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Roger Fitch Esq • April 11, 2008

Our Man in Washington

Fresh torture memo by Bush lawyer unearthed … Advice on legally immunising detainee interrogators proves to be invalid … Torture trip driven from the top down … Exciting new harsh techniques devised at “brainstorming sessions”

Thanks to FOI, the American Civil Liberties Union now has 100,000 pages of documents concerning the mistreatment and abuse of prisoners at Abu Ghraib, Guantánamo and elsewhere, including many “torture memos” of the Bush adminstration’s legal lackeys. However, the smoking gun memo has been elusive.

Now the search may be over. Earlier this month, a low-key headline in The New York Times announced, Memo sheds new light on torture issue.

imageThis proved to be quite an understatement. The document in question was a previously undisclosed memo (since rescinded) by the infamous Office of Legal Counsel “lawyer” John Yoo (pic).

It promised to do for the US military what another Yoo memo had done for the CIA – immunise detainee interrogations from any legal oversight or consequences whatever.

According to The Washington Post, the Justice Department memo, written for the Pentagon in 2003, claimed that:

” – federal laws prohibiting assault, maiming 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.”

Yoo advised:

“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… In that case … interrogators who harmed a prisoner would be protected by a ‘national and international version of the right to self-defense’.”

The Los Angeles Times reported:

” ‘In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy,’ Yoo wrote. Elsewhere in the memo, he argued that ‘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’.”

Interestingly, Yoo’s memo relies largely on a closed circle of enabling “legal opinions” by other OLC underlings and Pentagon hacks, each purporting to reinforce the other, which may be why Yoo uses the royal “we” and “our” throughout his memo of March 14, 2003.

The other memos, many of which were previously unknown, are cited in footnotes.

Now, thanks to Yoo’s document, we have learned about legal opinions with such intriguing titles as Use of Military Force to Combat Terrorist Activities Within the United States (Oct 23, 2001); Legality of the Use of Military Commissions to Try Terrorists (Nov 6, 2001); and Military Detention of United States Citizens (June 27, 2002).

It was the first of these which caused the most consternation as it purported to exempt the military from the 4th Amendment (searches and seizures) in the US.

Blogger-lawyer Phillip Carter wonders what this signifies.

The Washington Post has more on the 4th Amendment opinion, and reveals that Yoo’s torture memo was not even seen by the then Attorney General, John Ashcroft.

imageAccording to Jameel Jaffer of the ACLU, Yoo’s 81-page waffle wasn’t even a legal document. The New York Times was also appalled.

The lawyers for Ali Al-Marri (pic), the legal United States resident who has been held by the US in a South Carolina navy brig for five years, immediately made a submission in their client’s case in the DC Circuit Court, based on the invalidity of the Yoo memo .

Scotus Blog has more on this.

The Washington Post noted the apparent satisfaction with which Yoo itemised the assaults and maiming now permitted, while the Congressional Quarterly’s blog, CQ, was quick to note that Yoo’s memo authorised the use of drugs in interrogations.

imageFormer Clinton OLC head Dawn Johnsen (pic) expressed outrage in Slate’s Convictions legal blog.

Another Clinton OLC lawyer Marty Lederman was equally scathing in a Balkin Blog post.

Most shocking of all, your own correspondent discovered a faux citation.

Goldwater v Carter was cited by Yoo as authority that a president can unilaterally abrogate a treaty of the US (eg, the Geneva Conventions and the Convention Against Torture).

In fact, this 1979 Court of Appeals decision was vacated on appeal by the Supreme Court.

For Shayana Kadidal of the Center for Constitutional Rights, the Yoo memo proves that torture came from the top down rather than bottom up.

imageHe cites Philippe Sands’ (pic) new Vanity Fair article, The Green Light, based on Sands’ interviews with leading actors in the Guantánamo interrogation drama.

The Atlantic’s Andrew Sullivan captures the most important part of the article by Sands (a British QC).

It’s the bit that describes the personal, hands-on torture-establishing journey to Guantánamo by the number one lawyers – the legal counsels to the president, vice-president, Pentagon and CIA.

Before these distinguished (Bush-appointed) lawyers arrived, meetings were held to canvass new “harsh” techniques.

As Raw Story reports, the resident JAG, Lieutenant Colonel Diane Beaver, charged with writing a legal authority for “harsh” interrogation, kept minutes of these technique “brainstorming sessions”:

“The younger men would get particularly excited, she says: ‘You could almost see their dicks getting hard as they got new ideas’. Beaver also notes that ideas arose from other sources, such as the television show 24. Jack Bauer, the main character, had many friends at Guantánamo, says Beaver: ‘He gave people lots of ideas’.”

In the Vanity Fair article Philippe Sands describes what he learned of the meeting of high-level administration lawyers at Guantánamo on September 25, 2002 and reveals that all were aware of Mohammed al-Qahtani (the so-called 20th hijacker), the first person to receive the new interrogation techniques.

Sands reports:

“Beaver confirmed the account of the visit [of Gonzales, Addington, Haynes and Rizzo] ... They met with the intelligence people and talked about new interrogation methods. They also witnessed some interrogations. Beaver spent time with the group… She recalled the message they had received from the visitors: Do ‘whatever needed to be done’. That was a green light from the very top – the lawyers for Bush, Cheney, Rumsfeld, and the C.I.A.”

* * *

Perhaps, after all, there’s a technical solution to the problems associated with “harsh interrogation” and determining whether an abusive interrogator is acting in “good faith” – another Yoo concept.

It has recently been reported, that:

“Some robotics researchers feel that robots could make the perfect warrior … even more ethical soldiers than humans, because they have no desire for self-preservation, no emotions, and no fear of disobeying their commanders’ orders in case of bad orders.”

Yes, but who can we trust to program ethical robots? Surely not the Bush lawyers.