February 22, 2006

John Yoo: "Yes", An American President Can Order the Application of Torture

More from Mora's memo:

...I met in my office with OLC Deputy Director John Yoo. The principal author of the OLC Memo, Mr. Yoo glibly defended the provisions of his memo, but it was a defense of provisions that I regarded as erroneous. Asked whether the President could order the application of torture, Mr. Yoo responded, "Yes." When I questioned this, he stated that his job was to state what the law was, and also stated that my contrary view represented an expression of legal policy that perhaps the administration may wish to discuss and adopt, but was not law. I asked: "Where can I have that discussion?" His response: "I don't know. Maybe here in the Pentagon?"

Mora writes about Yoo's repugnant OLC memo thus:

Although the lengthy memo covered many issues and did so with seeming sophistication, I regarded it as profoundly in error in at least two central elements. First, the memo explicitly held that the application of cruel, inhuman, and degrading treatment to the Guantanamo detainees was authorized with few restrictions or conditions. This, I felt, was a clearly erroneous conclusion that was at variance with applicable law, both domestic and international, and trends in constitutional jurisprudence, particularly those dealing with the 8th Amendment protections against cruel and unusual punishment and 14th Amendment substantive due process protections that prohibited conduct "shocking to the conscience." And second, the memo espoused an extreme and virtually unlimited theory of the extent of the President's commander-in-chief authority. A key underpinning to the notion that cruel treatment could be applied to the detainees, the OLC formulation of the commander-in-chief authority was wrongly articulated because it failed to apply the Youngstown Steel test to the Guantanamo circumstances. If applied, the test would have yielded a conclusion that the commander-in-chief authority was probably greatly attenuated in the non-battlefield Guantanamo setting. In summary, the OLC memo proved a vastly more sophisticated version of the Beaver Legal Brief, but it was a much more dangerous document because the statutory requirement that OLC opinions are binding provided much more weight to its virtually equivalent conclusions.

No one is arguing John Yoo isn't smart. But his arriviste-style meritocratic hustling, as contained in a far too aggressive OLC memo assiduously designed to please some of his elders, reminds me of a line from my old high school's constitution, tasking the academy to educate "(y)outh from every quarter" to understand that "goodness without knowledge is weak...yet knowledge without goodness is dangerous." John Yoo helped imperil the best traditions of this Republic, but thankfully many lawyers like Mora fought back. His OLC memo is now off the shelf, belatedly (and by the Addington's and Cheney's doubtless half-heartedly) disclaimed by this Administration, but the deep damage has nonetheless been done. Still, the recent trend is in a better direction, with the McCain Amendment passed (albeit with the signing statement issue), and I'll have more on further steps required to restore America's reputation as prime champion of human rights on the international stage in the coming days.

P.S. For the record, I believe in a strong executive, particularly in the exercise of foreign affairs and national security powers. But John Yoo's analysis was far too aggressive (it was unconservative, really, in its extremeness), even from the perspective of one who favors a strong executive, although, yeah, not a monarch or such. Said analysis was also, it must be said, rather on the shoddy side in parts (probably deliberately, as Yoo likely realized where his reasoning fell short or was too aggressive, but nevertheless apparently went ahead to get to his political masters' desired result, in a manner not commensurate with best ethical practices, in my view, ie. don't always tell your client what he wants to hear, but what the best analysis of the law requires...). More soon, including discussion of 8th Amendment applicability issues in the context of enemy combatants, as well as more detail on Youngstown and why I side with Mora's interpretation.

Frankly,

i think it is in a grey area that can not be legally resolved with current laws. There is no state willing to come forward and claim these individuals so the geneva convention can be excluded on technicality. Then, the US constitution does not apply outside US borders so the constitution can be excluded on technicality. So what we have is a group of prisoners that have no protection under law.

To be frank, I feel no compassion for the prisoners. Al Queda intentionally seeks out such cracks in western law so that they may establish safe havens.

The difficulty lies in drafting new laws that answer this problem without shackling our armed forces in the future. However, as soon as new laws are made the terrorist groups will immediately search for new cracks. If we pass a law that solves Gitmo but in so doing cause soldiers to hesitate when in battle then we have lost more than we have gained. The answer lies in policy not law. Policy has the advantage of being flexible enough to solve the problem without creating any new cracks.

Posted by: moron99 at February 22, 2006 01:31 PM | Permalink to this comment

It was interesting that in the Constitutional Law class I took from Prof. Yoo, he made no mention of the POTUS as King nature of presidential power that he apparently finds in the constitution in these memos.

moron99 - What makes you think the US constitution does not apply outside US borders? Do you think the US can summarily execute its own citizens the minute they step into Canada?

Posted by: Ugh at February 22, 2006 05:10 PM | Permalink to this comment

Or that the US can summarily execute foreigners who are in the US?

Or, to best match the current situation with Gitmo, pay foreigners to 'obtain' other foreigners in a foreign country, bring them to a US base, treat that as a foreign country (when the adminstration feels) and summarily execute them?

Posted by: Barry at March 1, 2006 10:10 PM | Permalink to this comment