The Yoo Memo

Glenzilla has a piece up that is so scathing it will singe your eyebrows when you read it:

That John Yoo is a full professor at one of the country’s most prestigious law schools, and a welcomed expert on our newspaper’s Op-Ed pages and television news programs, speaks volumes about what our country has become. We sure did take care of that despicable Pvt. Lyndie England, though, because we don’t tolerate barbaric conduct of the type in which she engaged completely on her own.

Memeorandum round up here.

I have not read the entire memo, and to be honest, it would be pointless for me to do so with no legal training. My unlearned interpretation of the memo would most resemble a monkey fucking a football, so I have to rely on what legal experts I trust say. From what I understand from Balkin, Greenwald, and others is that the memo is breathtakingly brazen in the scope of authority it asserts for the President, but that there is nothing really surprising in the memo. Everything we sort of expected it would say is there.

What a shame this administration has put this country through this. What a shame they have dragged us down to the level of morality as a two-bit dictatorship. One last thing of interest from Balkinization:

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.

When you hear the right-wing defend this memo over the next few weeks, months, and years, put two and two together. Fifty years ago, these hacks would have been defending segregation. They are more than likely the same folks defending the current legal excesses created by the never-ending War on Drugs. It is a point worth making, and a point worth remembering.






94 replies
  1. 1
    Lee says:

    From the comments over at Glen’s I got this article.

    Yoo realizes he could be held responsible as a torturer

    Yoo was well aware of the torture convention. However, when I raised the Pinochet precedent in our debate, he seemed slightly taken aback.

    It seems he may not have turned his mind to the possibility that a legal adviser associated with a policy that permits torture contrary to international legal obligations could be subject to international investigation

    If only….

  2. 2
    Wilfred says:

    The people being tortured are brown-skinned Muslims. No one ever seems to want to mention that but they are the unspecified subjects of these memos. As for Yoo, so fucking what? We sat here while Democratic Party controlled Senate approved Mukasey as Attorney General and few people raised an eyebrow.

    The tortured people are Muslims – their oppressors are the Christian/Zionist axis that either implements these oppressive actions or stands in the shadows while they are put into place.

  3. 3
    jake says:

    My unlearned interpretation of the memo would most resemble a monkey fucking a football

    You’d still be ahead of Johnny Torture Yoo. The long words, case cites and sprinklings of Latin are a thick layer of razor-laced bullshit meant to deter anyone who wants to know what the fuck is going on.

  4. 4
    Dork says:

    is that the memo is breathtakingly brazen in the scope of authority it asserts for the President

    Sorry, I’m just a dork, but I just dont get this. Does this mean the President can do whatever the fuck s/he wants, as long as a hand-picked crony from the executive branch writes a note saying s/he can?

    Seriously, WTF? If Yoo tells him tomorrow that, as CoC, he can suspend elections, does this give him legal cover to do so?

    My stomach actually hurts thinking grown, educated men are adovacting something so unbelieveable.

  5. 5
    Redhand says:

    It isn’t pleasant to think about high government officials in one’s own country as war criminals — that’s something that only bad, evil dictatorships have — but, pleasant or not, it rather indisputably happens to be what we have.

    I’m an immigration lawyer who periodically represents victims of torture by 3rd countries in asylum claims here. The fact that we are doing the same thing is extremely demoralizing, not to mention being morally and legally repugnant.

    How Mr. Yoo became a law professor, at Berkley no less, is a mystery. D’oh, isn’t Berkley supposed to be “liberal?”

    Yoo, Addington and Gonzo remind me of the Nazi jurists and lawyers who bent over backwards to justify the Hitler regime’s across the board human rights violations and war crimes. Needless to say, a grand old flick like Judgment at Nuremberg couldn’t be made in America today.

  6. 6
    sparky says:

    thanks, John, for posting this.
    i haven’t read the memo yet so i don’t have anything to say about it specifically, but i do want to say this:

    the Bush adminstration legal theory boils down to this: the US elects a dictator every four years. there is nothing, i repeat NOTHING that can stand in the way of the President. not laws, not Congress, not the Court, not the Constitution and not the people. the attitude is, well, you just go ahead and try to stop us. it is unfortunate that the press has been too [insert your adjective here] to inform the public that they have lost their Constitution.

    there is an old law school joke about how many divisions the Supreme Court has. everyone now knows that the answer is none, if the Court disagrees with the Chief Executive. (i think it’s time to stop calling that person President, as that’s not what he or she is).

  7. 7
    annagranfors says:

    re: Memorandum round-up–

    one will note that there are few, if any, of our wingnut bloggy pals posting on this. you’d think at least a few would be on hand to proclaim Yoo a “Great American” or some other such Nazi cheer.

    the Hague, goddammit. the HAGUE.

  8. 8
    Xenos says:

    Call it what it is: Monarchism.

    Yoo and the Bushies are not just anti-constitutional, they are counter-revolutionary. Time to set up some re-education camps.

  9. 9
    jake says:

    Sorry, I’m just a dork, but I just dont get this. Does this mean the President can do whatever the fuck s/he wants, as long as a hand-picked crony from the executive branch writes a note saying s/he can?

    According to Yoo, yes.* According to the law (including those of this country) No. That’s why Baby Yooie had to go into his Self-Defense dance while the chorus sang They want 2 kill U! Even he knew that torture whenever we feel like it would “shock the conscience.” Of course, since you COULD argue anyone one who gets arrested for anything MIGHT be a terrists he essentially said we can torture whenever we feel like it.

    *YMMV if the president in question is a Democrat.

  10. 10
    sparky says:

    Xenos: interesting and non-academic question. might it not be a fascism variant?

  11. 11
    jon says:

    A Presidential Pardon makes it impossible to plead the 5th, since there’s no threat of legal action. There will be some interesting Congressional hearings in 2009. A pardon doesn’t mean jack at the Hague.

    Black ops flights to Belgium! Book your ticket now, Shrub.

  12. 12

    one will note that there are few, if any, of our wingnut bloggy pals posting on this. you’d think at least a few would be on hand to proclaim Yoo a “Great American” or some other such Nazi cheer.

    They haven’t gotten their talking points yet.

    I’ve noticed this before in memeorandum. When a negative story like this comes out there is a period of a few hours where there is no right-wing commentary. Then suddenly there is an explosion of comments all saying essentially the same thing. I bet you could trace these explosions to the arrival of an email from Heritage or some other right-wing think tank.

    Just wait….

  13. 13
    PK says:

    The video of Yoo justifying crushing children’s testicles is chilling.

  14. 14

    A Presidential Pardon makes it impossible to plead the 5th, since there’s no threat of legal action. There will be some interesting Congressional hearings in 2009. A pardon doesn’t mean jack at the Hague.

    Don’t count on those hearings. If Democrats following SOP they will unilaterally declare on the day after the election that we should “put this all behind us” and “move on”.

    Who wants to take bets on whether Obama or Clinton would eventually pardon Bush and/or Cheney?

  15. 15
    Dennis - SGMM says:

    The video of Yoo justifying crushing children’s testicles is chilling.

    That’s nothing. Wait’ll you see the video of Yoo showing up at the Cabinet meeting with a basket of kittens and note authorizing kitten-skull-fucking.

  16. 16
    sparky says:

    the silence is odd. there isn’t even any rebuttal by the most notorious trolls at Balkinization.

    presumably, they will (1) gin up a fog of impressive sounding but substantively thin legal arguments and (2) make appeals to emotion–wouldn’t you hurt someone if your X was in danger?

    why go with something new? the goalposts have already been moved so far to the right that it’s barely worth the effort for them.

  17. 17
    Xenos says:

    I am no expert in this stuff, but my understanding is that fascism has to be understood as a modern phenomenon, just like Leninism or Stalinism. The autocratic power of the modern authoritarian executive resides in their being a focus of all the power of the people, whether we are talking about the proletariate or a national group.

    Bushism strikes me as something else, more like a rejection of the American Revolution itself, in that any legal or bureaucratic restraints to executive power are stripped away based on the exact sort of public safety concerns that the Tudors and the Hanovers (Hanoverians?)used to crush opposition.

    There may be no real, useful modern/pre-modern distinction to be made here. But at a time when accusing these ultra-conservatives of being fascists gets no traction, perhaps we should develop a specifically American critique of Bushism.

  18. 18
    MNPundit says:

    If I ever were to become president I would immedietly place Yoo, Wolfowitz, Rummy and Feith on a plane to Germany and let them be arrested, tried, convicted, and sentenced to war crimes.

  19. 19
    Xenos says:

    They haven’t gotten their talking points yet.

    Volokh.com has made some really half-hearted efforts at getting all meta about this, but that is all I have found so far.

  20. 20

    Ed Morrison of Hot Air takes a first stab at a right-wing response to the Yoo memo. My quick read of his post is that he doesn’t even try to defend the content of the memo, he just attacks the reporting on it for suggesting that the memo actually had anything to do with the real policy of the United States during that time.

    In other words, “the memo was meaningless anyway so why bother talking about it?”

  21. 21
    linda says:

    why isn’t the aba doing something about this? it’s inexplicable and beyond disgraceful that yoo — hell, too many of the bush war criminals — have ended up at the most elite universities.

    what i don’t understand is why the lawyers’ professional organizations have stood by while these crimes have been committed. perhaps they could learn something from their pakistani brethren about taking a stand.

  22. 22
    Dennis - SGMM says:

    In other words, “the memo was meaningless anyway so why bother talking about it?”

    Tell that to the kittens, Ed.

  23. 23

    And Macranger follows Ed’s lead by saying it is “much ado about nothing”.

  24. 24
    sparky says:

    Xenos:
    i agree with your assessment, but i would argue that Bushism is more like fascism than monarchy for this reason: the ruler lacks power until the ratification (election), which is, after all, is still a popular event. thus, in Bushism, all power derives from the people.

    OTOH monarchy is often associated with an external source of legitimacy, such as the right of kings, divine authority, etc.

    and it would be worthwhile to call it a distinct political movement. descriptively, i like oligarchic authoritarianism but that’s just me. Bushism will do just fine.

  25. 25
    Xenos says:

    why isn’t the aba doing something about this?

    The ABA, as a group, does not regulate the practice of law. The states do that.

    From what I hear from people going to the ABA conferences, though, is that these are providing a tremendous amount of discussion within the profession, and is fueling a lot of the intellectual work that will eventually bring people to justice.

  26. 26
    Dennis - SGMM says:

    i like oligarchic authoritarianism but that’s just me

    I insist that we work in “kleptocracy” somewhere.

  27. 27
    Wilfred says:

    You’re all missing the point. Does anyone think that Jacobin policies like the one Yoo advocated or the ones the Bush Administration put into action would have arisen if the target population were one of those groups classified as human?

    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.

    In each one of those cases the abused party was by definition of lower ontological status than the abuser – Native American, African, Woman – they have all passed through their status as nigger. No one can inflict such cruelty and horror on a fellow human being – only on a savage. The new nigger is the Muslim, and until we all start to recognize that fact this sort of abuse will continue. Greenwald, for all his good intentions, seems incapable of recognizing that Muslims, and only Muslims, have been on the receiving end of the brutality he opposes. Why? Why is it so difficult to recognize this? It is always placed in an abstract tone, as if it was not happening to a very specific group of people.

  28. 28
    Andrei says:

    As was mentioned in the comments section of Balkinization, part of the this entire problem imho is the continued thought and discussion of the issue in the context that we are at “war.”

    We are not.

    The AUMF is not a declaration of war. It is a bill that gave the executive branch a means to act, but it is not war.

    This entire fiasco has been marketed as war, talked about in the press as war, promoted and propaganzied as war.

    But we are not at war as declared by Congress, the only legal body in this country to do so.

    By discussing this entire fiasco using the language of the neocons and rightwing idiots, that we are somehow at “war” when we are not, has enabled all of this bad behavior.

    The executive branch of this government only gets extraordinary powers to do whatever necessary to protect this country when we are at war, after basically being given permission to do so by Congress which is a large body that effectively represents the will of the people. Since we are not at war, stop giving them the means to propagate all this vile behavior.

  29. 29
    cbear says:

    i like oligarchic authoritarianism but that’s just me

    I insist that we work in “kleptocracy” somewhere

    Oligarchic Authoritarian Assholism is my take on the movement.

  30. 30

    Yoo:

    Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.

    “Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.

    It suddenly occurs to me that the reason Bush & Co. could express outrage over the Abu Ghraib photos without breaking their hypocrisy bone was because they weren’t outraged about the mistreatment of the prisoners. They were outraged that the guards in the pictures were shown to be smiling and giving thumbs-up. Lyndie England and her compatriots were prosecuted for “malice and sadism”, not for the torture.

  31. 31
    jake says:

    It is always placed in an abstract tone, as if it was not happening to a very specific group of people.

    So: “Because John Yoo advocates torture, I’d like to crush his testicles,” bothers you, while “Because John Yoo advocates torturing Muslims, I’d like to crush his testicles,” doesn’t. Why?

    You’re not saying you’d be less bothered if the victims were WASPs, so what exactly are you saying?

  32. 32
    Bubblegum Tate says:

    presumably, they will (1) gin up a fog of impressive sounding but substantively thin legal arguments and (2) make appeals to emotion—wouldn’t you hurt someone if your X was in danger?

    Also: “This is just baseless attacks by people so consumed by hatred of Bush that they think any action taken to protect America is a war crime.”

    I expect good ol’ Mark Noonan to be out in front with that one.

  33. 33
    Garrigus Carraig says:

    I have taken it for granted for some time that the architects of the current torture regime will not be able to travel abroad once they leave office. How awesome it would be if one of them forgot, ten, fifteen years down the line, only to be detained at the bottom of a Swiss ski-slope!

    Yeah, that’s a pretty thin gruel of awesome.

  34. 34
    Wilfred says:

    What I’m saying is that as long as the victims remain a generic ‘Other’ their suffering remains abstract. Imagine a prisoner on death row only referred to as convict A, without identity, person or history. Would it be the same if he she were treated as a rounded historical subject?

    I hate oppression and tyranny of any sort, administered by anyone or to anybody. My feeling here is that for some reason we don’t want to recognize that all this current abuse has been cooked up, targeted at and used against a very specific group of people. Recognizing who they are, treating them with the goddamned courtesy of describing who and what they are and why that has made them targets in the first place, would go a long way towards humanizing them and revealing the inhumanness of what, to most people, is an exercise in lawyering or political wanking.

    There are a million books on ethics. They have to be re-written, or re-read, every time the oppressor discovers a new nigger to lynch.

  35. 35
    Scrutinizer says:

    The AUMF is not a declaration of war. It is a bill that gave the executive branch a means to act, but it is not war.

    I suggest you go back and re-read the AUMF, particularly the section that reads

    (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

    The War Powers Resolution is the vehicle Congress uses to exercise it’s Constitutional responsibility to declare war:

    SEC. 2.
    (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.
    (b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all otherpowers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
    (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

    and section 5b1 of the War Powers Act says basically that a declaration of war is equivalent to a Congressional authorization for the use of force.

    Some presidents have said that they felt the WPA was unconstituional, but that’t because they feel that the WPA infringes on their responsibility as CiC. The constitutionality of the WPA has not been tested in court, so for now it is authoritative.

  36. 36
    sparky says:

    Wilfred:
    i agree, but only up to a point.
    first, targeting a religion is a difficult business so necessarily you can’t sweep everyone in that way (in other words, there are WASPy-looking Muslims). second, and more importantly, IMO, is that what you are describing is a system where the privileged group is left alone, so to speak. the difference here is that there is no privileged group–anyone can be muzzled or swept off the street. finally, the other explicit difference is that this is an explicit change without any fig leaf of explanation or justification. in other words, even if you wanted to compare, say Jim Crow, the problem is that a defender could always fall back on “separate but equal” as a rationale. here there is no rationale, just the reordering of power. so while i agree there are some similarities, i think your analysis misses the forest for the trees.

  37. 37
    sparky says:

    shorter me: we are all other now.

  38. 38
    Scrutinizer says:

    What I’m saying is that as long as the victims remain a generic ‘Other’ their suffering remains abstract. Imagine a prisoner on death row only referred to as convict A, without identity, person or history. Would it be the same if he she were treated as a rounded historical subject?

    I hate oppression and tyranny of any sort, administered by anyone or to anybody. My feeling here is that for some reason we don’t want to recognize that all this current abuse has been cooked up, targeted at and used against a very specific group of people. Recognizing who they are, treating them with the goddamned courtesy of describing who and what they are and why that has made them targets in the first place, would go a long way towards humanizing them and revealing the inhumanness of what, to most people, is an exercise in lawyering or political wanking.

    There are a million books on ethics. They have to be re-written, or re-read, every time the oppressor discovers a new nigger to lynch.

    Hear, hear!

  39. 39
    jake says:

    Recognizing who they are, treating them with the goddamned courtesy of describing who and what they are and why that has made them targets in the first place, would go a long way towards humanizing them and revealing the inhumanness of what, to most people, is an exercise in lawyering or political wanking.

    Then describing them as “Muslim” doesn’t get you any further. You’ve just made them slightly less “generic” and to the average knucklehead you’ve made them much more “other.” What you really want is details about the individual prisoner. “Ten cab drivers are locked up in Gitmo. Two dozen kids were taken to Gitmo before they turned 15.”

    Why do you think it’s so hard to get information about the individual prisoners. “Cab drivers? No, no. These are Bad Guys.”

    But the reason non-knuckleheads talk about torture in what you call “the abstract” is because it doesn’t matter who is getting worked over with a rubber hose. The fact that it is another human being is enough for some people. The fact that the human being could well be them (if the pResident deciderates it should be so) is enough for others.

  40. 40
    Scrutinizer says:

    Shorter me:

    I agree, sparky, that the end result is a reordering of power, but that reordering is usually accompanied by an appeal to prejudice (the fugitive slave act, the deportation of Japanese on the east coast, the PATRIOT act), or by an appeal to protect the children (the WoD). All these are justified by war against the other (blacks, japanese, little brown guys) but end up having ripple effects throughout society.

    Still, there’s much to be said for your assertion that BushCo is motivated primarily by authoritarianism for its own sake.

  41. 41
    Katherine says:

    No, John! Don’t make this a dispute among experts; the Constitution is all of ours. If you read the text, which is not very long, you will find that article I states that Congress has the power to make the rules governing captures on land and water; Congress has the power to make rules governing the armed forces; and Congress has the power to define & punish violations of the law of nations. To argue that it’s unconstitutional for Congress to outlaw torture of captives by the armed forces doesn’t pass the laugh test, and Yoo has no non-laughable argument for it.

  42. 42
    linda says:

    xenos — thank you for that reply. perhaps there is some hope that these criminals will be held accountable.

  43. 43
    sparky says:

    nb: don’t make too much of the memo’s being written in the third person (abstractness). that’s the standard style for legal memo writing: dispassionate, analytical, without reference to the meaning of the facts it discusses. it would be odd if it had a different style.

  44. 44
    Calouste says:

    Chief Executive. (i think it’s time to stop calling that person President, as that’s not what he or she is).

    There is historical precedent for using the term “The Leader”.

  45. 45

    I wished I had some pithy remark for you, but the only thing that plays over and over in my mind is that I would not be disturbed if a video of Yoo standing on a trapdoor with a noose around his neck appeared on Youtube. War criminals deserve no mercy. None.

  46. 46
    sparky says:

    Scrutinizer:
    Not to get all warm and fuzzy, but I agree with your point. Mostly. I’d say that in this case the GWOT functions as the lever or entry point to force all of this stuff in. So in that sense yes we still have an “evil, other, enemy out to destroy us” argument at work. But the people running the show were advocating this kind of power long before 9/11. See, e.g., Cheney’s Iran-Contra report in the late 1980s.

  47. 47
    Dennis - SGMM says:

    There is historical precedent for using the term “The Leader”.

    And a comedic precedent for using the term “Fearless Leader.”

  48. 48
    Jay B. says:

    I second Kathleen, John. The language Yoo uses isn’t particularly difficult to follow. Yoo’s logic is shallow and his reasoning juvenile.

    Balkin said this shit would have gotten a first-year law student a failing grade. It’s written as to be unmistakable (after all, Bush had to understand it).

  49. 49
    Andrei says:

    (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

    When reading section 5b of the WPA:

    (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

    Again… technically, we are not at War since Congress has not declared as such. We are in a continued state of the Congress giving the President authorization to use force to “protect” us, and that’s also partly why it was so important for Congress to deny funds to this President last year. It would have been one means to stop the action of this administration without technically removing his authorization to use force. It would have forced the Presdient to figure out a different way to “protect us” without being in a continual state of “war.”

    If Congress had the balls however, they’d simply remove their authorization and force the President to make the case for having them declare war.

    That’s not the issue though with regard to things like the Yoo memo. I’m no lawyer obviously, but my reading of the contents of it seems to suggest that a large portion of it’s internal logic relies more on being in a state of war or inherent danger. It’s entire means of existence is making claims that one must do whatever necessary to preserve oneself.

    We as a country are not in that state of inherent danger and never have, no matter how tragic 9/11 was or how problematic more attacks of that kind might be possible to this country. we only “appear” to be so because we let way too many talk about our current situation as a “war” when it is in fact nothing of the sort.

  50. 50
    cbear says:

    You’re all missing the point——-In each one of those cases the abused party was by definition of lower ontological status than the abuser – Native American, African, Woman –——-they have all passed through their status as nigger—–Why? Why is it so difficult to recognize this? It is always placed in an abstract tone, as if it was not happening to a very specific group of people.

    Actually no, I don’t think we’re missing the point at all, nor is Greenwald.

    The point is that lawlessness and brutality and inhumanity are traits that seem to be inherent in the human DNA, and it is only through the constraints of law that we as a people, a society, a nation, are able to function in a manner that protects us, however minimally, from those that have no humanity.
    Once those constraints are gone, or weakened, our society will inevitably degenerate into the Animal Farm—ruled by the Lord(s) of the Flies.

    The point that you seem to be missing is: once that process become complete, we are ALL the new niggers, and it becomes pointless to argue who is being more unfairly treated.

  51. 51
    Bubblegum Tate says:

    There is historical precedent for using the term “The Leader”.

    Wingnuts (via The Simpsons): “The Leader is good, The Leader is great, we surrender our will as of this date!”

  52. 52
    Dennis - SGMM says:

    That Yoo’s language was jejune, his logic absent and his premise lacking in precedent meant nothing. He was telling Bush what Bush wanted to hear; “Your Commander in Chief Super Powers trump every law of the land.”

    Didn’t Mukasey recently cite this memo among others as the grounds for his not prosecuting anyone for torture? It’s a closed system, one part of the administration writes a Get Out of Jail Free card then the other parts honor it.

  53. 53
    cbear says:

    Wilfred–
    I should have added— with all due respect—to my above comment.

  54. 54
    Jen says:

    so I have to rely on what legal experts I trust say.

    I’m a little hurt you didn’t wait for my opinion. :(

    Okay, Glenn’s a better lawyer than I am, but I have a little stamp with my name on it, so nyah.

  55. 55
    Dennis - SGMM says:

    I’m a little hurt you didn’t wait for my opinion.

    We were afraid that you’d add it to our billable hours!

  56. 56
    jrg says:

    How Mr. Yoo became a law professor, at Berkley no less, is a mystery. D’oh, isn’t Berkley supposed to be “liberal?”

    Yes, and for that reason, we must have affirmative action programs for conservatives. It’s important that we have science professors that teach kids the world is 6,000 years old, and it’s important that we have law professors that argue that torture is legal.

    Because we all know that every idea is of equal merit, no matter how many times the idea has been debunked. To say otherwise is downright bigotry. Of course, the moral relativists on the left will never understand this.

    It’s impossible to defend an illegal argument in legalese, just as it’s impossible to make a theological argument couched in scientific parlance.

  57. 57
    Jen says:

    We were afraid that you’d add it to our billable hours!

    I consider my insights here to be pro bono, but I should find a way to at least get a tip jar…

  58. 58
    qwerty42 says:

    There are a number of links over at TPM on this; one link is to an article by Phillippe Sands at Vanity Fair. A good deal of research, especially on Guantanamo. It is interesting how it ends:

    In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

    “It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”

  59. 59
    Xenos says:

    Okay, Glenn’s a better lawyer than I am, but I have a little stamp with my name on it, so nyah.

    I would have asked for your opinion, Jen, but as the memo is 82 pages long I am afraid you would send me a bill for reading it and analyzing it.

  60. 60
    Dennis - SGMM says:

    I consider my insights here to be pro bono, but I should find a way to at least get a tip jar…

    I very much appreciate your insights and your generosity in sharing your knowledge of the law with us. I know nothing but I do share my ignorance freely. It’s part of my pro Bozo work.

  61. 61
    Teak111 says:

    Damn, I just grew these eyebrows back from the last Glenzilla piece. Glenzilla hates eyebrows.

  62. 62
    cbear says:

    I consider my insights here to be pro bono, but I should find a way to at least get a tip jar…

    Sorry Jen, I’d like to throw you a few shekels, but my attorney’s (Dewey, Cheatam & Howe) billable hours have already exceeded my income.

  63. 63
    PeterJ says:

    There is historical precedent for using the term “The Leader”.

    I want to know if we’re allowed to use “Dear Leader”.

  64. 64
    jenniebee says:

    If I ever were to become president I would immedietly place Yoo, Wolfowitz, Rummy and Feith on a plane to Germany and let them be arrested, tried, convicted, and sentenced to war crimes.

    Well, you’ve got my vote.

  65. 65
    Jim says:

    “What a shame this administration has put this country through this. What a shame they have dragged us down to the level of morality as a two-bit dictatorship.”

    Let’s not forget the 55-million-and-something living, breathing piles of hog shit who voted for them. Twice. Most of whom are still unrepentant and, in fact, eager for more.

  66. 66
    Jen says:

    I haven’t read the memo either, but boy what a weekend I have planned now!

    Here’s one non-legal insight. I’m acquainted with the former chief counsel for the State Department during the Kennedy and Johnston administrations. He is a charming, generous, liberal, older man with his faculties intact and an abiding hatred for the Bush administration.

    He also wrote a memo for Johnston that was reprinted in my national security law textbook. The memo concerned Presidential war powers during wartime, specifically Vietnam, specifically that they were quite expansive.

    If this is what smart, liberal guys do on their bosses’ behalf, well, good googly moogly I’m very, very afraid of the opinions of the consiglieri Bush is able to get on board.

  67. 67
    tBone says:

    you will find that article I states that Congress has the power to make the rules governing captures on land and water

    Luckily for the Bush administration, everyone we’ve tortured was captured in mid-air.

  68. 68
    Z says:

    jrg,

    Cute. Blaming the moral relativists on the left for the illegal activities of moral relativists on the right.

    I have a crazy idea! How about Bush, Yoo, and company are personally responsible for their own disgusting and shameful behavior? Oh, and before you go there, the idea that people are not personally responsible for their bad behavior is not a modern liberal idea. Among liberals, that line of thinking went out the window in the 80’s (and sometime in the last decade it seems to have been found and adopted by Bush conservatives).

  69. 69
    cbear says:

    Everytime I see the latest iteration of treason from these cretins, I think back to John Dean’s famous “There is a cancer on the Pesidency”…and rue the day that the Cheney/Rumsfeld tumors were not excised and burned as bio-hazards.

  70. 70
    Jen says:

    Some Michigan senator’s husband, although he rather looks like her son in the TPM picture.

    Thomas L. Athans was stopped Feb. 26 by undercover officers investigating a possible prostitution ring in a room at the Residence Inn near Big Beaver and Interstate 75.

    Man, where’s I-69 when you need it…

  71. 71
    Jen says:

    It is depressing to think that the Hillbots on the intertrons are relatively high-information voters, compared to some. Sigh.

  72. 72
    Dennis - SGMM says:

    Oh, and before you go there, the idea that people are not personally responsible for their bad behavior is not a modern liberal idea. Among liberals, that line of thinking went out the window in the 80’s (and sometime in the last decade it seems to have been found and adopted by Bush conservatives).

    From their rhetoric, including their relentless use of the passive voice (“Mistakes were made.”), to their endless excuses (“I hit a perfect trifecta,” “No one could have anticipated…”) to the gratuitous pardon of Scooter Libby, no one in the Bush administration is responsible for anything that goes wrong. They can prove with geometric logic why they should neither accept the blame nor the responsibility for their chronic screw ups.

  73. 73
    Dennis - SGMM says:

    …a possible prostitution ring in a room at the Residence Inn near Big Beaver and Interstate 75.

    Not to be a sexist, proud to be a vulgarian, isn’t running a prostitution ring near a place named “Big Beaver” kind of asking for it?

  74. 74
    nabalzbbfr says:

    This outrage over John Yoo’s memo is so way over the top, that it invites ridicule. Michael Goldfarb puts it best:


    I haven’t really been following this issue, mostly because I’m pretty sure that whatever the government is doing to these terrorists wouldn’t “shock my conscience.” Like my man Scalia says, sometimes you’re going to have to take these terrorists and “smack them in the face.” But, some folks are more easily shocked than I am, and they are in full moral outrage mode this morning with the release of a 2003 memo by John Yoo (now a professor at Berkeley!) approving “harsh interrogation techniques.” Oh, the humanity!

    Unfortunately, in a sad twist of fate, Andrew Sullivan has taken the week off, and so there will be no calls for a new Nuremberg trial featuring the prosecution of George Bush, Dick Cheney, Donald Rumsfeld, and everyone else Andrew doesn’t agree with. But if you need your fix of self-righteous lefty demagoguery, Glenn Greenwald is a pretty good substitute with his post on “John Yoo’s War Crimes.”

    And I hope that Professor Yoo sues Glenzilla for libel.

  75. 75
    Jen says:

    The trolls here are so lame, it’s almost as if they’ve been pre-tortured. I’m thinking of that scene in Misery. They’re that lame.

  76. 76
    cbear says:

    prostitution ring in a room at the Residence Inn near Big Beaver and Interstate 75

    I wonder if the guy was eating at the Y(mca), there in Big Beaver?

    -or-

    I suppose the wife can be thankful he wasn’t caught eating undersize trouser trout by the Big Beaver River.

  77. 77
    Jen says:

    One little h/t from Glennzilla, and this place falls over.

  78. 78
    Dennis - SGMM says:

    The trolls here are so lame, it’s almost as if they’ve been pre-tortured.

    Interviewer: I’ve been told Dinsdale Piranha nailed your head to the floor.

    Stig O’Tracy: No!! Never!! He was a smashing bloke! He used to buy his mother flowers and that. He was like a brother to me.

    Interviewer: But the police have film of Dinsdale actually nailing your head to the floor.

    Stig: (long pause) Oh yeah, he did that.

    Interviewer: Why?

    Stig: Well he had to, didn’t he? I mean there was nothing else he could do, be fair. I had transgressed the unwritten law.

    Interviewer: What had you done?

    Stig: Er… well he didn’t tell me that, but he gave me his word that it was the case, and that’s good enough for me with old Dinsy.

    I mean, he didn’t *want* to nail my head to the floor. I had to insist. He wanted to let me off. He’d do anything for you, Dinsdale would.

  79. 79
    cbear says:

    The co-founder and former CEO of the liberal-progressive Democracy Radio and husband of U.S. Senator Debbie Stabenow was caught in February by a Troy police sting aimed at catching prostitutes, according to a police report.
    Thomas L. Athans was stopped Feb. 26 by undercover officers investigating a possible prostitution ring in a room at the Residence Inn near Big Beaver and Interstate 75. Athans paid a 20-year-old prostitute $150 for sex in a Troy hotel but was not arrested, according to police reports obtained through a Freedom of Information Act request by The Detroit News. The police report said officers observed Athans enter a room under surveillance and leave 15 minutes later. Detectives followed and stopped Athans’ silver

    2002 Cadillac

    DeVille on Interstate 75 near Square Lake Road.

    I’m not sure which aspect of this story I find more disturbing:

    a) the 20-yr-old hooker.
    b) the premature ejaculation problem.
    c) the fact that a Democratic Senator’s husband can’t afford a newer Caddy. (I hope the poor bastard at least had a nice set of rims on that whip)

  80. 80
    Pooh says:

    Yoo motherfucker

    Guess Who Wrote This, and About What President:
    Here is the quote:

    President ____ exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President ____ has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.

    Who do you think wrote the passage above, and who was the President?
    (For the answer, click here.)

    here
    (Professor John Yoo, discussing President Bill Clinton. Source: John C. Yoo, The Imperial President Abroad, in Roger Pilon, ed., The Rule of Law in the Wake of Clinton 159 (2000).)

  81. 81
    Svensker says:

    nabalzbbfr Says:

    This outrage over John Yoo’s memo is so way over the top, that it invites ridicule. Michael Goldfarb puts it best:

    Oh, yeah, we silly “lefties”, so outraged over silly stuff like torture. Ha ha ha, doncha just have to laugh at us and our stupid “principles” and “idealism”! Don’t we realize that in order to be tough and free we have to do whatever is necessary!? In order to defend freedom and goodness, we may have to abandon those very things in order to save them? What Hitler, Stalin, Mao, Pol Pot, etc., did wasn’t wrong — it’s just who they did it to. Nothing intrinsically wrong with their methods, it was just in service to the wrong ideology!

    Isn’t that right, nablfcker?

    The weird thing about nablfcker is that he considers himself a Christian and an American patriot. Unfortunately, his idea of both is that in order to be a member of good standing in either club you must ache to kill, torture, and/or humiliate other (mostly brown) people.

    Sicko. It’s bad enough that you haunt Glenn’s place, do you have to come here with your cretinous filth as well?

  82. 82
    tBone says:

    Not to be a sexist, proud to be a vulgarian, isn’t running a prostitution ring near a place named “Big Beaver” kind of asking for it?

    It’s asking for a very specific kind of clientele, that’s for sure.

  83. 83
    jrg says:

    Cute. Blaming the moral relativists on the left for the illegal activities of moral relativists on the right.

    Sorry. I’ll try to be a bit more sarcastic next time.

    That’s exactly the point I was making… The right has for years derided the left as “moral relativists”, but now they treat every idea, no matter how idiotic, as having merit (provided that the idea in question is espoused by conservatives). When they get called on their idiocy, they invariably cry foul, citing bigotry against the conservative point of view.

    I’d also like to note that this tactic is being used almost exclusively by conservatives in government, academia, and blow hards in the media. Why? because the private sector could not care less about your ideology if your plan has been tried before, and has been shown to be completely moronic.

    A lawyer arguing that torture is legal makes about as much sense as a geologist claiming that fossils are the work of the devil. Their ideology does not confirm the factual basis of their argument, yet they are given a voice in the debate based upon their ideology alone.

    It’s like wandering into a hospital, demanding to perform open heart surgery, then claiming that the hospital won’t let you perform the procedure simply because they are bigots and you’re 1/8th Native American.

  84. 84
    PaulB says:

    I haven’t really been following this issue

    And that’s all we need to know about Michael Goldfarb (and about you, for that matter, since someone who approvingly quotes someone who is self-admittedly ignorant conclusively demonstrates that they are either a moron or a troll or both).

    And I hope that Professor Yoo sues Glenzilla for libel.

    Oh my… I would dearly love that, but not for the reasons you think. Yoo would lose so quickly and so embarrassingly that it would be a real treat.

  85. 85
    RSA says:

    Okay, Glenn’s a better lawyer than I am, but I have a little stamp with my name on it, so nyah.

    Lawyers get stamps? Who knew? I want one!

    On the personal side of things, I wonder if Yoo is a pariah at faculty meetings? I’d hate to have the office next to his, or even to see him in the halls.

  86. 86
    Dennis - SGMM says:

    Like my man Scalia says, sometimes you’re going to have to take these terrorists and “smack them in the face.”

    Yeah, me and Big Tony. Bwahahaha! Don’t these idiots realize that Scalia wouldn’t deign to piss on them even if they were on fire?

    These blowholes are always on about smacking people around, blowing them up, punishing them in general – as long as it’s some other person doing the smacking, blowing up, punishing. They don’t show up for that kind of work in real life because if they did some twelve year old Arab girl would kick them in the junk and then take their wallet.

  87. 87
    Zuzu says:

    On the personal side of things, I wonder if Yoo is a pariah at faculty meetings? I’d hate to have the office next to his, or even to see him in the halls.

    Well, I am a graduate of that particular law school (long before the Yoo years), and can tell you that it is no big deal to have a non-liberal professor on the faculty. However …

    There was a most interesting article in the California Lawyer magazine not too long ago: “Mad About Yoo.” If anyone can find it online, it’s an interesting read. I do remember a comment made in the article by someone who helped recruit Yoo for the Boalt faculty. At the time Yoo was perceived as a good addition, with excellent academic credentials…if anything his conservative background was seen as furthering a diverse faculty. That same man said that after the memos came out, he could not even bring himself to shake Yoo’s hand.

    On another front, a classmate who has hit me up for alumni donations for years recently informed me that he is no longer donating, much less fundraising, because of the presence of Yoo on the faculty … and this guy is a big, big free speech/academic speech advocate. As I usually donate to a particular scholarship fund, it hasn’t really affected my giving, but I suspect the general donations have fallen off sharply.

  88. 88
    jake says:

    They don’t show up for that kind of work in real life because if they did some twelve year old Arab girl would kick them in the junk and then take their wallet.

    Adding to my list of things I’d shell out big bucks to witness.

  89. 89
    Jay B. says:

    This outrage over John Yoo’s memo is so way over the top, that it invites ridicule.

    Yes, making a bullshit argument about an Imperial President and legalizing torture in service to the state really is trivial.

    But have you heard what Obama’s preacher said?! Holyfuckingshit! He said white people run this country! He should be shot for such things.

  90. 90

    […] The Yoo Memo […]

  91. 91

    The attorneys I’ve talked to are aghast. Utterly, totally, jaw-droppingly aghast.

    This thing not only attempts to defend the indefensible, and to pretend that the illegal is legal, but it is written in a deliberately and brazenly dishonest manner. It literally would not pass muster in a first-semester Con Law class.

    As with Ann Coulter’s bizarre use of footnotes, a fair portion of Yoo’s cites are ones he deliberately misinterprets to mean the exact opposite of what they really state, and he leaves out the single most important case-law cite pertaining to presidential power and prerogative — the Youngstown Steel ruling — because it doesn’t give him the answer he wants in this case. (And it’s not because he doesn’t know about the Youngstown case; he taught it himself in at least one of his classes at Berkeley in 2000.)

  92. 92

    […] via Memeorandum, where you will find more commentary. Emily Bazelon at Slate  Kevin Drum, Washington Monthly  Christy Hardin Smith, Firedoglake  John Cole, Balloon Juice (the comments especially) American Constitution Society Blog  Paul Kiel, TPMMuckraker (Feith shares his expertise on assholes) Larisa Alexandrovna, At-Largely (contact info for Yoon and the entire administrative staff at UC Berkeley School of Law) Dan Eggen and Josh White, The Washington Post  […]

  93. 93
    TenguPhule says:

    Like my man Scalia says, sometimes you’re going to have to take these terrorists and “smack them in the face.”

    I consider people like this terrorists.

    And since I don’t believe in torture, a bullet to the brainpan it is.

  94. 94

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  1. […] via Memeorandum, where you will find more commentary. Emily Bazelon at Slate  Kevin Drum, Washington Monthly  Christy Hardin Smith, Firedoglake  John Cole, Balloon Juice (the comments especially) American Constitution Society Blog  Paul Kiel, TPMMuckraker (Feith shares his expertise on assholes) Larisa Alexandrovna, At-Largely (contact info for Yoon and the entire administrative staff at UC Berkeley School of Law) Dan Eggen and Josh White, The Washington Post  […]

  2. […] The Yoo Memo […]

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