intelligent people.

If some think me to suffer from BDS (Bush Derangement Syndrome?) when I have not said anything about the President, well, that is for them to think, but they would be incorrect in doing so.

I'll have to sign off here. It's been an interesting discussion and perhaps we'll meet up in future postings.
4.11.2008 7:55pm
devil's advocate (mail):
Diplomatic Gunboat,

two style points:

paragraphs - (not saying I'm perfect, but you had many good points there but the sifting if more difficult- also appreciate that you took the time to write it and if it was runon and you didn't have time to go back and massage it, I'm glad you clicked post anyway)

ad hominems - I don't think anonlawstudent's point was imagined some kind of catholic school nun's rule against name calling. I don't refuse to read your posts because they have nominative invective, but their force and what that tends to convey about state of mind to decide whether a legal opinion is "objectively unreasonable". After all, it would be a lot easier to pick apart Yoo's memo if it was title Re: Military Interrogation of Islamo-fascists Held Outside the United States.

As to shame, shame inures to the author of this memo if it is demonstrably lacking and resulted in loss of effect or credit to this country as a result. I don't concede that, but if your argument is persuasive, then utlimately Yoo is shamed not be namecalling but by exposure of sophmoric work that has harmed the nation.

I'll spot you several good points on the pathology at Abu Gharib. But I will say again that there appeared to be more military opposition than civilian within the upper echelons of the administration, as many have pointed out here and elsewhere.

But you are basically saying that it was loose or expansionist reading by the military of what constituted "interrogation", i.e. license for softening up and conditions conducive to 'better' interrogation being drawn under the memo's ambit, that was on display there.

Now the military has some very good lawyers and spend a great deal of effort attempting to construct rules of engagement within the powers they are granted and I am unpersuaded that the line to Abu Gharib does not go through a number of channels responsible for that kind of cabin.

That said, if you show me the memo prepared for General Miller by some JAG types that puts that behavior at Abu Gharib legally under the umbrella of the Yoo memo, I would say that the additional contradiction here is the very claim that the military is opposed to this power in the first place if they would seek to sanction some untethered application of it.

It does seem exceedingly plausible that the memo was written with regard to Zubaydeh as Yoo maintains, and I think it quite fair to imagine that - like much of the legal work done in the third branch, the outcome was determined and the law was sketched in. Although Yoo maintains that he was highly insulated from the policy arguments for or against. Ironically, especially for those who dissent from the memo's conclusion, this may have hurt the process more than it helped.

If you have an integrated process in which some of the policy prerogatives are advanced along with the outcomes of similar prerogatives in history and precedent, then the utilitarian or cost/benefit principles tend to make this a more real world process. If the power is approved you probably have more tendency to have statements about logical limits or policy recommendations regarding its use.

Instead, these OLC memos tend to be more like advisory opinions, which the federal courts do not give, they use the context of a case in controversy. So there may have been an implicit background that the case in controversy was Zubaydeh but a technique that says the OLC process is abstracted from those details. Thus a process designed to avoid outcomes based on circumstances, while avoiding the appearance of outcome based jurisprudence becomes untethered.

In this particular case, the style of consideration no doubt more approximates that which Yoo has described in Thomas's chambers. The question when considering a case is not what precedent says but what the constitution says, a first principles approach - perhaps tempered by precedent (best example I can think of in a hurry is Thomas's concurrence in American Trucking with which I am stingly familiar. In paraphrase he says that he doesn't necessarily concur with the current formulation of the non-delegation doctrine that legislation must offer the executive an "intellgible principle" to inform its application of the statute but that that petitioners did not challenge the principle, rather they challenged whether there was an intelligible principle with regard to the clean air act. Thus Thomas concurs that the court has precedently approved many less intellegible principles than at issue in the case." This is groundbreaking approach albeit at 8-1 against him, it will be a while before we get to the meat of the matter. but I digress)

The point is that every case for Thomas is one of first principles. Precedent is secondary. If one looks at stretch of military and intelligence history, one might say that a strong prohibition ensues even against "aggressive interrogation" on grounds of policy, morality, and precedent. But if one takes a first principles approx as to the applicability of various existing authority to the specific circumstances and then fills in precedent not in support of evolving standards but in the context of those first principles, I think one can see that the outcome is more in doubt.

I simply am unpersuaded that Yoo's memo is "objectively unreasonable"(see claims Diplomatic Gunboat infra, e.g.: "I believe that the subject memoranda by Prof. Organ-Failure-or-Death are objectively unreasonable ..." ). But having just rifled the memo one more time I wish to concede that Yoo's claims regarding 2340A do not suggest that the administration see the statute as limiting but he discusses the standard as a sine hoc quod caveat. (see, pg.32 "In regard to section 2340, we conlude that the statute, by its terms, does not applly to interrogations conducted within the territorial United States or on permanent military bases outside the terriotry of the United States. Nonetheless, we identify the relevant substantive standards regarding the prohibition on torture should interrogations occur outside the jurisdictional limit."

Further, I concede that the tone of the memo kind of says to Congress, go ahead make my day, try and make it apply by its terms and the we are going to claim CiC power. In that sense I think the language reckless but not controlling of the opinion or result actually contained within the memo.

But after rifling it through one more time, I am convinced that the memo's weakness is not in law, but in policy. Partly by way of decontextualizing itself from the purported influence of events or of being a policy document the 1st footnote reads: "By delimiting the legal boundaries applicable to interrogations, we of course do not express or imply any views concerning whether and when legally-permissible means of interrogation should be employed. That is a policy judgment for those conducting and directiong the interrogations."

Having claimed a disinclination to policy, the memo nonetheless wades in on pages 4 and 19 to make rhetorical assertions that due to the nature of the current conflict, interrogation may be a far more important or the only effective way to combat terrorist intentions.

In support of your sense of where the memo lead, it is inexcusable to engage in such lapses from claimed policy insulation without a fuller discussion of countervailing prerogatives. This would have created a more fully tempered instrument. Even if the memo was not to state that it applied only to high value, high level al quaeda targets -- a serious framework suggesting some cabin to its application in consequence of historic outcomes and impingement upon successful conclusion of war policy objectives could as readily have occupied its pages as comparative discussions of conflicts suggesting in essence the policy appropriateness of aggressive interrogations (only using the word interrogation in those areas of discussion but in the memo context that has to import 'aggressive' at least as a possibility if not a probability).

That said, all the foregoing concessions suggest that the memo is lacking as a philosphical and policy undertaking, not as a statement of current law. Thus it lacks recommendations or cautions for cabin and context related to the policies it authorizes. But taken altogether this does not persuade me that the legal conclusion is "objectively unreasonable" and I don't think I will be shaken from that perspective. Given the shortcomings I have outlined I think your "good faith" charge has more heft and remain undecided on this question.

Sorry for the novel. It sounds as if your former post is adieu and I only post this out of respect for the argument to date and not as a matter of the sneaky last word[s].

Brian
4.12.2008 11:24am