Pretty clear this point he makes is specifically to address the roadmap for Abu Ghraib point you have been making....


Per Goldsmith's entire first chapter:
Gonzales asked him whether 4th GC covered "terrorists in Iraq".... Meaning they had no ruling previously.
Goldsmith Said yes, covers all Iraqis including "terrorists" but not foreigners who entered Iraq after the conflict began.

Gonzales Response:
"Jack, I don't see how terrorists who violate the laws of war can get the protections of the laws of war."

Addington's response:
The President has already decided that terrorists do not receive Geneva Conventions protections."

So it seems pretty clear that the existing OLC March 2003 Yoo memo that was in place was felt- at least by Addington- to be applicable to Iraq.

Yoo is lying or fooling himself.
 

Yoo had an op-ed on this in the Wall Street Journal on this topic. He states clearly therein that the Geneva Conventions do apply to the conflict in Iraq and have always done so in the administration's view. http://www.opinionjournal.com/extra/?id=110005144

But this is only part of the story. What of individuals not part of the Iraqi armed forces? Yoo writes in the same op-ed: "Article 5 (of the Geneva Conventions) makes clear that if an Iraqi civilian who is not a member of the armed forces, has engaged in attacks on Coalition forces, the Geneva Convention permits the use of more coercive interrogation approaches to prevent future attacks."

As for suspected al Qaeda members in Iraq, it seems from the Goldsmith book (quoted by drational above), that the administration's view was the Geneva Conventions simply do not apply.
 

"Addington's response:
The President has already decided that terrorists do not receive Geneva Conventions protections "

and yoo's work was to legitimate that decision ..
 

As for suspected al Qaeda members in Iraq, it seems from the Goldsmith book (quoted by drational above), that the administration's view was the Geneva Conventions simply do not apply.

Interestingly, I wonder if all of this came about around the time the Administration started using the tortured construction, "Al Qaeda In Iraq."
 

If an American colonist who was not a uniformed member of any armed forces during the Revolutionary War bombed a British barracks, would he be classified a "terrorist" by Yoo -- and could he be justifiably tortured by the British to "prevent future attacks?"
 

Yoo states that he was tasked with drafting this memo shortly after the United States captured Abu Zubaydah in March 2002 in order to determine the legal restrictions, if any, on interrogating al Qaeda prisoners. The memo was completed in August 2002, long before the Iraq War got under way. The memo itself does not discuss Iraq.

From Goldsmith's book, it appears that Addington believed, correctly I think, that unlawful enemy combatants who do not follow the laws of war do not get the benefit of the laws of war regardless of nationality. I would wager that Addington had that belief before Yoo provided his memo on al Qaeda. If Addington was relying upon the Yoo memo analysis of al Qaeda to argue that the GC do not apply to similarly situated terrorists in Iraq, this does not necessarily mean that Yoo advised Addington to do so.

Yoo cryptically reveals that he discussed the applicability of the GC to Iraq "in other settings." That does not mean Yoo discussed this with either Addington or the White House in general.
 

zod said...

If an American colonist who was not a uniformed member of any armed forces during the Revolutionary War bombed a British barracks, would he be classified a "terrorist" by Yoo -- and could he be justifiably tortured by the British to "prevent future attacks?"

Under the law of war at that time, unlawful enemy combatants had no rights at all. The British could have and would have legally beat the hell out of him during interrogation if they thought he had information and then hung him without a farethewell.

The GC provision establishing minimum standards for the treatment of prisoners was not in place at that time.
 

Lets be careful here. GC IV in its text applies to Iraqi citizens detained in Iraq. It does not apply to foreign citizens of other nations. Members of the Iraqi army are covered by GC III, Iraqi citizens are covered by GC IV, civilians who are citizens of other nations are not covered. So Abu Musab al-Zarqawi (a Jordanian) would not have been covered by GC IV, because Jordan is not an enemy state.
 

Bart doesn't know what "erga omnes" is.
 

I'm pretty certain that Article 5 hearings -- the 'competent tribunals' that determine POW status -- were in place pretty much from the get-go in Iraq. I'd be curious to know if the UK had any input on that.

And that still got us Abu Ghraib, courtesy of Gitmo and Geoffrey 'T. Ripper' Miller.
 

Eric:

Which rights do you claim are erga omnes under the law of war and provide your authority.

The limitations written into the provisions of the GC belie the claim that its rights are erga omnes.
 

Assuming Yoo is misrepresenting the facts, how was the analysis supposed to work when the reason there are no uniformed soldiers in Iraq is that the occupying power dissolved the army?
 

You could simply have said that Congress and DOJ want the torture statute vague and unenforceable because that allows us to claim that we oppose "torture" but have the flexibility to do what needs to be done to get intelligence.

Who is being dishonest in that case - Congress for creating an emperor without clothes or Yoo for pointing out that that fact?
 

Okay everyone must visit John Yoo's website. There are links to a ton of very interesting opinion pieces, and more...

http://www.law.berkeley.edu/faculty/yooj/

Go NOW.
 

You could simply have said that Congress and DOJ want the torture statute vague and unenforceable because that allows us to claim that we oppose "torture" but have the flexibility to do what needs to be done to get intelligence. Who is being dishonest in that case - Congress for creating an emperor without clothes or Yoo for pointing out that that fact?

The problem is, that isn't what happened. There's a rather extensive legislative history on the ratification of the Convention Against Torture, and it basically came down to: (1) we don't have to worry about banning torture (as defined by well-established domestic and international precedents), because we don't do it and it is illegal or can readily be made illegal; and (2) we do have to worry about the definition of cruel, inhuman, or degrading treatment, because that definition is too vague, so we will tie it to constitutional provisions to better control its meaning.

So you are conjecturing a history that doesn't actually exist to justify perverting the meaning of the Torture Convention.
 

dilan said...

BD: You could simply have said that Congress and DOJ want the torture statute vague and unenforceable because that allows us to claim that we oppose "torture" but have the flexibility to do what needs to be done to get intelligence.

Who is being dishonest in that case - Congress for creating an emperor without clothes or Yoo for pointing out that that fact?

The problem is, that isn't what happened. There's a rather extensive legislative history on the ratification of the Convention Against Torture, and it basically came down to: (1) we don't have to worry about banning torture (as defined by well-established domestic and international precedents), because we don't do it and it is illegal or can readily be made illegal...

The United States distanced itself from foreign precedent by agreeing to a far more narrow and exceedingly vague definition of torture different from the definition given in the CAT and this is the definition which was adopted by Congress.

...and (2) we do have to worry about the definition of cruel, inhuman, or degrading treatment, because that definition is too vague, so we will tie it to constitutional provisions to better control its meaning.

You mean such objective, well controlled definitions such as "shocks the conscience" and "cruel and unusual?" C'mon now...

So you are conjecturing a history that doesn't actually exist to justify perverting the meaning of the Torture Convention.

I am not perverting the meaning of the Torture Statute. I am contending that it has no objective meaning and crediting the authors with the common sense to have known that was the case when they drafted it.
 

You could simply have said that Congress and DOJ want the torture statute vague and unenforceable because that allows us to claim that we oppose "torture" but have the flexibility to do what needs to be done to get intelligence.

There is another obvious reason why a torture statute has to be somewhat vague. If you try to comprehensively define every single act that it torture, inevitably someone will come up with some ingenious new form of torture that no one thought to ban, and then what.

No doubt if Congress had tried to maintain the level of specificity Bart says is called for, Yoo would simply have found a loophole and said, see act X is not covered so it must be lawful. And Bart would be defending him.
 

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enlightened layperson said...

There is another obvious reason why a torture statute has to be somewhat vague. If you try to comprehensively define every single act that it torture, inevitably someone will come up with some ingenious new form of torture that no one thought to ban, and then what.

The Torture Statute could be made effective with a list of things you are not permitted to do to the body and a catchall provision at the end. For example, you could knock out all the versions of waterboarding by simply prohibiting all acts which cause or simulate asphyxiation.

You could also limit interrogation to a defined set of techniques like those described in the Army Interrogation Manual.

Congress has attempted versions of both types of statutes because they realize that the current statute is next to useless.

I suggest that the reason why some folks will not make this pretty basic concession is because they need to believe that Yoo and dozens of others twisted a "clear" law so that the Bush Administration can fit their preconceived notion of a gang of Nazi war criminals who torture for laughs and giggles.

Jack Goldsmith's book demonstrates that the reality is that the Administration is a group of people with divergent opinions attempting to reconcile the often vague post Vietnam legal maze with fighting a total war with an enemy which follows no rules in seeking to mass murder our citizens. Even in his critiques, Goldsmith is unsure that he is right and his opponents wrong because there is no clear roadmap.
 

"The Torture Statute could be made effective with a list of things you are not permitted to do to the body and a catchall provision at the end. For example, you could knock out all the versions of waterboarding by simply prohibiting all acts which cause or simulate asphyxiation.

You could also limit interrogation to a defined set of techniques like those described in the Army Interrogation Manual."

Please Bart, the idea that someone wouldn't simply argue that if it's not on the list, it's not torture, catchall phrase notwithstanding, is laughable. Besides, you know that the canons of construction would dictate that any catchall phrase is read within the context of a specific list--i.e. the specific list delineates the types of items that would be covered by the catch-all. So once again, it would be a decidedly easy argument to state that if it's not on the list it's not torture.

Moreover, if you want a catch-all provision, then the current statute is perfectly fine.

As far as your second comment, that was comedy right? I mean, it's not like there was a bill pending that limited the techniques to the Army Field Manual or anything. And it's not like guys with "integrity", such as McCain, voted no on it or Bush vowed to veto it or anything...
 

"fighting a total war with an enemy"

From Clausewitz, IIRC, total war is war fought with all means available until the total destruction of the enemy.

Terrorism, by its very nature, is not total war. It can't be, because the terrorist is using such tactics because they cannot destroy the enemy, but only use terror tactics to try to achieve their goals despite the ability of the greater power to crush them in a stand up fight.

And in other news, we are still required to treat prisoners, even those accused of terrorism, according to GC3. Why?

GC3: Art 129. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

And what does Article 105 state?

Art 105. The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defence. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.

The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired.

Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and in good time before the opening of the trial. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war.

The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this is held in camera in the interest of State security. In such a case the Detaining Power shall advise the Protecting Power accordingly.

Can anyone here say, with a straight face, that the MCA tribunals, created after capture and detention, meet these minimum standards?

And finally, what are grave breaches of GC3?

Art 130. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

GC3 obviously provides a framework for trying suspected terrorists (violators of GC), but effectively required us to abide by GC to do so. This despite many statements to the contrary by the current administration and its defenders. The only parts that may come into question would cover the interpretation of Protecting Power provisions, when terrorists would not have one step forward. However, even those situations allow coverage by the Detaining Power and/or the Red Cross to step in, as needed, to assure compliance.
 

In the debate of catch-all terms vs precise phrases, it seems to me we had exactly such a debate in the US over "excessive regulations." Conservatives would make a huge fuss and bother over how telephone-book-like the laws were and over how many pages it took to cover allegedly simple actions.
Eventually, liberals pointed out that the problem was that businesspeople kept looking for loopholes. Folks who were doing their best to make a buck were constantly probing and testing the laws to find non-prohibited actions that would be profitable for them.
"Global War on Terror" has little or nothing to do with the Bush Administration breaking the laws and thumbing its nose at the Geneva Conventions. The problem is that you have a group of people that are doing their best to find loopholes.
 

Fraud Guy, I'm not convinced that the entirety of GC3 covers a Khalid Sheikh Mohammed, who is probably not a POW -- I think that Taliban members have a better claim to POW status.

However I do think that KSM is protected under Common Article 3, as the SCOTUS held in Hamdan.
 

Anderson,

It is not that Khalid or the Taliban are POWs, or that they are covered by the entirety of GC3. What the cited portions of GC3 state is that:

1. We (and any High Contracting Party) have a right to prosecute persons who commit war crimes, such as killing and torture, and inhuman treatment of protected persons (including civilians). Terrorism, from most opinions I have read, easily falls into that category. (Art 130)

2. Those who we try for such crimes, however, are at least entitled to rights equivalent to a POW under Art. 105 and following Articles. (Art. 129)

3. So Khalid and Taliban members, who are not "technically" POWs, should be treated with the same rights of counsel, defense, and humane treatment as our own soldiers. From Article 108: "Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shall be served in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power. These conditions shall in all cases conform to the requirements of health and humanity." (Art 105 and 108) Some may try to find wriggle room that those conditions only apply after conviction, but I feel that treatment prior to conviction should at least be as good as treatment after conviction.

Basically, my read of this is that if someone makes the claim that the terrorists are war criminals, this is how they are supposed to be treated.

I am using the text found at icrc.org for GC provisions.
 

I just don't see how particular articles of GC3 are applicable to non-POW's, when POW's are the subject of the Convention.

Justice Stevens cited to GC3 re: Hamdan, but only to CA3 which, being "common," is also in GC4.

In any event, I don't think that rigged-up "tribunals" with unique rules meet the requirements of GC4, so I don't think we have any substantive disagreement -- we just get there different ways.

I would of course prefer to see al-Qaeda terrorists tried in U.S. district courts, but then I am not as ashamed of my country's judiciary as Bush, Cheney, and Addington are.
 

The United States distanced itself from foreign precedent by agreeing to a far more narrow and exceedingly vague definition of torture different from the definition given in the CAT and this is the definition which was adopted by Congress.

That's not true. The definition of torture in the Torture Convention is as follows:

"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."

Now, here's the US definition:

"an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"

So the only substantive difference is that the US definition requires a specific intent to inflict the pain or suffering. But the actus reus portion of the definition, i.e., what acts constitute torture, is exactly the same.

And the legislative history of the ratification of the Convention Against Torture shows that the Senate understood the term torture, understood it was defined based on longstanding precedent, and did not think it was vague. In contrast, they did think that "cruel, inhuman, and degrading treatment" was vague, so they tied it to constitutional provisions to make it more clear.

The statement that the definition was "narrowed" is a Republican talking point put out by hacks who defend the Bush Administration at all costs. It was not narrowed and nobody thought it was vague when it was ratified.

The Torture Statute could be made effective with a list of things you are not permitted to do to the body and a catchall provision at the end.

They could have done that, but instead, they adopted the internationally accepted definition that had been used for years. The question is not what they COULD have done; it's whether anyone thought what they DID do was vague.

You posited a hypothetical legislative intent where they deliberately passed a vague statute so that the US could still torture. The problem is, you haven't read the legislative materials and that WASN'T the actual legislative intent-- rather, they thought ANOTHER part of the convention was vague, not this part, and they banned torture because THEY DIDN'T BELIEVE THE UNITED STATES SHOULD TORTURE.

You are just positing that Congress did what you would have liked them to do, rather than what they did.
 

Anderson,

GC3 generally talks about treatment of POWs, but I cited the articles I did because they cover treatment for those who violate the Conventions, not POWs. Those sections basically state that some of the core requirements of treatment for POWs apply to them, especially as to their legal rights and appropriate treatment and punishments.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Sorry. Quick edits. So the comments period on the Yoo interview is already coming to a close, but it may be worth noting other odd, incriminating things about Yoo's responses:

1. Yoo's cursory aside that the legal opinions had the potential to "degrade military discipline" bespeaks hyperlegalistic thinking, and like his other 'glib' rejoinders suggests he was unfit to write these opinions in the first place. To wit, his working assumption was/is that soldiers naturally conform to legal standards under pressure of combat, and that personnel fall into line with top-down legal advice. Any cursory review of war crimes demonstrates it is only by preventing indemnity under law (which Yoo reinforced) that any discipline is achieved in soldiering. As Navy General Counsel John D. Hutson put it to the NYT last year, “I know from the military that if you tell someone they can do a little of this for the country’s good, some people will do a lot of it for the country’s better."

2. Ultimately there's a very dishonest descriptions of cause and effect in the argumentation around interrogation tactics that only intensifies questions of motives, and probable intent not to uphold the law. The only honest approach to arguing about interrogation tactics is one that starts with common sense about cause and effect. At the outset, one doesn't assert that "necessity knows no law" and reach the conclusion that abuses are containable. Common sense says: (1) abuses are invariably going to occur in this very uncertain area; (2) law is one of the most important deterrents to check a slide down the slippery slope; and (3) legalistic gambits to create blanket immunity and impunity are the wrong instinct, both because they grease that slippery slope and because they invite endless litigation. Common sense and an honest commitment to upholding the law says blanket impunity is a bad legal tactic, and to ensure torture is "contained," there need to be avenues available for prosecution of genuine abuses -- balanced with a true need to restrict how abuse can be prosecuted.

3. He draws contradictory conclusions about whether his legal opinions specify abusive tactics. On the one hand, he quips, "I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It’s not my job to say what they should do." On the other hand, he remarks, "I didn’t want the opinion to be vague so that the people who actually have to carry these things out don’t have a clear line."

4. Yoo claims he was only being the good soldier, doing what everyone across all government agencies ("even the State Department") universally believed at the time. But read closely, he's referring here to just the early 2002 Military Commissions / due process policy, and not the late 2002 onward debate on torture. The latter was far more contentious -- the 2002 GTMO investigations and DOD Working Group dissents. His March 2003 memo was requested by DOD’s GC, Jim Haynes and perhaps the White House, and used by the DOD Working Group Chair, as a means of squelching these legal dissenters.
 

Milan:

Yoo writes in the same op-ed: "Article 5 (of the Geneva Conventions) makes clear that if an Iraqi civilian who is not a member of the armed forces, has engaged in attacks on Coalition forces, the Geneva Convention permits the use of more coercive interrogation approaches to prevent future attacks."

["M"]akes clear"?!?!?

I must have a lousy Internet connection; my copy of such says no such thing; I must have lost a couple paragraphs in transmission....

Cheers,
 

"Bart" DePalma:

[zod]: If an American colonist who was not a uniformed member of any armed forces during the Revolutionary War bombed a British barracks, would he be classified a "terrorist" by Yoo -- and could he be justifiably tortured by the British to "prevent future attacks?"

Under the law of war at that time, unlawful enemy combatants had no rights at all. The British could have and would have legally beat the hell out of him during interrogation if they thought he had information and then hung him without a farethewell.

The GC provision establishing minimum standards for the treatment of prisoners was not in place at that time.

Under that logic, all prisoners of war had "no rights at all" under the "law of war". And in fact, British treatment of the insurgents and brigands at that time was appalling....

Cheers,
 

Anderson:

I would of course prefer to see al-Qaeda terrorists tried in U.S. district courts, but then I am not as ashamed of my country's judiciary as Bush, Cheney, and Addington are.

I don't think that Dubya et al. are "ashamed" of our judiciary (they appointed a large portion thereof). Rather, they are afraid that the judiciary might feel the need to comply at least to the minimum standards of "due process" and fairnes demanded by the GC, and also by our laws. This, however, might be fatal to their aims....

Cheers,
 

Bart:
The limitations written into the provisions of the GC belie the claim that its rights are erga omnes.

Try the Convention Against Torture.
 

The Washington Post today (4/5/08) has an editorial titled "Tortured Logic" on Yoo's memo. Yoo tried to make his bones with his lawyerly skills for George W's Administration. Now that the memo has been fully made public, with others presumably to follow, Yoo will have his bones picked for years to come. A long life will be suitable punishment for Yoo who when he came to a fork in his young legal career, as Yogi said, took it. Bon appetit!
 

An analysis of the memo from the WSWS: http://www.wsws.org/articles/2008/apr2008/memo-a04.shtml
 

eric said...

Bart: The limitations written into the provisions of the GC belie the claim that its rights are erga omnes.

Try the Convention Against Torture.

I agree that the CAT is erga omnes. However, you made your cryptic comment that I did not know the meaning of erga omnes when I was discussing the limited applications of the Geneva Conventions.

The problem with applying the US definition of torture in the CAT is not that the CAT is not erga omnes, but rather because it is unenforceably vague as I discussed on the following posts.

Apples and oranges.
 

shag from brookline said...

The Washington Post today (4/5/08) has an editorial titled "Tortured Logic" on Yoo's memo. Yoo tried to make his bones with his lawyerly skills for George W's Administration. Now that the memo has been fully made public, with others presumably to follow, Yoo will have his bones picked for years to come. A long life will be suitable punishment for Yoo who when he came to a fork in his young legal career, as Yogi said, took it. Bon appetit!

Your take perfectly summarizes that of most blawgs from the left which I have read to date.

This is an exercise in shunning for expressing the heretical thoughts and not a reasoned and supported critique that Yoo erred as a matter of law.
 

As a matter of fact (not just law), Yoo and you (Bart) have erred egregiously. So the two of you should go enjoy a Yoo-Hoo or whatever together. Now you have two coattails to ride: George W's and Yoo's.
 

Bart:
I agree that the CAT is erga omnes. However, you made your cryptic comment that I did not know the meaning of erga omnes when I was discussing the limited applications of the Geneva Conventions.

Speaking of cryptic, I have no idea what you're referring to. Let's go back:

From Goldsmith's book, it appears that Addington believed, correctly I think, that unlawful enemy combatants who do not follow the laws of war do not get the benefit of the laws of war regardless of nationality.

That's where "erga omnes" applies.
 

I made a post over at opiniojuris.org going to the heart of the torture analysis of Yoo. Here it is below.

The weakness of resorting to the rules of statutory construction approach is that everyone knows (as said Justice Kennedy once at a conference I was at) that one can find a rule that works for what you want to do. Everyone spends time trying to look for this or that rule and focuses on the alternative to the Yoo approach. The essence of this is that the discussion becomes kind of a more sterile exercise of "ah yes there are many ways to do this" and we proceed off to our next article.

Sorry to speak plainly, but I think this is what you would want from me.

For example, one could try to look at the same statutory language under a cumulative approach and look at the variety of answers and say isn't that fascinating. One is left with a kind of bewilderment at the possibilities.

Maybe because I am too lazy or something, I simplified my life a bit by taking Yoo at his own words. I assume that he means the words he writes so I look at them.

For example (Yoo) says the medical emergency standard is:



"These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...
(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added)."



Note that language and then note the next sentence which is on page 40.



They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function.



Yoo's language in the sentence immediately above on its face appears to contemplate to me a definition that restricts "severe pain" to something more narrow than does the statute to which he has chosen to make reference - let alone any more capacious definition from another rule of construction.

The language he cites does not make reference to anything permanent - it focuses on seriousness. While it could certainly contemplate at the high end of its seriousness - quoting further -



physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.



it also can include lower level types of seriousness that he has decided to exclude. So while using the language of a rule of construction what he is doing is really to give this hypernarrow definition of "severe pain".

In his own words, and I believe that he believes what he wrote, he is giving advice that "severe pain" (Yoo version) is not "severe pain" (statute version) - a nice sleight of hand it seems to me. It is done with the specific intent of narrowing the limit of what is prohibited.

The difficulty that Yoo faces is that a prosecutor might say that even on the basis he has taken, the rule prohibits more types of actions than Yoo wrote. Putting it another way, Yoo got it wrong and the consequence of his getting it wrong was that those who relied on his wrong analysis did acts that were severe pain (meaning torture). His pen flowed to torture.

And the prosecutor could argue that Yoo was not mistaken out of "misfeasance" but rather "malfeasance" in that Yoo was working overtime to come up with narrowed rationalizations that would "protect" those below when they did acts that were in fact torture: he had the specific intent required for conspiracy to torture for example.

The prosecutor could bring in someone who for example tortured Murat Kurnaz and ask him to tell what he had done and whether he had been instructed to do that and by who etc and up the chain until you find where the Yoo memo was made operational (in an earlier post I talked about Kurnaz alleging having been hung from the ceiling in an aircraft hangar in Afghanistan for five days by his arms, being electrically shocked, having his head put underwater and punched in the stomach to make him inhale water. Also, cold and hot room stuff at Guantanamo.)

Working on Yoo's standard, the fact that they brought in a doctor every 6 hours to check if Murat Kurnaz was still in good enough shape to be hung up indicates to me that - even with the doctor saying the guy was OK -



a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...



That lay person might not consider the damage "permanent" (Yoo's word sleight of hand) but enough to meet the standard of the statute cited by Yoo.

It is Yoo who then takes the step to push even the statute he is citing to an interpretation that permits torture. That was his choice and I presume that he had the specific intent to write the analysis that he did. That conduct is his actus reus and from conduct one can intimate mens rea - though I expect that from the collection of his work there may be further evidence that corroborates the mens rea.

What I expect is that Yoo will turn up at a DA's office someday with his lawyer and in exchange for immunity he will spill the beans. He is the one with the beans.

I am also worried that he will (as they use to say in Nigeria) have a car accident. Probably something dressed up like street crime with some Crip or Blood doing the dirty deed and being wasted in the ensuing gunfight by the police. Voila - no more Yoo problem for folks up the line. I would not wish that on anyone, but it is what I would not be surprised to find happens.

Time will tell.

Best,
Ben"

I have looked at the sections of 8 USC and 42 USC that he cites there and none of them indicate the "permanent" or other language that use puts in that section. Maybe someone else can find it. If you can please let me know. But, I do not.
 

eric said...

Bart: I agree that the CAT is erga omnes. However, you made your cryptic comment that I did not know the meaning of erga omnes when I was discussing the limited applications of the Geneva Conventions.

Speaking of cryptic, I have no idea what you're referring to. Let's go back:

From Goldsmith's book, it appears that Addington believed, correctly I think, that unlawful enemy combatants who do not follow the laws of war do not get the benefit of the laws of war regardless of nationality.

That's where "erga omnes" applies.

The CAT is not a law of war. Rather, as you pointed out, the CAT is erga omnes and applies in peace and in war.

Goldsmith and Addington were debating the application of the GC law of war to Iraqi terrorists, not the CAT.
 

This is sick:

"Gonzales Response:

"'Jack, I don't see how terrorists who violate the laws of war can get the protections of the laws of war.'"

Ass: Because a person is ALLEGED to be a "terrorist" is not PROOF, or CONVICTION, of BEING a "terrorist". Therefore, anti-American jerk, we give the ALLEGED "terrorist" due process of law, beginning with presumption of innocence, UNDER the rule of law, not in spite of it.

It's a wonder a person of your origins, and the history of that and the relative differences in skin color between you and such as Bushit, you are incapable of understanding the unAmerican horror that is "Wanted Dead or Alive -- NO TRIAL NECESSARY".

Are these Bushit hangers-on and sycophants his equal in intelligence, competence, and judgment? Or his equal in evil?

Or both?
 

"Yoo is lying or fooling himself."

From seeing interviews with him, and reading his comments, I've pretty much concluded he is a combination of arrogance and incompetence. One of those insightless humans who hasn't a clue that he hasn't a clue; who doesn't know that he doesn't know. That is the impression one gets from the PBS interview, as example, in which he detailed his view on the laws based upon his knowledge of "military strategy" -- of which latter he has how much knowledge? ZERO. But doesn't seem to be aware of the fact that his fantasies about "military strategy" just might be different than, and diverge from, actual knowledge and experience of such.

Feith has the same characterological blind spot: he knows it all, despite the fact he knows nothing outside the twisted convolutions of his anti-American idiotology, with that as his sole undoubted and unevaluated lens on the world.

It's no wonder everything these jerks touch is made a disaster. The wonder is how they can continue to perceive their disasters are actually successful demonstrations of their brilliance, and the undeniable truth of their idiotology of lawlessness (er--"deregulation").
 

Bart barfed:

". . . it appears that Addington believed, correctly I think, that unlawful enemy combatants who do not follow the laws of war do not get the benefit of the laws of war regardless of nationality."

You're a lawyer!? Even if such "unlawful enemy combatants" -- which legislature authorized that term? which court adjudicated those ALLEGED to be that as BEING that? -- were ONLY PROSECUTED under the laws of war, they would be both subject to that law, and recipients of the benfits thereof; such a benefit as, for exammple, the "quaint" and "obsolete" process termed "due".

Bart: We no longer, in the US, or in keeping with our principles asnd values, presume guilt, and use that anti-American bigotry as excuse to deny the protections of the laws. Especially when the US is not the sole arbiter of whether INTERNATIONAL laws apply where your heroic non-lawyer anti-American Bushit insists they do not as part of his pseudo-tough guy image, and expression of his petty, vindictive barbarity.
 

"I like his explanation of his crackpot "severe pain" analysis:

"Esquire: John, you’re a very engaging guy, I like you -- I can’t picture you writing that phrase “organ failure or death.”

"Yoo: . . . . The main criticism, which is certainly fair, is that statute is so different from this one, how can you borrow the language of one and include it in the other. On the other hand, that’s the closest you can get to any definition of that phrase at all. And here’s the other thing I was quite conscious of. The other thing I was quite conscious of was I didn’t want the opinion to be vague so that the people who actually have to carry these things out don’t have a clear line, because I think that would be very damaging and unfair to the people who are actually asked to do these things."

But it wouldn't be "very damaging and unfair" to the people who, not having been adjudicated as being guilty of anything, were subjected to that crackpottery.

Ain't it great to be a civilized nation governed by such civil and considerate barbarians?
 

Bart barfs yet again, this time a "Shag of Brookline":

". . . This is an exercise in shunning for expressing the heretical thoughts and not a reasoned and supported critique that Yoo erred as a matter of law."

Yoo erred as a matter of what it means to be an American. And at grasping the meaning of, "A system of laws, and not of men." -- John Adams.

There is nothing "heretical" -- i.e., respectworthy -- in that which is overt criminality, Bart.
 

I see from the Press that Rep Conyers is inviting Yoo to appear before the House Judiciary Committee - and waving the prospect of subpoena.

If readers were Counsel to Yoo, what would they advise as the better approach - full co-operation or taking the 5th ?
 

I would advise Yoo to drink the entire fifth, and then show up at the Congressional hearing either drunk or dead from alcohol poisoning.

Actually, I couldn't advise him, because I am biased in wanting to see him testify, and in the process both get chewed up and spit out, and spill the beans on everyone -- and without regard for saving his own war criminal ass.

And correction of a point I made prior: I don't think Yoo is so much incompetent as genuinely stupid. The equivalent of Feith without that peculiar "conservative" hair that Feith has. (It's the truth: I've only known Republican'ts/"conservatives," and never a Democrat, to have hair like Feith's.)
 

JNagarya wrote:-

“And correction of a point I made prior: I don't think Yoo is so much incompetent as genuinely stupid. The equivalent of Feith without that peculiar "conservative" hair that Feith has.”

I set out some observations under the thread on ‘boilerplate’ but I amplify here:-

Am I correct in thinking that the Attorney-General and, in particular the Office of Legal Counsel are the Administration’s lawyers and that that the OLC lawyers had therefore the ordinary duties of counsel to their client.

I do not know what are generally held to be the duties of counsel in the USA, but I think the English view would be that:

(1) It is the duty of Counsel to advise a client to the best of his skill and ability on the accepted view of the law as expounded on the authorities before advancing personal theories which do not have general acceptance and there should be appropriate caveats accompanying novel propositions;

(2) It is part of the duty of Counsel to warn a client when a proposed course of action appears likely to be held to be illegal;

(3) Counsel should not assist a client to "manufacture" defences, mislead the court, or impede the due process of public justice;

(4) Counsel should not undertake work he is not competent to do and if he needs advice from a specialist (eg on a matter of foreign law) then his opinion should make that clear.

Irrespective of the question whether the opinions taken as a whole render the authors liable to prosecution as accessories to (inter alia) torture (I think there is a case to answer in a number of EU jurisdictions), what about their standing as Counsel (and for some now teachers of law or judges) ? For those still practising is there not some form of bar discipline ? For those teaching what are the remedies ? For Judges, would impeachment work if it related to matters prior to appointment and if not, what else can be done.

To me it seems that there is an issue of protection of the public from charlatans. Quid vobis videtur ?
 

Mourad --

The person to answer your questions -- I dare not risk it -- is Marty Lederman, as he worked at DOJ, so knows the ins-and-outs and authorities of such as the OLC.

My view would be, though, is that you touched on: the OLC's task would be to give interpretation based upon and consistent with existing legal authority, the purpose of the DOJ being to obey and enforce the laws. I think it is certain that that office doesn't exist to make law, or to find ways to circumvent and subvert -- violate -- it.