DoJ memo 2003: POTUS > Magna Carta.

[SirNitram]

Because the idea of obeying the law is insane.

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting 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.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."

Although the existence of the memo has long been known, its contents had not been previously disclosed.

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department's use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon's general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department's Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends 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.

"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," Yoo wrote. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

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.

The declassified memo was sent by the Defense and Justice departments late yesterday to Democrats on Capitol Hill, including Sens. Carl M. Levin (Mich.) and Patrick J. Leahy (Vt.), who had seen the document in classified form and pushed for its release.

The document is similar, although much broader, than a notorious memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture. That document was also later withdrawn.

In his 2007 book, "The Terror Presidency," Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos "stood out" for "the unusual lack of care and sobriety in their legal analysis."

The documents are among the Justice Department legal memoranda that undergirded some of the highly coercive interrogation techniques employed by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.

In 2005, amid public controversy over such methods, Congress limited Defense Department officials to interrogation methods listed in the Army's field manual, which was rewritten to forbid many of the aggressive methods. The CIA was exempted, however, and President Bush vetoed recent legislation that would have applied the same requirements to that agency.

Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions "for appearances' sake." He said his successors "ignored the Department's long tradition in defending the President's authority in wartime."

"Far from inventing some novel interpretation of the Constitution," Yoo wrote, "our legal advice to the President, in fact, was near boilerplate."

Yoo's 2003 memo arrived amid strong Pentagon debate about which interrogation techniques should be allowed and which might lead to legal action in domestic and international courts.

After a rebellion by military lawyers, then-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantanamo Bay, Cuba. The prisoner, military investigators later would determine, was subjected to stress positions, nudity, hooding, exposure to dogs and other aggressive techniques.

Largely because of Yoo's memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo's March memo and did not know about the group's final report for more than a year, officials said.

Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive."

Martin S. Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown University, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib.

"What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?" Lederman asked. "It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone."

In a 2004 memo for the Navy inspector general's office, then-General Counsel Alberto J. Mora objected to the ideas that cruel, inhuman or degrading treatment could be allowed at Guantanamo and that the president's authority is virtually unlimited.

Mora wrote that he spoke with Yoo at the Pentagon on Feb. 6, 2003, and that Yoo "glibly" defended his own memo. "Asked whether the President could order the application of torture, Mr. Yoo responded, 'Yes,' " Mora wrote. Yoo denies saying that.

'When you're the President, that means it isn't illegal.' Nixon won.

[Shroom Man 777]

How could these chumps get away with it while someone considerably smarter. i.e. Nixon, ended up being forced to resign?

[Vaporous]

Lets agree to halt reference to Yoo's political ideology as "Unitary Executive" in exchange for the much more honest "Machiavellian Dictatorship". Because any time the man opens his mouth, or writes, or dreams, or takes a piss, the end result is a policy of the will to power running roughshod over the law.

[Flagg]

How could these chumps get away with it while someone considerably smarter. i.e. Nixon, ended up being forced to resign?

Nixon didn't have 9/11 fear mongering or the 24 hour news networks quest for ratings to rely on. He also had a Congress that took its job as a check on Presidential power seriously.

[SirNitram]

How could these chumps get away with it while someone considerably smarter. i.e. Nixon, ended up being forced to resign?

The Republican party basically wouldn't stand for Nixon claiming the power of an absolute dictator. The present Republican party just mewled for scraps from their king.

[Darth Wong]

How could these chumps get away with it while someone considerably smarter. i.e. Nixon, ended up being forced to resign?

30 years of nearly continuous right-wing propaganda designed to make the population more amenable to such abuses. McCarthyism never died; it simply learned to become more subtle.

[Shroom Man 777]

So you could say that the GOP saw what happened to Nixon and decided that the next time they tried it again, they would make things so that they could get away with it?

That is far more insidious than any conspiracy theory I've heard and... well, it's happened.

[FSTargetDrone]

I don't know if it would have made any difference, but this is yet another reason Nixon should never have been pardoned. "Spare the country," indeed.

[Darth Wong]

So you could say that the GOP saw what happened to Nixon and decided that the next time they tried it again, they would make things so that they could get away with it?

That is far more insidious than any conspiracy theory I've heard and... well, it's happened.

The most insidious kind of conspiracy is the kind which takes place right in the open, as this one did. The hidden conspiracy is a silly bogeyman, but the public conspiracy of the wealthy and the powerful to consolidate their holdings is not. Super-rich tycoons own media networks constantly broadcasting ideologies conveniently suitable for their own continued enrichment, and the ridiculously obvious conflict of interest doesn't bother anyone. They still trust what these networks say. No secrets, shadows, organizations, or cloaks and daggers are required for this kind of conspiracy; just a common interest.

[The Yosemite Bear]

A machevellian dictator has to be either loved or feared. Bush manages to be simply dispised or treated with lesser of evil apathy, and requires massive funding, and other props to keep him up. Now a good prince would do this right.

[Stuart Mackey]

So you could say that the GOP saw what happened to Nixon and decided that the next time they tried it again, they would make things so that they could get away with it?

That is far more insidious than any conspiracy theory I've heard and... well, it's happened.

Almost Sith like.

[Stuart Mackey]

So you could say that the GOP saw what happened to Nixon and decided that the next time they tried it again, they would make things so that they could get away with it?

That is far more insidious than any conspiracy theory I've heard and... well, it's happened.

The most insidious kind of conspiracy is the kind which takes place right in the open, as this one did. The hidden conspiracy is a silly bogeyman, but the public conspiracy of the wealthy and the powerful to consolidate their holdings is not. Super-rich tycoons own media networks constantly broadcasting ideologies conveniently suitable for their own continued enrichment, and the ridiculously obvious conflict of interest doesn't bother anyone. They still trust what these networks say. No secrets, shadows, organizations, or cloaks and daggers are required for this kind of conspiracy; just a common interest.

Easy to see why religion dislikes education so much, is it not? same methods.

[Guardsman Bass]

Lets agree to halt reference to Yoo's political ideology as "Unitary Executive" in exchange for the much more honest "Machiavellian Dictatorship". Because any time the man opens his mouth, or writes, or dreams, or takes a piss, the end result is a policy of the will to power running roughshod over the law.

Have you read Charlie Savage's book about how Yoo and friends basically helped Cheney work to gut any constraints on executive power, Takeover? Yoo fucking scares me, all the more so because the guy is supposed to be at least familiar with American law and the foundation for it in American society.

You get the feeling that if Bush had decided to crown himself King George I back in 2003, Yoo would have written legal memoranda arguing as to why his "executive privilege" overrode the Constitutional ban on hereditary title.