Spiffy — a newly declassified 2003 Justice Dept. memo (rescinded 9 months later) that told the Defense Dept. it could do pretty much anything it wanted when it came to interrogating prisoners.
Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.
“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
In other words, don’t worry your little head about “treaties” and “law.” Do whatever you think is “necessary,” as long as you don’t openly chortle maniacally whist doing it.
Justice and Law in the Bush Administration. How invigorating.
So, I wonder if the folks that were convicted for the Abu Ghraib thing are going to be released since they were acting under orders from their superiors who said it was all legal or if those Superiors will be arrested and convicted.
This at least calls for a retrial or for the convictions to overturned and tossed out.
Well, there *was* some openly maniacal chortling going on (or at least photographs to support that), so I don’t think they get a free pass.
As to their superiors … if these were in fact their orders, then it looks like a stay-out-of-jail-free card. Assuming we accept the ol’ “I was just following orders” excuse.
Except that a lot of folks in Asia and Nuremburg were hung for such excuses.
But, reading through that memo Yoo argues the president can ignore federal law since he is part of the military and subject to the UCMJ. Art. 90 say that you can disobey an unlawful order (but you better make sure that it is unlawful) and Art. 93 says that you cannot maltreat those in your direct or indirect command.
But with Hamdi and the other one I cannot think of that were U.S. Citizens, they are unlawful combatants and to subject to the UCMJ and the Geneva Convention…and neither were the prisoners in Abu Ghraib. So, if the lawful order is that it is legal to torture and maltreat “Unlawful Combatants” then there was no crime.
The over all argument is that if the Commander in Chief orders it, it is legal.
That said, you do know that I still think that every person in the chain of command from Lindy England to George II should be arrested and sent The Hague for War Crimes and Crimes against Humanity.
Oh, but that is if we were a nation of laws and human rights and a republic that stood up for the weak and oppressed and stood against Tyranny.
University of California at Berkeley School of Law (Boalt Hall), should be embarressed for employing Yoo, and it should have it’s acreditation revoked.