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[Richard Painter, guest-blogging, March 28, 2009 at 4:05pm] Trackbacks
One example only:

I am not going to go through each of the "torture memos" and point out where each one appears well off the mark. I will give just one example of the type of analysis that should make someone stop and think.

One of the memos reads

"As we have made clear in other opinions involving the war against al Qaeda, the Nation's right to self defense was triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions. The national and the international version of the right to self defense could supplement and bolster the government defendant's individual right."

March 14, 2003 Memorandum from OLC to William J. Haynes II, General Counsel of the Department of Defense.

This can't possibly be right. Many wars and other military engagements arise out of one side attacking the other and the need to respond so there will be no more attacks. Yet inflicting physical harm on prisoners during interrogation is widely believed to be contrary to the laws of war.

If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States. The United States did not do that, and the White House did not ask OLC for an opinion saying that we could. President Roosevelt asked the Justice Department for a lot of other dubious opinions in his years in office, but not that one.

It is true that the memo only states that a government agent, if charged with torture, could "argue" this as a defense. He could. This is also a lousy argument and the memo does not point that out. I fail to see why people at the highest levels of the United States government would be interested in hearing from OLC what specious arguments could be made by a government agent in defense of otherwise illegal conduct.

Even more shocking, there is no further discussion on this argument. There is not even an attempt to answer questions that are obvious to the most casual reader. The paragraph quoted above is instead followed directly by a short three paragraph conclusion, the last sentence of which simply states that "necessity or self defense could provide justifications for any criminal liability."

One does not have to be an expert in international law, or even a lawyer, to read this and know that something is wrong. The most basic questions about this "self defense" argument are not answered. This dog does not hunt.

John Thacker (mail):
If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States. The United States did not do that, and the White House did not ask OLC for an opinion saying that we could. President Roosevelt asked the Justice Department for a lot of other dubious opinions in his years in office, but not that one.


Yes, we just shot them when they were trying to surrender because "everyone knew" that they were infected the samurai martial spirit and would never surrender.
3.28.2009 4:20pm
albert:
I wish you would post a link to the memo as it's hard to figure out the context- this statement appears to be little more than an aside, and there could be less to it than you want to make.

Soldiers in combat do things forbidden by ordinary criminal law (such as use explosives, automatic weapons, and shoot people not directly threatening them, and indeed people retreating from them).

The fact that a soldier "harm[s] an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition" could mean nothing more sinister than that the action's legality must be judged by military law, rather than civilian criminal law.
3.28.2009 4:32pm
highway61:

I wish you would post a link to the memo as it's hard to figure out the context- this statement appears to be little more than an aside, and there could be less to it than you want to make.


My sources tell me you can plug in the citation into Google and get a link to the PDF, right at the top.
3.28.2009 4:54pm
Sam H (mail):
“As we have made clear in other opinions involving the war against al Qaeda, the Nation’s right to self defense was triggered by the events of September 11..." Looks to me if someone had asked if "the executive branch’s constitutional authority to protect the nation from attack justified his actions" would be a useful defense and this memo was the answer.

"Yet inflicting physical harm on prisoners during interrogation is widely believed to be contrary to the laws of war."

Sure and a lot of people believe in global warming. Doesn't mean they are right.

Just what do the treaties that the United States has signed have to say on the subject?

"If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States."

Many, many stores around that we did indeed torture Japanese soldiers.
3.28.2009 5:00pm
albert:
highway61,

thanks for the tip. Having read the memo, I am convinced that Painter is misrepresenting it. The memo concludes that civilian criminal law does not apply to the actions of soldiers interrogating enemy suspects abroad- not that there are no restraints on the conduct of such soldiers (i.e., military law, Convention Against Torture). This conclusion is defensible, if not inevitable. The memo is hardly as bad as Painter makes it out to be.
3.28.2009 5:10pm
wheres the beef:
A few points:

The defenses are discussed because the OLC was asked to discuss them. Given the vagueness of Section 2340, it would be reckless for the government not to consider defenses, in case its interpretation of the statute differed from a jury's or an ambitious prosecutors.

Given that defenses are considered, is self-defense a possible defense? Yes. The memo cites two law review articles that purportedly argue that there might be a self-defense argument: the Moore article Torture and the Balance of Evils; and the Dershowitz article "Is it necessary to apply physical pressure to terrorists." The memo also cites In re Neagle as possibly impacting this claim. (p. 79, March 14, 2003 memo)

Would the claim of self-defense always fail? Possibly not. In a true ticking nuclear-bomb scenario, some judges might accept the self-defense claim.

The key here is that the memo does not misrepresent the state of the case law. It is very clear that only "some" commentators adhere to the theory, and it is clear that the only case law is the Neagle case, which only "suggests" that the claim might "strengthen" another claim.

The actual defense is posed in about as weak a form as can be done in a memo, as a defense the government "could argue."


Painter argues that this rises to the level of incompetent or unethical lawyering, if I understand him right, because he thinks the defense would always fail and because there is not more discussion of flaws in the defense.

More discussion of flaws in the defense would have been a waste of time. There is not enough case law, and the resolution might depend on all kinds of situation-specific matters (is the existence of the entire nation at risk? a million people? one person?). The only possible conclusion of more discussion would be what the memo already says: it's a possible defense, that might be raised by a defense attorney. A memo is not the place to be spending 30 pages on some contingent analysis of all possible situations and legal theories: the memo lists the case law, some papers, and says "maybe." That's the state of the law: "maybe." More analysis is not going to change that.

I know Painter seems absolutely certain the defense is just awful and would never be accepted, and maybe he is right, but there's just no way for a cautious memo writer to know this. A lot of strange things happen in Constitutional law. So the memo I think absolutely rightly, notes some papers and a case, and says "maybe." That's just the best that it can do here.
3.28.2009 5:53pm
Larrya (mail) (www):
Soldiers in combat do things forbidden by ordinary criminal law (such as use explosives, automatic weapons, and shoot people not directly threatening them, and indeed people retreating from them).
Key word here is “combat.” When you’ve hauled the prisoner several thousand miles out of the war zone, shackled him securely, and it’s been weeks since he’s had contact with his commanders, the “we’re in combat” theory runs thin.
Many, many stores around that we did indeed torture Japanese soldiers.
While they were in stateside internment camps?
3.28.2009 5:57pm
Sam H (mail):
" Many, many stores around that we did indeed torture Japanese soldiers.

While they were in stateside internment camps?"

No, but what difference does it make?

Were the three unlawful combatants who were waterboarded in stateside internment camps?
3.28.2009 6:06pm
Anderson (mail):
Just what do the treaties that the United States has signed have to say on the subject?

You mean, besides the Geneva Conventions?
3.28.2009 6:08pm
Anderson (mail):
You might also try the Hague Convention.

Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.

They must be humanely treated.
3.28.2009 6:12pm
d-day (mail):
Torturing Japanese solider is a false analogy. Appeals to the law of war are likewise inapposite. The laws of war as I understand them apply only to enemies who similarly follow the same laws of war. POWs cannot be tortured or abused when fighting with other enemies that adhere to the same conventions. The laws of war are meant to promote our own interest by encouraging enemies to adhere to the same conventions. My understanding is that spies have always been subject to torture and interrogation, as spying is contrary to the laws of war as well. That is why the Geneva Conventions explicitly apply to uniformed soliders, to distinguish between the class of persons who are lawful soldiers and those who are unlawful spies.

My understanding of the "torture memos" are that they try to define the legal status, protections, and presumptions to apply to a large group of, essentially, spies (combatants who have themselves opted out of the laws of war, and therefore its protections). There is no LEGAL obligation to extend the benefits of the laws of war to an enemy that 1) wears no uniform or other insignia noting their status as lawful soliders, and 2) refuses to comply with the obligations not to torture or execute our own lawful soldiers.

I don't know of any legal framework that previously applied to the class of unlawful soldiers. As non-citizens on foreign soil engaged in unlawful guerilla combat, they are obviously not entitled to the protections of the American criminal justice system. By opting for guerilla operations and opting out of the laws of war, they are not subject to any of the protections of the laws of war. While there are certainly moral obligations toward imprisoned unlawful soldiers, I know of no LEGAL authority whatsoever that imposes ANY limit on what we can do to them.

My understanding is that rather than say "we shall do as we please," the administration, through the use of these memos, tried to investigate exactly that question - whether there are any legal limits on what can be done to these people.

The memo quoted in this post seems to discuss the issue from the opposite direction. Having established the absence of legal limits on the rights and obligations owed toward the prisoners, the administration then looked to the Constitution to see what power and authority is enumerated to which branch. Just as the few-sentence commerce clause has spawned a massive regulatory state, the executive branch's power to protect the public has given rise to executive branch control of a vast military. The quoted portion of the memo seems to state that that same constitutional language also delegates power to the executive in the treatment of lawful or unlawful prisoners. That isn't a stretch in legal reasoning, and doesn't strike me as shocking in the least.

I am concerned about the way the memos continue to be misrepresented and misreported by the media. These are lawyers doing research and finding conclusions about the state of the law. The president needs accurate information about the law to enable him to make appropriate decisions. Due to the near-total absence of law with respect to unlawful soldiers, the decision of how to treat them is ultimately a moral one. That's the realm of theologians and philosophers, not lawyers. I would not expect legal memoranda to contain detailed moral, philosophical, or theological discussions and conclusions. That's not what lawyers do. It would not be professional for them to do so when asked to render legal opinions. There's no reason to expect lawyers to have any particular expertise in those areas.

I find this post to be hyperbolic and ill-informed. While I appreciate the forum for discussion, this post falls far short of the quality of discussion I generally expect from this site.
3.28.2009 6:26pm
Anderson (mail):
D-Day, my friend, the one misrepresenting the "torture memos" is you.

Congress outlawed torture. Period. Doesn't just apply to POW's, doesn't just apply to nice people. It's illegal.

Bybee and Yoo argued instead that the President's CINC power allowed him to disregard the statute -- that it was an unconstitutional abrogation of his powers.

whether there are any legal limits on what can be done to these people

The fact that you even imagine this to have been a question, tells us something about you, but little about the subject at hand.
3.28.2009 6:37pm
Sam H (mail):
"You mean, besides the Geneva Conventions?"

"Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907."

Art. 2. The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention.

SECTION I
ON BELLIGERENTS

CHAPTER I
The qualifications of belligerents

Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer
corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

Don't think the people we are fighting fall into that group. So just what does the Geneva Conventions have to do with this war?
3.28.2009 6:42pm
d-day (mail):
I should say that my criticism above is based on a very broad-brush understanding of the current state of the law governing warfare. My point is that Painter is ginning up moral outrage for what seems like a technical legal discussion without providing fair context. If you're going to talk about legal conclusions in a legal memorandum, give us the law, give us the context, tell us the mistakes. Don't just take a legal point, tell us that it's "obviously" and "shockingly" wrong, throw around a few inaccurate analogies, and then start making pronouncements about whether the dog hunts.

Like this: "There is not even an attempt to answer questions that are obvious to the most casual reader."

These memos weren't written for a casual reader. Legal memoranda are made by particular researchers for a particular purpose to answer specific legal questions.

If we're going to talk about the morality of the Bush torture position, that's fine, but let's be honest about it if that's the discussion we're having. And I think that requires recognition that these memos, by and large, were never meant to address any moral questions one way or the other.
3.28.2009 6:44pm
d-day (mail):
Anderson:

You're right - I have no expertise and little familiarity with the laws of war and treaty obligations. I leave the discussion of the legal aspect to those with more expertise than I. I tried to clarify that in the followup comment, and I'm sorry if I was unclear.

My concern is that the post isn't criticizing the accuracy of the legal opinions rendered by lawyers - I would be interested in that and would look forward to more authorities and argument as to the legal issues. I certainly could use more educating on the topic. But I don't think there's any way to tell from the post that the legal issues are obviously inaccurate, and the conclusions of this and other posts seem to be making moral judgments on the memo authors, rather than statements about the quality of the lawyering.
3.28.2009 6:51pm
Anderson (mail):
Sam H, I took you to be stating a general proposition that torturing prisoners is okay, based on your remarks about abuses of Japanese POW's during WW2.

Common Article 3 of Geneva applies to persons captured in the Afghan war (Hamdan v. Rumsfeld), and it prohibits inhumane treatment.

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


I happen to agree that al-Qaeda isn't entitled to POW status, because I think they are criminals, not soldiers (in whose army?). But clearly, if we're going to say that Geneva applies, then KSM was protected once in "detention."

As for the Taliban, note that you've quoted the Hague provisions which apply "not only to armies." If you're discussing not Japan, but today's conflict, then see GC III, Article 4, which says:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) [More or less the Hague language you've quoted.]


The Taliban were the de facto armed forces of Afghanistan, or at least, militias forming part of same. I don't think we could evade this by arguing our non-recognition of the Taliban government, since that allows Geneva to be evaded by a legalistic dodge.
3.28.2009 6:54pm
MarkField (mail):

Don't think the people we are fighting fall into that group. So just what does the Geneva Conventions have to do with this war?


1. You left out Common Article 3.

2. The Supreme Court disagreed with you in Hamdi.

And, as Anderson pointed out, the laws against torture apply regardless.
3.28.2009 6:56pm
MarkField (mail):
And, yet again, Anderson beats me to the punch.
3.28.2009 6:57pm
Anderson (mail):
But I don't think there's any way to tell from the post that the legal issues are obviously inaccurate

D-Day, sorry if I was sharp -- you're coming in on the middle of a multi-year discussion of these topics, so if you're puzzled in good faith, (1) lots of this will seem unclear and (2) you may be mistaken for a troll who knows all this stuff anyway but insists on pretending otherwise.

A little time with Google (I suggest looking at the "anti-torture memo" posts at Balkinization) will catch you up on the problems with the memos. I googled "torture memos" earlier today and found some cogent stuff on the first search page.

Of course, the best recourse would be for criminal prosecutions or a "truth commission," so that we could get the facts established. But Obama doesn't seem terribly interested in that, perhaps because he thinks he needs his political capital for his economic reforms. Not much of an excuse, IMHO, but then, I haven't been elected president.
3.28.2009 6:58pm
Anderson (mail):
And, yet again, Anderson beats me to the punch.

Usually the other way around, sir. Don't begrudge me my little triumphs.

Now, pardon me while I "disappear" into the non-virtual world ....
3.28.2009 6:59pm
C. Gittings (mail) (www):
Sam, you might want to look at Hague a little deeper, article 23 for example.

And then you might want to have a look at 18 USC 2441, noting that it makes no mention of any articles other than 23, 25, 27 and 28, which were adopted because the express the customary law of war.

You'll a full discussion of this on my own blog at:

http://pegc.blogspot.com/2008/10/18-usc-2441.html


SEE ALSO Geneva Common Article 3:

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

"(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

"(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

"(b) taking of hostages;

"(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

"(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. * * *"


That article applies to "each Party to the conflict", regardless of whether or not they are one of the "High Contracting Parties" to the convention. The reason for that is explained very thoroughly in the judgment of the Nuremberg Tribunal, especially where it discusses the applicability of Hague IV 1907 (see the links in my blog article).
3.28.2009 7:11pm
d-day (mail):
Anderson:
Thank you for your civil reply. You seem very informed, so I'm hoping you can help me out with the particular problem I keep having with these discussions.


Of course, the best recourse would be for criminal prosecutions or a "truth commission," so that we could get the facts established.


This is my concern, and this is where I haven't seen any evidence or argument that connects these dots as I've been reading along (but not commenting on).

We have step 1: Charges that these are inaccurate legal opinions. That, to my mind, is a professional negligence charge.

And then here is step 3: Calls for criminal prosecutions or otherwise moral judgments on the memo authors.

What is the step 2? How do you get from "this is poor work product" to "you are a bad person." You need intent to get from step 1 to step 3. I see that there are inferences of intent based on the poor quality of the legal reasoning itself, but is there any evidence? I have trouble buying into the inference of intent based on the face of the documents alone. Is there some evidence outside the legal memoranda that brings this to a level of a crime or moral outrage?

I ask because these posts all seem to presuppose that the memos were created in bad faith. In both civil and criminal cases where intent is at issue, intent must be proven with evidence, not just inference.
3.28.2009 7:25pm
Sam H (mail):
Sam H, I took you to be stating a general proposition that torturing prisoners is okay, based on your remarks about abuses of Japanese POW's during WW2.

No, because they were POW's

"The Taliban were the de facto armed forces of Afghanistan, or at least, militias forming part of same. I don't think we could evade this by arguing our non-recognition of the Taliban government, since that allows Geneva to be evaded by a legalistic dodge."

You left out the other parts

The qualifications of belligerents

Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer
corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."
3.28.2009 7:34pm
Andrew J. Lazarus (mail):
Sam H, is there a particular reason that you quote the 1907 Convention, which supports your point, and not the 1949 Convention, which leaves it in tatters? Is that an error in following poor sources (e.g., whatever El Rushbo had to say on the topic), or are you in the habit of citing obsolete and superseded material when convenient?

Common Article 3 of the GC is intended to have universal application. From the official commentaries:

Until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party -- a Party, moreover, which was not yet in existence and which need not even represent a legal entity capable of undertaking international obligations. It had not been thought possible to conclude an agreement without reciprocal undertakings and such undertakings would imply that the contracting parties were already in existence. As we have seen, however, the present Convention no longer includes a reciprocity clause. This great step forward cleared the way for the provisions of Article 3, although, it is true, it is offset by the fact that it is no longer the Convention as a whole which will be applicable, but only the provisions of Article 3 itself.
It should, but does not, go without saying that the International Convention Against Torture, to which the US is a signatory, does not allow for exceptions in any case "whatsoever".

I'm not aware of any policy that authorized the torture of Japanese POWs, although I am aware of our hanging Japanese who did it to us. I suppose it is possible that there were isolated incidents of this type; there were certainly isolated incidents where US soldiers of the Greatest Generation committed rape and theft against enemy civilians. I doubt if there were any memo approving such behavior or claiming that the President had some magic power to legalize it.

I would like to know if anyone feels that the analogous memos would be justifiable if written in Japanese, Russian, Arabic, or German to stoke the ids of our present and former enemies. My guess is they would be Exhibit A in war crimes tribunals.
3.28.2009 7:42pm
Benjamin Davis (mail):
Repost from another thread.

Since we are focusing on the lawyers' work, please note that Spain has opened a criminal investigation) and the UK is in the process of investigating the torture with regard to the Binyam Mohammed case (UK resident released from GITMO). For those who might seek to use as a defense for higherups that there was reliance that was "reasonable" on the lawyers' advice, the Senate Armed Services Committee declassified full report (executive summary came out in December 2008) is expected out in the next week or two. In addition, the declassification of the May 2005 memos of Stephen Bradbury that were given to the CIA is authorized and impending and they are described as "ugly." And finally there will be the Office of Professional Responsibility report on Yoo, Bybee, and possibly Bradbury or Flannigan expected out over the next weeks or months.

Refluat Stercus!

Best,
Ben
3.28.2009 8:09pm
Sam H (mail):
Sam H, is there a particular reason that you quote the 1907 Convention, which supports your point, and not the 1949 Convention, which leaves it in tatters? Is that an error in following poor sources (e.g., whatever El Rushbo had to say on the topic), or are you in the habit of citing obsolete and superseded material when convenient?

The 1907 has been ratified by the Senate, the later ones haven't been. Go to http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=US
3.28.2009 8:26pm
Soronel Haetir (mail):
My problem with the IL argument is that there is no enforcement mechanism. Only to the degree that (1) a country adopts the IL as domestic law and (2) is willing to prosecute do IL obligations become enforced. A country of course has the option of capturing foreign officials and putting them on trial but that is as much a foreign policy choice as a matter of criminal law.

I can just imagine the US response, if for example Spain were to detain a former POTUS or even Secretary of State or Defense and put them on trial for violations of the laws of war. This is an area where I think the post WWII powers made a huge mistake, pretending that they were meting out anything other than victor's justice.

Might has always made right in international conflict and pretending otherwise makes no difference.
3.28.2009 8:34pm
Laura(southernxyl) (mail) (www):

If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States. The United States did not do that, and the White House did not ask OLC for an opinion saying that we could.



I don't think you can reasonably make this comparison. During WWII we interned American citizens of Japanese ancestry who had done nothing illegal. After 9/11 we did not scoop up every Arab in the country and detain or deport them - and this would have been more reasonable than locking up the Japanese-Americans was, since the Pearl Harbor attack didn't come from Japanese people living in America, and the 9/11 hijackers were here. But such a thing would not have been politically possible as it apparently was in the 40's.
3.28.2009 8:35pm
Anderson (mail):
And then here is step 3: Calls for criminal prosecutions or otherwise moral judgments on the memo authors.

The inference here is that the memos were so transparently shoddy that they were not, in fact, honest legal advice, but rather part of a criminal conspiracy.

Yoo, for example, is a smart guy and a con law professor, who could not be expected to omit to discuss and distinguish (somehow) Youngstown. His best defense, ironically, is that he *was* a law professor and thus too ivory-tower in his legal theories. You might be interested in this post.

The 1907 has been ratified by the Senate, the later ones haven't been.

Sam H. is mistaken. The U.S. signed the treaties in 1949 and ratified them in 1955.
3.28.2009 8:43pm
Andrew J. Lazarus (mail):
Sam H, I believe you have confused the main Geneva Conventions, which the US most certainly did ratify, with additional Protocols that the US did not ratify (to date). Take your own link and search the page for "Geneva Convention".
3.28.2009 8:52pm
Andrew C Frechtling (mail):
"If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States."

Huh?

Captured Japanese soldiers were POWs: fighting in uniform, carrying weapons openly, part of a chain of command, and
(unless guilty of war crimes themselves),assumed to be conducting their operations IAW the laws of war.

As understand things, we would only have been justified in asking their name, rank, and service number, and no more.

How would we have been justified in torturing these people under the law that obtained in 1943?

I have a dog in this fight, being a retired Air Force fighter pilot. Please, someone explain to me how Richard Painter's assertion makes sense?
3.28.2009 8:53pm
Anderson (mail):
How would we have been justified in torturing these people under the law that obtained in 1943?

Mr. Frechtling, the Bybee-Yoo argument was that, just as the use of deadly force is excused in self defense, so the use of otherwise illegal interrogation is excused in (national) self defense.

The terms of that argument make no distinction whether the victim is a POW.

Likewise, the argument from the President's CINC power is that Congress is powerless to interfere with the President's military powers, including his power to interrogate prisoners. Here again, whether a prisoner is a POW can be disregarded by the President.

You are right to find this argument incredible, but your objection should be referred to Judge Bybee and Professor Yoo, not to Mr. Painter.
3.28.2009 9:03pm
second history:
Sam H:

Federal law (18 USC Pt 1 Sec 113C) also defines and makes it a Federal crime to commit torture, and the US has historically prosecuted persons for committing torture, such as waterbroading, as far back as the Spanish-American War.
3.28.2009 10:11pm
C. Gittings (mail) (www):
Andrew,

I suggest you read the following article...

Evan J. Wallach, AFGHANISTAN, QUIRIN, AND UCHIYAMA: DOES THE SAUCE SUIT THE GANDER?, Army Law., November 2003, at 18.

http://www.pegc.us/archive/Journals/Wallach_TAL_uchiyama.pdf
3.28.2009 10:15pm
david (mail):
To say that Japanese (or German) prisoners were not tortured is pretty naive. WW II was a particularly ugly and dirty war. In the Pacific Americans and Japanese alike were in desperate situations. The combat was very close, deadly and personal. Each side had a racial animosity towards the other. We didn't take many prisoners in the Pacific, and that wasn't just because of the Japanese ethic not to surrender. Often we did not try to take prisoners, unless they would be of a tactical value. Our military lacked the organization, infrastructure and personnel to hold and process many prisoners.

I do not our solders in this war as criminals. They had to make their own peace, each in their own way, with their actions. But the conditions under which they fought are unimaginable to us well insulated civilians today. Some day American troops, and perhaps American leaders, will be under similar stress again. We should not be surprised if they ignore the rules which we all would like them to obey, were they not in a hellish situation faced with impossible choices.
3.28.2009 10:33pm
Andrew J. Lazarus (mail):
As understand things, we would only have been justified in asking their name, rank, and service number, and no more.
This is not really correct. Parties to the GC are prohibited from punishing POWs for failure to answer questions beyond these, but there's no prohibition against asking for more. As indeed our interrogators did, and our enemies' did, sometimes obtaining information that should not have been divulged, but doing so in a lawful manner.

The main point, however, is Anderson's, which is that on the Bybee-Yoo theory laws like the ICAT (no exceptions "whatsoever") must yield to the President's decision to set these aside for self-defense. I must say, I don't understand why any country would enter into a treaty with the USA if the Bybee-Yoo concept of when treaties hold were taken seriously, nor, of course, have we ever recognized similar exceptions that other countries claimed, e.g., to save Europe from Bolshevism. (Thank you for the link, Mr/s Gittings; the same author has a history of waterboarding.)
3.28.2009 10:40pm
second history:
AJL:

Thank you for the link, Mr/s Gittings; the same author has a history of waterboarding.

?

He has a history of writing about waterboarding, but I wouldn't say he has a history of waterboarding . . .

Sam H:

See also here for prosecutions for waterboarding during the Spanish American War, and here for prosecutions during the Vietnam War.
3.28.2009 10:57pm
Anderson (mail):
David, your points about the Pacific war are well-taken, but in the present case, we are not talking about actions taken in the heat of battle; we are talking about policies conceived and implemented from the White House and the Pentagon, not infrequently by pen-pushers who dodged military service in Vietnam or who otherwise had purely civilian credentials.

In fact, there was a substantial effort to cut the uniformed folks (like the senior JAGs) out of the loop.
3.28.2009 10:58pm
Anderson (mail):
but I wouldn't say he has a history of waterboarding . . .

Ha! This thread needed a laugh.
3.28.2009 10:59pm
D.R.M.:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause

This could easily be interpreted as declaring that people who have taken active part in hostilities, and who are not lawful members of the armed forces of a party, are not covered by Common Article 3. After all, the "including" could have said "anyone", instead of "members of armed forces"; the fact that the only combatants specified as protected if placed 'hors de combat' are members of the armed forces could be understood to imply that other combatants placed 'hors de combat' are not protected.

Hamdan v. Rumsfeld has held differently, but Hamdan v. Rumsfeld was not decided until 2006, so it was not law at the time of the memos.
3.29.2009 1:37am
einhverfr (mail) (www):
Sam H:

On what basis was Milosevic charged with war crimes and crimes against humanity? I am pretty sure that various breakaway provinces were not signatories to the treaties in any reasonable way, or am I missing something?

It seems that there is case law that was supported by the US which suggests that there are laws of war that bind even non-signatories and those fighting non-signatories.
3.29.2009 1:38am
devil's advocate (mail):

(I suggest looking at the "anti-torture memo" posts at Balkinization)

I suggest that you don't waste your time if you are looking for a treatment more serious than Richard Painter's.

Balkinization is where they send when you ask for a substantive debate, and what you get is more of the same. My favorite is a series of 6 numbered posts in April '08 in which Marty Lederman promises to give the Yoo Memo a thorough going over, e.g., but prevaricates for several more installments with no content apologizing that he is busy and then in the 6th starts discussing whether Yoo's tenure at Boalt Hall should be revoked -- without every having posted one scintilla of analysis of the 80 page memo -- and then this great effort at academic enlightenment simply ends.

So what you'll get at Balkinization reads like this: Torture is wrong, therefore Yoo is wrong, QED. PS Waterboarding is torture.

The ironic thing is that you could agree with all the above propositions and also concur with the Yoo memos -- which is to say that these per se arguments are unavailing in impeaching Yoo's work.

One aspect of Painter's criticism that deserves a certain redress is the concern that the "self-defense" analogy was not fully explicated. In other words, it must be a poor or inapt citation if it's precedent and history and precise application are not discussed in more detail.

In a way, this approximates my concern with Yoo's critics. They refuse to engage in extensive discussion of context, precedent, tradition and original understanding. They think that excerpting a sentence regarding the discretion of the President to consider whether the statute law applies to the military in conflict wins the argument of lawlessness in the larger sense.

While a number of skeptics (imagining that the status quo vision is one in which Yoo is the outlier) have properly pointed out that once can hardly take this quip in context as an advocacy of presidential lawlessness, that does not mean that these Yoo asides necessarily reflect well developed and defended rationale.

But the very nature, articulation and context do not give these statements the "get out of jail free" power that Yoo is alleged to have thrown about loosely. They are qualified, and tend to recognize that the question is not decided. So they do not represent an abuse of Office of Legal Counsel, which is another background contention here.

Indeed, from a lawyering standpoint, these assertions seem more to serve the point of not waiving these defenses. The memos discuss at length specific standards applicable to the military. If the memos really stood for the proposition that the President can tell the military to do whatever he wants, they could have been a page long.

The memos simply do not provide some kind of blueprint for someone being prosecuted to make an unassailable claim of "national self defense", rather they seek to insure that the memos not be cited to impeach such a defense out of hand. I don't see that some reliance interest is going to induce some line officer to go off the reservation thinking that his conduct is insulated from oversight. For that matter, I don't expect military lawyers and commanders who supposedly bridled at these opinions to countenance lawless environments in reliance on them or to carry out orders that depart significantly from the the extensive standards also laid out in them.

These memos aren't really torture memos at all, this is the same rhetorical game the federalists played. You had a confederacy, and they wanted something profoundly more but they called themselves federalists. The memos are part of that unsightly discussion of what kinds of aggressive treatment do NOT constitute torture.

Which demonstrates the extent to which these memos do set a standard that was largely undisturbed by their withdrawal. Many who focus their ire on Yoo's work suggest that the proof that it is substantively lacking is Goldman's withdrawal of the memos and some specific distancing from their content in the Levin memo that replaced them. But in one of few substantive comments on the subject, Lederman, the purported anti-Yoo who is now set to take the same job for Obama, conceded that Levin's standards are similar to Yoo's and he starts in on the ad hominem with Levin: It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.

yeah, this is ongoing debate, and if you want any satisfaction of the other side actually defending their position, rather than announcing it as the result, you'll be disappointed.
3.29.2009 8:00am
jukeboxgrad (mail):
devil's advocate:

Balkinization is where they send when you ask for a substantive debate, and what you get is more of the same.


Balkin's explanation of the importance of Youngstown is here. Further analysis regarding the importance of Youngstown is here and here. Some evidence that Yoo himself comprehends the importance of Youngstown is found via here.

Feel free to let us know where you would like to "send" us to find a "substantive" analysis showing that Balkin's explanation is wrong, and that it was perfectly natural for Yoo to fail to mention Youngstown.

if you want any satisfaction of the other side actually defending their position, rather than announcing it as the result


Surely you will give us the "satisfaction" of defending Yoo's failure to mention Youngstown. Instead of simply "announcing" that there was no failure.
3.29.2009 8:30am
MarkField (mail):

These memos aren't really torture memos at all, this is the same rhetorical game the federalists played. You had a confederacy, and they wanted something profoundly more but they called themselves federalists. The memos are part of that unsightly discussion of what kinds of aggressive treatment do NOT constitute torture.


And the reason that they're properly called "torture memos" is precisely that they seek to justify acts which are torture.
3.29.2009 11:30am
Andrew J. Lazarus (mail):
Sorry, DRM, but the phrasing of Common Article 3 is to allow for killing during actual combat. Common Article 3 makes clear that it applies to everyone who has been detained, as I already made clear by reference to the official GC commentaries. Notice the article says nothing about requiring detained members of armed forces to have been engaged in lawful methods of combat.
3.29.2009 12:24pm
devil's advocate (mail):

Feel free to let us know where you would like to "send" us to find a "substantive" analysis showing that Balkin's explanation is wrong


So the allegation is error through ommission. I wouldn't disagree that this addresses a substantive area of law and precedent that attends the overall debate but I don't see this as some kind of linchpin undermining of Yoo's work. I would be privileged to respond to the tenor or your own remarks as well as Lederman's with regard to Youngstown.

And, if you are not one of those who contended that the Goldman withdrawal and the Levin replacement memo are signals of the inadequacy of Yoo's work suggest a vast departure of the standard they articulated from a fair reading of the law, I will forgive your not responding to my citations of Lederman's namecalling of Levin.

Citation to Youngstown as an analogy to the current circumstance is certainly not completely inapt insofar as the arguments on behalf of the President were the unenumerated grant of the entire executive power and the particular duties of the commander in chief. However, rather than your citation that Yoo had Youngstown on a "Separation of Powers syllabus", I would point yout to his March 1996 California Law Review Article : The Continuation of Politics by Other Means: The Original Understanding of the War Powers for the obvious rebuttal of the stress placed on Youngstown by Lederman.

Youngstown dealt with the domestic constitutional arrangement. While the conduct of war was incidental to the President's effort to seize the steel mills, the argument was not over Truman's conformance to statutes (or treaties) but the property rights of the Steel Mill owners. It may be argued then that Youngstown is particularly apposite in domestic constitutional cases. Thus, while not absolutely telegraphing the outcome of Hamdi, it certainly was an important contributor where the court was consider the extraordinary writ in oppossition to extraordinary detention of a citizen.

Some certainly argue that Jackson's concurrence telegraphs the necessity for either for legislation or congressional acquiescence to see the president at the zenith of war powers. But, of course, jackson's concurrence was just that, Jackson alone. Just as the Hamdi decision was formed out a combine of different paths up the same mountain of results, so Youngstown was not decisive on the expansive expression of the relation of the executive and legislative branches.

Further, even if one accepted that it was effectively controlling in Hamdi, that does not suggest the outcome of the vast bulk of cases arising from the war on terror detentions relative to non-citizens.

I am not stating a preference and myself believe the logical and just standard in this type of conflict should ultimately facilitate some form of detention review beyond the cursory field hearings that resulted in the current detentions. But I don't believe one derives that standard or a check on the president having conducted the war or the detentions in Youngstown.

Even lending rhetorical force and the affection of legal scholarship for Jackson's concurrence some force, what Youngstown did not stand for was the notion that because there was no declaration of war the President didn't have the power to be heaving steel at the North Koreans in the first place. So, in that sense, the decision operated more like the indirect congressional power of the purse than an assault on the commander in chief power directly.

Thus, it is fairly easy to see when it comes to rules largely contemplated to affect military treatment of non-citizen irregular belligerants esp. through explicating treaty standards, and statutory, not constitutional, adoptions that might attend those standards, Youngstown is not a case that springs to the fore. That Lederman parades us through the Truman arguments helps to show what similarities he sees, but does not explain away the vast difference in context. It would have been useful for Yoo to slay that dragon in the crib, as he did quite effectively in the aforementioned article. I certainly would offer a substance point, but I don't claim to have read every single post Lederman every wrote. I do claim to have read quite a lot of the ones that claimed to be the gravamen of his arguments against the Yoo memos and turned out to have virtually no substance other than the conclusory bits that torture is wrong and waterboarding is torture.

I think that it, perhaps fairly, boggles Lederman's mind that some people do not think Waterboarding meets the definition of torture. But that is the whole point, if one thought that there was no prohibition on torture then you don't have to argue whether waterboarding is torture.

Rather than concede that:
1. Yoo has consistently maintained that the detentions are to be characterized by observance of the Convention against Torture, and that the argument is whether waterboarding or similarly aggressive interrogation techniques are torture,

2. that the Levin Memo arrives at a predominately similar outcome on these standards as evidence by Lederman's distaste for it and inspite of Levin's own sophistry during testimony in attempting to distance himself from the footnote that said as much.

3. The arguments over the President's commander in chief power esp. with regard to the applicability of general statutes to the military were not waived or denied but simply withheld as moot, unnecessary to assert in justification of the administration's policies.

4. the withdrawal of the memos largely represented a prudential retreat, not the establishment of alternative legal standard.

Yoo's detractors argue consistently that he favors torture conducted in ignorance of statutory standards and thus conducts himself in unprecedented lawless ways. But Youngstown cuts both ways. The nature arguments are of course precedented because they were made in Youngstown and that decision clearly did not extend to or decide the current context. And, in any event, the framers held each branch to be internally competent to defend its constitutional prerogatives. Just because the court found against Truman in Youngstown does not mean that no executive should ever walk up to that line again. Rather they are expected to.

And these arguments have continued through both Republican and Democratic administrations since, as they should have.

I think it fair to suggest that there are some shortcomings in these memos. I could be a devil's advocate in the other direction just as easily. But the argument is that Yoo's work represents some desertion of design of OLC and malpractice of a punishable nature. It is these arguments I find unsupported by any substantial evidence.
3.29.2009 3:15pm
Guest-aholic:
Always kills me how JukeBox shows up to list all the cites he can find from other persons on the internet who have analyzed something rather than trying to do the same. Like some kind of sad high school debate team member who loves to throw "cites" around without actually engaging in the underlying analysis. And when someone engaged in that analysis, there was . . . silence. Then again, maybe JukeBox was watching the NCAA tournament. Somehow, however, I suspect that anyone who spends that much time tracking down links from other sites probably doesn't have even that much of a life.
3.29.2009 10:29pm
devil's advocate (mail):
Nice to know that somebody noticed, although I don't begrudge anyone a bout of Naismith's game, and this would seem to be the time of year to pick. Nor could I blame anyone for disregarding the disgraceful editting attendant to these Volokh briefs, when oh when Eugene are we going to get the ability to edit comments.


If I can somehow avoid writing another bible and simply make a pithy prayer to those who in reasonable faith if not perfect debate hold such low opinion of Yoo's work -- I have never said he was the second coming. It is you who have said he is the devil. Thus your's is the extraordinary claim and I do believe the burden properly lies upon you to offer more than res ipsa loquitur in its support. I give you a point for bringing up Youngstown but if you're come to eat, lets feast.

Brian
3.29.2009 11:55pm
jukeboxgrad (mail):
devil:

I would be privileged to respond to the tenor or your own remarks as well as Lederman's with regard to Youngstown.


The article I cited is by Balkin, not Lederman.

the Goldman withdrawal


No one in this drama is named Goldman.

These are examples of the difficulty you have paying attention to simple facts.

Youngstown cuts both ways


According to you. And you spend about 1,000 words expressing this opinion of yours, without actually showing any proof, or addressing what Balkin actually said about Youngstown.

Meanwhile, what you haven't even attempted to do is demonstrate that Youngstown is irrelevant. And that's what you would have to do to justify Yoo's omission, which is a glaring example of how he failed to meet the most minimal standards of competence and good faith.

By the way, your claim itself ("Youngstown cuts both ways") indicates that Youngstown should have been discussed.

I would point yout to his March 1996 California Law Review Article : The Continuation of Politics by Other Means: The Original Understanding of the War Powers for the obvious rebuttal of the stress placed on Youngstown by Lederman.


If Youngstown had enough relevance to be mentioned in a law review article about war powers, why wasn't it considered relevant enough to be mentioned in Yoo's torture memo? Which was 81 pages long (pdf), and which discussed war powers extensively, and which cited numerous other cases that are far less significant than Youngstown.

You are just adding to the evidence that Yoo understood the relevance of Youngstown, and omitted it deliberately.
3.30.2009 10:01am
jukeboxgrad (mail):
guest:

And when someone engaged in that analysis, there was . . . silence.


About 7 hours after devil's post, you chimed in to complain that I wasn't responding to him quickly enough. Even though it took him about 7 hours to respond to my post. Nice job proving how fair and objective you are.

Like some kind of sad high school debate team member who loves to throw "cites" around without actually engaging in the underlying analysis.


If you think I'm someone who is afraid of doing my own "underlying analysis" then you obviously haven't spent much time reading my posts here.

And if you're eager to show off your impressive skills in "underlying analysis," then feel free to do what devil didn't do: explain why it was appropriate for Yoo to fail to even mention Youngstown.
3.30.2009 10:13am
devil's advocate (mail):
jukeboxgrad


explain why it was appropriate for Yoo to fail to even mention Youngstown.


I already explained at some length -- apologies for that - so let me try the short version context is everything. Have you read Youngstown?

Try this 343 U.S. @ 587


The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.


In this case, no one is disputing that there is active warfighting, or that these memo's relate almost exclusively to belligerants captured on the battlefield. Nor is there some cause of action posing such clear constitutional clarion call that the a case in controversy goes from preliminary injunction to the Supreme Court in a matter of days. It is fairly easy to see that the circumstances of Youngstown are not particularly apposite of the present matter.

But who wants to read the decision, everyone loves the concurrence. Oh. You mean 343 U.S. @ 596 :


That requires both a spacious view in applying an instrument of government "made for an undefined and expanding future," Hurtado v. California, 110 U.S. 516, 530 , and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today. . . .

The issue before us can be met, and therefore should be, without attempting to define the President's powers comprehensively. I shall not attempt to delineate what belongs to him by virtue of his office beyond the power even of Congress to contract; what authority belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President or by both, cf. La Abra Silver Mng. Co. v. United States, 175 U.S. 423 ; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscriminating hotch-potch past presidential actions claimed to be derived from occupancy of the office, as it is to conjure up hypothetical future cases. . . .
These and other questions, like or unlike, are not now here. I would exceed my authority were I to say anything about them.


Oh, but that is Frankfurter's concurrence. One of 5. (BTW, nice to see that a progressive who favored a restrained court didn't change his tune for convenience). Youngstown is famous for its rhetoric, not for its controlling principles. Much of what Jackson had to say was thoughtful and levelheaded

It is plausible that a useful argument could have been advanced in the memos that the President was not at the zenith of his powers but only within their conservative ambit in prosecuting the war on Terror in homage to Jackson's balancing proposal. But this simply is not the bright letter law and it seems that those acting like it is are the ones who should go back to the drawing board, not Yoo for failing to mention it.

Brian
3.31.2009 6:49am
jukeboxgrad (mail):
It is fairly easy to see that the circumstances of Youngstown are not particularly apposite of the present matter.


Where have you shown that? Making an assertion is not the same thing as presenting evidence. And stringing lots of words together is also not the same thing as presenting evidence.

And aside from that, there must be two people here posting under the name "devil's advocate." Because I recall someone else using that name who said this:

Youngstown cuts both ways


Do you think the two of you could get together and pick one story? Because if "Youngstown cuts both ways," then it was relevant enough to mention.

By the way, why did Yoo cite Youngstown in his article about war powers, if Youngstown is not relevant to war powers? And why did he cite Youngstown in his syllabus about separation of powers, if it is not relevant to separation of powers? Yoo's own history shows that he understands the relevance of Youngstown.

Discussing the constitutional history of war powers without mentioning Youngstown is like discussing the constitutional history of abortion without mentioning Roe v. Wade. Anyone who do so is either exceptionally ignorant, or trying to pull a fast one.
3.31.2009 8:39am
devil's advocate (mail):
Goldman - Goldsmith - it's all precious metal isn't it?
With apologies to Jack.

But criticizing my misapprehension of the name doesn't address the substance.

You are right, it was Balkin not Lederman, but Marty is guilty of plenty of other categorical pronouncements that don't really hold up.

As to Youngstown, before I saidn alot of words I stated the argument baldly and I will do so again:

CONTEXT IS EVERYTHING

Yoo's article on the executive power from the California Law Review was a global and historic consideration of first principles and the larger foreign relations outcomes. Youngstown was cited to point out that it had no relevance to the areas central to the executive conduct of war but affected Domestic affairs -- this was to show that Congress's power to declare war has to do with the duties of citizens and the domestic side of war while the president had the freer conduct of foreign affairs and war fighting.

Thus when examining a codecil of the latter it is unsurprising that Youngstown doesn't come up. Balkin cites it because of the nature of arguments made, not so much for the result. That is thoughtful but doesn't indicate malpractice. The Levin memo that replaced Yoo's that has been praised in some of the same quarters that pillored Yoo's does not mention Youngstown.

Now there is an argument why Youngstown, at least the governments theory if not its context was more important to Yoo's version of the memo than Levin's but as you can see from Frankfurter's language (and Black's for that matter) this did not address the area that Yoo was considering. It might have been useful to refer to for analogy, but it would not have been a controlling precedent. I have suggested that it might have provided some illumination as well as clarifying Yoo's arguments, but in the crush of putting out memos on narrower topics to revisit every macro argument is not feasible.

I give you a point but not the game by any stretch of the timagination.

Brian
3.31.2009 10:35am
jukeboxgrad (mail):
The Levin memo that replaced Yoo's that has been praised in some of the same quarters that pillored Yoo's does not mention Youngstown.


Duh. That's because Levin's 17-page memo (pdf) deals exclusively with the question of how to define the word torture. Whereas Yoo's 81-page memo (pdf) purports to cover, at length, the subjects of war powers and separation of powers. And discussing war powers and separation of powers without mentioning Youngstown is like discussing the constitutional history of abortion without mentioning Roe.
3.31.2009 11:07am
Anderson (mail):
Youngstown was cited to point out that it had no relevance to the areas central to the executive conduct of war but affected Domestic affairs -- this was to show that Congress's power to declare war has to do with the duties of citizens and the domestic side of war while the president had the freer conduct of foreign affairs and war fighting.

That is a misreading of Youngstown. The President was asserting that the steel seizures were necessary for military purposes. The Court refused to agree.

Similarly, Yoo argued that the power to torture was "central to the executive conduct of the war" and thus that Congress *could not* legislate to prohibit torture by the CINC.

One cannot, as a responsible lawyer, even begin to think about that question outside the Youngstown framework. But the reader of Yoo's memo would not even know that framework *exists*.

It was obvious that any legal attack on the President was going to come from the direction of Youngstown. Yoo was supposed to be giving advice. He had a duty to his client to at least describe and distinguish Youngstown, not to sweep it under the rug.

On the theory that he was providing good-faith legal advice in response to a genuine question, Yoo failed his client miserably. So miserably, indeed, that the question arises whether Yoo was indeed acting in good faith, or whether he rather was providing a fig leaf for a predetermined policy.
3.31.2009 12:07pm
devil's advocate (mail):
jukeboxgrad


One cannot, as a responsible lawyer, even begin to think about that question outside the Youngstown framework.


I cannot agree with this proposition. Given the extent of qualification, narrowing and explicit denial of war fighting context you [and Balkin] overstate this case. I'm not saying the concepts are irrelevant or that a citation would be patently inappropriate. In a way it is rich that the contention converts to a thought that Yoo might not be wrong on the substance but they he failed to warn his client that challenges could be lurking just behind the Youngstown ridge.

Balkin seems quite well aware of this, e.g. ,


Viewed only in the context of the steel seizure dispute, Black's majority opinion might be read very narrowly as a case that says that the Commander-in-Chief power does not apply to domestic questions that are properly the subject of Congressional legislation. But Youngstown has come to mean something more than this, or rather something different from this, and the concurring opinions, particularly the opinion of Justice Jackson, which I will discuss in a moment, have generally been viewed as the most important statements of the law.



Whenever anybody says someting like "has come to mean" i would be suspicious they are talking more about academic fashion than law.

Given that Jackson himself quite clearly saw the narrowness of the applicabilty of even his own concurrence:


But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. 10 [343 U.S. 579, 643] I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.


or for that matter its staying power in even the domestic arena:



But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.


There is simply nothing here to suggest that this contention over domestic policy or the scholarly affection for jackson's formulation is so particularly apposite of the current context as to virtually or absolutely require it to be brought up and refuted prophylactically.

Into this breech Balkin throws Dames&Moore v. Regan alleging that this both adopts Jackson's concurrence as law and exports it to foreign relations.

The obvious problem is that foreign relations are not war fighting. It is a realm for the assertion of inherent executive power -- and indeed was so recognized as distinguishing between domestic and foreign affairs in Youngstown.

But this somewhat falsely alleges a broad foreign context. Rather it is domestic property rights that are again being adjudicated and again the case cautions about it's own narrow applicability.


Indeed, as Justice Jackson noted, "[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves."
Our decision today will not dramatically alter this situation, for the Framers "did not make the judiciary the overseer of our government." . . . We attempt to lay down no general "guidelines" covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.



The pre-eminent point to be taken from Youngstown and Dames is that individual rights act as check on Presidential ambition. This has been made clear in some of the detention cases as well. The court has always seen the abstract qeustions of separation of powers, esp. in this war fighting realm as largely political questions. Look at Jackson saying it is basically not our job to negate or challenge presidential action, it is congress'.

So the real question is why, if Yoo was so clearly wrong, Congress has not reacted by passing legislation that clearly states its applicability to the military in the conduct of detentions and explicitly outlaws waterboarding.

For all the abstract ideals thrown around that is where the rubber is hitting the road. Now when I say this, folks say, they don't have to they already made torture illegal. But that doesn't answer either Jackson's cautions that the court cannot prevent congress' power form slipping through its hands or many previous administrations, Clinton notably, have formed and advanced the opinion that they will not consider generally applicable statutes to apply to the military.

Indeed it is somewhat silly to suggest the the maiming and assault statutes are intended to govern captures on land and sea. Congress can easily make clear its intention to apply statutes to the military and while there is the risk of reverse endorsement if such an attempt is made and fails, no guts no glory.

Torture is arguably somewhat different as it is a less general crime, but this statute neither specifics military applicability at this time and, in context, Yoo has always maintained that the totality of authorities - domestic and international - reject torture and the memo argument is more about who has the institutional capacity to define torture for the purposes of detainee treatment.

Yoo has not advocated torture, he has countenanced aggressive tactics that implicitly might include waterboarding are not torture. That is more than a semantic.

I'm not saying he is right or wrong, but it is imprecise to suggest he advocates torture reading these memos in their entire context. That is different from his own personal and external responses to the kind of Jack Bauer scenarios everybody likes to throw at him.

And Yoo's memos although slightly more global is far from proposing to be a complete treatment of the war powers subject and really draws on larger authorities for the narrower question of defining torture. So it's subject is not really different than Levin's memo.

I'm sorry if you imagine this to be a lot of words (rest easy at least that i lost a longer version of this post into the cyber-ether at 6:30 this morning), but I don't believe these words add up to nothing, even if it could have been said in a word; and you will need more than shaky academically puffed up references to Youngstown to shake my conviction -- not that Yoo is right but that he was not grossly negligent (I might be closer to Goldsmith who argues against Yoo's approach on prudential ground, as causing more controversy than it was worth -- but both Goldsmith and I have the benefit of hindsight in that regard).

I view Yoo as fallible but not fallen. I'll repeat my original formulation: Yours is the extraordinary claim and carries the burden of proof here. For anybody still reading I submit that you have not sustained that burden, although there might be another day of comments or I'll see you on other threads.

Best regards,

Brian
4.1.2009 11:02am
jukeboxgrad (mail):
In a way it is rich that the contention converts to a thought that Yoo might not be wrong on the substance but they he failed to warn his client that challenges could be lurking just behind the Youngstown ridge.


Yoo is wrong on the substance. The point is that even if was right on the substance, he would still have an obligation to mention Youngstown. Because Youngstown is highly relevant. That's obvious for many reasons. Here's one: the number of words it takes you to try to argue otherwise.

Congress can easily make clear its intention to apply statutes to the military


The statute itself is already clear enough. Have you read it? It applies to acts committed "outside the United States," by a person "acting under the color of law." If that was meant to exclude the military and the CIA, it's hard to imagine who it was meant to include.

Also, when did the CIA become part of the "military?" It's not.

Yoo's memos although slightly more global is far from proposing to be a complete treatment of the war powers subject and really draws on larger authorities for the narrower question of defining torture. So it's subject is not really different than Levin's memo.


"Slightly more global?" Yoo's memo includes lengthy discussions of war powers, separation of powers, and presidential authority. Many of his 81 pages are devoted to covering those subjects. This is how much space Levin devoted to those issues: none.

I notice you still haven't bothered even trying to answer these questions: why did Yoo cite Youngstown in his article about war powers, if Youngstown is not relevant to war powers? And why did he cite Youngstown in his syllabus about separation of powers, if it is not relevant to separation of powers? As I have said, Yoo's own history shows that he understands the relevance of Youngstown.

Yours is the extraordinary claim


Yoo wrote at length on the subject of separation of powers, war powers, and presidential authority. Youngstown is one of the most, if not the most, important Supreme Court case regarding those subjects. What's "extraordinary" is Yoo's failure to mention that case. This omission tends to create the impression that Yoo was not acting in good faith. And there's nothing "extraordinary" about pointing this out.
4.1.2009 12:10pm
devil's advocate (mail):

Yoo's memo includes lengthy discussions of war powers, separation of powers, and presidential authority...
why did Yoo cite Youngstown in his article about war powers, if Youngstown is not relevant to war powers? And why did he cite Youngstown in his syllabus about separation of powers, if it is not relevant to separation of powers?. . .
This omission tends to create the impression that Yoo was not acting in good faith.


The discussion of background principles focuses on the subject of the memo[s], e.g., Military Interrogation of Alien Unlawful Combatnats Held Outside the United States. Youngstown in the terms of its decision and concurrences simply does not apply to such cases

Indeed, say that the subject were Presidential initiation of hostilities without a declaration of war. Here you have Jackson saying not generally that Youngstown doesn't apply to other contexts, but specifically that it does not apply to the question of the power of the president to wage undeclared war.

Because in fashionable circles Youngstown "has come to mean" something that it does not say or hold, is it required to bring it up and then cite Jackson's own language. That seems to me to be a question of style that Yoo deliberately decided against.

To an extent that certainly can be read to telegraph his distaste for the academic majority's approach. But the notion that because, in a future case, someone might beg analogy or might beg the court to extend it's holding to cover this context does not make that law.

You are mistaking legal culture for the law.

That said, it is quite clear that Yoo engages in some speculation about the availability of untried defenses, although even with regard to the "institutional self-defense" mechanism that began this thread he cites to precedent arguably analogous. I don't want to claim to have read them in their entirety so I don't know to what extent they contain limiting language, but I imagine that is something that Painter or you could explicate if attepting a claim of hypocrisy.

As a prudential matter, I tend to agree that pushing the points of these theories in this context was counterproductive to their mature consideration. But that is with hindsight several years out from the atmosphere that gripped the nation in the wake of 9/11.

I think it clear that the Yoo was hired for this portfolio because he had an outlook that favored the strong executive in the war powers arena, but this was before 9/11. Unless one subscribes to the notion that the government manufactured these attacks in order to further some theory of governance after having placed Yoo at the pivot point, I think that one may credit the outcome to both a theory of government and of the OLC that violates the traditions favored by Lederman, Balkin maybe Epstein, etc.

I think Yoo would have benefited equally from good devil's advocacy as to how to play the cards he believed in good faith to be in his hand. Maybe he got some and was as resistant as you are to acknowledging any weight to an opposing argument within that maelstrom. I think that represents a measure of finger on the scale, but arguably within the arena of legal culture, not the law.

And this is reflected in the reality that these opinions were not solely persuasive regards to cases that have come to the court. In other words, these opinions, have not had -- nor do they stake an absolute claim to -- the "get out of jail free" reliance that was purported to be at issue.

So, it is a reasonable question whether OLC has a purpose as an instrument of policy, indeed of asserting the internal competence of the executive branch to interpret the constitution in asserting its conduct within its delegations of power or is solely to expicate what other authorities exist. I'm not sure that the later is flawed, or that all those who believe that the Bush administration pushed in this direction can really demonstrate with clean hands that this was not the case in previous administrations.

I think you can leave out Youngstown in either version of the OLC with regard to these detainee questions, but that doing so while importing the competing arguments that are the cultural antithesis of Youngstown for a stronger executive gives a more policy oriented role to the OLC. I have pointed out the prudential costs of this strategy.

Finally, with regard to the typical defense of the precision of 2340A's "acting under the color of law" language. Congress knows how to refer to the military if they want to, e.g., and as cited by Yoo in his memo:


the War Crimes Statute, 18 U.S.C. § 2441 applies to the conduct “any member of the Armed Forces of the United States.”


I'm not disagreeing that you can parse "acting under the color of law" to apply to the military, but it is false to suggest that if you exclude the military (and the CIA) when engaged in war at the direction of the president, that there is no remaining ambit to the statute. For instance, such a shield would not apply while operating as advisers to Mexico on drug interdiction or Columbia on drug eradication.

And while it is quite reasonable to defend the language as including the military, that does not address Justice Jackson's admonishion in the very concurrence upon which your reliance rests that only Congress can prevent the power from slipping through its fingers. These are not fixed constellations in the sky but require active participation in the current events to defend prerogatives and Jackson had no illusion that if the President claimed or reclaimed prerogatives perceived to have been denied or analogously impinged by Youngstown that, to the extent that Congress sat on its hands, the court was the arena for redress.

So far your substantive allegations are, if I'm counting correctly,

1. Failure to mention Youngstown

2. Disagree with whether "acting under the color of law" is a specific reference to war fighting.

Rather than thinking that the absence of Youngstown is extraordinary, I think it is the question of defining legal mainstream and culture that is at play in that question. I don't think that reality can be effectively excluded from the OLC process in its entirety but I think a better recognition of that would have been fruitful but does not represent a fatal error, on the order of claims for disbarment, etc.

Lots more words and Best Regards,

Brian
4.2.2009 9:21am

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