Yoo's introduction lays out the basic rationale for the Bush administration's new-age version of the Nazi Fuhrer Principle in terms of the Unitary Executive Theory and Constitutional doctrine of Originalism: "The Framers understood the Commander-in-Chief Clause to grant the President the fullest range of power recognized at the time of the ratification as belonging to the military commander. In addition, the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- unless expressly assigned to Congress, is vested in the President. Article II, Section I makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President the "executive power" and contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I. Our reading of the constitutional text and structure are confirmed by historical practice, in which Presidents have ordered the use of military force more than 100 times without congressional authorization, and by the functional consideration that national security decisions require a unity in purpose and energy that characterizes the Presidency alone." The part about the vesting clause is the basis for the UET in the way E = mc**2 is the basis for General Relativity. Originalism comes into it because according to the UET, what the vesting clause vests are all the powers of executive as it existed when the Constitution was drafted. Now what courts do is decide cases, and they do it by applying the law to the facts of a particular case. Where doctrines / rules of construction such as originalism come into play is where a case presents some ambiguity in how the law applies to the facts. A good example is habeas as it applies to the detainee cases, where habeas normally is applied by statute (28 USC 2241) but Congress has enacted the MCA, which retro-actively excludes "unlawful enemy combatants" from the statute and subjects them to alternative procedures under the MCA. Because habeas is guaranteed by the Constitution, the question is whether or not those procedures are an adequate substitute for the normal statute, and the answer depends on what precisely the Constitution means by habeas. The established doctrine is that habeas means what it meant under the common law when the Constitution was adopted (and gallons of ink have accordingly been devoted to briefing that topic by the parties and amici, the crux being how habeas applies to non-citizens held overseas). Now that's a classic example of originalism where both sides pretty much agree on the principle but nevertheless disagree on the history, even though it's a fairly narrow question. The question of executive powers in general is a lot bigger obviously, but Yoo is invoking originalism there in the same way. So on the one hand these folks argue for the original understanding of executive authority to support the claim of unlimited executive authority, while on the other, they ignore the plain fact that nobody who wrote the Constitution thought they were granting the President the powers of George III, James II, or Charles I, let alone Caligula; and equally, that it's inconsistent with philosophers such as Rousseau, Montesquieu, Locke, and Grotius, etc. Then they turn around and argue that Presidents have gone to war 100 times without congressional authorization, which is a "living Constitution" argument of the sort they despise when the topic is something like Roe v. Wade or gun-control. The other place this comes into play is in the customary laws of war, which they claim they can simply ignore at will, even though they base their claims for executive authority on precisely their own greatful reading of the customary laws of war. Yoo later dismisses 18 USC 2441(c)(2) which makes it an offense (war crime) to commit any violation of arts. 23,25, 27 or 28 of the the Hague IV 1907 annex of regulations by arguing that the statute only applies to such acts when committed by or against someone who is a citizen of a nation that is a party to Hague IV (which a list considerably shorter than Geneva, which is now recognized ny every nation on earth). But the statute doesn't actually say that, and the legislative history refers to the importance of the Hague regulations -- which were written to express the traditional laws and customs of war as they were understood in 1899/1907 -- in the proceedings at Nuremberg, and also mentions that the reason for similarly adding Geneva Common Article 3 was to cover events like those that had just transpired in Rwanda (unlawful combatants in spades). Which brings me to what started me out on my preposterous little project: Nuremberg, and the IMT Charter. My view there is simple: If anything on this earth is law, the IMT Charter is law. If anything reflects the laws and customs of war, the IMT Charter and Nuremberg trials do. The IMT Charter is a valid treaty in force for the United States which was also adopted as a resolution of the UN General Assembly. The United States was the leading power in drafting that charter, and it was adopted at a time in our history when the people of the nation were united to a greater degree than any other point in our history, including the Revolution. And that brings me to a question: Is the IMT Charter a self-executing treaty? I don't see how it could be considered anything else. It specifically states that acting under lawful orders is no defense to charges of crimes against peace, crimes against humanity, or war crimes, as defined by IMT art 6. It also states that there is no form of immunity for such crimes, and at Nuremberg, we even tried and convicted legislators for enacting laws to authorize them. Mr. Yoo isn't nearly as clever as he thinks he is: he's written his own indictment. The other half concerns the testimony of AG Mukasey to the Senate and House Judiciary committees re torture backing late January / Early February. I spent a more than a month essentially staring at a blank piece of paper trying to write Mukasey a letter (CC to both committees) in which I intended to accuse him of perjury point blank, but was never able to quite pull the trigger because it just didn't quite add up and the primary point of the exercise was to attempt to get the guy to see reason. The Yoo memo resolved the ambiguity, and while they claim this particular memo has been rescinded, it's clear that Mukasey's testimony was based squarely on some of it's arguments -- especially the part where I thought he lied. This is from the prepared statement he gave at the start of his Senate testimony: "Reasonable people can disagree, and have disagreed, about these matters. This is not surprising: They involve application of generally worded legal provisions to complex factual situations in an area of the highest national interest. It is precisely because the issue is so important, and the questions so difficult, that I, as the Attorney General, should not provide answers absent a set of circumstances that call for those answers. Those circumstances do not present themselves today, and may never present themselves in the future." (emphasis added) And here's is a key exchange with Senator Kennedy: SEN. KENNEDY: [...] Under what facts and circumstances would it be lawful to waterboard a person? AG MUKASEY: For me to answer that question would be to do precisely what I've said I shouldn't do, becasue I would -- number one -- be imagining facts and circumstances that are not present, and thereby telling our enemies exactly what they can expect in those eventualities -- those eventualities may never occur. SEN. KENNEDY: Are there any interrogation techniques that you would find to be fundamentally illegal? AG MUKASEY: There are statutes that describe specifically what we may not do. We may not maim, we may not rape -- there is a whole list of specifically barred techniques. SEN. KENNEDY: Water-boarding isn't on that list... AG MUKASEY: It's not. Which is where I think he's lying, since even if we accept all their bogus arguments about about the Torture statute (shocks the conscience etc), water- boarding would still be assault under 18 USC 113 (which covers both simple and aggravated assaults in the special maritime and territorial jurisdiction), and rape is just a specific type of aggravated assault. What bothered me is that Mukasey is too sharp and careful to miss something that obvious: he had to be seeing some distinction between rape and assault, but there wasn't anything in his testimony that tole me what it was. The answer is in section II(A), at 11-19 in Yoo's memo. "Canons of Construction", as in 1 + 1 = 0 or 3, depending on desired result. The reason that rape is on the list and assault isn't is that rape is under 18 USC 2241: http://www.law.cornell.edu/uscode/18/usc_sec_18_00002241----000-.html And 18 USC 2241(b) states: "Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General knowingly—" And here's what Yoo says: "In light of the President's complete authority over the conduct of war, in the absence of a clear statement from Congress otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas. We presume that Congress does not seek to provoke a constitutional confrontation with an equal, coordinate branch of government unless it has unambiguously indicated its intent to do so. The Supreme Court has recognized, and this Office has similarly adopted, a canon of statutory construction that statutes are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501, 504 (1979)) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe [a] statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."). Cf. United States Assistance to Countries That Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 149 (July 14, 1994) ("Shoot Down Opinion") (requiring "careful examination of each individual [criminal] statute" before concluding that generally applicable statute applied to the conduct of U.S. government officials). [ Avaialble at: http://www.usdoj.gov/olc/shootdow.htm ] This canon of construction applies especially where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (citation omitted) ("Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the .provisions of the [Administrative Procedure Act]. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion."); Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 465-67 (1989) (construing Federal Advisory Committee Act not to apply to advice given by American Bar Association to the President on judicial nominations, to avoid potential constitutional question regarding encroachment on Presidential power to appoint judges)." So there's finally an answer to my old question about what would prevent the President from roasting a two-year-old girl alive and then eating her for dinner. According to Yoo, nothing -- unless Congress writes a statute to specifically apply to the President and his agents. Here are a couple of quotes from his testimony to the House committee: CHAIRMAN CONYERS: Are you prepared to let us get a copy of the Office of Legal Counsel opinion? !!! AG MUKASEY: The Office of Legal Counsel opinion discusses particular techniques part of what remains a classified program. We have I believe provided an unclassified discussion of general legal principles, back in 2004, and we have provided some classified briefing with regard to underlying legal opinions, and are prepared to continue to do so, but the opinions themselves can't simply be turned over because they discuss not simply legal reasoning but the program itself, which remains classified. CHAIRMAN CONYERS: Well every member of this committee is cleared for top secret information. AG MUKASEY: The opinions themselves dealt with a program that, to the extent the opinions themselves deal with the current-- The opinions related to a past program cannot be disclosed, they can be the subject of briefings, and have been, but we can't simply turn them over. [01:55:10] REP. SCOTT (D-VA-3): General Mukasey, just briefly on the issue of torture, let me just make sure I've got this right. Is it the Department of Justice's position if administration officials think that a person has important information -- in their opinion -- that torture is legal and that decision is not subject to any judicial review or Congressional restraint? AG MUKASEY: No. REP. SCOTT: Then where is the review or restraint if administration officials decide to torture somebody? AG MUKASEY: The torture statue applies across the board. There is an existing CIA program that has been found not to violate that statute or any other applicable statute. That's the only program that is now authorized. REP. SCOTT: So if it is in fact torture in violation of the criminal code, the fact that the administration officials want to do it anyway, just because they want to it, they can't immunize themselves from the criminal sanctions? AG MUKASEY: That's correct. REP. SCOTT: OK. This was all sworn according to the standard formula requiring "the truth, the whole truth, and nothing but the truth". I'll give him credit for this much: he's a much better liar than Gonzales was. # # # * The Constituion One of the most galling things in it is at 4-5 where Yoo says: "The Framers understood the Commander-in-Chief Clause to grant the President the fullest range of power recognized at the time of the ratification as belonging to the military commander. In addition, the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- unless expressly assigned to Congress, is vested in the President." This is mix of the Unitary Executive Theory (the structure part) with originalism (the traditionally understood part). Originalism is a major issue in regard to habeas, because the established doctrine is that Constitutional habeas (as opposed to statutory) equals the commonlaw understanding of habeas at the time the Constitution was adopted. But how anyone could suppose that the extremist view of unlimited presidential powers advanced by Yoo and Addington in this memo could be reconciled with the history of the Declaration of Independence, the Glorious Revolution, and the conviction and execution of Charles I, or with Montesquieu, Locke, and Grotius is beyond comprehension. They are arguing for an executive with the powers of Hitler, Stalin, Charles I, or Caligula when one of the primary purposes of Constitution (and the the American Revolution) was abolish and prevent such tyranny. As for the authority of a military commander per se, the first thing the Continental Congress did after they appointed Washington to command the army was enact the first US Articles of War to govern his operations. The President as C- i-C has the authority to drive the car, not violate the laws. * Customary laws of war HR art. 23. ======================================= SOME THOUGHTS ON THE NEW YOO by Gabor Rona First, we learned that the Justice Department's Office of Legal Counsel (OLC) freed the CIA from any legal constraints in its treatment of detainees. Now we learn that the uniformed military services were also authorized to operate in violation of numerous US laws and international treaties prohibiting torture. The quality of legal reasoning in this and other memos authorizing torture is shockingly poor. But shock at the quality, alone, would be a misplaced reaction to these memos. The OLC is tasked to provide competent and neutral legal advice to the administration. The purpose of this and other OLC memos, however, was not to advise the goverment on the applicable law. These were result-oriented efforts to protect and immunize members of the CIA and military from war crimes. When an interrogator uses torture authorized by his superiors, and when the highest legal authority in the administration rules that those methods are legal, then the interrogator might avoid criminal responsibility with the claim that he reasonably relied on legal advice. It does not matter that the advice was wrong. What matters is only that it was given. The absolute absence of even a mention of the 4th Geneva Convention in this newly released memo - the one international treaty that remains relevant to the treatment of detainees even after the White House determined that they are not entitled to PoW status under the 3d Geneva Convention - is strong evidence that the memo's author was not concerned with accuracy. His task was accomplished despite that the opinions he expressed are tragically and obviously wrong. It is not enough to say that OLC was wrong. It is not even enough to say that it actively sought to authorize torture through irrational interpretations of the law. What is worse is that in so doing, it sacrificed its obligation to state the law in order to protect lawlessness. This is the essence of dictatorship. [ Gabor Rona is the International Legal Director at Human Rights First. ] RonaG@humanrightsfirst.org http://www.humanrightsfirst.org/ Slightly modified SOME NOTES ON WERNER BEST [From an anonymous legal historian.] Here is a description of an interesting character, Dr. Werner Best (Doctor of Law), who was a legal advisor to the SS and Gestapo: "Werner Best was ambitious, a cool amoral technician of power, used his academic and legal skills to justify the totalitarian practice of the Nazi regime, "which corresponds to the ideological principle of the organically indivisible national community." "As a leading constitutional theoretician and Nazi jurist in the Third Reich, Best did a great deal to give respectability and legitimacy to the political police and the concentration camps. *As long as the Gestapo was carrying out the will of the leadership, it was in his view, "acting legally."* " (Emphasis added.) Holocaust Education & Archive Research Team (H.E.A.R.T.), WERNER BEST, undated web page available at: http://www.holocaustresearchproject.org/nazioccupation/best.html Best was also the author of a book called THE GERMAN POLICE, 1941. It is a fair summary of his theory of constitutional police power, and I highly commend the book to those interested in the legal rationales propounded by Nazi theorists. The following is from Best's Nuremberg testimony, from THE TRIAL OF GERMAN MAJOR WAR CRIMINALS, Sitting at Nuremberg, Germany 29th July to 8th August 1946, One Hundred and Ninety-First Day: Wednesday, 31st July, 1946, available at: http://www.nizkor.org/hweb/imt/tgmwc/tgmwc-20/tgmwc-20-191-11.shtml Q. And how did the so-called intensified interrogations take place? A. Concerning the Verschaerfte Vernehmungen (*intensified interrogation methods*), Heydrich issued a decree in 1937, which I saw for the first time after it had been issued, for I was not called in on such matters, being an administrative official. Thereupon I questioned him about it. Q. What reason did Heydrich give for this decree? A. At that time, *Heydrich gave me the reason that he had received permission from higher authority to issue this decree. This measure was thought to be necessary to prevent conspiracy activity on the part of organizations hostile to the State and thus prevent actions dangerous to the State; but confessions were in no way to be extorted. He called attention to the fact that foreign police agencies commonly used such measures. He emphasized, however, that he had reserved for himself the right of approval on every individual case in the German Reich; thus he considered any abuse quite out of the question.* 31 July, 1946 p. 149. (Emphasis added). Q. What was the existing police law according to your theory? A. In speaking about police law in my book, I started from the National Socialist conception of the State and from the development of State laws at that time in Germany. When after 1933 the legislative power was transferred to the Government, *it gradually became the customary law of the State that the will of the head of the State automatically established law. This principle was recognized as law, for one cannot characterize the rules and regulations governing a great power for years on end as anything but customary law.* On the same basis, the State's police law developed too. An emergency law issued by the Reich President on 28th February, 1933, removed the barriers of the Weimar Constitution, and thus the police were given much wider scope. The activities and the authority of the police were regulated through numerous Fuhrer decrees, orders, directives, and so forth which, since they were decreed by the highest legislative authority of the State, namely, the head of the State himself, had to be considered as valid police laws. Q. What would be your judgment concerning the orders to the Gestapo or parts of it, to effect actions, deportations and executions? A. I have already said that these were measures quite alien to the police, which had nothing to do with the ordinary activities of the police and which were not necessary from the police point of view. But, if the police received such orders from the head of the State or in the name of the head of the State, then, of course, according to the current conception each individual official had to take it upon himself as an obligation to carry out the decree. Id. at pp. 150-151. (Emphasis added). # # #