The first torture memo was bad enough. The new one is a doozy. John Yoo, the Justice Department lawyer who essentially gave the president and anyone he designates, a pass on the Geneva conventions, allowing the Bush administration to order the torture of detainees with what they thought was legal impunity, apparently wrote a second memo, this on in 2003. The New York Times picks it up from there:
A newly disclosed Justice Department legal memorandum, written in March 2003 and authorizing the military’s use of extremely harsh interrogation techniques, offers what could be a revealing clue in an unsolved mystery: What responsibility did top Pentagon and Bush administration officials have for abuses committed by American troops at the Abu Ghraib prison in Iraq and in Afghanistan; Guantánamo Bay, Cuba; and elsewhere?
Some legal experts and advocates said Wednesday that the document, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel.
Ya think?
The opinion was written by John C. Yoo of the Office of Legal Counsel, the executive branch’s highest authority on the interpretation of the law. It told the Pentagon’s senior leadership that inflicting pain would not be considered torture unless it caused “death, organ failure or permanent damage,” and it is the most fully developed legal justification that has yet come to light for inflicting physical and mental pressure on suspects.
While resembling an August 2002 memorandum drafted largely by Mr. Yoo, the March 2003 opinion went further, arguing more explicitly that the president’s war powers could trump the law against torture, which it said could not constitutionally be enforced if it interfered with the commander in chief’s orders.
Scott L. Silliman, head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer, said he did not believe that the 2003 memorandum directly caused mistreatment. But Mr. Silliman added, “The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere.”
Because opinions issued by the Office of Legal Counsel are “binding on the Defense Department,” Mr. Silliman said, Mr. Yoo’s opinion effectively sidelined military lawyers who strongly opposed harsh interrogation methods.
And it essentially assigned dictatorial powers to the president, stating that he may, in wartime, set aside the laws passed by Congress, as well as treaties to which the United States is a signatory. A bit more:
The document was made public on Tuesday after it was declassified in response to a request by the American Civil Liberties Union under the Freedom of Information Act.
Both the August 2002 and March 2003 memorandums were formally withdrawn by the Justice Department in 2004, after Mr. Yoo’s successors at the Office of Legal Counsel concluded that they went too far.
Jonathan Hafetz, a lawyer representing Ali al-Marri, a Qatar citizen arrested in the United States after the Sept. 11 attacks, said he believed that the March 2003 opinion explained why his client was removed from the criminal justice system and placed in a military jail in Charleston, S.C., in June 2003.
“I think they moved him to the military system to be able to use the harsh techniques blessed in the Yoo memo,” said Mr. Hafetz, of the Brennan Center for Justice.
Mr. Marri said he was subjected to cold, shackled in uncomfortable positions, deprived of sleep and otherwise mistreated.
An even earlier Yoo's "legal" opinion, written on September 25, 2001, when he held the title of Deputy Counsel, had already set the administration on a course of dictatorial power. Note its preamble:
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
But does he get an actual crown? That was followed by the infamous August 2002 memo dubbed "the torture memo," but which was considerably less vague than the newly discovered writ about what Yoo perceives to be the almost unlimited power of a wartime president.
And lets not forget the October 23, 2001 Yoo memo that essentially junks the Fourth Amendment, stating, incredibly, that it has "no application to domestic military operations," such operations themselves being unlawful under the Posse Comitatus Act of 1878.
Taken together, the Yoo memoranda constitute a straight-up push, likely driven by the Chenyites inside the administration, for total presidential power, irrespective of law, irrespective of Congress, so long as the administration could act under the color of war.
Kind of makes you wonder why they're so eager to keep us at war, essentially forever.
And it should make you want to ask some very serious questions of Bush's new steward, John McCain.
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"[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.' Alexander Hamilton, Federalist No. 84, August, 1788
