When 35-Year-Olds Write Legal Memos:
Over at Slate, Yale Law professor Bruce Ackerman comments on the poor quality of John Yoo's memos for OLC:
While John Yoo did most of the staff work for [OLC Head Jay] Bybee, Yoo was barely 35 years old—and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments.Am I right that Ackerman is suggesting that someone who is "barely 35 years old" is showing his age when he writes memos that are "legally incompetent"? If so, does anyone know when legal abilities peak? I'm 37, so maybe there's hope for me after all.
Humiliation is not torture by any competent legal body's definition. Defilement of the Koran is not torture (if it was, then Maplethorpe would also have been a criminal against humanity, but we don't see it that way in a liberal society). We don't have to approve of Abu Ghraib (I don't, and didn't) to acknowledge that it falls miles short of torture. We should reflect on how we would have felt if the same thing had happened under a non-Bush president in Bagram Air Base. This removes the incendiary elements of Abu Ghraib -- it happened on Bush's watch so it must be a war crime (it was a crime, but not a "war crime"; it was a violation of the UCMJ, which I do know as an ex-Naval officer), and it happened in Iraq, so it must be part of an oil-based conspiracy to do evil.
If this (and waterboarding, which is at least a closer case) had happened in Afghanistan under a Gore regime, would we still see Ackerman calling Bybee a "suspected war criminal"? No, but we would probably see it from the right.
We are supposed to try to be above this nonsense, or so it seems to me. While one might disagree with the Bybee memo, to postulate that it is a war crime is ridiculous.
Right?
Anyway though, this 35 year rule doesn't bode well for Supreme Court opinions largely ghostwritten by (well under 35 year old) law clerks.
You're not a lawyer, right?
Re: 35 years of age, that is indeed a mysterious comment. What % of legal briefs are written by persons over that age?
Reminds me of Aristotle in the Rhetoric, saying that one should be at least 49 before practicing philosophy.
But seriously, why assume Yoo was incompetent, as opposed to willful? He's certainly smart enough to comprehend the many opposing arguments to his positions. Isn't the most reasonable explanation that he chose to disregard them?
Well, now, I believe I said that at the beginning. I am not representing Bybee, and do not even know him. One does not have to be a lawyer to say a document is "reasonable" (after all, "reasonable man" tests are usually left as fact determinations for the jury, aren't they, thereby rendering the average man a good judge of what is reasonable). I didn't say it was good law, but that it seemed reasonable and certainly didn't seem to warrant tagging its author (or the boss who caused it to be authored) as a "suspected war criminal". If you think I am off base, please address the reasoning; whether I am a lawyer or not is irrelevant (unless I was trying to practice law, which I wasn't), so please do not condescend.
[OK Comments: The problem is that the reasoning of the Yoo memos is indeed really bad.]
To believe that Abu Ghraib was torture, you'd have to believe that being involuntary made some kind of relevant distinction here."
I hesitated to write anything about this topic, and yet I'm glad I did. Not surprisingly, it raised some hackles, in one case because I am not a lawyer and apparently therefore unqualified to comment on a legal document, and in this case to mock my statement that "Abu Ghraib was miles short of torture".
Well, I was discussing the topic of the Bybee memo, which is the legal nature of the crime of torture. Whether you agree with the details of the Bybee memo or not, it is quite clear that being paraded around naked, while disgraceful conduct on the part of our soldiers, does NOT meet the legal test of Torture. It is not "intentional infliction of severe physical or mental pain or suffering on one under one's control". Humiliation is not, and never will be, torture. It may be (and was) a violation of the Uniform Code of Military Justice, but it was not torture, in the legal sense.
Whether waterboarding is or isn't legally torture is more complicated, and I don't know the answer. But I believe it is quite clear that Judge Bybee cannot reasonably be accused of being a war criminal, even if one abhors the policies that were undertaken under legal cover of his memorandum. In a civil society, we shouldn't fling words like "war criminal" around as readily as we do.
When Adams passed the Alien and Sedition Acts, he tried to criminalize dissent. We are trying to do it again. Let's try to remember what we're about.
The point Yoo is trying to make is that because the President is textually assigned the pre-eminent position in treatymaking, and because the structural features of the executive branch naturally make it the repository of the lion's share of the United States' foreign affairs power, the President should have the chief role in the interpretation of treaties. But this is where the analogy between lawmaking and treatymaking breaks down, and Yoo doesn't bother to acknowledge it: Congress does not have the power to interpret the statutes it passes--that duty, of course, is chiefly left to the courts. Why should treaties, which Article VI includes as part of the "supreme Law of the Land," be treated differently, with regard to matters of interpretation?* That is, why shouldn't the courts be regarded as the primary interpreters of American treaty obligations? One could certainly come up with some reasons, perhaps fairly compelling ones (indeed, I don't doubt I could come up with a few myself), but Yoo doesn't bother to even acknowledge the possibility of courts interpreting treaties as a legitimate theoretical alternative to presidential interpretation. And perhaps even worse, considering his approach to these questions rests in some significant measure on harmonizing historical practice with theory, he doesn't bother to acknowledge that federal courts have had an important role in interpreting treaties during the history of the Republic. Again, it's not so much that no argument could be made for why that should only happen (or has only happened) under unusual circumstances as that Yoo doesn't make it. And this in the context of one of the more important issues that his analysis of the treaty power raises, and which he does address.
All in all, I wouldn't rate problems like this as demonstrating any incompetence in Yoo so much as a certain pigheadedness. In the example I've given here (perhaps at too much length), it seems likely his dismissive attitude towards a judicial role in this particular situation is symptomatic of a broader hostility toward judicial "interference" in foreign policy matters which causes him to minimize the importance of judicial precedents throughout the book. In the case of the torture memos, it might have been a dismissive attitude towards the possibility of a vigorous Congressional role in setting policy in areas like detention and interrogation that caused him to stretch the law with little regard for obvious counterarguments. In both cases, it seems that Yoo has a bit of a tendency to really bar whole categories of arguments from his consideration, which weakens the force of his preferred positions when he argues for them.
*Yoo has some separate objections to reading too much into the inclusion of treaties in the Supremacy Clause, but I think it's fair to say that those objections do not address this point directly.
I don't doubt that may be so; on Twitter I had an interesting discussion this evening in which I stated much the same thing. For instance, the use of a definition of "severe pain" from a medical context seemed strained, and the fifth section on Presidential powers might be overreaching (I don't know, because I do not have detailed knowledge of Presidential war powers law).
When I said I found the Bybee memo reasonable, I meant primarily that I do not see how any reasonable person could consider that writing that memo could be construed as a war crime. If it was "beyond the pale" maybe, but it wasn't, and there seemed to be a bona fide effort to find the law, albeit within a context where "you can't do any aggressive interrogation" would be viewed as a "wrong answer".
After all, I believe lawyers often have to find legal reasoning that puts the best possible light on a position that could go either way, but needs to go your client's way.
I guess my bottom line is, even if Yoo/Bybee were guilty of bad lawyering while serving the public, I don't see any basis for calling Bybee a "suspected war criminal". That is what I wrote in the first place.
Thanks for your clarification, though!
I suspect that you don't really mean to make a statement that broad. I would hope we could agree that humiliation may rise to the level of torture if it is sufficiently severe. I imagine that it would not be difficult (though certainly unpleasant) to pose examples of sexual humiliation that would disrupt profoundly the subject's personality and cause long term mental harm. That would meet the definition of torture.
I thought that I read a post in which you characterized as "strained" the section of the Bybee memo that relied on medical statutes to define "severe pain" for purposes of the torture definition. (I can't find the post now though; I am not sure whether it was deleted or if I simply misread.) Regardless, I find that section highly strained, and it's the heart of why I agree with Professor Ackerman that the Bybee memo is legally incompetent.
The Bybee memo was not an advocacy brief. It should have provided dispassionate advice to the client on the law. But that's not what we find when we read the memo. Instead, we find a strained argument to reach the result desired by the client. Its the kind of thing a young attorney writes that needs to be corrected by a senior attorney.
By the way, I don't think that the "35 rule" is a fair reading of Professor Ackerman's article. I think his clear point is that the Bybee memo did not evidence seasoned legal reasoning and that Judge Bybee, being more experienced, ought to have provided the tempering influence.
You make an excellent point, and I agree I was wrong on humiliation. If the humiliation causes prolonged severe mental suffering (and the other elements were present), then I agree that would be torture. And I agree the hypotheticals don't bear thinking about too much!
Thanks for pointing that out. Although I was overly defensive about the "you're not a lawyer" comment earlier, there is a difference! I am working on it though (practicing as patent agent and attending law school to start third career).
You did read my post correctly at some point on Twitter. It seemed like a stretch to me when I read that section on "severe pain". Feels like I redeemed my legal reasoning potential:)
I have learned a lot this evening (I had never read the brief until tonight). Thank you for your comment.
Jamie Gorelick cannot be impeached since she holds no position in government whatsoever, not the least a position which allows for impeachment.
I agree that he ought to have evaluate the memo on its merits. I also, however, think it's fair to expect him, as the senior attorney, to provide a measure of restraint born from experience.
I don't quite see how experience provides a measure of restraint when it comes to a legal memo, though: It seems to me that the beauty of legal analysis is that it derives from the law, not from the writer's personal experience or lack thereof. But then I am a mere 37-year old, so perhaps I lack the perspective needed to understand the issue! ;-)
The reaction to the memos has not been faithful to their text. It's almost a moral panic - Ackerman's comment about being 35-years old is only the tip of the iceberg of the inconsistent arguments and misreadings people deploy against the memos.
In any case, even if it were correct to call the memos "terrible," it would be fair to cite a single source or publication that (a) correctly states the memos' arguments; and (b) shows that the conclusions are legally incorrect. The sources I have seen as to the Bybee memo misstate the conclusions or the reasoning; or conflate policy goals with statutory limitations; or just repeat the conclusions of other people who have done the same.
Your Bluebooking knowledge is great, and your formatting opinions are remarkably strong, but I find your substantive analysis quite weak. In paragraph one, you posit without evidence that there are "some people" who are misled. In paragraph two, you make an allegation with no evidence. Finally, in paragraph three you place the burden of persuasion of those who disagree with you without offering any reason why. In sum, your comment offers no substantive argument whatsoever.
There are serious scholars who argue that impeaching a former federal official is possible. I see you are unfamiliar with the scholarship of Brian Kalt:
Jamie Gorelick was deputy attorney general. Is there really any question that a former deputy attorney general was an "officer" for purposes of the Appointments Clause and a "civil officer" for purposes of the Impeachment Clause?
There's hope for you yet, Orin! But seriously, each of us must hope that age and experipence will bring a broader and deeper perspective.
Ackerman's criticism of both Yoo and Bybee is off; the flaws in the memos show not that Yoo (or Bybee) lacked ability and eprspective, but that the memos were intended to serve the purpose of providing Administration officials with legal cover, not an honest legal analysis.
Messrs. Yoo and Bybee were, at the time of the memos, Government lawyers tasked to analyze critically important questions that needed answers for the security of the country and the safety of its citizenry after the devastating attack by al Qaeda on September 11, 2001. Ackerman, now pompously pontificating from the safety and security of a law school ivory castle, should be considered pathetic in what he writes.
I read Bruce Ackerman's We The People," and if ever there was nonsense masquerading as legal analysis, that was it. Ackerman's book title uses the opening phrase of the U.S. Constitution that reflects the belief in popular sovereignty, yet the book is one long argument for the rule of the judges under the guise of "substantive due process." Ackerman relies on U.S. Supreme Court precedent from the late 19th century for that expansive statement of "substantive due process" and does so without consideration of Oliver Wendell Holmes's subsequent dissents (e.g., in Lochner) that became the law, at least until the abortion cases, and that cannot with any degree of intellectual honesty and scholarship be ignored. Ackerman includes in his book an attack on Robert Bork, bizarrely elevating it to a supposed level of a constitutional decision by the people instead of the political hatchet job it was in the Senate.
If it matters, I write from the perspective of a 58 year old practising lawyer (Harvard Law '76) who wrote pretty good stuff at age 37.
Wasn't Yoo already tenured at Berkeley when he wrote those memos? So obviously, someone thought something of his legal abilities. And, to the extent Yoo's memo failed to consider certain counterarguments, is that due to Yoo's age or due to a failure to search the law reviews and prior Supreme Court cases to discover the arguments on the same subjects?
The senior Pentagon official in the Bush administration’s system for prosecuting detainees said in a published interview that she had concluded that interrogators had tortured a Guantánamo detainee who has sometimes been described as “the 20th hijacker” in the 2001 terrorist attacks.
The public record of the Guantánamo interrogation of the detainee, Mohammed al-Qahtani, has long included what officials labeled abusive techniques, including exposure to extreme temperatures and isolation, but the Pentagon has resisted acknowledging that his treatment rose to the level of torture.
But the official, Susan J. Crawford, told Bob Woodward of The Washington Post that she had concluded that his treatment amounted to torture when she reviewed military charges against him last year. In May she decided that the case could not be referred for trial but provided no explanation at the time.
“His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution, Ms. Crawford was quoted as saying in an article published in The Post on Wednesday.
If Bruce Ackerman or anyone else wants to write a long memo explaining exactly what interrogation methods are permissible, and drawing careful distinctions from Yoo and Bybee accepted, that would be fine, but of course no one does, because that would be work, whereas abuse and insult are not work, but fun.
Whenever any liberal, be they media or academic, says anything about Bush and his team they are: stupid, unskilled, evil, stupid, bad, killers, stupid, fat, war criminals, stupid.
Typical liberal playbook. Ackerman is just barely clever enough to come up with a new reason Yoo is stupid and unskilled.
New day, same old liberal spew.
This is the first time I have flat out called BS on you. You don't like the result, so he is a bad lawyer.
Anti-war has the memo in four parts to download. http://www.antiwar.com/news/?articleid=2637
The most important parts to remember when reading are two fold:
1. He was writing before the Supremes waived their magic wand and not only directly incorporated the convention into US law, but extended its protection to unlawful combatants captured on the field. Even you, OK, must admit that this was unforseen except maybe as a political move.
2. Yoo clearly stated he was addressing civil laws, not military regulations and customs.
Hate Bush and his people all you want, but don't pretend the Supreme's cruddy ruling was the law of the US and the law of land warfare prior to them making it up.
As opposed to
the reasoning of the Yoo memos is indeed really bad.
As a 34 year old, the substance of the latter comment is beyond me.
I think that's why Bybee should be the subject of criticism. He was the gatekeeper for this Yoo dreck.
So, you're completely unfamiliar with how the NKVD obtained (false) confessions during the Great Terror?
People like you made American torture possible, Al. Be proud.
Yoo wrote and Bybee approved memos that served the needs of his client, the President of the United States.
Yes, I know the lawyer made rules about government attornys--duty to the public etc. They are wrong in this case. The President had the duty toward the citizens of the US, not an AAG. That duty was to attack and destroy if possible our enemies. The memos served that duty.
If Bybee gets impeached, so be it. He made his contribution to the effort, unlike Ackerman. He should rest easy.
A vote for conviction is a vote for our enemy. There are at least 34 GOP senators and hopefully a few Dems that will not vote for our enemy.
We have not seen earlier drafts, we have not seen the correspondence behind the memo. I think it is probable that Yoo was given a conclusion (torture is legal) and was told to write a memo supporting that conclusion.
Are you talking about an unratified treaty or a ratified treaty? Because a ratified treaty is U.S. law. It says so right there in the Constitution.
I hope your 2:33am comment was in jest.
I too would like to see a more thorough and non-partisan* analysis of the memo as well as some context. What I mean by the latter is, for example possibly "what sort of time constraints were they under?". It may in part be a matter of lack of time that a comprehensive argument be put together and only a connect-the-dots was possible. (note: this is not a claim) That would suggest that just-in-time analysis is bad for your health.
(note that although at this time I believe the memo was probably reaching in its conclusions, I have seen only more heat and little extra light in discussions in the past couple years)
* non-partisan just meaning not exclusively liberal, not necessarily democrat-republican
Those tactics were accepted during the duration of the Cold War within the NATO community as harsh but permissible (within the Geneva Convention) tactics necessary to effective interrogation, along with other things like illusory threats. Do you remember learning at some stage that customary and traditional interpretation of treaties is one of the two valid sources of international law?
By defining torture to include everything other than providing medium-sized glasses of warm milk and grandmotherly questioning, you lose the debate because people who would take a reasonable position somewhere along a spectrum of opinion about what should be permissible, find it impossible to argue with you. You don't proceed from any position of authority except personal belief. To you, you're right, the rest of us are evil.
Yep, the NKVD used those tactics. They also used kindly questioning at times. Should kindly questioning be off limits because the NKVD sometimes used it?
This is an overstatement even in the best case. Lawyers do, after all, retain duties to the court and even to third parties which can override their duty to their client. Putting that aside, this general duty of lawyers is NOT the duty of OLC. The duty of that office is to state the law in as neutral a fashion as possible.
Sounds like a whorehouse a shipmate once visited for an extended stay.
Ok, if you like: I "flat out call BS on you" back. To make the accusation that I was just criticizing a legal memo because I didn't like the result, I believe you must have two points: first, that I did not like the result, and second, that this is motivating my criticism. I would be interested to see your argument for these points.
Yoo is extremely well credentialed, but his OLC memos are pretty bad from the standpoint of legal craft and argument. I'm not sure what you expect me to do with that, but I don't see pretending that the memos were great is a particularly helpful option.
Heh. It's always "a shipmate."
Or am I thinking of sexual performance?
Never having written a legal memo or had sex, I confuse the two a lot.
"Peaked" in which realm of activity?
Okay. I am sorry I called BS. It was excessive and insulting.
My main points remain, though.
1. I posted the memo link so everyone could read it. It is not illogical. It is readable and well written.
2. Yoo flaty says up front he is not addressing military behavior and regulations, but rather the legal restraints on the civvie commander in chief on treatment of illegal combatants or combatants acting illegally as a policy.
3. His US law cites and conclusions were right on point. It took new law to void them.
4. Until the Supreme Court created a convention addition to US law, and reread the illegal combatant provisions of the convention, his points all made sense.
5. No one in the academic world had a serious issue with summary executions post WWII of illegal combatants caught not just in the field but in occupied areas. Of course, the nazis were...and the people who were commander in chief then were...
Now we are just holding and trying illegal combatants and all of the sudden they get more rights than the average crack arrestee in Detroit, and are housed much better. It is still evil torture and violation of all kinds of new rights.
6. His points about the convention were exactly on point and logical. Either these terrorists are a combatant force and committing wrongful acts, and the US can suspend the convention, or they are illegal combatants and could be shot following a hearing before an officer (before the Supremes new law).
Not illogic. A fairly well written paper.
And I wonder if he'd consider running those views by Herr Mozart.
Normally I would agree. BTW, I am a lawyer.
Not in this situation, however. The President needed a piece of paper from the OLC to help let something urgently needed happen. Something that was going to be ordered in any event but would be marginally easier with the right OLC piece of paper. Something that the country needed. Something that would not hurt Americans but only our enemies.
It is different from a regular lawyer giving regular legal advice.
(BTW, I have no idea if Yoo and Bybee actually thought this way, probably they did not.)
When did Mapplethorpe defile the Koran (or some other sacred object)?
According the Late Great Senator Helms, Mapplethorpe was merely a pornographer and child molester. Helms preferred to showcase the works of Andres Serrano when blasphemy was the cause celebre.
Wait a minute. . . Yoo's memos submerged in urine. Picture perfect.
Yoo and Bybee appear to lack remorse, or even awareness of their failures. Perhaps they deserve a chance to vindicate their conduct in a disbarment proceeding, an impeachment proceeding, a criminal proceeding, or a similar forum.
P.S. For those who seek to excuse torture conducted by the United States of America: You're out of order. They're out of order! This whole discussion is out of order! Those sick, crazy, depraved men, they enabled torturers, and they'd like to do it again!
Lawyers are supposed to stand for something. They are supposed to protect people. Instead, these lawyers arranged for people to be tortured!
As is customary, I have just completed my opening statement.
Your defense of John Yoo and Judge Bybee is precisely my criticism of them. Its also a reason why Bruce Ackerman's experience-based criticism makes sense to me. I associate experience with the confidence necessary to resist a client that asks you to put aside your normal ethical responsibilities because something urgently needs to happen.
It is different from a regular lawyer giving regular legal advice."
So basically the President "needed" a piece of paper containing a science fiction story about what the law is instead of an objective legal memorandum, something to point to or hide behind instead of taking responsibility for his own actions and their (il)legality? Why bother with having an OLC at all in that circumstance?
You'll understand when you are 38 like me. =P
Seriously, though, I would like to believe that I have grown wiser and more mature since I graduated from law school (but I'm probably just more cynical.) I hope to continue my professional growth over the coming decades. I would not suggest that experience correlates perfectly with legal acumen, but I hope there is some relation.
I wish I shared your opinion that legal analysis derives solely from the law, standing apart from the author's personal experience. That's not how I find it. To my thinking, competent legal analysis requires too many judgment calls to allow it to be wholly divorced from the author.
In my state a lawyer is expected to be more than an enabler. Is the law different in Ohio? If a client told me he/she was going to do something regardless of whether I believed it was legal or illegal, I would advise him/her to get another lawyer. In government work, I believe, that is accomplished by resignation.
I can see where Yoo would plead that as an affirmative defense, but actually several people (Scott Horton, Philippe Sands, etc.) have worked hard to prove that's exactly what happened: rather than asking OLC sincerely what was right or wrong, the President sought a get-out-of-jail-free card enabling him to torture with impunity.
Without *any* evidence, *any* rational basis, for believing that torture was even EFFECTIVE for intel purposes, much less moral, or prudent.
Oren, except since the evil booosssh started this evil war...
Everyone knew that the capture clause applied to prizes, ships, personalty, and maybe land.
Since then the academic class has started trying to claim that the congress somehow has the power to supervise taking prisoners in the field. That just isn't dumb, it is unworkable. Close your eyes and picture Conyers, Levin, Hatch, and Cantor on a joint committee writing binding rules of engagement for patrols under fire in the border region. Enough said.
Anon21 has a point here about Yoo’s writing style:
I.e., Yoo tends to write like an advocate at times when such a style is not appropriate.
Anon21 – My recollection is that Yoo contended that, because the Executive has discretion to ignore treaties in whole or in part, absent Congressional legislation providing for their enforcement, and to outright repudiate treaties, the Executive’s interpretation of a treaty should be close to conclusive in court.
I recall that Judge Posner published an article recently (perhaps the Wall Street Journal, and he linked to it here on the VC) on current European practice in ignoring part or all of treaties. His article mentioned that European governments tended to adopt treaties as a means of placating domestic political constituencies , with the governments involved intending from the beginning not to respect the treaties. Posner’s article indicates that Yoo’s opinion here reflects current practice.
Happyshooter wrote:I think the historical record on "captures" is equivocal (remember, for instance, that in the age of slavery "prisoners" and "personalty" were sadly not incompatible categories) and in any case it probably shouldn't carry too much weight for an original meaning (as opposed to original application) textualist. But this is really immaterial, since (1) prohibiting torture of prisoners obviously falls under the government and regulation clause and (2) even leaving that aside entirely, the Torture Statute has nothing to do with prisoners. It just prohibits torture, simpliciter -- something congress is clearly allowed to do under the "punish offences against the law of nations" clause.
In any case, it seems just erroneous to describe every regulation that touches, even incidentally, an activity as an instance of Congress's "supervising" it.
Unless the Air Force is unconstitutional ... a position with certain bureaucratic merits.
American law has long extended even unlawful combatants more protection than international law against execution and arbitrary treatment. The Germans summarily executed American Rangers captured in German uniforms during the 1944 Battle of Aachen (the Rangers had infiltrated German lines). We provided German commandoes who were captured in American uniforms with expedient field court trials during the 1944 Battle of the Bulge, before executing them.
The expedient field courts were required by American laws enacted by Congress - the Articles of War.
IMO a President has great inherent powers under the Constitution in these matters provided that Congress has not acted but, when Congress does act, those are laws the President must generally obey and enforce. John Yoo rightly notes that separation of powers issues can arise in that circumstance which must be resolved by political processes, but there clearly is a general rule that Congress has the Constitutional power to enact laws:
"... To define and punish piracies and felonies committed on the high seas, and offences against the law of nations;
... To make rules for the government and regulation of the land and naval forces ..."
Offenses against the law of nations can be committed by Americans, and be punishable by acts of Congress. Members of the armed forces are of course subject to regulation by Congress.
IANAL.
But IAAUH (I am an underemployed historian).
I've been doing research on the Atlantic slave trade, which raises issues of capture. [Aftter the slave trade is banned, what do you do with "human cargo" if you capture, say, a pirate ship that absconded with slaves from a third-party-ship, etc. etc.?]
The sort of "captures" that we are talking about in Yoo's case were not on anyone's mind. The issue with the slaves-to-be wasn't even a question of human rights, as anyone will be able to guess. It was just the pragmatic question of what to do with them. They can't come here. And there's no place to send them back to.
But if the president had come up with an offshore place to send them (just hypothetically, let's say in West Africa), I can't imagine Congress getting worked up.
Ackerman is a hack. And has been his entire career. He once called Clarence Thomas a neocon
A Thomistic neocon? Well, how unique.
But perhaps he meant negro-con.
Funny. Nice turn of sarcasm.
After a History Channel show on the great USS Constellation Africa Station Cora Capture, I was interested enough to do some reading. Neat stuff.
That led to reading about Liberia and the ACS.
We make some odd choices in America about race, and always have.
I think that, on the proper reading, CA3 of Geneva prohibits summary execution of spies and saboteurs. In any case, the ICCPR fairly clearly does.
But also I'm not entirely sure that summary execution of unlawful combatants, without even the semblance of a trial, was ever permissible according to customary international law in the modern era. (Of course, it frequently happened, and still does, but that doesn't go to the question of legality.)
I'm not an expert on this, but as far as I can tell, opinions seem to have varied even in the mid-nineteenth century.
Interestingly, in his books on martial law, even Finlanson (an extreme reactionary who more or less espoused an unrestricted necessitas dat legem vision of executive power) maintains that killing an unarmed prisoner, even a traitor or spy, without at least a minimal drumhead court-martial is murder. He takes Cockburn LCJ to task for suggesting the contrary in dictum in Eyre's trial.
But I defer to those more learned than I in the history of the law of war.
AFAIK the United States was the only major World War Two combatant whose laws prohibited summary execution of unlawful combatants, though I believe the British required that some record be kept of the event. Our WWII Articles of War were very clear about keeping a record and, as those were directly descended from the 17th Century British Articles of War, there might have been something in those about keeping records of summary executions which was still around in the 20th Century British AOW.
The French, as a general rule, did not keep records of their summary executions of unlawful combatants - they had centuries of experience with German line-crossers. Al Nofi at Strategy Page is probably the most knowledgeable authority on WWII practices here.
The U.S. has refused to ratify the post-WWII Geneva protocols which would prohibit summary execution of unlawful combatants, and none of the pre-war protocols prohibited it.
ok. i have to admit . i literally "LOL'd" at that.
that is a very rare occurrence. i'm not saying i agree or disagree with your statement, but it was DAMN funny.
With more time to reflect, the "whatever size and shape fig leaf my client needs" reasoning becomes more frightening. Add "if you don't support torture you are the enemy" as a grace note, and you have one twisted customer.
The US has ratified Common Article 3, which requires that all detainees "be treated humanely." CA3 makes no exceptions for "unlawful combatants." Various acts are specifically prohibited, including "violence to life and person, in particular murder of all kinds." So CA3 does indeed "prohibit summary execution of unlawful combatants."
Even Bush finally was forced to acknowledge that we are bound by CA3. whitehouse.gov refers to Common Article 3 as "The Standard That Now Applies To The Treatment Of Detainees By U.S. Personnel In The War On Terror."
====================
maviva:
Quote the rest of the article, maviva. Crawford didn't say those things, as separate acts, would always be "defined as torture." She said this:
She's saying that it's not OK to oversimplify the situation and define each separate technique as either torture or not torture. It's necessary to assess the situation as a whole.
By the way, the article said nothing about "loud music," or any other kind of music. I think you didn't read the article very carefully.
Everyone?
Sorry, I don't have time for a lengthy discussion but
No worse than having them decide which military equipment gets funded or when war gets declared. Don't like your Congress, elect a different one.
If execution of unlawful combatants is a war crime under CA3, so is execution of lawful combatants convicted of war crimes such as murder of civilians, and execution of civilians convicted of murder of other civilians
I.e., either ALL execution is murder under CA3, regardless of circumstances, including the death penalty for ordinary criminal offenses, or execution per se is not a violation of CA3.
I.e., you are trying so hard you suffer from rectal-cranial inversion.
Political staffers (in both the legislative and executive branches) tend to be much younger than elected officials, civil service lawyers, judges, or lawyers in private practice at their peaks of their careers. Whether this is primarily due to social networks, or primarily due to ability is debatable.
Most law firms assign initial research and drafting of the analysis of that research to younger lawyers (in part because it is time consuming and expensive) and then cast more experienced lawyers in the role of editors and mentors of that process.
A big part of the distinction between young lawyers and senior lawyers, is that young lawyers tend to overemphasize reason, while senior lawyers give greater weight to experience and distrust leaps supported by reason rather than precedent. In law, many plausible chains of reasoning don't hold up even though someone without experience with that area of law with have no obvious reason to think that this would be the case.
For example, there is no way, reading merely the text of the U.S. Constitution cold that you could know that the 14th Amendment due process clause, rather than the privileged and immunities provisions of the U.S. Constitution, were the basis for the incorporation doctrine, or that the Wickard v. Fillburn line of cases remained good law and would interpret the interstate commerce clause so expansively (despite the fact that this conclusion is mostly well settled law).
The JAG lawyers more familiar with the issues Yoo addressed had a more experience based intepretation of the issues raised by Yoo, and had developed something of a community of legal particationer consensus in that area of which it does not appear that Yoo was aware. This is one reason why dissenting opinions were expressed by many military lawyers and why the military commission process has met so much resistance in the hands of the military lawyers charged with carrying out its mandates.
Nice job with the straw man. I didn't say "execution per se is … a violation of CA3." I said summary execution is a violation of CA3.
For some strange reason your earlier comments didn't just refer to "execution." They referred to "summary execution." In your earlier comments (here and here) you used that phrase at least five times.
But in your latest comment, you say "execution" five times, but never say "summary execution."
So either you repeatedly used that key adjective ("summary") even though (in your mind) it adds no meaning, or you're doing some very disingenuous backpedaling. Which is it?
By the way, "summary execution" generally means "a variety of extrajudicial killing in which a person is killed on the spot without trial." You seem to have a problem grasping the distinction between judicial killing and extrajudicial killing. Maybe that's where we should start. Would you like me to explain it further?
I see it's a pattern. When your arguments are shot full of holes, you fall back to plan B: ad hominem attacks. Pitiful.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.