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February 14, 2005

Berkeley's Professor Yoo Strikes Again...

Michael Froomkin reports:

Discourse.net: A Reader Writes In About Yoo and Torture: A reader writes in to say, "You MUST read Jane Mayer’s ‘Outsourcing Torture’ in the New Yorker. Get a load of what Yoo’s saying now:"

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Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation¡’s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn’t have the power to ‘tie the President’s hands in regard to torture as an interrogation technique.’ He continued, ‘It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.’ If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bush’s victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was ‘proof that the debate is over.’ He said, ‘The issue is dying out. The public has had its referendum.’

In other words, ‘a vote for Bush is a vote for torture.’ Jesus H. Christ, he actually SAID it.

As Constitutional doctrine it’s not just offensive, it’s also fairly silly. Congress has several Article I powers, not least the power to regulate the armed forces, which make it clear that it has the power to prevent torture. And then there’s the power to implement treaties, which the Constitution itself says are the highest law, equivalent to the Constitution itself...

Posted by DeLong at February 14, 2005 05:03 PM

Comments

I think Yoo's correct (as to the President, personally), but here's my problem --

As an interrogator who's received an order from the President to torture a subject, am I then free to violate the laws and treaties adopted by the Congress?

Posted by: Ellen1910 at February 14, 2005 05:53 PM


Whatever definition anyone previously had in mind for the concept of "tyranny of the majority," junk it and use Yoo's explanation instead. If the 51% vote to torture the 49%, it's fine.

Posted by: P O'Neill at February 14, 2005 06:39 PM


Hey Brad, does it feel creepy to be Yoo's colleague? Where I am I'm sure there are psycho characters in the woodwork, but to be a colleague of such an openly famous creep must be weird for you.

Posted by: Mandos at February 14, 2005 07:27 PM


Oh fine.

"Yoo-hoo, I want to torture some people now. Zat OK with Yoo?"

"Oh sure. If you want to do ANYTHING, it's OK."

"Kewl!"

Do what Yoo will, will be the whole of the law.

Posted by: Anton LaVey at February 14, 2005 07:59 PM


"He said, ‘The issue is dying out. The public has had its referendum.’

In other words, ‘a vote for Bush is a vote for torture.’ Jesus H. Christ, he actually SAID it."


Will someone tell me what the hell else we voted for during the last presidential election?

The magic "referendum" list is getting long.

How much more of this crap are we going to hear?

Posted by: Movie Guy at February 14, 2005 08:01 PM


somewhere out there is a blog post noting that the Bush administration is no longer just fighting the twentieth century; they are now citing with King John in the debate whether the king is above the law. Prof. DeLong, your collegue has taken King John's side in this...

Posted by: TomFreeland at February 14, 2005 08:38 PM


Movie guy: "Will someone tell me what the hell else we voted for during the last presidential election?"

I thought it was a referendum on whether windsurfing was a more manly hobby than clearing brush, but what do I know, I read newspapers, magazines, etc., so I must be clueless.

As for Dr. Yoo, the only thing I can think of as I shake my head to an fro is "shame on Yoo!"

Posted by: mrjauk at February 14, 2005 10:11 PM


This interesting factoid from Yoo's Berkeley web page: he's preparing a book-length version of the torture memos, to be published sometime this year by the U. of Chicago Press.

Are any of his students blogging?

Posted by: ozoid at February 15, 2005 01:33 AM


What does that mean -- "a book length version" of the torture memos? His after-the-fact justifications for blithely authoring the memos in the first place?

I'm very puzzled by the "referendum" re-casting of the act of voting for presidential candidates. If this is the way such votes are going to be used in future elections, I want to vote for the platform and policies, rather than for the man. Let's just get rid of the president.

Posted by: Aunt Deb at February 15, 2005 05:24 AM


As an interrogator who's received an order from the President to torture a subject, am I then free to violate the laws and treaties adopted by the Congress?

Any US servicepeople reading this weblog will doubtless be aware that under the Nuremberg principles, "Obeying orders" is not a defence against war crimes charges unless they were in a situtation where no genuine moral choice was possible. But it's probably best reminding them anyway.

Posted by: dsquared at February 15, 2005 05:49 AM


Yoo's statement that the Commander in Chief is above the law is "fairly silly" in the same way that the Nazi legal doctrine of the infallibility of the Fuhrer was silly. The doctrine of the inherent power of the CinC has been in development among right-wing lawyers for a generation, courtesy of the Federalist Society, and the young lawyers who were brought up on it are now judges, professors, and high officials, including the AG. Of course it's silly but it's well on the way to becoming the law of the land.

Posted by: jr at February 15, 2005 06:31 AM


Ellen1910, Obeying a criminal order is also a crime. However, our legal system severly punishes the military for failure to obey orders. One affirmative defence for war crimes is to assert that you were obeying orders you thought were lawful. I'm surprised that none of the abughirab gang got off with that defence (if they actually used it).For further details you might want to look at the Nuremburg Trials after WW2.

Posted by: Peter at February 15, 2005 06:56 AM


This is a horrifying article. It begins with a description of the "extraordinary rendition" of a Canadian citizen, Arar, and proceeds to explain that we have had this program for many years. It was operated by the CIA, and focused on picking up people who were under sentence from other nations, and who might have intelligence useful for us.

After 9/11, it was put into use for anyone the government, particularly the CIA, thought might have something useful, whether or not they were under sentence.

The program seems a lot like what many hawkish liberals, including myself, thought was a good idea, the idea of having a program that would operate like some Tom Clancy version of the Mossad, or the Soviets, where the good guys would get the bad guys out of the way without much regard for the niceties.

The problem is not the fantasy that somehow our CIA knows who the bad guys are. The problem is reality: we are a nation of laws, we don't know who the bad guys are, and worst, it doesn't work. All of these points are made clear in the article.

The election was a referendum: fantasy vs. reality. Fantasy won.

Posted by: masaccio at February 15, 2005 07:02 AM


"The doctrine of the inherent power of the CinC has been in development among right-wing lawyers for a generation, courtesy of the Federalist Society, and the young lawyers who were brought up on it are now judges, professors, and high officials, including the AG. Of course it's silly but it's well on the way to becoming the law of the land."

Exactly. Anyone who thinks that universities are hotbeds of unbridled leftism has never been to law school.

Posted by: moniker at February 15, 2005 07:21 AM


Doesn't the President have the power to make treaties? Which means the argument could be made that he has the authority to contravene them, as well - including the Geneva Convention. Of course I'm legally ignorant, so this is just pulled out of my butt...

[Make treaties, but only with the advice and consent of the Senate]

Posted by: saurabh at February 15, 2005 08:59 AM


The election was also a referendum on the choice between being a citizen or being a serf. Serf won.

Posted by: mas at February 15, 2005 09:01 AM


Yoo is truly frightening. Consider this from Jane Mayer's New Yorker article on extraordinary rendition:

"Why is it so hard for people to understand that there is a category of behavior not covered by the legal system.... Historically there were people so bad that they were not given protection of the laws.."

Serial killers are given the protection of the laws. The Nazi leadership was given a trial. How does Yoo define this mysterious category? And equally important, how does he decide that someone fits into it without any sort of fact-finding procedure that permits the subject to challenge the categorization?

Yoo goes on to say that Congress "can't prevent the President from ordering torture." In effect he advocates the position (as does Gonzales) that there are simply no limits, other than impeachment, on the President's power.

These people are terrifying.

Posted by: Bernard Yomtov at February 15, 2005 09:08 AM


"Historically" in the sense of "before the concept of the Rule of Law" had been thought up, and formalized with the Magna Carta. See: King John.

Posted by: Auros at February 15, 2005 10:40 AM


saurabh, treaties have to be ratified by the Senate to be binding on the United States, but ratified treaties are binding law. The president can't contravene them any more than he can set aside federal law or the US Constitution. Of course, the new authoritarians don't see it that way...

Posted by: moniker at February 15, 2005 11:34 AM


Posted by: at March 14, 2005 03:31 PM


Posted by: at March 14, 2005 03:32 PM