It’s Called a War Crime

via Glenn
Greenwald

If you read one article today, this one is it. The blog posts across the web are equally important.

Orin Kerr notes that John Yoo’s torture memo sounds very lawyerly in its arguments. This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. (Oh, and they also decided a Presidential election using the flimsiest of legal reasoning. But I digress.). The Legality of Evil: The Torture Memos and the Living Constitution

In 2003, the Bush Justice Department opened the floodgates for a massive overreach
on executive authority that allowed torture to become part of the American war
effort in Iraq. The 81-page memorandum (pdf here
and here
– via Glenn
Greenwald) by John Yoo, who was the second-ranking official at the
Office of Legal Counsel, was the author. The declassification of Yoo’s handywork
challenges us all to read and understand what we’re going to allow in our fight
against terrorists who threaten our country. It was Yoo’s memo in ’03 that led
the leaders of this country down a road that has led to more dangers for us
all, because it obliterated our standing in the world and destroyed our moral authority. No single act has caused us more problems in Iraq and the world than the moment the U.S. government openly embraced torture. From
the Times:

Some legal scholars said Tuesday that they were amazed at the scope of the memorandum. “This is a monument to executive supremacy and the imperial presidency,” said Eugene R. Fidell, who teaches military justice at Yale Law School and the Washington College of Law at American University. “It’s also a road map for the Pentagon for fending off any prosecutions.” The memorandum gave the military broad latitude to use harsh interrogation methods. It reasoned that federal laws prohibiting assault were not applicable to military interrogators dealing with members of Al Qaeda because of White House authority during wartime. It also argued that many American and international laws would not apply to interrogations overseas. “Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context,” it reads. Justice Department lawyers later rescinded both Mr. Yoo’s memorandum and the similar one written for the C.I.A. in August 2002.

This will be the legacy of George W. Bush:

Similar to the document written for the C.I.A. in August 2002, Mr. Yoo’s memorandum offered a narrow definition of what constitutes torture. “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result,” Mr. Yoo wrote.