Tuesday, April 01, 2008
[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:
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.)
The classification and oversight systems are hopelessly broken.
Yes, but this is not a new problem, even if this Administration has abused the power to classify far more than most.
4. Did Yoo consult with other DOJ components and other agencies with expertise on these matters? (A rhetorical question, to be sure.)
You mean like Cheney or Addington? ;-)
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.
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