The White House finally released some of the torture memos to Congress — justifications of coercive methods by Professor John Yoo. What is most striking about the memo below is its rather low-grade effort to justify torture — citing a type of self-defense theory for why an isolated detainee might have died or been injured during rough interrogation.
The 81-page legal memorandum was sent to the Pentagon in 2003 — claiming that officials could assault or maim detainees under the sole authority of the President. Written by John Yoo, the memo was later retracted by the Justice Department, informing other agencies that it’s analysis could not be relied upon. For a copy of the memo, click here
In the memo, Yoo claims “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.” Yoo suggests the use of a “national and international version of the right to self-defense.”
It is an argument that is radically out of line with controlling precedent and logic. Yet, despite the opportunistic analysis, it was enough for Mukasey to block a criminal investigation of the president in his circular logic, click here for a prior column. The result, however, was the embrace of torture by the United States government — a curious legacy for Bush. Click here.
The memo clearly tries too hard. It seems an example of the counsel capture, where an attorney is too eager to justify the views or desire of a client. Indeed, the newspapers are quoting former colleagues as saying that they called Yoo “Dr. Yes” for his willingness to accommodate the White House with such legal analysis.
I was surprised by the almost conversational level of analysis in the memo. It adopts highly transparent arguments to “spin” the legal questions in favor of the White House. It is not enough to say that it was the product of the times. Lawyers are trained to resist such impulses. If we have one critical function, it is to offer dispassionate analysis when passions run high.
I have long been saddened by the involvement of John in this scandal. I have enjoyed debates and conversations with him through the years. We strongly disagree about his view of presidential authority. However, this memo is far below the quality of work that we have come to expect from John Yoo, who is an accomplished academic. Like Viet Dinh, Yoo allowed himself to become a vehicle for the circumvention of the very laws that he teaches to his students. That is a sad moment for all of us in the academy.
Stupid is, as stupid writes, and stupider still is he who acts on it. Any excuse is a good one when you want to do something.
What Mespo said.
I hold Yoo in contempt not merely because of his “low-grade” legal analysis, but more for his outright plagiarism. As William Shire wrote in “The Rise and Fall of the Third Reich” quoting Hitler’s words in lecturing his General Staff:
“The war against Russia will be such that it cannot be conducted in a knightly fashion. This struggle is one of ideologies and racial differences and will have to be conducted with unprecedented, unmerciful, and unrelenting harshness. All officers will have to rid themselves of obsolete ideologies…. German soldiers guilty of breaking international law will be excused. Russia has not participated in the Hague Convention and therefore has no rights under it.”
For a disturbing analysis of the historical parallels see:
http://www.new-federalist.com/other/2004/3126torture_memos.html
GREAT QUOTE!
the point of the geneva conventions is of voluntary self-restraint, it doesn’t matter if others are signatories are not: it is not a contract between parties, it is an undertaking not to act in certain ways. As Dean Kuo said, “it is to protect us from ourselves” (or words to that effect)
I agree with all of you. Yoo’s memo should have been released long ago, but it would have shown the world how badly the Bush Administration wanted to torture if they relied on this sub-standard legal reasoning. Mukasey has turned out to be a disgrace just like his predecessor. Who would have thought that Ashcroft would turn out to be the most professional of all of the AG’s? Maybe Professor Turley would know if the Bush administration and its hacks who authorized and/or enabled the illegal torture to happen can be charged under U.S. and/or international law, once Bush is out of office? These people are nothing better than war criminals.
Rafflaw,
JT would know.
IMHO, I think that there are several angles that can be pursued, but they require we have a new chief executive. Since the Medellin case came down, the obligations of US courts to enforce treaty obligations has been much weakened. Add to that we have exempted ourselves from the ICC jurisdiction and we carefully avoided allowing jurisdiction in the Inter-American States convention against torture. The Bush Admin cannot be blamed for all of this, some of this dates back to Clinton and even before.
There are plenty of precedents for trying the torturers, the orderers of torture, and the legal folks who served up the requested legal justifications…its just that practically everyone with real power in Washington seemingly wants the whole issue to go away.
I posted this here last night on the “No Bad Counsel” thread.
For those interested in the actual memo, here it is:
http://gulcfac.typepad.com/georgetown_university_law/files/march.14.memo.part1.pdf
Part two has the same URL but with “part2″ substituted.
Pay attention to the footnotes.
So, when John Yoo conspires to render the constitution into a urinal puck, does the categorical imperative compel us to treat him in the same way that he would have us treat those who do the same; as illustrated above?
Do I hear it said that not torturing John Yoo would be a show of disrespect for him as an individual?
I’m confused (but in a good sarcastic way)
Regards,
Bob
At the very minimum, Bob, esq. the UC system should reconsider his tenure!
But on a more serious note, I think that if we had a time-machine and could transport John to Bagram circa 2003-2005 (much less Abu Ghraib and other sites less known), and forced him to watch some of the goings-on there (not allowing him to squinch his eyes shut or cover his ears) then I think a wiser man would have emerged who would never have dreamed on penning those arid justifications for the unjustifiable.
He has earned a horrid place in history, and I would guess he knows it.
Here is Jack Goldsmith’s successor’s reaction to the memo (i.e don’t use it)
http://balkin.blogspot.com/Levin.Haynes.205.pdf
A a former sleuth of sorts, my money rides on that fact that the Bush administration Justice Department, will continue to amaze us with a series of Easter Eggs (like this memo) that were created to provide a documentary trail, when and if they were needed.
While we have been talking about transparency in Government for years, at best, its Opaque – and this administration has mastered their use of the ‘blind.’
Imagine what an investigator could deduce with a glimpse of the memo stockpile.
I have stated before that U.S. v Alstoetter may be the case that people like Yoo, Bradley, Bybee, Addington, et al, lie awake at night worrying about.
This was more than simply bad lawyering.
I can’t believe Mukasey keeps a picture of Justice Jackson up on his wall. How does he face it?
Damn it Jonathan, didn’t you get the MSM memo? It’s Enhanced Interrogation Techniques. No wonder we don’t see you to much on TV. Seems Keith is the only one with balls big enough to put you on.
D.W.,
Thanks for posting the memo. What is the No Bad Council entry?
Jill
Wow! The wacko left posts 14 comments to a non story about non torture and almost nothing about stoning to death human beings.
Nibbles, only one of those stories affects our Constitution and only one concerns the actions of our own government, so it would be logical for us to focus on the issue that we can most directly affect.
The fact that you fail to comprehend the scope of the memo’s implications is not surprising, but I’d assume you’d at least recognize the difference between accepting the things we cannot change and trying to change the things we can.
And, as a conservative, what the hell are you doing supporting someone who is literally discarding entire sections of the Constitution in favor of an executive branch power-grab? God, like you’d be half this blase if President Clinton had done a fraction of what Yoo advocated.
Niblet,
Are you sure you weren’t called “msnbc bs er” in another life? If the President of the United States and his administration being involved in the torturing of detainees is not a huge story, I don’t know what is. Plus, this so-called legal Memo has such bad reasoning, by a Law professor no less, that even someone named Niblet can tell it is a feeble attempt to legitimize an illegal act. The wacko left does not have to post comments about stoning deaths in Pakistan because what more can you say about a barbaric act? Besides, isn’t torture just as barbaric as stoning? What about the detainees that were beaten to death while under U.S. detention? I think you also need to check into how many people were put to death in the State of Texas alone during George W. Bush’s tenure.(over 150) Of course, death by lethal injection may not be as bad as stoning, but the result is the same.
This bird roosts at the Boalt Hall School of Law at the University of California – Berkeley.
Brendan over at brendancalling is trying to light a little fire in his nest.
If you are interested you might check it out and if you can get behind it, pass it on, please.
http://brendancalling.com/2008/04/02/shaming-and-shunning/
regulararmyfool,
Brendan’s idea of writing letters to Boalt Hall at Berkeley may help. I would prefer to see Yoo brought up on criminal charges either domestically or internationally. But we may have to settle for putting pressure on Yoo and his employer(s).
The ends not only fail to justify the means,
they are a heedless testament to the means.
well said Patty C.
You know DW, in one respect, I dislike rehashing this subject, but it’s something that needs to be remembered.
It’s crazy-making to think about all the turmoil this President has caused, with, by, and, through, his Administration; the several players of which are still conspicuous, though now, mostly by their absences, rather than their ever-presence-with many simply having been replaced by their ilk.
JT, you should have your own ‘Countdown’ on this site.
How many days left?
Jill,
It was on this thread:
http://jonathanturley.org/2008/02/23/no-crime-just-bad-counsel-mukasey-starts-internal-ethics-review-on-the-torture-memos/
Often times if I find breaking news on a former thread topic, I will post it to the old topic. Disadvantage with this technique, is that five additional posts from others in the salon scrolls the item out of visibility.
I have now read the Yoo memo and I am surprised by the tone and content. It seems light on authority and,instead of the usual Issue/Rule/Analysis construction so common in legal memoranda, it reads more like a footnoted political position paper. The work is decidedly “unlawyerly”, and fails the classic yard stick of legal advice which is: when the client is hell bent to do something stupid and unlawful we have a duty to tell him so in a cool, dispassionate voice. Sadly for Yoo, this is not simply a failure of intellect but of will. It what could be the motto of the times, professional accolades do not guarantee professional courage.
Mespo, did you catch JT on KO/Countdown last night re Yoo?
Patty:
I missed him, but I will catch it on the net. Did he add anything to his comments here?
Yes, in that JT ties ‘it’, being what we’ve all been talking about for months now, all together in a neat package called ‘not torture but a Torture Program’ carefully orchestrated from the top with a green light given to the ‘low lying WV fruit’ etc.
And he talks about how it’s a dark chapter for all lawyers and the Bar.
Worth watching.
Patty C:
Will do tonight.
Patty C:
Wow. JT called it what it is, namely “war crimes.” He has more guts than me to do that on a national show, although he is certainly right about it. He’s right about the dark chapter part too. I heard from a friend at U. Cal. Berkeley that the Dean of Boalt Hall Law School has been getting lots of unsolicited input on Yoo’s employment status after the memo came out. Wonder how that will work out tenure or no tenure?
Here’s a little more insight into Mr. Yoo’s ideology as recorded during a debate with Notre Dame Law professor Doug Cassell:
Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.
Here’s the MP3 audio if you can stomach it:
http://rwor.org/downloads/file_info/download1.php?file=yoo_on_torture.mp3
If Yoo keeps this up, we’ll have to outfit him with jackboots. What the hell is he saying, and more importantly why would he say this? It’s positively tyrannical and monstrous and I want to believe he knows better.
Glad you saw JT on KO from 4/3/08.
I heard those chilling words attributed to Yoo before. It’s hard to
believe he didn’t know what he was advising was wrong as soon as he said it. I can only imagine that he had to have been swept up in the prevailing culture because this is what he was being tasked with producing, and so he did.
George Tenet behaved much the same way even though the CIA had been independent since its inception – and for good reasons, as well.
We’ll see how this all plays out.
I agreed that this would take an act of unrestrained and willful blindness by Yoo. He in not alone in this. There is Viet Dinh at Georgetown and Jay Bybee, who was rewarded for his work with a federal judgeship (with no effort by democrats to filibuster).
Yoo has an agenda when he writes these kind of memos and makes these kind of statements. That agenda is to break the constitution, at least in respect to the power of the President in comparison to the power of the other two co-equal branches. Professor Turley is exactly correct that the Dems have been enablers of this kind of dictatorial power grab by not yelling and screaming and fighting every constitutional battle. I keep thinking back to Sen. Schumer backing Mukasey as AG and looking bewildered when Mukasey refused to agree that waterboarding is torture. Maybe Obama or Clinton need to be asked point blank if they will support an investigation into war crimes by George W. Bush and his administration.
Don’t you find it interesting that CIA Director Hayden now wants to provide insurance policies so as to remove the concern of exposure to future litigation – “take that off the table”, so that in the future, agents and new hires won’t have to question if their actions in the field are legal or not.
Huh?
http://www.nytimes.com/2008/01/20/washington/20lawyers.html?ex=1358485200&en=7cbf5132f0704efd&ei=5088&partner=rssnyt&emc=rss
I would expect that the insurance company might be raising its rates after the Bush Administration leaves office. They will have a lot of claims to deal with.
Rafflaw wrote:
Maybe Obama or Clinton need to be asked point blank if they will support an investigation into war crimes by George W. Bush and his administration.
***************************
Personally, I don’t think there’s any “maybe” about it. I think EACH Presidential candidate in this election needs to have that question asked directly, with NO way to wiggle out of it. But I don’t know how that could be done now, since (to my knowledge), there are no more debates scheduled. Or are there?
I certainly don’t want another President in the White House who believes torture of any kind is acceptable, and I want to know exactly where all the candidates stand on this point. If they think torture is acceptable for one kind of person, then there’s nothing stopping them from gradually broadening that “acceptability” for other kinds of people as well. Including people whose only “crime” is questioning or dissenting from the Administration, just like in banana republic countries. And if that ever comes to pass, we will BE like those countries, with justice for none and terror for all.
JT:
I agree there was a conservative cabal advocating this obsequious homage to our Chief Executive. While I understand the intellectual contortions needed to reach such an outrageous position as the “unitary executive”, I am more curious about the motivations of the actors. Normally,I would ascribe good faith to controversial positions taken for the purpose of testng existing law or advocating a modification. But this defense of the indefensible is so contrary to our national principles and the law, that the presumption of good faith is overcome in my opinion.
As for the advocates, Bybee’s reasons are straight forward enough, as ambition over principle is certainly nothing new. But for Yoo and Viet Dihn, the reasons are less clear. If we rule out ambition and error, neither of which is apparent, we are left with choices that run the gamut from fear to the more sinister of motives. Not knowing the men involved puts me at a decided disadvantage, but I am certain that their motivations will become apparent sooner rather than later. Public pressure tends to force truth from its hiding places. I eagerly await that day.
Mespo,
I long for the day when the Truth wins out. I long for the day when the President actually has to answer for breaking the law. I long for the day when the Press does their job and digs for the truth in the midst of pressure from the Administration that is being investigated and does not delay embarassing stories because the President claims National Security is at stake. I long for the day when Congress has the sense and courage to realize that the only way a power hungry President can steal power from them is if they allow it. I also look forward to the day when the truth is forced out of its hiding place.
Rufflaw:
The one great immutable law of American History: Sooner or later everybody gets their day in court.
Mespo,
I hope you are right!
Diaz was cashiered, imprisoned, and for all I know, disbarred, while Yoo, Bradbury, Addington, Haynes, Bybee, etc. all prosper.
http://www.harpers.org/subjects/NoComment
Our temple of American law needs to be re-consecrated, it has been sadly defiled.
rafflaw & DW:
I was taken aback by Andrew Sullivan’s recent remarks on The Chris Matthews show that “Donald Rumsfeld, David Addington and John Yoo should not leave the United States any time soon. They will be at some point indicted for war crimes. They deserve to be.” Does he know something we don’t?
Mespo,
I am unaware of anything brewing overseas. The European Parliament would, if it could, support anti-torture prosecutions, but it is being stalemated by some member states that may have some complicity themselves. Belgium is always a go-it-alone source of war crime indictments since it has a universal jurisdiction law still on the books, but in practice it has bowed to US/Brit pressures.
Outside of the EU, the US has signed well over 100 Article 98 agreements with other, primarily third-world governments, which guarantee that the signatories will not surrendor each other’s nationals to the ICC court. These facts work against Andrew’s remarks hopeful, but not supported.
The ASMPA also provides immunity from overseas prosecutions for personnel in the armed forces, and I believe, DOD contractors (although DOS contractors are a special case).
I mentioned Medellin somewhere above. Now a curious piece from OpinioJuris on whether that case has the “unintended consequence of trashing the US/Canada border”!
I know its horribly off-topic, but can’t resist, apologies, apologies:
http://opiniojuris.org/posts/1207705553.shtml
D.W. and Mespo,
I heard this from a woman who worked at the State Dept. I have no personal knowledge as to the truth of her statement, but it doesn’t sound implausible. She said before we invaded Iraq the S.D was sent out to strong arm other countries into 1. supporting the U.S. in a “coalition of the willing” and 2. making certain that we would not prosecute any U.S. officials for war crimes. Her name is: Ann Wright and her book is: Dissent; Voices of Conscience.
Correction to above…making certain that they…
Sorry,
Jill
Jill:
Sound plausible to me. There are lots of side deals when alliances are formed and this war would be no different.
She said we threatened to cut off funding to the smaller countries. That would be a hugh club.
Jill, I think that is essentially correct. Apparently we did threaten to cut off various monies as the stick in the Article 98 agreements at least with our western hemisphere friends.
http://ciponline.org/facts/art98.htm
Merci D.W. That was interesting reading!
Jill
I just found out about this movie.
Taxi to the Dark Side
“Powerful. One of the really pivotal documentaries of this decade.” – A.O. Scott, The New York Times
Academy Award Winner: Best Documentary Feature. Alex Gibney’s perpetually shocking documentary focuses on the Bush administration’s use of torture when dealing with political prisoners, with a particular focus on those captured in Iraq and Afghanistan. The title of Gibney’s movie is derived from the treatment meted out to an Afghani taxi driver named Dilawar, who was mistakenly fingered as a terrorist, then killed during a torture session conducted by American troops. Despite the title, Dilawar’s case is just a small part in Gibney’s jigsaw, as the director uses excruciating and comprehensive details surrounding the taxi driver’s death as a starting point in his search for the people who have permitted such incidents to occur. Gut-wrenching and fully uncensored pictures from Abu-Ghraib feature alongside interviews with military personnel (some of whom tortured Dilawar) as Gibney’s search slowly heads into the upper echelons of the military and, ultimately, into the Bush regime itself. Rated R. 106 minutes.
Official Website Trailer
FROM THE ABC REPORT:
“According to a top official, Ashcroft asked aloud after one meeting: `Why are we talking about this in the White House? History will not judge this kindly.’”
The topic of that conversation was torture/interrogation techniques.
I said above that we will have to wait for a new administration to proceed on any meaningful corrective actions.
What I am worrying about is the Executive’s pardon power being used to shield the main actors, even before any action can be taken. I am unsure of the limits and will have to haul down some books…
It is getting even more dangerous to criticize Bush for exceeding his powers under the Constitution. As they say in the sci-fi movies, be afraid, be very afraid.
April 9, 2007
Constitutional scholar who criticized Bush added to terrorist ‘no-fly’ list
A top Constitutional scholar from Princeton who gave a televised speech that slammed President George W. Bush’s executive overreach was recently told that he had been added to the Transportation Security Administration’s terrorist watch list. He shared his experience this weekend at the law blog Balkinization.
Walter F. Murphy, the McCormick Professor of Jurisprudence, Emeritus, at Princeton University, attempted to check his luggage at the curbside in Albuquerque before boarding a plane to Newark, New Jersey. Murphy was told he could not use the service.
“I was denied a boarding pass because I was on the Terrorist Watch list,” he said.
When inquiring with a clerk why he was on the list, Murphy was asked if he had participated in any peace marches.
“We ban a lot of people from flying because of that,” a clerk said.
Vince:
That is scary. Dissent always has a price but some of these neo-cons want blood. I suspect the investigation into this thuggery will take years.
And here is Boalt Hall’s response to mounting pressures to can Yoo:
http://www.law.berkeley.edu/news/2008/edley041008.html
Did anyone happen to catch Yoo’s testimony before the House Judiciary Subcommittee chaired by Rep Conyers? I have never see such equivocating, trifling responses to legitimate questions this side of an organized crime hearing involving mob bosses. At one point he asked “what do you mean by implementing the memo?” When asked if he asserted a privilege, Yoo looked like a deer in the headlights and stammered something about the DOJ “ordering” him not to comment but said he didn’t think it was a privilege. Law professors sure have changed since I knew them on a daily basis. I can’t imagine guys like Bill Spong (from W&M Law) or Dean Muse (from UR Law) heeding any order by anyone or anything to say or not to say anything they damn well pleased if the law or the Country was at stake. I have no idea if Yoo is guilty of war crimes, but he sure looked like he was guilty of something.
mespo,
I missed the mendacity of mediocrity himself but according to Philip Gouvrevitch, author of Standard Operating Proceedure, he could be held to account legally in an international court, even when Bush pardons him here.
Jill
I mean, Gourevitch,sorry. Or was that slip a part of my left wing agenda???
I watched the whole thing, mespo.
Yoo is at least smart enough to know that his interests and the government’s are not necessarily coextensive.
He’s something of a pawn in this lame game of chess.
Patty C,
I watched Mr. Yoo’s performance and I was less than impressed. I would not consider him a “pawn” as you suggested because he has not backed off of his radical right agenda when it comes to pushing the Unitary Excutive theory. I believe that the term Unitary Executive is interchangeable with Dictatorship.
I did qualify it by saying ’something of a pawn’ – perhaps I should have also added that in many respects, he placed himself there.
I loved Addington’s shrug of the use of of the term “unitary” (theory) as being attributed to him, whatsoever.
Your are right about Addington. He is one of the most arrogant people I have ever seen. He is a perfect match for that other war criminal, his boss, Dick Cheney.
I thought Yoo looked more like the kid with his hand in the cookie jar than anything else. My guess is that he wants no part of any war crimes trial lest he be compared with other intellectual enablers of oppression like the infamous Alfred Rosenberg. Addington, well, he’s a putz.
Addington, well, he’s a putz.
-iNet/Link, below, was provided – as a courtesy. It means nothing. None of us are related!
ThesaurusLegend: Synonyms Related Words Antonyms
Noun 1. putz – (Yiddish) a fool; an idiot
Yiddish – a dialect of High German including some Hebrew and other words; spoken in Europe as a vernacular by many Jews; written in the Hebrew script
fool, muggins, saphead, tomfool, sap – a person who lacks good judgment
2. putzputz – obscene terms for penis
pecker, cock, dick, peter, prick, tool, shaft
penis, phallus, member – the male organ of copulation (`member’ is a euphemism)
dirty word, vulgarism, obscenity, smut, filth – an offensive or indecent word or phrase
Addington, well, he’s a putz.
Indeed