How can we read Vid Hardt at the AtLargely site?

Hey Question Authority!

Is it true you're also writing at Larisa Alexandrovna's blog, AtLargely.com?

Mai Shill



Dear Shill--

Right-e-o!

Here's the link for my first piece there, under my legal name of David L Steinhardt.

( http://www.atlargely.com/2008/04/the-margin-of-e.html )

TQA

What About the March 14, 2003 John Yoo Memo?

Hey, The Question Authority--

Exactly why am I supposed to care that an 81-page memo got released today, that was renounced 9 months after it was written?

A. Plante



Dear Planted Questioner:

It's all about saying torture, which is illegal, is legal. Got that?

Let's go through it page by page!

Scary to see legal authority deriving from, right at the top, other blind assertions of legal authority! Since when are legal memos from Charles Colson or William Rehnquist (when he was WH counsel), to Nixon, legal precedents? Nixon was headed to impeachment, and Colson went to jail! Considering the talk of "unelected judges" by Republicans (which always contrasts with oaths to "protect, preserve and defend the Constitution"), not-even-confirmed White House counsels are far below that threshold of establishing US law!

p 2:

"We believe that necessity or self-defense could provide defenses to a prosecution." Thank you, Consigliere Yoo! Torture may not be legal, but here's how you defend yourself at your war crimes trial!

p 4:

"Given the massive destruction and loss of life caused by the September 11 attacks, it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks of a similar (if not greater) magnitude from occurring in the United States." Never questioned, in the memo, is this notion that torture actually works. Which it doesn't.

5

"...the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive--which includes the conduct of warfare and the defense of the nation--unless expressly assigned to Congress, is vested in the President." Which is why the president can ignore laws?

6

"Recognizing this authority [to detain prisoners], Congress has never attempted to restrict or interfere with the President's authority on this score." Except when they have, which is why Yoo had to write this memo.

8

Yoo throws the kitchen sink at the 5th Amendment, citing Salerno (1987) that the USG can detain, and in 1937's Cummings v Deutsche Bank Und Discontogesellschraft that CONGRESS may enact laws seizing property of enemies and Eisentrager (1952) that enemy aliens are subject to arrest and deportation "whenever a 'declared war" exists." FOOTNOTE 11, on this page, shows why: "Our analysis here should not be confused with a theory that the Constitution somehow does not 'apply' during wartime. The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan" 1866 "and at least that part of Milligan is still good law." Those who are jumping up and down about FN 10, which asserts the 4th Amendment doesn't apply when the military acts within the US, can calm down a little.

9

"These cases AND THE UNTENABLE CONSEQUENCES FOR THE PRESIDENT'S CONDUCT OF A WAR THAT WOULD RESULT FROM THE APPLICATION OF THE DUE PROCESS CLAUSE demonstrate its inapplicability during wartime--whether to the conduct of interrogations or the detention of enemy aliens."

Quite the leap there.

11

"These canons include the avoidance of constitutional difficulties, inapplicability of general criminal statutes to the conduct of the military during war, inapplicability of general statutes to the sovereign, and the specific governs the general. The Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of the a war."

INAPPLICABILITY OF GENERAL STATUTES TO THE SOVEREIGN??

"In light of the President's complete authority over the conduct of war, in the absence of a clear statement from Congress otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas."

IF A CRIMINAL STATUTE IS NOT, IN ITSELF, A 'CLEAR STATEMENT FROM CONGRESS OTHERWISE," THEN WHAT'S THE PURPOSE OF HAVING LAWS?!? DO THEY HAVE TO PASS IT TWICE, ONCE STATING "WE REALLY MEANT IT THE FIRST TIME"?

FOOTNOTE 12 MENTIONS THE WAR CRIMES STATUTE, AFFIRMING IT AND DISMISSING IT AT THE SAME TIME.

12

"...the courts generally defer to executive decisions concerning the conduct of hostilities."

GENERALLY?!?
THEN YOO CITES "OUR OFFICE"--HIMSELF!

13

Congress can't "make Rules for the Government and Regulation of the land and naval Forces", footnote 13 on p 13, because Yoo says so. And all the citations on the page itself, are other legal opinions by executive appointees, not judicial.

"...we will construe potentially applicable laws ... not to apply to the President's detention and interrogation of enemy combatants.... We believe that this approach fully respects Congress's authority." Again: unless Congress says WE REALLY MEAN IT, we will assume laws do not apply, because they couldn't possibly have a different view of the USConstitution than we do.

14

Yoo eats his own tail here: in the absence of REALLY MEAN IT Congressional action, Congress can't regulate "properly authorized acts of the military during armed conflict," which are, of course, whatever the president says they are, regardless of the law.

SUPER OMINOUS PART: "For many years, our Office has also applied this canon in several highly classified contexts that cannot be discussed in this memorandum."

A spurious graf follows asserts the "ridiculous" notion that if laws applied to soldiers, they wouldn't be allowed to kill people.

Then: "This canon of construction, of course, establishes only a presumption." And mentions that the War Crimes Statute does indeed regulate military behavior in wartime.

15

US v Nardone says laws cannot wreak "absurdity" upon the prerogatives of the executive. Yoo takes this molehill and makes a mountain.

All Yoo's citations, in graf 2, that laws may not limit the president's "conduct of interrogations" are of books. Not laws, not legal decisions. Just books.

FN 14 cites five more books.

16

"Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief." What article of the Constitution would that be?

Graf 2: likens regulating interrogations to a case where police held up mail because the mail carrier was arrested for murder. "For the reasons we explain above, the application of these general laws to the conduct of the military during the course of war would create untenable results."

graf 3 insists that "the torture statute" does not apply to the conduct of military personnel.

17

"It could be argued that Congress specifically enacted section 3261 to extend special maritime and territorial jurisdictional crimes to the members of the Armed Forces and those accompanying or employed by them. Such a contention would, however, be incorrect." Because we say so.

18

Section 2340--the torture stature-- IS a clear statement of intent by Congress, but since it uses language less broad than in the War Crimes Statute, it's OK to ignore it because that "would raise grave separation of powers concerns."

19

Yoo forgets about the law, and just bellies up to the bar to offer his rationale for a lawless executive:

"It may be the case that only successful interrogations can provide the information necessary to prevent future attacks upon the United States or its citizens. Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that would prevent the President from gaining the intelligence he believes necessary to prevent attacks on upon the United States."

Specific goals? As in the authorization of force again 9/11 plotters?

No citations.

Section B, pp 19-32

Laws do apply, and (FN 23, p 23) our reading might not pass Court muster, but . . . there are possible criminal defenses to these crimes. You can beat the rap if you're not specifically trying to violate it.

Section C, pp 32-47

Though the War Crimes Statute and prohibition against torture don't apply, here's a roundup of why they don't. Even though (FN 38, p 33), Article 3 violations are war crimes under Section 2441. p 34: "conduct toward members of al Qaeda could not constitute a violation of common Article 3 . . . and thus could not violate Section 2441 (c)(3)," because we've previously said it doesn't.

35

2340-2340A (torture act) applies in Afghanistan, but not at GTMO.

51- 53

Reagan construed torture as only the worst treatment, with lesser abuse equated to the language of the 5th, 8th and 14th amendments, and even though Bush 41 backed off that a bit, mind-altering substances would be OK so long as it didn't nearly kill the prisoner.

56

If I can convince you we're not violating 2340, then we're not violating the Convention Against Torture either. And even though our "reservations" amount to gutting the treaty, and that's explicitly not OK under the Vienna Convention on Treaties, if we say we're not gutting it, we're not gutting it. FN60: even though we're not party to Vienna.

57

MAYBE THE BEST YET:

"Some may argue that permitting the assertion of justification defenses under domestic law, such as necessity or self-defense, would place the United States in violation of its international obligations. Such an argument would point to article 2(2) of CAT, which provides that '[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.' We do not believe, however, that a treaty may eliminate the United States' right, under international law, to use necessary measures for its self-defense."

And proceeds to justify self-defense itself, as if that were the issue!

58

It's impossible to violate a treaty, because violating it invalidates it!

"Although these [torture] actions might violate CAT, they would still be in service of the more fundamental principle of self-defense that cannot be extinguished by CAT or any other treaty. Further, if the President ordered that conduct, such an order would amount to a suspension or termination of the Convention. In so doing, the President's order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty."

64

Sure, torture is illegal in the US, but only when it's UNNECESSARY.

65

If a detainee might have info, deprivations/interrogation methods are not "wanton or unnecessary."

In other words, kids: there ain't no law if we say there ain't no law. Another step toward fascism, documented because the ACLU sued to have it released, and because today's Vanity Fair article about the war's lawlessness is so damning, the government figured today would be the best time to release it.

The Question Authority