A Constitution Destroyed: John Yoo and the notorious “Torture Memo”
When the CIA asked King George the Worst, if they could use waterboarding on prisoners (http://www.washingtonpost.com/wp-dyn/content/article/2010/11/03/AR2010110308082.html), his response was, “Damn Right!”. When asked why he would authorize torture his response was, “Because the lawyers said it was okay”.
- Interrogation arises as a necessary and legitimate element of the detention of al Qaeda and Taliban members during an armed conflict.
Interrogation arises as a necessary and legitimate element of thedetention of al Qaeda and Taliban members during an armed conflict.
One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy.
We conclude below that the Fifth Amendment Due Process Clause is inapplicable to the conduct of interrogations of alien enemy combatants held outside the United States for two independent reasons. (the basis for “Extraordinary Rendition” or, torture outside the US is not torture”. This is also the basis for the Supreme courts saying that the fruits of foreign torture…confessions…can be used as evidence in US courts. This also justifies the torture of risoners held in Guantanamo on the basis that it is not “Sovereign US territory” ___ Jeff Siddiqui).
The Eighth· Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed. (Cruel and Unusual Punishment. I disagree because bail is allowed before “Criminal Sanctions” are imposed. Unless the act of detention alone, constitutes “Criminal Sanctions”. Yoo claims that the Eight Amendment applies ONLY to those who have already been convicted, which leaves the door wide open for torturing the accused___ Jeff Siddiqui).
In order to respect the President’s inherent constitutional authority to direct a military campaign against al Qaeda and its allies; general criminal laws must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress cannot interfere with the President’s exercise of his authority as Commander in Chief to control the conduct of operations during a war.
If those laws were construed to apply to the properly-authorized conduct of military personnel, the most essential tasks necessary to the . conduct of war would become subject to prosecution. A soldier who shot an enemy combatant on the battlefield could become liable under the criminal laws for assault or murder; a pilot who bombed a military target in a city could be prosecuted for murder or destruction of property; a sailor who detained a suspected terrorist on the high seas might be subject to prosecution for· kidnapping. (This is a deliberate twist of logic; a soldier who shoots an enemy combatant IS criminally liable if he deliberately shoots an unarmed person, combatant or not, who posed no immediate threat; such cases HAVE been successfully tried before. Otherwise, “War!” would men the lifting of all rules of humanity and morals and that has never been openly allowed___ Jeff Siddiqui).
So, for example,· a federal, non-military officer who is conducting interrogations in a . foreign location, one that is not on a pemanent U.S. military base or diplomatic establishment, would not be subject to the federal criminal laws applicable in the special maritime and territorial jurisdiction. (Interesting comment. This contradicts the position that Gitmo is not “sovereign US Territory” because it is “a Permanent US Military Base”. This comment also says American personnel may do anything at all, if they are not in the US___ Jeff Siddiqui).
(Discussing Section 7(9), in conjunction with 18 U.S.C. § 3261, Yoo agrees that military people are subject to US law if they commit a crime that would, in the US, be considered a felony HOWEVER…in such cases, he says, US law says that military person fall under UCMJ and that would not apply because UCMJ requires that both parties be subject to UCMJ and civilians are not, therefore US soldiers can do what they like to civilians and not get punished___ Jeff Siddiqui).
Finally, even if customary international law on torture created a different standard than that which the Torture Convention creates, and even if such a standard were somehow considered binding under international law, it could not bind the President as a matter of domestic law.
Even if one were to accept the notion that customary international law has some standing within our domestic legal system, the President may decide to override customary international law at his discretion.
Even if an interrogation method might arguably cross the· line drawn in one of the criminal statutes described above, and application of the statute was not held to be an unconstitutional infringement of the President’s Commander-in-Chief authority, we believe that under the current circumstances certain justification defenses might be available.
We believe that a defense of necessity might be raised in certain circumstances. Often referred to as the “choice of evils” defense,
According to public· and governmental reports, al Qaeda has other sleeper cells Within the United States that may be
·planning similar attacks. Indeed, we understand that al Qaeda seeks to develop and deploy chemical, biological and nuclear weapons of mass destruction. Under these circumstances, a
, particular detainee may possess· information that could enable the United States to prevent imminent· attacks that could equal or surpass’ the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.
First, the more certain that government officials are that a particular individual has information needed to prevent an attack, the more necessary interrogation will be.
·Second, the more likely it appears to be that a terrorist attack is likely to occur, and the greater the amount of damage expected from such an attack, the more that an interrogation to get information would become necessary.
Even if a court were to find that necessity did not justify the violation of a criminal statute, a defendant (perpetrator___ Jeff Siddiqui) could still appropriately raise a claim of self-defense. The right to self defense, even when· it involves deadly force, is deeply embedded in our law, both as to individuals and as to the nation as a whole.
The doctrine of self-defense permits the use of force to prevent harm to another person.
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, we believe that he’ could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.
For the foregoing reasons, we conclude that the Fifth and Eighth Amendments do not extend to alien enemy combatants held abroad. Moreover, we conclude that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad.
Moreover, the scope of U.S.’ obligations under CAT regarding cruel, inhuman, or degrading treatment or punishment is limited to conduct prohibited by the Eighth, Fifth and Fourteenth Amendments. Customary intemational law does not supply any additional standards.
Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability.
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