Wednesday, April 02, 2008
[Post No. 4] The Yoo/Chertoff/Ashcroft Memo? How Did the OLC Opinion Come to Be Issued from DOJ, Anyway?
I've now completed reading the March 14th OLC Opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the Commander in Chief can authorize pouring corrosive acid on a detainee -- can authorize cutting out a tongue and poking out an eye -- nothwithstanding a statute that would prohibit that very conduct?
I'm just a curious non-lawyer: Is it possible any of this could lead to regular criminal charges or some sort of war crimes charges in the future? And if that's possible, what would the mechanism for it be?
RAM: MSL has addressed regular criminal charges in another post, noting a possible "entrapment by estoppel" defense.
Take a look, however, at The Green Light, in the May issue of Vanity Fair. Specifically, the last section, subtitled "A Tap on the Shoulder."
In that Feburary 8, 2008 posting by MSL, how is "entrapment by estoppel" different than the "I was just following orders" defense.
Some of these matters sound like war crimes to me. Can you just say "I was just following orders" when you are committing war crimes?
This is one of the reasons why I have listed Chertoff as a "person of interest" in my list of persons to be investigated in my article Refluat Stercus. Please also look at Jordan Paust's Beyond the Law at page 151 where he discusses this memo.
On the prosecution point, yes I firmly believe people at this level can be prosecuted under the statutes that Yoo dismisses and other crimes that he does not mention. It is primarily a question of political will of a naming of a prosecutor, a prosecutor using the evidence gathered and bringing it to a grand jury, and a grand jury issuing an indictment. Yoo's and others if indicted would certainly seek to raise the defenses in his memo, but the point is that a jury will have to examine those defenses. What may fly as a defense in an echo chamber I am not sure will fly with a jury. This is especially true given the convictions of various low level military persons under the Uniform Code of Military Justice for things that they did that were the bidding of people relying on Yoo's advice.
As a colleague suggested to me, the lawyers for the various persons convicted at Abu Ghraib should seek habeas corpus to be released based on this memo. Graner was telling the truth, it is everyone else in the process who was lying. He was acting pursuant to superior orders. He might have a case that he could not understand that what was being ordered was an illegal order that is not to be obeyed. In any event, the person who gave the illegal order might also be prosecuted.
Yes, all this could happen and I hope it does at some point for persons. However, whether it will or not is not a legal question, it is a question of the will of persons to bring these cases forward.
Mostly we are being encouraged to acquiesce. Even Marty has frequently spoken against the possibility of criminal prosecution notwithstanding the mounting evidence of crimes at this level in the DOJ. Just because someone is a lawyer in the DOJ does not mean that they can not go to jail for torture.
The AP people read Yoo memo and discovered a little something in one of his footnotes specifically this:
.. Our office recently concluded that the Fourth Amendment had no application to domestic military operations ...
and state that they think this non-aplicability of "the Constitution's protection against unreasonable searches and seizures on U.S. soil" applied only to the NSA's TSP program.
I beg to differ - I think I have good reason to believe this was used also to justify actual warrantless physical searches of people's homes in the US by military people.
Theoretically I could be wrong, a check by Congress would be very helpful here as that DoJ interpretation was in force for almost year and the half!
Foggy out there, only a few nearest icebergs can be seen and nothing in those murky waters of theirs yet.
With regard to Chertoff's involvement, as I commented over at Emptywheel's place tonight (http://emptywheel.firedoglake.com/2008/04/02/chertoff-keeps-waiving-laws/#Respond):
"As I mentioned in a comment (http://emptywheel.firedoglake.com/2008/01/03/harmans-letter/#Respond) here back in January, Chertoff’s involvement (via January 29, 2005 NYT article at http://www.nytimes.com/2005/01/29/politics/29home.html?pagewanted=2&_r=7&oref=login) was real, and perhaps even crucial:
...Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.
...Mr. Chertoff’s division was asked on several occasions by the intelligence agency whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the Justice Department sought to avoid giving unconditional approval.
One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning...
And more from that 2005 NYT article:
...The officials said that when the agency asked about specific practices, Mr. Bybee responded with a second memorandum, which is still classified. They said it said many coercive practices were permissible if they met the narrow definition in the first memorandum.
The officials said Mr. Chertoff was consulted on the second memorandum, but Ms. Healy of the White House said he had no role in it..."
I must disclose that I am a college dropout and, thus, probably shouldn’t even be addressing the subject. My qualifications on the subject extend no further than my frequent reference, over the years, to the copy of the Constitution I bought at the John Birch Society booth at the county fair twenty years ago.
I have perfunctorily read the 81 page Yoo memo and its discussion, and dismissal a matters of of concern, the Fifth and Eight Amendments to the Constitution and whole bunch of statutory law. It does not address the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” ratified by the USA on October 21, 1994, nor other international treaties and/or conventions addressing torture and the treatment of prisoners of war.
The “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” provides, in part:
1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No 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.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
A convention, so far as I have been able to determine, is included within the definition of a treaty.
So here’s what I don’t understand.
Article VI of the US Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
The USA is signatory to the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.
So why wouldn’t the torturers and those who authorize torture be subject to prosecution in the USA for their acts?
And it demonstrates exactly why it is so important to abide by such procedural norms -- so that an unconfirmed, rogue deputy in OLC can't just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned.
That's the point that Paul O'Neill, Larry Wilkerson, Richard Armitage and James Risen have made: The Cheney cabal deliberately ignored all the normal vetting processes.
The Cheney cabal deliberately ignored all the normal vetting processes.
Can we say 'deliberately circumvented'? I
The Fourth Amendment finding is curious, though I'm suspicious about its causal relationship to warrantless wiretapping: 'The Program' was up and running in advance of this memo, and my presumption has long been that the White House regards FISA as unconstitutional, and believes it has the right to disregard it absent an explicit SCOTUS affirmation of its constitutionality.
That said, it also the tendency of this administration to offer blanket post hoc legal justifications for its actions.
I think Bush's DoJ lawyers) always considered Fourth Amendment's requirements entirely optional. I clearly recall Gonzo mentioning this, kind of offhandedly, at one of his Congressional hearings and nobody really objected.
Their rationale is - look those requirements were never meant to be absolute see for example searches incident to arrests. Basically they think it's up to them to decide what requires a warrant or not. Curious it is but certainly not unexpected.
So why wouldn’t the torturers and those who authorize torture be subject to prosecution in the USA for their acts?
See the colloquy between Anderson and JaO in the War Crimes Tribunal thread.
I am a lawyer, but previous to all this, was unfamiliar with the existence or function of OLC.
Perhaps I'm missing something, but I don't really see anything institutionally extraordinary here. People in the office of the AAG-OLC find legal justification for what people in the President/C-i-C's office want to do/believe they have the right and power to do. Isn't that the very function of the AAG-OLC, the way the system is supposed to work?
The problem here is with what Addington/Cheney/Bush wanted to do, and not that a compliant in-house lawyer found that--SURPRISE!!--what they wanted to do was legal.
What, if anything, am I missing here?
When did the US Senate ratify this "treaty"?
See extensive discussion here:
Good intelligent, adult discussion.
Wendell. Are you a mind reader?
Here is the full link. Don't know why it didn't paste fully.
Third try. I'll try to break it down.
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