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Justice Torture Memo: Constitution Does Not Apply

by James Oliphant, Tribune

The Justice Department late Tuesday released a declassified 2003 memorandum long sought by congressional Democrats and other administration critics that outlines the government's legal justification for harsh interrogation techniques used by the military against captured enemy combatants outside the United States.

(Here are part one and part two of the memo.)

The memo, written by John Yoo, then a key architect of legal policy in the wake of 9/11, dismisses several legal impediments to the use of extreme techniques.

Yoo was long a proponent of an aggressive approach in the war against terrorism and a believer in executive branch authority. But the memo was withdrawn as formal government policy less than a year after it was written.

In the March 14, 2003 memo, Yoo says the Constitution was not in play with regard to the interrogations because the Fifth Amendment (which provides for due process of law) and the Eighth Amendment (which prevents the government from employing cruel and usual punishment) does "not extend to alien enemy combatants held abroad.":

The memo goes on to explain that federal criminal statutes regarding assault and other crimes against the body don't apply to authorized military interrogations overseas and that statutes that do apply to the conduct of U.S. officials abroad pertaining to war crimes and torture establish a limited obligation on the part of interrogators to refrain from bodily harm.

It also defines the United States' obligations under the United Nations Convention Against Torture and other international treaties prohibiting torture to be confined to ensuring that interrogators do not apply "cruel and unusual punishment" as defined by American constitutional law, regardless of differing international standards.

And it restates the oft-repeated view held by administration officals that the Geneva Conventions, which governs the treatment of prisoners of war, does not apply to members of al Qaeda and the Taliban.

The memo also reflected Yoo's belief in that the executive branch had the inherent authority during wartime to obtain information by necessarily hazardous means:

"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."

It was during 2003, while the memo was operative, that guards and other military personnel committed the abuses of prisoners at Abu Ghraib in Baghdad, Iraq. The memo was withdrawn shortly thereafter, but before those abuses came to light.

The memo was prepared by Yoo for William Haynes, then the Pentagon's general counsel and another key player in the administration's legal strategy. It was declassified Monday by Haynes' acting successor, Daniel Dell' Orto. Yoo is now a law professor at the University of California at Berkeley.

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, which has repeatedly asked the Justice Department to release the memo and others like it, had this to say Tuesday evening:

It has been more than four months since I asked the White House – again – to declassify the secret Justice Department opinions on interrogation practices. Today’s declassification of one such memo is a small step forward, but in no way fulfills those requests. The administration continues to shield several memos even from members of Congress.

The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration. It is no wonder that this memo, like the now-infamous “Bybee memo”, could not withstand scrutiny and had to be withdrawn. Like the “Bybee memo”, this memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country’s status as a beacon of human rights around the world.


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John Yoo had already been exposed as one of the chief apologists for the executive torture doctrines

his abominable excuses do not fare well in the light of day

John Yoo wrote it's ok to torture children's testacles with pliers if you're the commander in chief. There are now serious documented evidence which previously had leaked out and is now in the hands of prominent journalists and politician oversight groups of woman and children being tortured by US forces.

John Yoos advice was incredulously acted upon with full unmitigated direction.

this country will have to face the consequences of a destroyed political system which is US government in all of its branches

torture is widely recognized to be a basic human right as is slavery to be protected from, including child trafficing. all this and more was done in the 'name of security'.

the acts of barbarism are so bizzare and egregious they are hiding the facts from the american public. to compare these acts to the nazi scientists who experimented with healthy captives is accurate with the exception the nazis segregated the children from the adults. it is mind boggling and the public will refuse to believe the government had done such things. oversight will have to conclude its shocking findings in public hearings so that the facts come out in full force.

John Yoo has promoted himself to the top of his field, he only sold his soul to do it.

I have printed the "torture memo" in order to take it to a Pennsylvania Bar Institute Seminar taking place in Philadelphia tomorrow from 8:30AM to 4:30PM. The subject of the seminar is THE RULE OF LAW. How fitting that this memo has been de-classified just in time. I am hoping to have my colleagues discuss Mr. John Yoo as well as Addington, Ashcroft, Miers and Gonzalez.

I really want to get a sense of how other Pennsylvania attorneys are digesting the conduct of this administration. I think the title of this article . . . THE CONSTITUTION DOES NOT APPLY should provoke interesting discussion.

I'll report Friday!

I was trying to catch up this morning after attending the day long seminar referenced above in Philadelphia.

As these continuing legal education seminars go, this, in my opinion, was the best and most important one I have ever attended. The meeting room was not completely filled which served as a distressing fact for me. I think all lawyers who have taken the oath as attorneys to preserve, protect and defend the Constitution should have been there with bells (of freedom) on.

As it was, there were about 150 of us in attendance and the program was quite lively and topical. Two areas were covered in the morning sesson: The "War" on Terror and Immigration Reform.

We then had a luncheon speaker, Colonel Morris Davis who was the lead prosecutor at Gitmo until he resigned last October. I was wary of his presence until he began speaking. It became readily apparent that military professionals such as he who do not cowtow to the civilian "political appointees" are unwanted by this administration. He cited Lt. Swift (not certain I got the rank correct) who did his job as a defense counsel for one of the "detainees" and basically had his career ruined.

Col. Davis mentioned the declassification of the "torture memo" and that is when I quickly decided to approach him after his speech. We chatted briefly and, upon my request, he gladly signed the copy I had printed out Wednesday afternoon.

The afternoon session was a "Town Hall" meeting format where we were all asked to participate in give and take with a panel of legal and non-legal panelists. Most were involved in teaching at Pennsylvania's law schools and also Rutgers in New Jersey. The give and take was excellent. It was easy to tell that those of us there certainly wanted to be there and wanted to have the opportunity to speak and hear other colleagues views on these troubled times for our country.

My view of the entire day can be summed up in a single phrase: It was a good start! I had the chance to speak to the Executive Directive of the PBA and I thanked him for having such a meeting and encouraged that the PBA in conjunction with PBI have these "Forums" at least on an annual basis and that we focus on other aspects of how the rule of law is being challenged today.

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