March 1, 2010

Imagine "Reverse Yoo."

Orin Kerr poses a hypo in which John Yoo is asked to interpret a federal statute that fairly appears to permit enhanced interrogation techniques like waterboarding. The Reverse Yoo believes, personally, that these techniques really are torture and should be forbidden:
[Reverse Yoo] is not going to be like the Nazi lawyers who let the Holocaust occur... So Yoo decides that he must write a memo concluding that these techniques are unlawful.  Granted, he needs to get a bit creative to reach that result.   He needs to stretch a legal term here, bend a legal term there.  But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods.   With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.
Now, did the real John Yoo do basically the same thing as the Reverse Yoo? Or is the bending and stretching justified to prevent torture but not to permit it? Does it all depend on whether you think enhanced interrogation techniques are torture?

72 comments:

garage mahal said...
This comment has been removed by the author.
Methadras said...

I think we need to get out of the gray area of what torture is or is not. Have them defined once and for all, be done with controversy and move on. Find the bad guys and use the techniques that get the information we need. The more we hamstring ourselves in defending ourselves, the longer this stupid issue drags on. In Little Black Jesus' own words. ENOUGH!!!

Paul Zrimsek said...

Ooy is mir weh.

Mark O said...

Annie, Annie, now you are explaining how the law works and how justice is dispensed in the country. Result oriented? No. Could never be.

That's why, when folks tell me it doesn't matter who the judge is on a case, I respectfully dissent.

Joe said...

(The Handsome One, not that the other Joe's aren't handsome, and smart, but still on an ordinal scale I rank higher, it's true, ask our parents, who for some reason all named us "Joe", still better than "Eamon", but I digress.....)

So before Cookie and FLS and Garage get here, in all cap's

WATER BOARDING IS NOT THE JAPANAESE/FRENCH WATER TREATMENT!!!!

So NO, we did not do the same things we accused others of...

The "Water Treatment" is the placing of a hose down the throat or up the rectum and filling the victim with water.

Now, "water-boarding" may or may not be torture, but let's have done with the Progressive Lie that what the Japanese did is the SAME thing as water-boarding!!!!

It's not, stop with the lying...will not allow the Progressive Lie to become a Truth.

Please return to your regularly scheduled Althouse Programming.

Mark O said...

How would old "Reverse" Yoo (which I thought might have been something out of Sex and the City) look if the week after his heroic bending of the facts and law, Boston is blown off the map?

That, too, is result oriented.

Robert Cook said...

Personally, I think it's disgraceful to inflict any coercive treatment on a captive, particularly a bound captive...even so much as a slap, and I would prohibit any such treatment, (if it is not already).

As to the hypothetical, if a lawyer ignored and willfully misinterpreted standing law in order to create a desired resulting opinion, as Yoo is said to have done, even if it was to prohibit practices that were commonly used and accepted as lawful, then that lawyer is probably guilty of unethical professional behavior.

I do think, though, that where the law tends to protect rather than harm the individual before it, there are different standards that may apply. For example, a judge can void what he may see as an egregious miscarriage of justice if a "guilty" verdict is rendered unjustly, and he may vacate that sentence. He may NOT supersede the jury and impose a verdict of "guilty" on a defendant they have acquitted.

I don't know how or if this principle would be considered in treating the matter of a "reverse Yoo."

Joe said...

I think it's disgraceful to inflict any coercive treatment on a captive, particularly a bound captive...even so much as a slap, and I would prohibit any such treatment,

Yes of course, because we can't cause our enemies discomfort...death from a Hellfire or Viperstrike missile, is perfectly OK, but a slap...heaven Forfend.....

tim maguire said...

I guess I need clarification on something. Was Yoo an elected official tasked with making law? Or was he a hireling tasked with interpreting the laws our elected officials made?

One can never tell reading reactions to Yoo's memos.

former law student said...

WATER BOARDING IS NOT THE JAPANAESE/FRENCH WATER TREATMENT!!!!

Nope, identical, at least in the case of the Doolittle Raider, as I posted last week

Mark O said...

Didn't Obama start his murder spree with the two pirates, then shift, gracefully into the drone killings? The pirates were, in fact, in custody, being pulled along behind the ship. The drone targets are in--as we say in the law about something that is not exactly true--constructive custody in that they are identified and, were we not so afraid of issues of sovergnity, could be taken.

It's just easier to kill them. Which, I think, is the wave of the future. Were I a Navy SEAL, I would never take anyone into custody. As a "result" then, the US obviates a silly discussion and loses any possiblity of intelligence.

Way to go.

former law student said...

did the real John Yoo do basically the same thing as the Reverse Yoo? Or is the bending and stretching justified to prevent torture but not to permit it?

As a policy, do we want to err on the side of not torturing, or err on the side of torturing? Is the speed limit an upper bound or a lower bound? How many housefly parts and rat droppings are acceptable in your box of raisins?


Was Yoo an elected official tasked with making law? Or was he a hireling tasked with interpreting the laws our elected officials made?

Yoo worked for President George W. Bush.

ricpic said...

The reverse yoo is a very high degree difficulty dive from the 10 meter platform especially when a triple salchow is thrown in.

Monkeyboy said...

Docket Date: 53/ May 1 - 28, 1947, Yokohama, Japan

Charge: Violation of the Laws and Customs of War: 1. Did willfully and unlawfully mistreat and torture PWs. 2. Did unlawfully take and convert to his own use Red Cross packages and supplies intended for PWs.

Specifications: beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward

The bottom line is that Asano was not convicted of waterboarding alone, but of a host of abuses of prisoners. He got 15 years.

He was also accused of waterboarding by pouring water directly in the vicims face, the US uses cellophane to ensure that does not happen.

I have yet to hear of a Japanese officer convicted of just waterboarding using the methods we used, nor one who wasn't charged with more heinous crimes.

madawaskan said...

Imagine "reverse Yoo"...

A French Yiddish guy waking up from bad show at The Wynn...

Ooy es' rever!

former law student said...

I don't know what Mark O is talking about.

As a general rule, in war you can kill your enemy but you must humanely treat your prisoners.

NewHam said...

"I think we need to get out of the gray area of what torture is or is not."

Yea, this is the problem. It is not possible to have a debate with the "other side" on this topic, because the other side believes playing loud music or otherwise making someone uncomfortable is "torture."

The "left" in this country just fundamentally doesn't believe the same things as the "right."

If you ask a lefty is it OK to make someone merely uncomfortable (not torture them, just make them uncomfortable) until the prisoner gives us information, they'll ultimately tell you that they think that's not OK.

They'll call that torture.

The left just fundamentally believes that if a prisoner ever gives up information, you ipso facto have tortured them in some way, shape or form. Otherwise (the theory goes) the prisoner wouldn't have given up the information.

So you can't debate these people on this topic. They don't think like you and me. Their brains don't function at our level.

We need to move along and get the job done irrespective of these people's inability to grasp this topic.

We certainly can't allow ourselves to lose this war because some of our citizens are too stupid on this topic to comprehend it.

We just need to make sure they're never in power and can't impede our ability to effectively fight this conflict.

Identify them. Marginalize them. Give them trashman jobs. And get on with it.

Monkeyboy said...

What Woo was doing was helping to lay down clear guidance on the interrigation of prisoners. "You can go this far and no farther."
You may debate where the line was drawn, but there was a line, and its much much better than the posturing from the democrates, "Do whatever you want until it's unpopular, then we prosecute you."

former law student said...

The bottom line is that Asano was not convicted of waterboarding alone, but of a host of abuses of prisoners

Asano was subject of a different prosecution. The defendant in the Doolittle Raiders case was General Sawada, who escaped liability for the treatment of the Raiders. From Wallach's article:


... AND THE SUBSEQUENT TRIALS OF THE JAPANESE ...................477
A. United States v. Sawada: Water Torture of the
Doolittle Raiders ......................478

former law student said...

From Wallach's article: Yoo on the Presidential torture power.

(Congress doesn’t have the power to tie the President’s
hands in regard to torture as an interrogation technique.
. . . It’s the core of the Commander-in-Chief
function. They can’t prevent the President from ordering
torture.

John Yoo, Professor of Law, University of California at Berkeley.2

2. Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106 (citing to
Prof. Yoo’s statement).

Joe said...

As a general rule, in war you can kill your enemy but you must humanely treat your prisoners.

Well so true, BUT I don't think interogating High Value Targets, via Enhanced Interrogation Techniques is INHUMANE....now "humane" treatment may therefore; be taken to mean:
1) Water-boarding; or
2) A Sandals Resort Vaction, with Halal food....

that's what we're debating, isn't it?

NewHam said...

"You may debate where the line was drawn, but there was a line ..."

That line is the beauty of the thing.

The way the left operates in this country is that they move that line whenever it suits them.

No matter what interrogation procedure was recommended by Yoo (or any other Rethugligan) the left would argue that it "amounts to torture." And they would call for any random unnamed Republican to be prosecuted for "torture."

Because it's ultimately not about interrogation. It's about how you get your guys into those juicy $200,000 a year jobs at the Transportation Department.

And the answer is: By any means necessary.

Since Democrats are now holding office, Obama is free to actually murder people using drones or any other technology at their disposal. The MoveOn.Org crowd and their friends are now occupying those $200,000/year jobs at the Transportation Department ... so they've moved on.

The left could care less what Obama does, or who he murders, since he's their guy and they're now "in."

All. About. The. Benjamins.

Monkeyboy said...

An article on Sowada is here.
http://www.lawofwar.org/when_mercy_seasons_justice.htm

He was charged not just with "The Water Cure" (I beleive to force confessions) but also with creating laws to take the airmen to trail and shooting three of them

He got five years

Mark O said...

former law student said...
I don't know what Mark O is talking about.


Agreed. You don't. But, that's not a virtue.

Jason said...

The Doolittle Raiders were legal combatants, operating within the bounds of civilized warfare and comporting themselves within international law.

Al Qaeda is not.

The difference is huge.

Liberals always try to gloss over the FUNDAMENTAL difference between legal and illegal combatants.

You cannot coerce a PW. He or she is not obligated to divulge anything but name, rank and serial number.

Illegal combatants are not entitled to the same privilege. The liberals, bless their naive, stupid little hearts, think they should be.

This is a great way to ensure that no enemy of the US will ever comport within the laws of warfare again. The perverce incentives the liberal creates to the modern insurgent grants every advantage to the terrorist, while requiring to accept none of the disadvantages.

If libtards have their way, there is simply no reason for modern insurgents, engaged against the US and our allies and interests, to even wear uniforms, and no reason for them NOT to hide behind women and children, no reason NOT to target noncombatants, no reason NOT to torture or murder our own warriors, no reason NOT to target schools and civilian airliners. The list goes on and on.

These pathetic little naive waifs, these intellectual puppies, have no clue what we're fighting. They are sheltered from the terrorists' methods, nor do they understand the countermeasures and risks associated with them.

NewHam said...

"Liberals always try to gloss over the FUNDAMENTAL difference between legal and illegal combatants."

No, they don't gloss over it. It's worse than that.

They reject the entire premise that there is a difference between legal and illegal combatants ... just like they reject the premise that there is such a thing as an "illegal" alien.

To them, there is no such thing as an illegal person.

You can't debate these people

They'll never agree to even your definition of words in the pursuit of those juicy, $200,000/year jobs with fat pensions and health benefits unavailable to regular Americans.

A.W. said...

I think bluntly that Yoo and Bybee should have done exactly what they were asked to do: tell the president what the law said, impartially. Its not their job to make policy, its the president's. Someone has to tell the president the unvarnished truth, even if they don't like the answer.

Did they actually do that?
Well, bluntly, these are criminal statutes and the doctrine of Lenity governs them. that means if you are not supposed to interpret them "creatively" to cover conduct not clearly forbidden. And these laws are not exactly a model of clarity, are they? they use terms like severe physical suffering. Well, just how much suffering do you have to have before it is severe?

Remember we are saying that if you dare do X we will take away your freedom, and lock you in prison. The liberals love to focus on the "poor terrorist" being forced to listen to Abba music 24/7, but to enforce this law, you have to say to a regular soldier. this thing you did, was illegal and now you are going to be taken from your family and robbed of your freedom. Sometimes that is necessary, but not based on a creative interpretation of the law. i would go as far as to wonder if this law is unconstitutional on a void for vagueness theory. how could you ever claim to know with percision what kind of conduct is banned and what kind is not?

Of course we don't ordinarily worry about a chilling effect when it comes to torture, but given that we are also limiting the power of the president to protect us, yeah, i think i would like a little more percision. i mean the statute doesn't even specify a single act as torture. this is congress not able to agree, and punting it to the courts, except again, the doctrine of lenity means that congress is not allowed to punt it. they are supposed to decide it and tell the courts. and if they don't, then the courts have a duty to interpret this statute as minimally as humanly possible. i would be hard pressed to argue that waterboarding, for instance, was torture under the statute.

This entire Yoo/Bybee debate has been marked from the beginning with hysterics from the left. the same idiots who claim they don't want to call terrorists by name, express utter certainty that certain things are torture. sheesh.

SMGalbraith said...

I think Robert Cook is right here: the standard must be no abuse/mistreatment of these people. None.

Trying to limit it to exigent circumstances clearly, to me, failed. What was defensible - and it was - when done with the concern of an imminent or near-imminent attack cannot be defended when done against others. Against those that had no information of an impending attack or attacks. And they were.

The temptation to use these tactics in that next case, in that grayer area, is just too great. The rule must be no abuse, no rough treatment. None.

One cannot judge an act without trying to determine what the motive was behind the act. There's a world of difference, after all, between me pushing a person down as they try to cross the street because I believed a car was going to hit him and pushing a person down for the thrill of it.

The motives in most of these cases - not all but most - was to prevent further deaths and destruction. Whether you wish to use the "necessity defense" or find a rationale elsewhere, I think a fair person could understand the motivations.

But good intentions aren't enough to cover every case.

NewHam said...

"Yoo worked for President George W. Bush."

I do not believe that was the case.

You're (perhaps deliberately) suggesting that Yoo was a political appointee and not a career civil servant.

I believe that he was a civil servant (although I can't prove that at the moment), which means that he worked for the Justice Department ... and not for Bush.

There is a difference: A president can't just fire a civil servant, and so in that sense the civil servant doesn't "work" for the President.

A president can fire a political appointee, but a civil servant has legal rights that go beyond the President's powers to hire and fire.

Joe said...

(The less delusional Joe, on a logarithmic scale.)

I'm not convinced that Yoo twisted the law. There is a huge gray area of what "enhanced interrogation" means. Is playing loud music enhanced interrogation? Is making someone believe you're their friend and playing with their emotions enhanced interrogation? I'm not being flippant, merely pointing out that the law is pretty damn unspecific.

On the other hand, Yoo gave terrible political advice. Moreover, you don't write a memo like he did. You write a vague memo and then give the leader a wink and a nod. You create plausible deniability. Amateur.

NewHam said...

"I think Robert Cook is right here: the standard must be no abuse/mistreatment of these people. None."

Come on now ... isn't jailing these people abusive and mistreatful?

I would argue, as a liberal like you, that even holding these people captive is abusive and torture.

I'd be, like you, a moron. But I could advance that argument.

Don't people want to be free? Isn't jailing them, therefore, torture to them?

Doesn't our Constitution guarantee their life, liberty and pursuit of happiness ... whatever they deem that to be?

Ad infinitum.

See, some liberals actually believe this shit. At least until they get "in."

Then, its all quiet on the Western front.

They've moved on once they get the $200,000/year job at the Transportation Department.

former law student said...

http://www.lawofwar.org/when_mercy_seasons_justice.htm

That's Wallach's website. Read his article for a more detailed treatment.

i would be hard pressed to argue that waterboarding, for instance, was torture under the statute.

As I pointed out above, the US considered waterboarding to be torture when the Japanese did it to our airmen in World War II. If we prosecute our enemies for performing a certain action because it is a war crime, then why when we do it, it is not a war crime?

Was it only torture because our airmen were wearing uniforms? If they had been wearing footie pajamas for comfort, would torturing them have been OK?

NewHam said...

"As a general rule, in war you can kill your enemy but you must humanely treat your prisoners."

I'd like the record to show, your honor, that former law student has just authorized the use of bullet-boarding a person to death without even asking the first question.

Which, let's face it, is the ultimate torture, isn't it.

Imagine the scene: Han Solo, when being tortured by Darth Vader, was never even asked a question.

Isn't that the ultimate torture that former law student is advocating. What a brute former law student is, advocating this ultimate form of torture.

Have you no conscience man?

NewHam said...

"As I pointed out above, the US considered waterboarding to be torture when the Japanese did it to our airmen in World War II. If we prosecute our enemies for performing a certain action because it is a war crime, then why when we do it, it is not a war crime?"

This is where the liberals go right off the tracks.

Look former law student ... if Al Queda wins the war, I have no doubt they'll hold lots of trials and hand out punishment for water boarding. At that point, it will be legally obvious to everyone left that waterboarding was "torture."

But we are under no obligation to hold the fucking trials ourselves.

If they win, they get to hold the trials.

But they gotta win first, see?

NewHam said...

"The US considered waterboarding to be torture when the Japanese did it to our airmen in World War II."

Did the Japanese think it was torture?

If the Japanese had won the war, do you think they would have prosecuted their own soldiers for water-boarding?

Of course not.

So why should we?

If Al Queda wins the war (a possibility you won't talk about), do you think they're going to start punishing their guys for all the acts they committed in the war?

So, why should we?

Just because you think we're more civilized?

You're wrong. We aren't. And that's where this fallacy begins.

NewHam said...

"If they had been wearing footie pajamas for comfort, would torturing them have been OK?"

Yes.

What part of that do you not understand?

Combatants in uniforms have rights others do not enjoy because that's the way we all have organized society.

Otherwise, it's every man for himself in the world you would create, which would be worse than the world as it exists.

SMGalbraith said...

I'd be, like you, a moron. But I could advance that argument.

Swell, another child got hold of his family's computer. Folks, gotta' lock up that computer from the little tykes.

Go play in the street, boy (do kids do that anymore?)

NewHam said...

Wouldn't the world be a better place if all soldiers knew they could be legally tortured for the rest of their lives if captured?

Why do you want to outlaw this and keep war going?

You, former law student, are the reason wars still exist. You want them to be civilized so we can keep doing them.

NewHam said...

"Go play in the street, boy (do kids do that anymore?)"

Don't call me, a black man, a boy you fucking racist cracker.

garage mahal said...

New Ham = Florida.

Joe said...

What the Japanese called water boarding is not what the CIA did. There is a difference between threatening to fill someone with water and actually filling them with water. The Japanese would actually drown the person, revive then and then drown them and so on.

Read some autobiographies of POWs in Japan and find out what the Japanese actually did to their prisoners. Hint: it made the Vietnamese look kind by comparison. While at it, read up on Manchuria. Just be prepared to want to vomit.

bagoh20 said...

Pouring water on a face = "torture"
Slapping = "torture"
Slowly drilling a hole in your forehead. Or pealing the skin off your forearms = "torture"

Maybe language is the problem. Are we really saying that we think these things should all be considered the same thing?

If so, then the difference between murder and speeding must surely be a trivial distinction as well.

NewHam said...

"Pouring water on a face = "torture"

Liberals believe capturing combatants is torture. Jailing them is torture.

Questioning them is the definition of torture.

They define torture as "questioning a captured combatant in a way designed to extract information from them."

Killing them in the field with remote-controlled drones (and any collateral damage suffered by innocent bystanders) is OK. Even if bystanders die.

Liberals = Party of Death

AllenS said...

The best thing that happened lately concerning interrogation of prisoners, is exactly what the wonderful Obama administration is doing. You turn them over to the Pakistan government, let them do the interrogations, and our guys can just take notes. That is if our guys can stand the blood and guts.

SMGalbraith said...

Don't call me, a black man, a boy you fucking racist cracker.

Please tell me you're a Moby? You can't be for real.

Synova said...

Of course it depends on what you personally think!

Just like there being something to impeach a president for is your opinion of what is wrong to do or that you don't like.

The idea that a person can attempt to determine what is legal apart from what is right and moral is very old fashioned and entirely out of date.

WWJD? Just figure out for yourself what you think and never mind what any particular Book says!

And that goes for everything doesn't it?

We're lazy. Completely lazy. And it's across the board from one end of the ideological spectrum to the other.

Synova said...

"Personally, I think it's disgraceful to inflict any coercive treatment on a captive, particularly a bound captive...even so much as a slap, and I would prohibit any such treatment, (if it is not already)."

I see that Cook, very early on, came on board with the "don't capture them, shoot them dead" option.

Bravo.

Synova said...

"Liberals always try to gloss over the FUNDAMENTAL difference between legal and illegal combatants.

You cannot coerce a PW. He or she is not obligated to divulge anything but name, rank and serial number.
"

And we followed that. Legal uniformed combatants in recent conflicts in the middle east have been confined, fed and clothed, have not been interrogated past identity, and have been released at the end of hostilities to return freely to their homes.

Because men fighting honorably for their country are not a threat after release. They also most certainly don't have information worth getting.

Michael said...

Happily none of this matters: we have closed Gitmo, we give Miranda rights to captives, we have halted renditions, we have allowed the Patriot Act to expire and we do not torture. We might blow your ass to smithereens using our drones, but we do...not...torture.

Mark O said...

One thing we seem to have overlooked is the fact that the Reverse Yoo's president is seeking an opinion justifying INACTION. In that hypo, the President is apparently seeking cover for going easy on the non-combatants.

Mostly, the question is not even a decent law school exam question.

Synova said...

Who's talking gouging out eyeballs?

That's the problem, isn't it? Someone starts to talk about how we "can't torture" and then lists a whole bunch of utterly horrific things that aren't, weren't, and never could have been "on the table."

But if a person is going to insist that anything uncomfortable or coercive is torture... that "uncomfortable" and "coercive" are the definition of torture... then we're talking about something not at all the same as gouging out eyes, dismembering, defiling, and sawing a head off aren't we.

So maybe those who want to call coercion or discomfort or making threats torture, should first come up with a new thing to call what used to be torture. That's fair, isn't it?

And I've yet to find anyone who honestly says, at least not until they are pressed and forced to, that they don't want regular soldiers or anyone else in that position, to destroy their own lives, throwing themselves on the altar of our safety to *illegally* torture information out of a prisoner if the situation warrants it. Which I find disgusting. It's just like letting the Pakistanis get the info or just blowing up a whole village... they just want to be able to officially have the "no torture" fig leaf to hide behind. They want us to torture if it's going to save a city... they just want to ritualistically cleanse the poor guy who did it for them after it's all over.

Instead of doing what doesn't cause permanent harm and what works on a few high profile prisoners in a supervised situation with accountability... but something we have to *admit* to... people want the deniability involved in the assumption that someone will accept becoming a villain and scapegoat and do what is necessary. An expectation that can only lead to a great deal of freelancing and unreported physical abuse. Which is not better, is not more moral, is not something I'd ever want my moral self responsible for because it's vile, no matter that it comes with a heaping semi-truck load of fig leaves to bury ourselves under.

Cedarford said...

Getting back to the Yoo-Reverse Yoo argument, let us start with a few premises:

1. Authority is allowed to bend, suspend or disregard laws on the books in public emergencies or in war as public safety comes first. They have to defend that later, but use powers to allow people to drive on the wrong way of highways in hurricane evacuations despite "Rule of Law" clearly stating this is illegal and a crime.
2. The real or reverse Yoo is confronted with two Branches of Gov't demanding that we get lifesaving info from 30 of some 5,000 enemy Islamoids in custody after all other "win their friendship and trust" , lighter interrogation methods failed. Congress (even Rockefeller and Pelosi and Daschle), the Executive, and the American people by an 88% margin, - say do what is necessary to save thousands of American lives from these enemy combtatants not entitled to POW privileges.

3. Reverse Yoo would be the lawyer who stands against the elected officials of government and the general public. He would be the lawyer who stops police from evacuating a city from an approaching hurricane even if tens of thousands die - "because the law is the law" and if people want to change it, they must go through the normal months-long legislative process to allow people to escape on present legally forbidden to travel against posted signs one-way traffic...
Reverse Yoo would find also a way to thwart what the people want done with dangerous Islamoids trying to kill many more thousands on top of their 9/11 bag count. Seeing if a judge would agree with his disregarding certain laws and all common sense to stop any "excessive interrogation" technique on high level AQ.

*************
Law and certainly it's elite few practioners on a policy-setting level is not a stand-alone thing that is above The People, the Executive, the Legislative Branch. It is a tool and artifact devised and consented to by the People, provided it is useful, gives them rights, and keeps them safe from threats.
It is also an artifact that is crafted in a peacetime construct and peacetime norms that cannot be transferred entirely in war to dictating exactly how war must be fought...with the mindset of some lawyers and liberals saying the law being more important than winning or losing..

It seems real Yoo served the people far better than the reverse Yoo - the ideal of the reverse Yoo would be thousands of Americans dead, the People and their elected representatives defied in favor of rights of an open, declared and quite lethal enemy. As long as the words of a law written in 1877, one in 1923, one in 1971, and another in 1987 meant to protect Soviet dissidents ...are all minlessly complied with.

Iapetus said...

To be clear, Kerr did not claim that the Real Yoo and his hypothetical Reverse Yoo both reached their results in bad faith. He posed the question for people who BELIEVE that John Yoo wrote his memo in bad faith. I don't happen to share that view. So, my response (if the issue had been posed to someone like me) would be that only Reverse Yoo violated professional canons. QED.

RigelDog said...

Ah very interesting! What about this...a Reverse Yoo would also mean that Yoo would face professional and perhaps criminal sanctions if he recommended eschewing waterboarding, and as a result a terrorist attack was successfully completed. Would those who thought it appropriate to sanction Yoo for his opinion concede that he should then be liable for the opposite opinion and consequences?

Maguro said...

Does Reverse Yoo wear a goatee and a gold lame belt?

Douglas2 said...

Commenters on this blog always make sweeping overgeneralizations about what the left believes and about the behaviour of liberals.
Every commenter does this, and I consider it torture to read it.

Jason said...

Liberals are always making stupid assertions that things are torture that clearly aren't torture.

Maguro said...

But too many people advocate the use of these procedures on run-of-the-mill AQ operatives who have no information about pending attacks.

Really? Name one.

Lush said...

these torture memos surely aren't yoo's best work. i'd be more interested in seeing the as-yet unreleased memos he wrote justifying the warrantless domestic spying program (or "terrorist surveillance program" if you prefer euphemisms, as professor althouse seems to).

From Inwood said...

Point of Order

Kerr's hypo is

specifically for the many readers who believe that the real John Yoo wrote the real memos in bad faith. How similar or different are your reactions to the real Yoo and the Reverse Yoo? Are you equally upset about the Reverse Yoo as you are the real Yoo, because in both cases he fudged the law to reach a result he personally wanted? Or is Reverse Yoo significantly less blameworthy, or even a hero, for having done the right thing and stopped waterboarding?

In a second post, Kerr notes:

The most interesting result [of the comments to his first reverse Yoo post] to me is that for a lot of Yoo’s critics, whether Yoo followed the law or not is mostly beside the point. The primary objection is that Yoo’s conduct permitted an act that they see as immoral. This is an interesting result because Yoo’s harshest critics generally frame their criticisms of Yoo using legalisms: He “defied the law,” is a “criminal,” is a “war criminal,” must be “disbarred,” etc. These are all legal terms and legal concepts. And yet the answers to the Reverse Yoo post suggests that to a lot of these critics, their primary objection is not to the law, but rather to morality. Yoo must be punished because he is morally blameworthy, quite apart from whether he violated the formal “law.”

On this Althouse post we have the same moral preeners repeating their arguments from previous Althouse threads that Yoo is evil.

Yawn.

Asked & answered.

All I will add here is a conversation I had many years ago with some criminal defense lawyers who were seeing that a lot of obvious miscreants were going free to do their mischief once again solely because the constable erred. (OK, obvious to me, but Yoo's conduct is just as obvious to the Althouse moral preeners.)

When I suggested that they were doing this, they, in high dudgeon informed me that they were protecting my Constitutional liberties & it was their duty as attorneys to do so, no matter how bad the defendant seemed to be. Yes, even the guy who allegedly raped, tortured, & killed the 9-year old girl. .. well, you all know the lyrics.

I noted that my family & I (as well as theirs to the extent that they were literally not Limo Libs) had fewer liberties to walk the sidewalks of NYC than before the criminal law redux of the '60s, but they treated me as if I were a boob. I treated them as if they were Beelzebub.

From Inwood said...

Hey, moral preeners, Hey Methadras:

Your moral

House Leaders stop vote to ban degrading treatment

The McDermott amendment would have outlawed measures such as threatening detainees, using prolonged isolation and applying duct tape over a prisoner's eyes.

It would also prohibit an interrogator from "using force or the threat of force to coerce an individual to desecrate the individual's religious articles, or to blaspheme his or her religious beliefs, or to otherwise participate in acts intended to violate the individual's religious beliefs."

Rep. Hoekstra, the ranking Republican on the House Permanent Select Committee on Intelligence, said the amendment was far too vague, noting, "If a woman interviews a Muslim without a head covering, is that blasphemy?"


http://washingtontimes.com/news/2010/feb/26/gop-tries-to-kill-bill-on-cruel-interrogation/

Nobody is as cavalier about info getting techniques as you armchair would-be lawyer/moralists.

Haven't they read the cites you keep submitting or maybe the majority of the Congress understands the rebuttals that we've been submitting?

From Inwood said...

Hey Methadras:

Did not mean to link you with the moral preeners.

I was also thrying to answer you as to why it is not that easy to set forth a laundry list of "torture". The short answer to you is: because a majority of commonsense people don't agree with the moral preeners now in charge of the Dem Congress who would forbid being nasty to the beasties.

Der Hahn said...

SMGalbraith @ 3/1/10 3:37 PM

I think Robert Cook is right here: the standard must be no abuse mistreatment of these people. None.

SMGalbraith @ 3/1/10 8:43 PM

(quoting Cedarford) 1. Authority is allowed to bend, suspend or disregard laws on the books in public emergencies or in war as public safety comes first (endquote)

Yes, in exigent circumstances.

But the use of these procedures went beyond concerns about an imminent or near-imminent attack.

In those cases, i.e., exigent situations, I think both legally and morally "harsh tactics" can be used.


You could almost guarantee that the moral preeners would advance this line of argument, and someone anticipated it.

Monkeyboy @ 3/1/10 3:08 PM

What Woo was doing was helping to lay down clear guidance on the interrigation of prisoners. "You can go this far and no farther."
You may debate where the line was drawn, but there was a line, and its much much better than the posturing from the democrates, "Do whatever you want until it's unpopular, then we prosecute you."


Well said.

A.W. said...

FLS

> As I pointed out above, the US considered waterboarding to be torture when the Japanese did it to our airmen in World War II.

First, liberals have yet to produce a single case where they did it the way Yoo described.

Second, we are talking about a criminal statute, not the “laws of war” as pulled from our hindquarters in a moment of rage. Not exactly a good precedent, and certainly not the same as saying it was under the statute. The fact is that the statute is too mushy to pretend it clearly bans very much at all.

If you hadn’t dropped out of law school you would have surely learned something about the doctrine of lenity. It means that you interpret criminal statutes, like this, intentionally narrowly.

> Was it only torture because our airmen were wearing uniforms?

If the enemy was fighting with honor, the geneva convention makes it clear that we are not allowed to interrogate them at all, beyond name, rank and serial number. It also says that they have a right to sporting equipment and scientific equipment. How come liberals aren’t bemoaning their lack of scientific equipment, given that this is demanded under the geneva conventions, too?

Seriously, have you ever read this silly treaty? You really wonder whether they ever expected any country to obey it.

For instance, how often do you think our enemies followed that rule against interrogation? Can we name one enemy of our nation that had an American in its custody and didn’t interrogate them at all? Didn’t even ask nicely for information? Didn’t even say, “hey if you tell me where your friends are, we will give you all the beer and hookers you want”? I mean that is against the geneva convention, too, you know.

> If they had been wearing footie pajamas for comfort, would torturing them have been OK?

We are fighting an enemy that disrespects fundamentally the distinction between soldiers and civilians. You may mock the importance of wearing uniforms, but that is because you are an idiot. You think it is good not to be able to tell your enemies from innocent bystanders? You think it’s a good thing for our foes to make it so that you cannot kill them without a significant risk to civilian lives? And I presume you like the fact that they don’t bother to even try to avoid hurting our civilians. The geneva convention says that any nation or enemy forces that regularly violate those rights are not entitled to the Cadillac treatment afforded under the convention. To the extent that the geneva convention makes any sense at all, it is as an incentive to fight with honor.

The requirement that they wear uniforms is not a technicality. It goes to the heart of what is wrong with our enemies, what makes them our enemies. But you are too shallow to get that.

Michael

> We might blow your ass to smithereens using our drones, but we do...not...torture.

[channeling liberal stupidity] “But, wait, what if some of the people survive and they are horribly burned! Then we can’t try to kill them either, because if we fail, we might inadvertently torture them!”

Galbraith

> The US code and international treaties ratified by the US - not the Geneva Conventions - forbids mistreatment of human beings.

First, no treaty trumps United States law or the constitution.

Second, “mistreatment” is not only allowed under the constitution, it is specifically authorized. See, e.g. amendment 13, not to mention the treason clause.

But I love how we are dumbing this down. We have gone from saying, no one can be tortured to you claiming no one can even be mistreated. “Omg, I totally have a hangnail and the evil Americans won’t give me nail clippers. I am being mistreated!”

By the way, if torture is so bad, why is it that liberals so happily torture the words of the constitution and the torture statute?

former law student said...

Seldom has a single Althouse blog comment contained so many egregious errors. I'd like to hit the highlights here.

First, liberals have yet to produce a single case where they did it the way Yoo described.


Except for the "water treatment" administered to Lt. Chase Nielsen, as documented in the transcript of the war crimes trial of General Sawada.

Second, we are talking about a criminal statute, not the “laws of war” as pulled from our hindquarters in a moment of rage.

The Supreme Court declared, in the context of interpreting the laws of war, that "International law is part of our law" The Paquete Habana, 175 U. S. 677 (1900)

how often do you think our enemies followed that rule against interrogation?

Reciprocal treatment is not part of the Geneva Conventions.

no treaty trumps United States law or the constitution.

The Geneva Conventions became US law when the Senate ratified them 55 years ago, under Article II, Section 2, Clause 2; and Article VI, Clause 2 of the US Constitution.

former law student said...

The requirement that they wear uniforms is not a technicality. It goes to the heart of what is wrong with our enemies, what makes them our enemies.

Write on the blackboard 1000 times: "Al-Qaeda is not a nation. Al-Qaeda is not an army. They are a bunch of thugs. Groups of thugs do not wear uniforms"

Did the Cosa Nostra wear uniforms during Prohibition? (Other than perhaps black pinstripe suits and Borsalinos.) They were criminals blowing things up and machine gunning Federal agents. They were treated as such. Waterboarding them to find out where they were planning their next heists would have been illegal. The vast majority had been born abroad, yet they were treated as if they had all the rights of citizens.

A.W. said...

FLS

Okay, FLS, prove that what happened to Lt. Chase Nielsen. Given past interactions, I consider every assertion you make to be presumptively a lie, or at least wrong.

> The Supreme Court declared, in the context of interpreting the laws of war, that "International law is part of our law" The Paquete Habana, 175 U. S. 677 (1900)

The law of torture is not a law of war. It is a criminal statute applied to all forms of abuse, even if they have no connection to war. Duh.

See why I presume you are wrong?

> Reciprocal treatment is not part of the Geneva Conventions.

Actually, it is. And more importantly it goes to whether they are worth a damn at all.

Seriously, why adopt a treaty claiming we will be nice to our enemies, if it never makes our enemies be nice to us? Why handcuff ourselves only, so that we can’t even interrogate our enemies?

> The Geneva Conventions became US law when the Senate ratified them 55 years ago, under Article II, Section 2, Clause 2; and Article VI, Clause 2 of the US Constitution.

Yes, and when was the act against torture passed? Before or after 55 years ago? Duh.

A.W. said...

FLS

> Write on the blackboard 1000 times: "Al-Qaeda is not a nation. Al-Qaeda is not an army. They are a bunch of thugs. Groups of thugs do not wear uniforms"

Typically they do not. Now why should we reward a group of thugs for their thuggery?

As for the comparison to the mafia, there is a slight difference. we haven't declared actual war on them; and i would argue that 9-11 was war in a way that nothing in prohibition was.

From Inwood said...

Seldom has a single Althouse blog comment contained so many egregious errors.

Er, except for almost all of fls's

fls, like "Freddie" in those movies is never defeated; never silenced even when he tries to practice law.

His stuff, here regurgitated in virtually the same words, ostensibly legal stuff, has been asked & answered, to his detriment.

I don't care what he says, but I am bemused by his nom de blogue in view of his failed attempts at lawyering. And it’s not so much that he keeps getting both the facts & law wrong, but the absolute moral certainty involved & his rude put down of other non-lawyer commenters. Argument by intimidation.

A.W. said...

inwood

Well, the funnier thing is that he does it to lawyers, like me, too.

Jason said...

I still read his comments. If only for laugh lines.

I enjoy seeing his ideas come out, though. For the same reason I enjoy skeet shooting.

itzik basman said...

No brainer: it seems to me.

Yoo and reverse Yoo are equally at fault if they fudge the law to advance their personal opinions.

If the area is gray there will be an unavoidable overlap between bias and objective analysis, but generally legal opinions are not given as black and white propositions unless they can be.

So the complexity will be reflected usually in the review of the arguments pointing in different directions.

If the unique OCL task is to say, finally, what's legal, then presuming a good faith effort at an objective legal conclusion, that conclusion and the concluder should be unimpeachable.

Bad faith--the conscious displacement of analysis with personal preference--is nothing but impeachable.

The answer for the legal analyst who can't live with the conlusion the law compels should resign.