Balkinization: "Convicting" the Torture Opinion

"Convicting" the Torture Opinion

Marty Lederman

While you're all anxiously awaiting my March Through the Torture Memo, you'd be advised to spend some time checking out the posts over on Slate's new Convictions blog, where my colleagues such as Emily Bazelon, Dawn Johnsen and Deborah Pearlstein are highlighting some of the most important aspects. Also, Pam Hess and Lara Lakes Jordan of the AP are onto the connection between the "Fourth Amendment" footnote in this memo and the NSA's warrantless surveillance program.

Oh, and in the meantime, on the very day that the Yoo memo was released, we have the tantalizing Vanity Fair excerpts from Philippe Sands's new book -- the prequel to the Yoo memo, which takes the Pentagon story more or less right up to the point where the Yoo memo resolves the Pentagon debate in favor of the unlawful techniques that Jim Haynes and Donald Rumsfeld unfathomably approved for use on al-Qahtani back in November 2002. Among other things, Phillipe shows how informal legal authorization from DOJ and the Vice President's office almost certainly served as the go-ahead for that earlier spasm of torture. And Eric Lichtblau's book was published. Lichtblau and Sands's stories also deserve much more attention.

When it rains it pours.

Posted 9:57 AM by Marty Lederman [link]

Comments:

Marty:

We will have to wait for your "March Through the Torture Memo" for any substantive legal criticisms of the issues Yoo tackles in his memo because one will not find any in the linked blogs or the AP story, nor in nearly any blawg post I have seen top date.

# posted by

Bart DePalma : 11:38 AM

TRANSLATION: "A reactionary cannot operate in a vacuum."

# posted by

Eric : 2:00 PM

ELABORATION UPON TRANSLATION: "A vacuum exists between the ears of a reactionary." Plus: "It is not only nature that abhors a vacuum."

# posted by

Shag from Brookline : 2:46 PM

And one apparently cannot find them among the commentariat.

# posted by

Bart DePalma : 2:51 PM

We will have to wait for your "March Through the Torture Memo" for any substantive legal criticisms of the issues Yoo tackles in his memo because one will not find any in the linked blogs or the AP story, nor in nearly any blawg post I have seen top date.

[...]

And one apparently cannot find them among the commentariat.

Well, if one ignores ignores the stuff that is there....

And one can say that Dubya's doing a great job if one ignores the manifold evident disasters he's gotten us into. But that takes some studied ignerrence.

Cheers,

# posted by

Arne Langsetmo : 3:01 PM

Baghdad Bart has an amazing capacity for ignoring reality.

# posted by

Bartbuster : 3:14 PM

Back to the subject of this thread. Here is the "offending" footnote discussed in the AP piece:

... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). (emphasis added)

If by "domestic military operations" Yoo is referring to intelligence gathering against al Qaeda, the cited memo would not reveal anything new. The federal circuit courts have held on multiple occasions that the 4th Amendment does not require warrants for intelligence gathering against foreign groups.

# posted by

Bart DePalma : 3:32 PM

We will have to wait for your "March Through the Torture Memo" for any substantive legal criticisms of the issues Yoo tackles in his memo because one will not find any in the linked blogs or the AP story, nor in nearly any blawg post I have seen top date.

# posted by Bart DePalma : 11:38 AM

Baghdad, as someone who thinks that "might makes right" is substantive legal commentary, you're not exactly in a position to be tossing stones.

# posted by

Bartbuster : 4:04 PM

It's not just the NSA program that the still secret memo referred to in footnote 10 was intended to address. The only other reference to this memo that I could find was in the Feb 26, 2002 memo on the interrogation of prisoners held in Afghanistan, also signed by Yoo. Footnote 16 refers to the memo and says, "We recently opined that the Posse Comitatus Act…which generally prohibits the domestic use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States."

Sounds to me like this was the "military dictatorship authorization memo" or something close. Anyway, this is what the title indicates, "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

# posted by

Joe Kay : 4:58 PM

joe kay said...

It's not just the NSA program that the still secret memo referred to in footnote 10 was intended to address. The only other reference to this memo that I could find was in the Feb 26, 2002 memo on the interrogation of prisoners held in Afghanistan, also signed by Yoo. Footnote 16 refers to the memo and says, "We recently opined that the Posse Comitatus Act…which generally prohibits the domestic use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States."

Sounds to me like this was the "military dictatorship authorization memo" or something close. Anyway, this is what the title indicates, "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

After 9/11 woke them up, the Executive and most of Congress started treating our conflict with al Qaeda as a war rather than a law enforcement exercise.

With the understanding that we were at war, there is no reason to believe that the Posse Comitatus Act posed any restrictions to military operations against al Qaeda or other terrorist groups within the United States. The Posse Comitatus Act bars the military from being used in a law enforcement role, not against military operations inside the United States.

# posted by

Bart DePalma : 5:39 PM

The question is who in Congress is overseeing "domestic military operations" and what on earth they are exactly? He clearly didn't mean normal peacetime operations, training people in warfare, running their bases, hospitals, acquiring weapons of destruction, massive and not, etc.

From what little was revealed we know that they (Feith and military intelligence people) were involved in surveillance of some civic organization. But which and have they really?

Have they done ACLU for example? [As presumably FBI is hesitant now to be as pro-active toward that organization as they used to be, chances are Feith wanted to take up the slack.]

How about individuals, including US citizens? Military electronic surveillance to supplement NSA's? Warrantless searches including breaking into people's homes? How about neutralization of individuals, groups and organizations like the FBI used to do and still does?

What about their domestic cyberwarfare operations? Do they actively monitor blogs, this one for example?

Do they try to disrupt online communities deemed unpatriotic enough? [Several years ago their psy-op people were extremely active on several blogs TalkLeft for example, so this is not as far fetched as some may think.]

Is Lederman, Balkin in their databases?

The point is arrangements for overseeing the NSA, FBI, CIA are in place however ineffectual they may be but they are there.

Nothing comparable appears to be there for military agencies, presumably on assumption that whatever they do falls under the presidential exercise of his Article II powers Congress has no business meddling in especially in time of war.

Is this really a desirable state of things Mr. DePalma, and for you the originalists, what would founding people think of it?

# posted by

wg : 6:14 PM