I’m not a lawyer, but it seems to me that the 2003 Yoo torture memo, released today, simply confirms what we thought all along: That the DOJ’s logic on torture amounted to the following:
1. General statutory laws do not apply to soldiers.
2. Eighth amendment protections do not apply to POWs: ‘Unlike imprisonment pursuant to a criminal sanction, the detention of enemy combatants involves no sentence judicially imposed or legislatively required and those detained will be released at the end ofthe conflict. Indeed, it has long been established that ‘'’[c]aptivity [in wartime] is neither a punishment nor an act of vengeance,’· but ‘merely a temporary detention which is devoid of all penal character. ‘”‘
3. The only laws applicable to soldiers in times of war are war crimes statutes.
4. However, war crimes protections do not apply to al Qaeda prisoners because they are not POWs.
5. But that doesn’t matter, because there’s no such thing as torture anyway.
Q.E.D.
The section on what is and isn’t torture is just godawful:
The key statutory phrase in the definition of torture is the statement that acts amount’ to torture if they cause “severe physical or mental pain or suffering.” In examining the meaning of a statute, its text must be the starting point. Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be “severe.” The statute does not, however, define the tenn “severe.” “In the absence of such a definition, we construe a statutory term in accordance with its ordinary’or natural meaning.” The dictionary defines “severe” as “[u]nsparing in exaction, punishment, or censure” or “[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture.” Thus, the adjective “severe” conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.
This is where the famous “similar to death or organ failure” test comes into play. It’s an interesting rhetorical trick to convert what seems to be a very wide definition of torture, into one which essentially means there is no such thing, but Yoo tries it. It’s all pointless, though, because, thank God, it’s okay to torture people as long as the torturers are in the United States:
Section 2340A of Title 18 makes it a criminal offense for any person “outside the United States [to] commit[] or attempt[] to commit torture…Moreover, we note· that because the statute criminalizes conduct only when it is committed outside the United States…this proviso excluding members of the Armed Forces, those employed by the Armed Forces or the Department of Defense, and those persons accompanying members of the Armed Forces or their employees applies only when their conduct is a felony if committed within the special maritime and territorial jurisdiction of the United States…Here, the conduct under section 2340A is a felony only when committed outside the special maritime and territorial jurisdiction. Thus, so long as members of the Armed Forces and those accompanying or employed by the Armed Forces are in an area that 18 U.S.C. § 7 defines as part of the special maritime and territorial jurisdiction, they too are within the special maritime and territorial jurisdiction for the purposes .of the conduct section 2340A criminalizes. Accordingly, they are considered to be within the United States for purposes of that statute. The criminal prohibition against torture therefore would not apply to their conduct of interrogations at U.S. military bases located in a foreign state.
Seriously.
40 Responses to “Yoo Memo: About what we thought”
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It’s great how America is so exceptional that we’re becoming just as corrupt as every other empire in history…
Truth, justice, and the American Way!
What the fuck? Who ARE we anymore?
I wonder if, at any time during the writing of this document, Yoo ever stopped and thought “I’m a monster for coming up with this justification.” It’s very clever and all to try to come up with a legal argument for this action, but in the end, he’s still a monster who came up with, not a moral justification, but a legal justification for torturing another human being. A moral person would have refused the job, because you can’t just knock this down to a thought experiment–people were tortured as a result of this little game. People died as a result of this game.
Yoo is a secular monarchist. He probably thinks we should start calling scrofula the Unitary Executive’s Evil.
I was worried that I was misinterpreting this, so I didn’t include it in the original post, but he also appears to call the President “the Sovereign.”
I hear even from people who were long time Republicans (because of buying into the “economic responsibility” lie), “I don’t recognize this country anymore” and “This is not my America”. Any sane, thinking, feeling person should be horrified by the officialization of torture.
Its’ shorter than that
We have the right to torture anyone we like whenever and wherever we like. MIGHT IS RIGHT
None of these doobs intent on empire understands in the slightest how quixotic the notion is in the modern world or any clue of how to administer one.
This memo is exhibit A.
OH, and since WHEN were we legally at “war” giving Bush such powers??? I mean, Wilson was a complete dictator all around, but at least WWII was a DECLARED war under the conditions set forth in the constitution. Where are the declarations of war for Afganistan and Iraq?
Sorry, that was WWI
I love how there are actually people who can be aware of this sort of thing, and also go on TV crowing about how America is the most advanced, tolerant, etc. country in the world.
“Sorry, that was WWI”
As you know, we also officially declared war in WWII.
However, that was the last time we declared a state of war.
Korea, Vietnam, Grenada, Panama, Gulf I, Afghanistan, Gulf II - none was ever officially declared. And that doesn’t even get into the constant CIA “clandestine” actions we engaged in all over the planet that were warfare by any other name.
Korea was called a “Police Action” in a lame attempt to cover for not actually declaring war. After that, we didn’t bother.
You’d almost think we were in a de facto state of war since 1950…and you’d be correct. Between the “hot” wars and the Cold War, we pretty much never really de-escalated after Korea.
What nice people we American’s are…
“I wonder if, at any time during the writing of this document, Yoo ever stopped and thought “I’m a monster for coming up with this justification.””
If he even bothered to think about the long-term consequences of this “legal philosophy”, I’m sure he’s justified it in his own mind.
Just as (Godwin coming…) the Nazi’s were completely convinced of the “rightness” of their “cause”, men like Yoo, Cheney, and the NeoCon Choir believe they are at worst doing a dirty but necessary task for the benefit America, and at best believe they are courageous fighters for Truth, Justice, and Freedom!
And as patently cynical as most of the Cheney/Bush administration’s actions have been, there has also been a large and odious self-righteousness covering it all, like the Devil’s own frosting.
This is the shit that makes my status as a US citizen feel like a betrayal of my humanity…
The problem with these people is that they think the Prez can do anything he wants. They don’t think there’s any limit. Seriously– the Vice President can shoot a man in the face, and the President can authorize torture, because war. This line of thinking isn’t just dangerous, it’s stupid. Yoo’s memo is really not sophisticated and intelligent. It’s just a special argument that Gitmo is part of the US, so we can do whatever we want there. It’s like when you beat someone in a game, and they decide we weren’t playing under regular rules. Kids do this all the time. GWB never grew up– i mean, the guy doesn’t even *work*, he vacations, he dines, he plays, and he goes to bed at 9– and Cheney imprinted on the wrong crazy authority model. When are the grown-ups going to be in charge, again? And not McSame, he’s way too far gone.
Who said these?
September 26, 1988
Human rights is not for some, some of the time. Human rights, as the universal declaration of this Assembly adopted in 1948 proclaims, is “for all people and all nations,'’ and for all time.
December 10,1986
Indeed, we’ve learned through painful experiences that respect for human rights is essential to peace and, ultimately, to our own freedom. A government which does not respect the rights of its own people and laws is unlikely to respect those of its neighbors.
December 10, 1985
Governments that must answer to their peoples do not launch wars of aggression. That’s why the American people cannot close their eyes to abuses of human rights and injustice, whether they occur among friend or adversary or even on our own shores.
Ronald Reagan.
Even the right wingers have forgotten.
“[The President] has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purpose of these agencies.”
One of the three articles of impeachment that came out of the House Judiciary Committee in 1974 referring of course to Richard Nixon.
THE PRESIDENT DESIRES TO KNOW IN THE FULLEST AND MOST CIRCUMSTANTIAL MANNER ALL THE FACTS . . . FOR THE VERY REASON THAT THE PRESIDENT INTENDS TO BACK UP THE ARMY IN THE HEARTIEST FASHION IN EVERY LAWFUL AND LEGITIMATE METHOD OF DOING ITS WORK. HE ALSO INTENDS TO SEE THAT THE MOST VIGOROUS CARE IS EXERCISED TO DETECT AND PREVENT ANY CRUELTY OR BRUTALITY AND THAT MEN WHO ARE GUILTY THEREOF ARE PUNISHED. GREAT AS THE PROVOCATION HAS BEEN . . . NOTHING CAN JUSTIFY . . . THE USE OF TORTURE OR INHUMAN CONDUCT OF ANY KIND ON THE PART OF THE AMERICAN ARMY.
Cable sent by President Theodore Roosevelt (date uncertain)
Remember when Bush was going to be the CEO president - well, he is. This is exactly the kind of legalistic hair-splitting and hyperfine parsing of the law that corporate lawyers engage in as they try to jink through loopholes. The difference here is that there is no countervailing force such as that (ideally) provided by the regulators.
Snookie,
Remember that while Reagan may have said those words, he also illegally funded death squads in Latin America. Words matter, but actions matter more.
Even the right wingers have forgotten.
No, they haven’t forgotten. They never had anything to remember.
It’s important to realize that anything you read regarding “human rights” coming out of the mouth of pretty much any American president, with the possible exception of Carter, doesn’t mean human rights as liberals today understand them. It’s just coded ‘dogwhistle’ talk for “Teh Evul Commniss”. During the times Reagan was making those impassioned speeches about ‘human rights’, he was also authorizing clandestine wars in Central America, violating the human rights of thousands.
The main difference between then and now is that now they don’t feel they have to be clandestine about it at all, and they have no reason to pretend that we have a better human rights record than our rivals.
Here in my part of TX (Houston), I keep on hearing these radio ads about what I assume are the (il)legal wire tappings Bushco has been doing that evidently are now illegal again thanks to that particular item/law/statute/whatever it was expiring.
They use a heaping dose if fear mongering to get people to right their representatives to sign over our rights again.
It’s not just the upper levels if government anymore.
err, write not right
When I read “The Sovereign,” I think of the conscience-less artificial intelligence galactic overlord in Mass Effect. Maybe Yoo does, as well, and masturbates.
But we should test out this theory. The President should personally go on a shooting rampage in the streets of Washington DC, taking care that his targets are as random as possible, retire to the White House, and claim it was for national security. Oh yes, maybe some of that white phosphorous or some illegal hypersonic weapons too.
I think this is the PBS program I caught a few months back. It features interviews with all the wonkheads who contributed to redefining the administration’s torture policy. It offers a really interesting review of who the key players are and how the Yoo memo came about, as well as short profiles of and comments from the people who did and did not support it. Highly worth your time. I believe you can watch the whole thing online.
http://www.pbs.org/wgbh/pages/frontline/cheney/view/
What pretty much everyone in this administration seems to have forgotten (some of them have said so explicitly) is that the oath they take is to the constitution, not to the president.
Over at Balkinization, there’s a long thread discussing just how crappy the legal reasoning in this thing is — errors of fact, inaccurate citations, misstatements of existing law and principles of legal construction and so forth.
Yoo wasn’t even being a good corporate litigator when he drafted this memo, because he would have known that it would be shot down if it ever saw the light of day. His hope and intention were, no doubt, that it wouldn’t. Which appears to make him not only a war-crimes conspirator but also a conspirator in the attempted overthrow of his country’s lawful government.
Punishable offenses committed by enemy civilians do not, until further notice, come any longer under the jurisdiction of the courts-martial….
Persons suspected of criminal action will be brought at once before an officer. This officer will decide whether they are to be shot.
With regard to offenses committed against enemy civilians by members of the Army, prosecution is not obligatory even where the deed is at the same time a military crime or offense.
—Directive by Field Marshal Wilhelm Keitel
May, 1941
The administration’s line that the Geneva Conventions do not apply, because al-Qaeda were neither civilians nor uniformed soldiers, weirdly echoed North Viet Nam’s argument that the Geneva Conventions did not apply to John McCain, et al. John McCain was an unprivileged enemy combatant because there was no state of war declared between Vietnam and the US; the war was a civil war, which fell under one of the conventions, not an international war, which falls under another Geneva Convention. The Convention governing civil war did not apply because the US was neither the established government nor an insurrectionist group. However, U.S. diplomats were able to persuade North Vietnam to recognize the de facto state of war, and obtain better treatment for our POWs.
Derek Jinks of the University of Texas Law School has written a number of interesting papers on why the Geneva Conventions, apply, including that the terrorists’ home states have signed the convention, and the need for reciprocity in all international law dealings — essentially the Golden Rule.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897591
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=517683
Until my comment shows up, google “Derek Jinks” of the University of Texas School of Law for some relevant law review articles on ssrn. They show why the Geneva Conventions apply and why W. was bound by them.
Isn’t Yoo currently employed by UCB? And, if so, why is he STILL employed?
I would think that the memo he authored is prima facie evidence of Gross Moral Turpitude, a firing offence at most universities, tenure or no, liberal or not.
I just gotta poach a line I saw at Sadly, No!:
If this guy wrote a paper on Chinese militarism, would it be called “Yoo and Hu’s Army”?
I have, for a long time, thought that there was something to the Yoo memo as a statutory and philosophical point.
The only way terrorism works is by the willingness of its perpetrators to commit atrocities too barbaric for us to be able, as people of conscience, to retaliate in kind.
If they had our military power, they would perpetrate a war of extermination. Since they are weak, however, they attack civilian targets, murder prisoners, rig bodies with explosives to kill aid workers, and hide among civilians. They fight for a philosophy which is abhorrent to human dignity, and when they are captured, they claim their own dignity as sacrosanct.
I find it immensely appealing that their brand of warfare, which is so offensive to human dignity, should place them in a statutory no-man’s land where they are afforded no human rights.
The law of war is designed to impose some limit to the atrocity of war. It’s a compact between nations that, when it becomes necessary to engage in armed conflict, they will not deliberately slaughter civilians, and will show mercy to captives and combatants who surrender.
The requirement, for example, that combatants wear uniforms, is to help make the distinction between civilians and combatants clear, for the protection of civilians.
I’m not an expert on military law and it would take a lot of research for me to figure out whether Jack Balkin’s contention that the argument is weak is actually correct, or an attack on Yoo.
In my experience, every legal argument has a counterargument that says it’s totally wrong, logically fallacious, omits relevant authority, twists the meaning of the authority it cites and is all-around weak. That’s literally the stripped down outline of any brief opposing a motion for summary judgment. So the fact that Balkin says that may just be his lawyerly attack on Yoo’s lawyerly memo.
As a moral matter, I think human rights ought to be reciprocal, and those who treat human rights disrespectfully ought to ultimately have a diminished right to claim protection under them.
An example of this would be, if you generally oppose the death penalty but would support the execution of someone like Hitler.
I don’t think Khalid Shaikh Mohammed, who masterminded the attacks on the entirely civilian World Trade Center, should be treated like a captured enemy officer, and I have a very difficult time generating concern for whether his treatment affords him human dignity.
In fact, if you put me in a room with him, I think I would probably beat him to death. Whatever was done to him, he appears to be physically intact, and he apparently has not been psychologically broken. He’ll probably be put to death by lethal injection, eventually, but in light of the severity of his crimes, I think he deserves much worse.
It may be that I am a bad liberal, but these people would behead me or any of the people I love and put a video of it on YouTube. I have a really hard time working up anger that they might be getting water poured on them.
It may be that I am a bad liberal
Or perhaps that you are not, in fact, a liberal at all.
That would explain the vague feelings of goodwill I’ve been having toward John McCain lately. I thought I might be coming down with meningitis or something.
“They fight for a philosophy which is abhorrent to human dignity, and when they are captured, they claim their own dignity as sacrosanct.”
Mitch, I think you have the terrorists confused with the Cheney/Bush administration.
The terrorists are not fighting to institute mandatory child pr0n or some other vile affront to morality, they are fighting for what they believe is justice.
We may (very strongly) disagree with their goals and especially their techniques for achieving their goals, but to claim, sans specifics, that their goals are always “abhorrent to human dignity” is naive at best and the lowest propaganda at worst.
Need I remind you that by any current definition, the founders of this country would be considered terrorists, for example?
OTOH, it’s pretty obvious that the Cheney/Bush administration sees their goals as the looting of the treasury, the raping of Iraq, the destruction of the Constitution, the acquiring of as much political power as possible, and the projection of American military power into any and all parts of the planet.
Now, who’s philosophy is more abhorrent?…
Elevating the terrorists to the same status as an opposing national military force thru the use of the word “war” misses the entire point.
The events of 9/11 are a criminal matter - premeditated murder on a large scale.
Unless Congress has ressurrected the Letter of Marque - allowing Congress to declare war upon an individual - this is really just a global police manhunt.
“…this is really just a global police manhunt.”
Exactly, and really no different, except in scale, from the effort to identify and prosecute the Oklahoma Bomber, etc.
But “war” just has a better sound to it, and brings all sorts of potential for legal shenanigans, while “police manhunt” just doesn’t sound studly enough for guys like Commander Codpiece and Vice President Palpatine…
Mitchforth:
Exactly.
The fact that you, or any of us *would* murder someone for righteous vengeance is the reason acts like murder and motives like vengeance are not recognized as legitimate under our laws. I oppose the death penalty not because i think i’m sooo awesome i would just never get vengeful, but because i shouldn’t be trusted to decide who lives and who dies, and neither should the people who hate me.
The memo is a testament to why you don’t give the power of life and death to a guy who’s like, “He tried to kill my dad.” Man, if i had a torture memo for everybody who might have tried to kill the dads of people i care about, i’d be like… at the Hague. The issue isn’t whether you *feel* the right kind of anger or vengeance, but whether it’s ok for you to do the wrong thing. It’s not ok.
1. General statutory laws do not apply to soldiers.
2. Eighth amendment protections do not apply to POWs: ‘Unlike imprisonment pursuant to a criminal sanction, the detention of enemy combatants involves no sentence judicially imposed or legislatively required and those detained will be released at the end ofthe conflict. Indeed, it has long been established that ‘’’[c]aptivity [in wartime] is neither a punishment nor an act of vengeance,’· but ‘merely a temporary detention which is devoid of all penal character. ‘”‘
3. The only laws applicable to soldiers in times of war are war crimes statutes.
4. However, war crimes protections do not apply to al Qaeda prisoners because they are not POWs.
I believe laws against murder, rape and kidnapping still apply to soldiers. Unlawful confinement of soldiers and taking hostages iare war crimes.
One form of protest would be something as simple as an arrest warrant for kidnapping on a soldier who served as a guard in Iraq or Gitmo. That might force the DoD to state that these people either are or are not POWs…
Not according to Yoo. After all, every soldier involved in a battle would be potentially on the hook for murder!
I can’t think of anyone who ever actually thought what they did was unjust. Maybe Skeletor. Even serial killers have sick rationalizations for themselves.
I know that on both extremes of the political spectrum, people have characterized terrorism as America’s chickens coming home to roost. Pat Robertson thinks it’s for being too liberal on sex, and Jeremiah Wright thinks it’s for imperialistic foreign policy.
But these guys are radical theocrats who basically just want to kill anyone who doesn’t believe what they believe.
Well, the question is what rights these captives should be afforded. Yoo’s answer is that they qualify for neither constitutional rights nor Geneva Convention rights, and therefore, subject to some sort of minimal process that determines they are, in fact terrorists, they have no rights which limit the executive power to do whatever it wants with them.
I object pretty strongly to giving these captives the full procedural rights of criminal defendants captured in the United States. In particular, I think there should be no evidentiary rule prohibiting hearsay evidence, and I think these captives are entitled to no fourth amendment protection (since none of the foreign raids was conducted with a search warrant), and I think their statements in captivity should be admitted even though statements taken from an ordinary criminal under the circumstances would be clearly inadmissable.
Well, the people who hate you will murder you if they can. But this is not about vengeance. It’s a question of whether this legal gap exists between the protections for criminals and the protection of soldiers, that terrorists fall into because of the the nature of the kind of warfare they perpetrate.
Unlike, for example, warrantless wiretaps of civilians, I don’t think my rights are put into jeopardy by the designation of this technicality allowing torture of Al Quaeda operatives.
The practical aspects of the determination of what rights protect different offenders is what will happen if we mistreat particular detainees. Some states have demanded that their nationals held at Gitmo be turned over to them, and we’ve complied.
Pressure at home has more or less tied the administration’s hands on the torture issue. Our own courts have refused to accept Yoo’s construction of presidential power.
However, as a practical matter, many of the highest level detainees could just vanish into secret detention. There’s no question of innocence here, and these guys are so odious that there’s no way to generate any particular public outcry on their behalf here, or anywhere in the world. Bush produced Khalid Shaikh Mohammed from such a detention and announced that he would be tried.
The trial seems like a political stunt, and I think it would have been better if KSM had never been brought out to allege mistreatment. If Bush gets this guy the death sentence, there will be allegations it was a show trial and that due process was not satisfied. But if he had never surfaced again, his execution assumed but unacknowledged, I don’t think there would have been much of an outcry.
Iraqi and Afghan civilians are protected under the various conventions protecting civilians during wars. The argument is that the combatants are not protected under the conventions which dictate how enemy soldiers are to be treated.
“I can’t think of anyone who ever actually thought what they did was unjust.”
…and you also said “They fight for a philosophy which is abhorrent to human dignity, and when they are captured, they claim their own dignity as sacrosanct.”
So, you think what they did is “abhorrent to human dignity”, and yet not “unjust”. WTF?
“Yoo’s answer is that they qualify for neither constitutional rights nor Geneva Convention rights, and therefore, subject to some sort of minimal process that determines they are, in fact terrorists, they have no rights which limit the executive power to do whatever it wants with them.”
…and currently that “some sort of minimal process” apparently consists of Commander Codpiece looking at a picture and having Jesus whisper into his ear whether or not they are really terrorists.
Yeah, I’m sure that works out well…
“…and I think their statements in captivity should be admitted even though statements taken from an ordinary criminal under the circumstances would be clearly inadmissable.”
…because everybody knows torture produces the most acurate information with which to determine guilt or innocence. And in Mitch’s world, those stupid Geneva Convention people just didn’t understand that EVERYTHING CHANGED ON 9/11!!!
“Unlike, for example, warrantless wiretaps of civilians, I don’t think my rights are put into jeopardy by the designation of this technicality allowing torture of Al Quaeda operatives.”
Mitch, in America v2.0, we don’t get to determine which Constitutional violations are okay and which are not. The King/Dictator-for-life/Sovereign/Maximum-Leader/Etc. gets to determine those things. And since we have been “in a state of war” against the tactic of terrorism, which has always been used by the weak, and will always be used in the future, this war will never end. So if Emperor Palpatine determines, for example, that commenting on blogs is punishable by death, no one can stop him.
“Pressure at home has more or less tied the administration’s hands on the torture issue.”
…okay…who’s being naive here, Mitch?…
“There’s no question of innocence here, and these guys are so odious that there’s no way to generate any particular public outcry on their behalf here, or anywhere in the world.”
…because when Jesus whispers into your ear, he never lies. No trial needed, no evidence needed, no witnesses needed. So much simpler than all that trial/jury crap.
Hey, maybe we can just do that for ALL legal cases in the US. Save everybody a lot of time and money. They’re probably guilty anyway…
“Bush produced Khalid Shaikh Mohammed from such a detention and announced that he would be tried.
The trial seems like a political stunt, and I think it would have been better if KSM had never been brought out to allege mistreatment.”
…which is EXACTLY what the Soviets and the Chinese kept telling us. “Trials”? What a load of crap. Just take them to the wall, shoot them, and send a bill for the bullet to their families. If they were really innocent, why were they in prison?…
Mitchforth, if you like this world the wingnuts are creating, you’re welcome to it. Just realize that once the dogs of injustice are unleashed, they eventually come back to bite everybody in the ass - even the people who thought it was a good idea at the time…