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I made a comment about this yesterday and a few people suggested I diary my findings, so here goes.

Speaking as a lawyer, I wish to point out that the term "enemy belligerent" as used in the June 27, 2002 memo by John Yoo is not precisely defined, and throughout the memo, he is referring to "enemy combatants," which is a very different thing from "enemy belligerent." I  printed out the memo,  and I'm going to read it again,  highlight the scary parts, and type this diary as I go due to time constraints, but suffice it to say, it dances around the issue and uses double-speak to authorize the detention of US citizens for basically doing nothing but looking, acting or sounding dangerous, as the President might define "dangerous."

In pertinent part: "...evidence of criminal liability is legally unnecessary in order for the U.S. Armed Forces to detain an enemy combatant." The memo goes on to state that anyone, regardless of citizenship, who "associates" themselves with the "military arm of the enemy" is an "enemy belligerent" and "NOTHING FURTHER NEED BE DEMONSTRATED TO TO JUSTIFY THEIR DETENTION AS ENEMY COMBATANTS."

Be careful. Watch who you "associate" with. Guilt by association can get you locked up at Gitmo according to John Yoo.

The memo is a response to the question of whether the detention of US citizens as "enemy belligerents" by the U.S. Armed Forces violates 18 USC Section 4001(a)(2000). The question arose during briefings to the Senate Judiciary Committee and the Senate Select Committee on Intelligence concerning the trasfer of Jose Padilla (the so called "Dirty Bomber") aka Addulla Al Mujahir, from the custody of the Department of Justice to the control of the Department of Defense.

Title 18, Section 4001(a) states that no U.S. citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress. Section (b) gives control and management of the Federal penal and correctional insitutions, EXCEPT MILITARY AND NAVAL INSTITUTIONS (all capas emphasis my own throughout) to the U.S. Attorney General.

The conclusion of the memo is that the President's authority to detain enemy combatants (Yoo didn't use the term "enemy belligerents" here), including U.S. citizens, is based on HIS CONSTITUTIONAL AUTHORITY AS COMMANDER IN CHIEF. Yoo concludes that Section 4001(a) does not, and could not, interfere with that authority.

According to Yoo's legal analysis, Article II of the Constitution vests the entirety of the "executive power" in the President which also expressly provides that the President is commander in chief. This theory goes back to a US Supreme Court decision in 1874 (Hamilton v. Dilin) and I don't quarrel with this part. The next part if where it gets tricky.

Yoo cites two memos, a 1970 office of legal counsel memo from the Vietnam era, and one of his own memos dated September 25, 2001, right after the 9/11 attackes, to support his theory that the provisions of the constitution vest full control of the military to the President, inclduing all powers not expressly delegated to Congress. He goes on to state that "one of the core functions of the Commander in Chief is that of capturing and detainging members of the enemy." This is where I start to call bullshit. Yes, the Commander in Chief is in charge of the military, but it's a stretch to argue that it is a "core function" of the President himself (or herself) to actually capture and detain enemies. Maybe if we elect Jack Bauer, but that has happened yet...

It goes on to cite examples of Presidents who have ORDERED the capture and detention of enemies, but then jumps back to a phrase that suggests the President himself might DETAIN enemy combatants, which is different from ordering the capture and detention of enemies. If Yoo is trying to vest supreme authority with the President as Commander in Chief, he is necessarily cutting out the U.S. military as the middle man. Thank about it.

The memo notes that military detention of enemy combatants is different from detention of civilians for ordinary law enforcement purposes. Ordinary law enforcement detention is to punish criminals and collect evidence, hold people for trial, etc., according to Yoo, whereas the purpose of military detention is EXCLUSIVELY PREVENTIVE. This means that the military can arrest you for something you haven't actually done, and haven't actually even made any sort of definitive plan to do. By Yoo's logic here, the military can detain anybody for thinking about doing something against the U.S. Here's where he just gets laughable. He quotes a 1913 Federal case from the Southern District of California that held that "Internment is no a punishment for a crime...[B]elligerent troops are disarmed as soon as they cross the neutral frontier and detained IN HONORABLE CONFINEMENT until the end of the war." It was the part about "honorable confinement" that made me chuckle, even though the atrocities at Abu Ghraib and Gitmo were definitely NOT funny.

Here's the kicker: "EVIDENCE OF CRIMINAL LIABILITY IS LEGALLY UNNECESSARY IN ORDER FOR THE U.S. ARMED FORCES TO DETAIN AN ENEMY COMBATANT." Like I said above, that means they can arrest anyone for anything or for nothing at all, so be careful who you associate with. Yoo also wrote that "It is well settled that the President's authority to detain an enemy combatant is not diminished by a claim, OR EVEN A SHOWING, of American citizenship." In other words, your US Passport is worth the paper it's printed on.

Merely associating with the "military arm of the enemy" and being "bent on hostile acts" (whatever that means; the memo doesn't say and offers no standard for deciding who is "bent" on what) defines one as an "enemy belligerent."

There was a Supreme Court case in 1866 (Ex parte Milligan) that seemed to suggest that Yoo's entire legal theory was a crock of sh*t, but he dismissed the holding in Milligan by saying that the court in Milligan left open the question of whether the laws of war could apply to a person who was "more directly associated with the forces of enemy...". Again, it all boils down to who you hang out with.

Lastly, Yoo relied on Senate Joint Resolution 23, which went into effect on September 18, 2001, one week after 9/11, when no one was thinking very clearly. Resolution 23 authorized the President to use all necessary force against...basically anybody who had anything to do with 9/11, or who harbored anyone who had anything to do with it. Yoo basically expaned Resolution 23 to include anybody at all who the President might think possibly had something to do with 9/11 or happened to be at a birthday party once with the first cousin once removed of one of the conspirator's ex-girlfriends, or something like that.

As a last ditch effort to cover his ass, Yoo argue that because Section 4001(a) was part of Title 18 of the US Code, which deals with "Crime and Criminal Procedure," it wasn't really meant to apply to national security, since that topic is covered in Title 50, "War and National Defense." So, depending on where the law is printed in the books determines how seriously we have to take it. That's a clever argument. I'll try it sometime in court and see how far I get.

The memo goes on for a few more pages but I just couldn't take it anymore.

Originally posted to Turn VABlue on Tue Mar 03, 2009 at 08:04 AM PST.

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