an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[Post No. 2] Full Employment Memo for Bloggers (and Prosecutors?)
I won't have a chance until later this evening or tomorrow to start going through the numerous newsworthy substantive aspects of the Yoo memo. (Dilan and other commentors are identifying lots of nuggets in the comments section of my previous post.) For now, just a few themes to stress:
1. The classification of this memo was entirely unjustifiable. And it's fairly outrageous that Congress didn't release it when they received it. The classification and oversight systems are hopelessly broken.
2. The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.
3. Did the AG, DAG, head of OLC [correction: (Jay Bybee)] even know of the existence of this 81-page memo that was causing such heartache at the Pentagon? Or was John Yoo, a Deputy AAG, somehow authorized to speak for the Justice Department without any oversight or supervision? If so, how did anyone come to think that that was ok?
4. Did Yoo consult with other DOJ components and other agencies with expertise on these matters? (A rhetorical question, to be sure.)
5. When will Congress insist upon hearings at which Geoffrey Miller, Jim Haynes, Donald Rumsfeld, and other DOD officials, explain why they kept the Yoo memo and the Working Group Report secret -- undisclosed even to the Working Group itself -- and why they briefed Miller on Yoo's multiple theories of legal absolution on his way out to Iraq? It's no longer very hard to figure out just why, all of a sudden, as soon as Miller arrived in Iraq, everyone there just suddenly and magically came to think the Geneva Conventions, UCMJ, federal assault and torture statutes, etc., simply no longer applied -- that Iraq was a law-free zone and that the gloves had come off. If you were Miller and you had been briefed on the Yoo theories, wouldn't you feel awfully confident that you could get away with, well, murder and everything short of it, in interrogation operations in Iraq? This memo is the source of the Nile for the abuse that occurred in Iraq in 2003. Posted
by Marty Lederman [link]
So--and I don't mean to minimize what's in here--what does this add? Having (exceedingly briefly) skimmed it, and looked over Dilan's comments, what is in here that wasn't in the Bybee memo, except that this applies to the armed forces as well as the CIA? Many of the arguments that Dilan quotes appeared in the Bybee memo as well. (The bit about the UCMJ field-preempting the torture statute is new, though. Very clever.)
After reading page 57-58 of the Yoo memo, I for one am extremely curious how they ended up concluding that "it is likely that under international law no treaty could prevent a nation from taking steps to defend itself".
This quote comes from something called the High Seas Memorandum, page 10. Or is that one public, by any chance? It is cited for the first time in footnote 8, where it is described as follows:
"Memorandum for William J. Haynes, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Offia of Legal Counsel, Re: Legal Constraints to Boarding and Searching Foreign Vessels on the High Seas at 3 (June 13, 2002)"
Yoo’s entire analysis of 2340(2) fails at the very beginning, because seemingly, he did not pass 5th grade English grammar or ever learn to diagram sentences.
He writes (….Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the senses or personality and the use of "other" to modify "procedures" shows that the use of such substances must also cause a profound disruption of the senses or personality….”
The verb in the clause "the administration or application or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality…." is calculated.
Thus, the plain reading is that if the prospective agent of torture 'calculates' that the drugs or the procedure will “…disrupt profoundly the senses or the personality...” that agent has tortured.
Yoo tries to argue that that the drugs or procedure must cause the disruption. This is ridiculous on its face, because the person who is tortured may resist some procedures, but not others. It is the torturer's job to find that which works. So we are left with the logical fallacy that only that which works is torture.