Notes on: John Yoo, MILITARY INTERROGATION OF ALIEN UNLAWFUL COMBATANTS HELD OUTSIDE THE UNITED STATES, memorandum to William J. Haynes II, General Counsel of the Department of Defense, OLC (2003.03.14). ================================================================================ Mo Memos... Page 4, FN 5: Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM (2001.09.25) Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: LEGALITY OF THE USE OF MILITARY COMMISSIONS TO TRY TERRORISTS (2001.11.06) Page 6: Memorandum for William J. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, OLC, Re: THE PRESIDENT'S POWER AS COMMANDER IN CHIEF TO TRANSFER CAPTURED TERRORISTS TO THE CONTROL AND CUSTODY OF FOREIGN NATIONS (2002.03.13) Page 6, FN 8: Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, OLC, Re: LEGAL CONSTRAINTS TO BOARDING AND SEARCHING FOREIGN VESSELS ON THE HIGH SEAS (2002.06.13) Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from John C. Yoo, Deputy Assistant Attorney General, OLC, Re: APPLICABILITY OF 18 U.S.C. § 4001(A) TO MILITARY DETENTION OF UNITED STATES CITIZENS (2002.06.27) Page 8, FN 10: Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: AUTHORITY FOR USE OF MILITARY FORCE TO COMBAT TERRORIST ACTIVITIES WITHIN THE UNITED STATES (2001.10.23) Page 13: Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick F. Philbin, Deputy Assistant Attorney General, OLC, Re: SWIFT JUSTICE AUTHORIZATION ACT (2002.04.08) Page 34: Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Re: STATUS OF TALIBAN FORCES UNDER ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF1949 (2002.02.07) Page 49, FN 54: Memorandum for John C. Yoo, Deputy Assistant Attorney General, OLC, from James C. Ro, Attorney-Advisor, OLC, Re: POSSIBLE INTERPRETATIONS OF COMMON ARTICLE 3 OF THE 1949 GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR (2002.02.01) Page 56, FN 60: Letter for John Bellinger, III, Senior Associate Counsel to the President and Legal Advisor to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, [Re: VIENNA CONVENTION(?)] (2001.11.15) Page 57: Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney GeneraL OLC, Re: AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE FORCE AGAINST IRAQ (2002.10.23) Page 59, FN 62: Letter for Alberto R. Gonzales, Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, [Re: CAT ARTICLE 16(?)] (2002.07.22). ================================================================================ Notes Page 4-5 "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. FN7" Page 11-12 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). Page 33, FN 39 With respect to the Hague Convention IV, section 244 I(c)(2) criminalizes conduct barred by artiCles 23, 25, 27, 28, of the Annex to the Hague Convention IV, Under the Hague Convention, the conduct in these articles, like all of the regulations the Annex contains, is prohibited solely as between parties to the Convention. Hague Convention IV, art. 2 ("The provisions contained in the Regulations referred to in Article 1,as well as in the present Convention, do Dot apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention."). Since Afghanistan is not a party to the Hague Convention IV, no argument could be made that the Convention covers the Taliban. As a non-state, al Qaeda is likewise not a party to the Hague Convention IV. Moreover, Hague Convention IV requires that belligerents meet the same requirements that they must meet in order to receive the protections of GPW, which al Qaeda,and the Taliban do not meet. Thus, conduct toward enemy combatants in the current war would not fall within the conduct proscribed by these articles. TITLE 18 > PART I > CHAPTER 7 > 18 USC § 113 (Assaults within maritime and territorial jurisdiction) TITLE 18 > PART I > CHAPTER 7 > § 114 (Maiming within maritime and territorial jurisdiction) TITLE 18 > PART I > CHAPTER 109A > 18 USC § 2242 (Sexual abuse) TITLE 18 > PART I > CHAPTER 110A > 18 USC § 2261A (Stalking) TITLE 18 > PART I > CHAPTER 1 > 18 USC § 7 (Special maritime and territorial jurisdiction of the United States defined) The term "special maritime and territorial jurisdiction of the United States", as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line. (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. (4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States. (5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard. (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. (9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act-- (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title. # # #