Somebody’s boilerplate is missing a few screws

Dubya waterboards Ms. Liberty

Poor John Yoo. Once BushCo goes, he’ll be out of a job, I’ll bet. And what do you suppose he will have to white out from HIS résumé before he starts sending it out again?

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”


Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

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.

Yes, we’re talking about THAT John Yoo. The one who wrote the infamous Torture Memo. Do you know any other?

“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.”

Uh-huh. The old “fight them there so we won’t have to fight them here” excuse. Unfortunately, it doesn’t wash.

He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.

Anyone who’d argue that the revelations of what went on at Abu Ghraib (right up to and including torture unto death) don’t shock the conscience, must not have any at all.

Plus, there’s the little matter of whether torture even produces useful information at all. There is also the downright minor matter of whether torture doesn’t open up the door to the “enemy” who says that if they do it to us, we are therefore entitled to do it to them.

“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.

Well, some people consider the implementation of the Shock Doctrine, and the forcing of global capitalism down a country’s collective throat, to be justified.

The denizens of the country in question, however, are more than likely to feel that malice or sadism is the real motive, especially when the promised “trickle down” benefits fail to materialize but the unpromised “vacuum up” of local capital leaves the country destitute.

Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions “for appearances’ sake.” He said his successors “ignored the Department’s long tradition in defending the President’s authority in wartime.”

“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.”

Really? What boiler did they crowbar that plate off from? Surely not that of any prior American wartime president. Maybe one of his enemies, though. It sounds suspiciously like something the Rome-Berlin Axis thought was just hunky dory.

The fact that the memo has since been withdrawn is also rather interesting. One would think that if it were “near boilerplate” and constitutionally acceptable, it would still be standing, as the war is still raging, no?

Thomas J. Romig, who was then the Army’s judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found “downright offensive.”

Martin S. Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown University, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib.

“What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?” Lederman asked. “It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone.”

In a 2004 memo for the Navy inspector general’s office, then-General Counsel Alberto J. Mora objected to the ideas that cruel, inhuman or degrading treatment could be allowed at Guantanamo and that the president’s authority is virtually unlimited.

And all of these are legal experts in their own right. Yet every one of them agrees that there is a screw loose on this “boilerplate”. Hmmm. Surely these things must be clues!

If I were in charge of hiring at UC Berkeley, I’d start advertising a new opening in the Faculty of Law really soon.

And if I were John Yoo, I’d consider whiting out a great deal from my résumé, starting with the name.

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