Ruminations of an Expatriate

Jump to Comments

Wednesday, April 2nd, 2008...8:00 pm

Yoo Torture Memos

You may have read that the federal government, pursuant to an ACLU Freedom of Information Act request, has at last released the March, 2003 memo, prepared by John Yoo of the Dept. of Justice Office of the Legal Counsel, which asserted that the President has unlimited authority as Commander in Chief to in times of war, presuming that the pursuance of Al Queda constitutes a war under provisions of the Constitution. The memo asserts that, given the president’s unfettered authority, no USA military personnel nor “contractor” acting under such authority could be prosecuted for violations of statutory or international law.

The memo discusses at length the Fifth and Eight amendments to the Constitution and a bunch of statutory law, and explains why none apply to USA torturers nor those who authorize torture.

A Washington Post report of the memo may be found here and a New York Times report here.

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.

The Yoo memo was submitted to the Pentagon on March 14, 2003 and was rescinded some months later. Yoo had in 2002 produced a similar memo which was also rescinded.

As the NYT reports puts it “Justice Department lawyers later rescinded both Mr. Yoo’s memorandum and the similar one written for the C.I.A. in August 2002. In a book published last year, Jack Goldsmith, who as head of the Office of Legal Counsel made the decision to rescind the memorandums, criticized the documents, saying they had used careless legal reasoning to provide national security agencies with sweeping interrogation authority.

The WP reports Goldsmith noted “In his 2007 book, ‘The Terror Presidency,’ that the Yoo memos “stood out” for “the unusual lack of care and sobriety in their legal analysis.”

I have perfunctorily read the 81 page Yoo memo and can report that it discusses, and dismisses as matters 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:

Article I

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.

Article 2

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.” [emphasis added]

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 why is John Yoo a professor of law at U of C at Berkley and where does he get his brown shirts pressed?

Now the AP is reporting:

WASHINGTON (AP) — For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on U.S. soil didn’t apply to its efforts to protect against terrorism.

That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

Share, Bookmark, or Email This Post if You Wish