Yes we fickin knew it was coming, but for some unknown reason I had held out hope. I knew better. The White House has finally released it's reasoning but I have yet to read the pdf yet. The WashingtonPost has more on it but be prepared to go off.
Federal laws prohibiting assault 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, according to a newly declassified 2003 Justice Department memo released today. Terrorism Interrogators Immune From Prosecution, '03 Memo Says
Bullshit! There is no way in hell this can be allowed to stand. Between Yoo and the Bybee Memo the twisted logic should never stand up in court.
This is the gist of it in a nutshell as unbelievable as it is.
The memo asserts that domestic and international laws and treaties, as well as the U.S. Constitution, would not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers.
"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 the memo. "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."
Interrogators who harmed a prisoner also would be protected by a "national and international version of the right to self-defense," Yoo wrote.
I'm writing this in a fury and will be going back and editing and adding more after I read the document in question, if you want to check back later.
Many of you already know this order was rescinded by Jack Goldsmith and he wrote about how bad it was in his book "The Terror Presidency". He described how sloppy it was reasoned and written out call it out for "the unusual lack of care and sobriety in their legal analysis."
The article end with the kind of understatement that has become the norm while discussing the crimes of this Admin.
"It taints the military in a way that it doesn't by and large deserve," Romig said. "Nevertheless, these things have occurred. It's terribly damaging to the armed forces and to our country to have had this happen in the way that it's happened."
I'm off to read the Memorandum and hopefully will be able to add more.
From the Memo, page 9 and this is just the beginning.
This Court has long recognized that in wartime many losses must be attributed solely to the fortunes of war, and not to the sovereign." .United States v. 'Caltex, Inc. (Philippines), 344 U.S. 149, 155-56 (1952). See also Herrera v. United States, 222 U.S. 558 (1912); Juragua Iron Co. v. United States, 212 U:S. 297 (1909); Ford v. Surget, 97 U.S. 594 (1878). These cases and the untenable consequences for the President's condUct of awar that would result from the application of the Due Process Clause demonstrate its inapplicability during wartime-whether to the conduct of interrogations or the detention of enemy aliens.
In Regards to the 8th Amendment on Cruel and Unusual Punishment. Page 10
A second constitutional provision that mi·ght be thought.relevant to interrogations is the Eighth Amendment. The Eighth· Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed. As the Supreme Court has explained, the Cruel and Unusual Punishments Clause "was designed to protect those convicted of crimes." Ingraham v. Wright, 430 U.S. 651, 664 (1977). As a result, "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Id. at 671 nAO. The Eighth Amendment thus has no application to those individuals who have not been punished as part of a criminal proceeding, ip'espective of the fact that they have been detained by·the government. See Bell v. Wolfish,441
U.S. 520, 536 n.16 (1979) (holding that condition of confinement claims brought by pretrial detainee must be considered under the Fifth Amendment, not the Eighth Amendment). The Eighth Amendment therefore cannot extend to the detention of wartime detainees, who have .
. ( been captured pursuant to the President's power as' Commander in Chief.
This next quote is straight out of the Bybee Torture Memo and has been seen before but should be read often. Page 13, and it gets worse.
Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maimmg, interstate stalking, and torture pursuant to any expr~ss authority that would allow it to infringe on the President's constitutional control over the operation ofthe Anned Forces in wartime. In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any arguinent that these statutes apply to persons under the direction of the President in the conduct ofwar.13
And finally the reasoning behind Karl Roves balls when it comes to the Contempt Citation from Congress or anyone else for that matter.Page 19 of 19. The First part of the Memo.
Prosecution for Contempt of Congress of an Executive Branch Offical' Who Has Asserted A Claim ofExecutive Privilege, 8 Op. a.L.c. 101, 134(1984). Cf Shoot Down Memorandum at 163-64. And should the statute not be construed in this manner, our Office concluded that the Department of Justice could not enforce the statute against federal officials who properly execute the President's constitutional authority. "The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for. asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual." 8 Gp. O.L.C. at 141: We opined that "courts ... would surely conclude that a criminal prosecution for the' exercise of a presumptively valid, constitutionally based privilege is not consistent with the Constitution." Id.
. We have even greater concerns with respect to prosecutions arising out of the exercise of the ·President's express authority as Commander in Chief than we do with prosecutions arising out of the assertion of executive privilege. Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. fudeed, such operations may be' of more importance in a war with an international terrorist organization than one with the conventional armed forces of a nation-state, due to the fonner's emphasis on covert operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide the' infonnation necessary to prevent future attacks upon the United States and its citizens. Congress cannot more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the
President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so' too are laws' that would prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.
Update : Here are some links to the articles that came out the day after this diary was written. They cover Glenn Greenwald, to Scott Horton, and you can follows those to even more. The outrage is growing but if it will amount to anything is yet to be known.Harpers/ Scott Horton, Greenwald at Salon