Wednesday, April 02, 2008

John Yoo's 2003 Memo Allowing Torture

ACSBlog reports. "The Washington Post reported this evening on the declassification and release of an 81-page memorandum written by former Deputy Assistant Attorney General John Yoo and issued on March 14, 2003 on 'the Military Interrogation of Alien Unlawful Combatants Held Outside the United States.' This memo is different from the already publicly available 'torture memo,' written in 2002, in that the 2003 memo focused on interrogation techniques to be used by the Department of Defense, whereas the 2002 memo focused on techniques to be used by the CIA . The Pentagon interrogation memo argues 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.'" The memo is in two pdf parts: 1 and 2.

Kevin Drum describes it. "Basically, it says that criminal law doesn't prohibit torture because it doesn't apply to the military. Treaties don't prohibit torture because they only apply to uniformed enemy soldiers. Ditto for the War Crimes Act. And federal statutes prohibiting torture don't prohibit torture because they don't apply to conduct on military bases. We already pretty much knew that this was what the memo said. But Yoo doesn't stop there. Not only do none of these things apply, but there's no way to make them apply even if we wanted to." He says congressional laws and treaties don't apply because the president is commander-in-chief and is acting to defend the nation. In Yoo's theory, presidential power has no limits. He's now teaching law at Berkley.

The Office of Legal Counsel is part of the Department of Justice and advises the executive branch on what they can and cannot do. It's head is an Assistant Attorney General. Marty Lederman points out that "On Friday, March 13, 2003, Jay Bybee resigned from his Office as the Assistant Attorney General for the Office of Legal Counsel, to become a judge on the U.S. Court of Appeals for the Ninth Circuit. The very next day -- a Saturday, mind you -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo."

"Think about that: Either Jay Bybee -- who actually signed the August 2002 torture memo concerning the CIA -- did not know of this explosive memorandum, or it was so implausible that Bybee refused to issue it to the Pentagon. And as soon as he was quite literally out the door, John Yoo did not hesitate to issue the opinion on a weekend, presumably bypassing the head of the office (Acting AAG Ed Whelan) and the Attorney General. (I am assured that Ed had no involvement in this matter.)"

Lederman also asks, why this memo was classified. "The classification of this memo was entirely unjustifiable. And it's fairly outrageous that Congress didn't release it when they received it. The classification and oversight systems are hopelessly broken." Apparently it references other, still unreleased memos and he thinks Congress needs to demand to see them immediately. He also wants to know what other officials (say, oh, above Yoo) knew about this memo.

On this point that Congress and the media blew the oversight, Glenn Greenwald adds that "Yet again, the ACLU has performed the function which Congress and the media are intended to perform but do not. As the result of a FOIA lawsuit the ACLU filed and then prosecuted for several years, numerous documents relating to the Bush administration's torture regime that have long been baselessly kept secret were released yesterday." He's goes on to say that Yoo acted (and succeeded) to enable illegal torture and that makes him and other high officials war criminals.

The really sorry part is this wasn't just an academic exercise. We tortured innocent people. 60 Minutes has the story of Murat Kurnaz. "At the age of 19, Murat Kurnaz vanished into America's shadow prison system in the war on terror. He was from Germany, traveling in Pakistan, and was picked up three months after 9/11. But there seemed to be ample evidence that Kurnaz was an innocent man with no connection to terrorism. The FBI thought so, U.S. intelligence thought so, and German intelligence agreed. But once he was picked up, Kurnaz found himself in a prison system that required no evidence and answered to no one."

He was picked up from a bus in Pakistan by a Pakistani cop who got a $3,000 bounty from the US for suspicious foreigners. He was taken to a US base in Kandahar, Afghanistan and then to Guantanamo. He was tortured. Kept outside in sub-freezing temperatures, beaten while his head was held underwater, electrocuted, hung by chains from the ceiling for 5 days, not allowed to sleep for weeks, put in solitary for a month, etc. He was held for close to 5 years before being released. When the sham military tribunals started, his lawyer found a secret government file saying "criminal investigation task force has no definite link [or] evidence of detainee having an association with al Qaeda or making any specific threat toward the U.S." and he was still held for 3.5 years after that was written. And still he didn't get justice from our legal system. "The break in Kurnaz’s case came when the German chancellor asked President Bush for his release." Kurnaz wrote a book on his experience, Five Years of My Life: An Innocent Man in Guantanamo, just published yesterday.

So when do we impeach this administration and try them for war crimes?

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