Yoo bastard.

so?

Zed, baby!

Good One

LHP!

WHooHoo, I knew it was LHP without lookin’.

So close and yet, so far.

LHP,

Why is USA vs. Lee just coming out? I’ve never heard of it.

Snakes, vermin and cockroaches occupy the highest of moral high grounds in contrast to Yoo.

So ignorance of the law is an excuse sometimes?

Snakes, vermin and cockroaches occupy the highest of moral high grounds in contrast to Yoo.

Definitely a motherfucker, though.

LHP,

I’ve been lurking and reading your installments, so, first of all thank you for wading through this cesspool; second, what’s the take in real legal circles. Do real legal eagles ever sit around and form vigilante parties? Doesn’t a practitioner like Yoo set the profession back years?

So Yoo left this case out thinking nobody would ever notice?

cherrypicking…standard operating procedure for the BushCo crime syndicate.

but I keep saying this, the president has no rules, the supreme court will say he is imune, they will use the yoo memo, they will say their authority overides and lower court or presidence

they have no rules, they change the rules, they write the rules, they rewrite the rules

we are all acting as if the rules mean something to these people, the rules mean nothing, they own the playing field, they own the officials deciding the rules, they own the very game

we all know as a fact this is depraved, it is illegal and it is whatever you want to call it

but until yoo is disbarred and until the president is impeached where the crimes will be tried outside of the boundaries where the scotus decides, the president is in fact innocent

he is innocent until he is proven guilty and the courts will not find him guilty

they now have the power of the ring

Ignorant, so ignorant as to suggest ineligibility to teach law? Or does he reside in the utopia of the tenured?

So Yoo left this case out thinking nobody would ever notice?

Maybe Yoo didn’t do his homework. It would be typical BushCo arrogance.

Don’t forget to include the rules that Pelosi has chosen to ignore.

Ignorant, so ignorant as to suggest ineligibility to teach law? Or does he reside in the utopia of the tenured?

Yoo? Yup, he’s tenured.

That phrase “while acting under color of law” from Fitz is going to get quite a workout as folks unwind the Yoo Doctrine.

It’s just icing on the cake that the US Attorney prosecuting US v Lee was Daniel K. Hedges, a Reagan appointee now in private practice at Porter & Hedges. According to his bio there,

Prior to joining the firm, Mr. Hedges served as the United States Attorney for the Southern District of Texas from 1981-1985. While in the Justice Department, Mr. Hedges, Dan Webb, and Rudolph Giuliani co-founded the Organized Crime Drug Enforcement Task Force. He was selected as the Most Outstanding Young Lawyer in Texas for 1982-1983.

The wingnuts will have a hard time painting Hedges as a DFH with a bio like that.

Perhaps someone at the Houston Chronicle might want to give P&H a call to ask for a comment. (Spotlight, anyone?)

And so I say again (lordy, I am so tedious, I even bore myself sometimes) that BushCo resembles Calvinball every inch of the way. Remember Calvin and Hobbes? The wildly convoluted games they played wherein, no matter how scrupulously Hobbes abided by Calvin’s rules, there was always one more twist, one more change, one more deke that negated the tiger’s win.

Oh. Hi, everyone.

What johnSwifty said! Thanks a lot LHP, we really do appreciate all your time & effort on this, it has been most illuminating.

Thank you for bringing U.S. v. Lee to our attention. How would this case be applicable to Yoo since he did not personally engage in torturing any individuals?

RE: disbarment of the Bush Co lawyers.

What are the criteria? Who brings then and before what bar? In the beginning of the USA scandal, there was some discussion here and at TPM about Hans von Spakovsky’s actions meeting the GA criteria for moral turpitude.

IANAL, obviously, but disbarment of Yoo, Goodling, and Co. seems not only to be a worthy endeavor, but only a realizable one. As, alas, impeachment and war crimes are not(realizable).

If he used ANY of the current legal research systems (Lexis, Westlaw, or law clerk), he would have had to work hard to avoid bringing that case in any reasonable search. So he either saw it and ignored it or knew it was there and carefully searched to avoid it. I suspect the former.

Boxturtle (Picking & choosing is a time honored practice, but it doesn’t work well if the other side isn’t asleep. LHP never sleeps, I suspect)

Well, folks, nice hangin’ with y’all this afternoon. Off to see Kathleen Edwards play tonight. Toodles!

Woo Hooey! Go get ‘em, LHP!

THANK YOU for these posts. Valuable stuff to keep the bright lights shining into this awful administration’s darkest places.

And another thing . . . waterboarding in Texas??? On whose watch did that happen (1984)? Prior to Ann Richards. I have made it a point to not know Texas history ever since, oh, you know.

oh great – US v Lee, more FDL homework *g*

this old waitress digs the homework – you have me reading pdf’s Today’s Menu: Alien Tort Claims Act and the Torture Victim Protection Act

yes (((Prof LHP))) – thank you for all your illuminating work on this

IANAL (obviously) but it seems that the US v Lee, similar to the Youngstown Steel, goes to the caliber of Yoo’s scholarly research rather than the hands-on participation we would expect.

College’s expect their tenured staff to do a valid and comprehensive level of research to support their writings. Yoo has obviously done neither research or appropriate application of the research conducted.

I’m not expressing myself well but I hope you get the point.

Evidently, The good senator, or someone on his staff, ran the phrase “water torture” through Lexis or Westlaw, and tah dah! there is was.

Nope, the cop in US v. Lee who tried that defense was CONVICTED

This appears to be a case against a county Sheriff and Deputies. Even with a good governor, there are many small town/small county machines where the local authorities operate in a near dictatorial fashion. And it often did take the Feds coming in to clean things up.

Right on point, LHP. And, now, expanding on the point of this (and prior) posts regarding the flaws and failings in the Yoo/Bybee memoranda, this post over at Balkin’s place. In it, they remind us (we lawyers likely didn’t need reminding, if we have a grain of professionalism left) about the distinctions between a survey of what the law is, as opposed to an instrumental analysis of the law, the latter being an answer to the question “what are the best arguments that can be used to further my client’s position/desires?”

The Yoo/Bybee memoranda are clearly a form of the latter masquerading as the former.

Cheney ought to find a job for that patriot. /s

Do real legal eagles ever sit around and form vigilante parties? Doesn’t a practitioner like Yoo set the profession back years?

Vigilante parties? Er, not so much, that’s going outside the law. We like to do things inside the law, not only for the highest ethical and moral reasons, but also because we wouldn’t want to put our entire profession out of business. *g*

And, yes, Yoo has set the profession back years, hell, he’s set humanity back years.

The discussion about US v. Lee has been out there for a while.

FWIW, there was also a case out of the Supreme Court of Mississippi, from back in the 20s or 30s, in which water-boarding generated confessions a white sheriff extracted from black men, and which were used to convict them of murder, were tossed on the grounds that the water-boarding was torture and the confessions obtained therefrom, inadmissible.

That case is missing, too.

You might be interested in these observations for Scott Horton, posting at Balkinization:

Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be “clean.” He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe. In response, Yoo stated that he was crafting his opinion consciously as a bulwark against future prosecution. Indeed, the March 2003 memorandum reflects that he had consulted and secured non-prosecution assurances from the Criminal Division headed by Michael Chertoff. This reassurances did not have their intended affect, however. A good part of his audience believed, correctly, that his attitudes and conduct actually undermined the validity of the opinion and would render it useless in the face of future prosecutions

The case involving the Sheriff, and a few other cases, were summarized in this short WaPo op piece titled, “Waterboarding Used to be a Crime“

Judge Evan Wallach is a former JAG.

Actually, Yoo, Bybee, Addington and the others hurt the profession, but if we play it right, it can be used to strengthen the profession.

I’m beginning to think he might have believed that these memos would never be declassified and no one with a working brain would ever get to read them.

This guy KNEW BETTER than to misquote, mis cite, leave out controlling authority, it had to be deliberate.

Whew. I was wondering how long we’d have to wait for another Yoo fix.

I would think Yoo had a staff he could call on to do any research, wouldn’t he? If so, certainly his staffer found this case and he decided to pretend like it didn’t exist. Or he knew about it and didn’t use staff, knowing they would find it.

Or perhaps one of the attorneys involved with US v Lee read the Yoo memo, was as appalled as the rest of us at its contents, remembered that case from 25 years ago, and thought to him/herself “I should really bring this old case to someone’s attention. But who?”

Let’s see . . . who sits on the Senate Judiciary Committee? Leahy, Kennedy, Feinstein, Durbin, . . . wait a minute. What do we have here: Whitehouse — a senator who sits on both the Judiciary and Intelligence committees, and who served as both an appointed US attorney and elected state Attorney General? Sounds like just the person to call . . .

I agree with you. I guess I am overly anxious to hear about a case directed at Yoo.

This does look like an excellant case to use against the memos.

On Saturday, Senator Whitehouse said that one of the AUSA’s on the case is still in DOJ. Which makes Yoo’s omission almost comical, if it weren’t so tragic

Lee, Baker and Glover were waterboarders when waterboarding wasn’t cool. Now they’re post-9ll heroes. /s

Yoo’s “shaky figleaf”.. now that’s a scary image!

Ah – Found the reference. It’s here at “Is that Legal?”

The money quote – there were two cases from Mississippi – not one:

If It Was Torture in Mississippi, Then It’s Definitely Torture, Right?
* * *
Waterboarding, known ironically in earlier times as “the water cure”, remains — in the view of this administration and many supporters — not torture. And if it’s not torture, then it’s not cruel and unusual punishment or a violation of due process.

But here’s the rub.

In 1926, the Mississippi Supreme Court called the water cure torture. No qualifiers. No hedging. Just plain, good ol’ fashion torture . . . and therefore a forbidden means for securing a confession. These men were hardly a group I’d call *activist* or *liberal* and certainly not bent on subverting our country in the name of coddling criminals.

In a case called Fisher v. State, 110 So. 361, 362 (Miss. 1926), Mississippi’s highest court ordered the retrial of a convicted murderer because his confession was secured by a local sheriff’s use of the water cure.

Here’s the court:

The state offered . . . testimony of confessions made by the appellant, Fisher. . . [who], after the state had rested, introduced the sheriff, who testified that, he was sent for one night to come and receive a confession of the appellant in the jail; that he went there for that purpose; that when he reached the jail he found a number of parties in the jail; that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country.

Fisher relied on a case called White v. State, 182, 91 So. 903, 904 (Miss. 1922), in which the court took — as I understand history in those parts — the unusual step of reversing the murder conviction of a young African-American male, charged with killing a white man (it appears), because his confession was secured by *the cure*. The court said:

. . . [T]he hands of appellant were tied behind him, he was laid upon the floor upon his back, and, while some of the men stood upon his feet, Gilbert, a very heavy man, stood with one foot entirely upon appellant’s breast, and the other foot entirely upon his neck. While in that position what is described as the “water cure” was administered to him in an effort to extort a confession as to where the money was hidden which was supposed to have been taken from the dead man. The “water cure” appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed . . .

If “the cure” was seen as a barbarous form of torture in Mississippi in the 1920’s, I guess I’m at a loss to understand exactly how our attitudes about the process have progressed to see it as an acceptable means of interrogation 80 years later.

It would not be directly applicable to Yoo per se, it stands for the proposition that waterboarding IS torture.

It’s an actual criminal case that says waterboarding is torture, all Yoo had for authority for his crazy opinion was a medical reimbursement statute on when you can go to the ER w/o a prior authorization. tells you just how crappy Yoo’s scholarship was.

Nope, it shows that he KNOWS that waterboaring is torture, but lied in his memo which puts him in line for showing the necessary state of mind or mens rea for an Alstoetter type prosecution.

I can’t take credit for this one, It was gift from Sheldon Whitehouse, let’s give the boy a hand.

[Clapping madly]

look at mine at 49

So does this mean that, although none of the principals involved, except possibly Addington and Ashcroft (?), are lawyers, the 81 page Yoo memorandum does not give the others the cover they were looking for when they discussed getting “the lawyers” to sign off on this stuff? What all went on after that Comey trip to the hospital? Did all the illegal stuff come to an abrupt halt? I don’t think so. Is there any proof that anything stopped at all? Anything in writing, that is?

Well, I didn’t mean ‘vigilante’ in the Pace Picante, “New Jersey! Get a rope,” vein. I mean more in terms of the natural occurrence with professional circles whereby the guy who pisses in the pool is black balled. The idea that this psycho would ever have the ability to stand before a classroom of law students and spout his dreck just infuriates me all over again. Do legal circles form cabalistic, unspoken agreements to just not hire such a dangerous practitioner of the art?

At trial, Baker’s defense as developed by his counsel and his testimony rested on two points. The first was that he actively participated in only a single torture episode, and then only because ordered to do so by his superiors–a “Nuremberg defense.” The second was that while he believed the torture of prisoners immoral, he did not at the time think it was illegal.

Ah, but wait just a minute. We now have Section 1004 of John McCain’s Detainee Treatment Act of 2005:

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.

So today Baker’s defense would hold water, so to speak.

OT – but maybe not entirely. here are three of the congressional hearings scheduled for tomorrow. i’d love to see those testifying asked some good questions about our torture regime.

9:30 am – House Armed Services
Building Partnership Capacity and Development of the Interagency Process.
Robert M. Gates, Secretary of Defense
Condoleezza Rice, Secretary of State
Michael G. Mullen, USN, Chairman, Joint Chiefs of Staff

1 pm – House Judiciary
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Hearing on H.R. 3189, the “National Security Letters Reform Act of 2007”
as reported by the ACLU, witnesses will include:
Glenn Fine, DOJ Inspector General
Valerie Caproni, FBI General Counsel
Jameel Jaffer, director of the ACLU National Security Project

2:30 pm – Senate Foreign Relations
To hold hearings to examine protocol Additional to the Geneva Conventions of 12 August 1949….
John B. Bellinger, Legal Adviser, Department of State
Charles A. Allen, Deputy General Counsel, International Affairs, Department of Defense
Brigadier General Michelle D. Johnson, Deputy Director for the War on Terrorism and Global Effects, J-5 Strategic Plans and Policy Directorate, Joint Staff

O/T Followup:
Rep. Davis (R-KY) Apologizes For Calling Obama “That Boy”

instrumental analysis of the law, the latter being an answer to the question “what are the best arguments that can be used to further my client’s position/desires?”

The Yoo/Bybee memoranda are clearly a form of the latter masquerading as the former.

And yet with even the most cursory examination those arguments fail horribly. Yoo didn’t even manage to craft a credible fig leaf.

Which is why the coming untimely demise of their respective careers will be usable as a teaching point for lawyers and law students, about whoring themselves out to the whimsy of their clients.

Clapping with one hand; I’m still upset about Senator Whitehouse’s support of retroactive immunity for the telecom giants.

But, yes, this is an excellent find. As is the Mississippi case scribe cites at 49.

Both of which yield a single question for Yoo: “Did you know about these cases?” If the answer is yes, then omitting them is clearly legal malpractice. If the answer if no, then Yoo is incompetent.

I’d say the ball is back in Dean Edley’s court.

Not under Altstoetter, it wouldn’t.

Thanks for expanding the thought. I see know that U.S. vs. Lee is one facet of building a case against Yoo.

a bit O/T, but Tweety is on now restating the “Bitter” meme. I am getting to the point where Clinton is going over the top. Her race to be have that annointment confirmed, is getting to the point where I am not so sure that I would vote for her in the General (and certainly not for McVain).

She’s about one-half step away from going over the top… and when she does, the shark has not just been jumped it’s been pole-vaulted over.

Offered without additional comment:

LHP’s title: The Yoo Memo Part VI – Another Case He Did Not Cite

LHP’s first words: “In the second part of this series . . .”

I just know I’ll be disappointed but should I watch anyway?

Actually, there was some talk this weekend that the Yoo memos were not even seen by very many folks within DOJ. Yoo didn’t have the prospect of his peers laughing at him. He didn’t have the prospect of the public bench and bar laughing at him, these memos were TOOO SECRET.

lhp, just want to say thank you for this series. hope you can keep thinking up ways to write about it.. and so help keep the story alive.

Oh, and Tweety is an asshole.

yes.

because i will be and misery loves company. *g*

Clapping with one hand

That’s so Zen, Teddy…

John Yoo tenses hard
“‘US v. Lee,’ you tell me?”
“Time you left my team…”

Yeah, but that was a state court and not binding on the feds. The thing I like about US v. Lee, is that is federal appellate law

yep and always will be. just think, no chance of redemption. :)

And it was prosecuted by Reagan republicans.

lhp, let me add my voice to the chorus of thank yous for this series. thank you for explaining these legal issues to us non-lawyers in terms that we can understand.

When will Conyer and Leahy call Yoo to Congress and ask him WTF he was smoking when he wrote that crap?

Whitehouse would have a field day at that hearing.

That’s what we are hoping to have declassified.

Folks I truly believe that it is necessary to get out into the open EVERY bit of the infection that has spread through DOJ. Sunlight is the best medicine, it is that way that the faith and confidence of the American people will be restored.

There are some who have been critical of whistleblowers saying they bring shame upon the Department by airing the dirty linen.

No, it is those who soiled the linen in the first place who brought shame upon the Department and those who would air this linen in sunlight will thereby cleanse it

A chorus of thank yous, followed by a crescendo of spank Yoos!

Do legal circles form cabalistic, unspoken agreements to just not hire such a dangerous practitioner of the art?

I don’t know if you were around the last few days when we found out that there aren’t any law firms willing to hire Alberto Gonzales, so yeah, I would say the legal profession is gearing up for some shunning (at least I hope it is)

Beloved Leader is at 28%. Woot!

I hope they do, but Nancy’s strategy is to sit quietly and wait. She’ll be doing that while the Republics blame the Democratic majority for all of the economic problems of today.

okay will do
come tuesday, comiseration time

Tweety is an asshole.

And not just any asshole, but a true gaper…

On Saturday, Senator Whitehouse said that one of the AUSA’s on the case is still in DOJ. Which makes Yoo’s ommision almost comical, if it weren’t so tragic

but looseheadprop, that is the very point, yoo could not have possibly written such a pedestrion opinion if he had any inkling it would not be held up by the scotus

all that matters is that he wrote it and the scotus will allow for dispensation “because of it”

they can make, break, rewrite, and create from whole cloth any rule, any law, any presedent they want

I want to repost what I posted before

we are under some kind of assumption the rules still matter, they unequivocally do not

imagine you and I are playing tennis and I not only have the official in my pocket but I don’t care what anyone thinks, nor does the official

well, I am going to hit the ball on two bounces, the official will first claim it was one bounce, when he is shown the video tape that I hit the ball on two bounces he will say, “but I already ruled and what I ruled goes”

then, the next time I hit the ball on two bounces the official will say;

“well, he did it before, there is no reason I am going to stop him this time around”

they are making it up as they go, they are making it up as they need it made up, they are brazen, they are depraved, they are sociopaths

the sociopathy they are demonstrating though is not that of someone born with the disorder, it is not chronic;

“it is because it is”

they aquired the power they have the power they are going to continue to use the power, it is what it is

they are now the lord of the ring

I guess I forgot that Bert was a lawyer.

What are the criteria? Who brings then and before what bar? In the beginning of the USA scandal, there was some discussion here and at TPM about Hans von Spakovsky’s actions meeting the GA criteria for moral turpitude.

I believe the criteria is easily satisfied since yoo gave instruction to break the law, I don’t have the protocol for disbarment but I am pretty sure those criteria are easily met

it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.

Yes, but don’t most people of ordinary sense and understanding know that these practices are unlawful? I certainly do, and the only law I know is the eggshell skull theory. So, even though this clause is in the Defense of Torture Act, it shouldn’t actually provide an cover to the practitioners of cover.

There are also the war crimes trials of Japanese for waterboarding after the Second World War. Perhaps the best known is US v. Shigeru Sawada but there is also this one.

In United States of America v. Hideji Nakamura, Yukio Asano, Seitara Hata, and Takeo Kita (U.S. Military Commission, Yokohama, 1-28 May, 1947. NARA Records, NND 735027 RG 153, Entry 143 Box 1025):

The charge and specifications against Hata were:
Charge: That the following member of the Imperial Japanese Army with his then known title: Seitaro Hata, Surgeon First Lieutenant, at the times and places set forth in the specifications hereto attached, and during a time of war between the United States of America and its Allies and Dependencies, and Japan, did violate the Laws and Customs of War.
Specification 3. That in or about July or August, 1943, at Fukoka Prisoner of War Branch Camp Number Three, Fukuoka ken, Kyushu, Japan, the accused Seitaro Hata, did willfully and unlawfully, brutally mistreat and torture Morris O. Killough, an American Prisoner of War, by beating and kicking him; by fastening him on a stretcher and pouring water up his nostrils.
Specification 5. That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number Three, Fukuoka ken, Kyushu, Japan, the accused Seitaro Hata, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of War by beating and kicking them; by forcing water into their mouths and noses; and by pressing lighted cigarettes against their bodies.
1st Lt Seitero Hata was convicted and sentenced to 25 years hard labor.

The charge and specifications against Asano were:
Charge: That between 1 April, 1943 and 31 August, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asana, then a civilian serving as an interpreter with the Armed Forces of Japan, a nation then at war with the United States of America and its Allies, did violate the Laws and Customs of War.
Specification 1: That in or about July or August, 1943, the accused Yukio Asano, did willfully and unlawfully, brutally mistreat and torture Morris O. Killough, an American Prisoner of War, by beating and kicking him; by fastening him on a stretcher and pouring water up his nostrils.
Specification 2: That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of War by beating and kicking them, by forcing water into their mouths and noses; and by pressing lighted cigarettes against their bodies.
Specification 5. That between 1 April, 1943 and 31 December, 1943, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture John Henry Burton, an American Prisoner of War, by beating him; and by fastening him head downward on a stretcher and forcing water into his nose.
Yukio Asano, a civilian, was convicted and sentenced to 15 years hard labor.

The charge and specifications against Kita were:
Charge: That the following member of the Imperial Japanese Army with his the known title: Takeo Kita, Sergeant Major, at the times and places set forth in the specifications hereto attached, and during a time of war between the United States…. and Japan, did violate the Laws and Customs of War.
Specification 2: That between 1 April, 1943 and 31 August, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Takeo Kita, did, willfully and unlawfully, brutally mistreat and torture John Henry Burton, an American Prisoner of War, by beating him and by forcing water into his nose.
Specification 4: That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Takeo Kita, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of War by beating them, forcing water into their mouths and noses, and by pressing lighted cigarettes against their bodies.
Sgt Major Kita, was convicted and sentenced to 15 years hard labor.

Genji Mineno, a civilian employee of the Japanese Imperial Army, was tried separately for the same sequence of events in a separate trial in Yokohama (Military Commission Case Docket No 47 Tried at Yokohama 25-28 June, 1946. NARA NND 735027 Record Group 153, Entry 145, Box 151). The charges and specifications were:
Charge: That between 1 Feb 1943 and 1 Sept 1945 at POW Camp No. 3, Kokura, Fukuoka, Japan, Genji Mineno…did willfully and unlawfully commit cruel, inhuman and brutal acts, atrocities and other offenses against certain American and Allied Prisoners of War, in violation of the Laws and Customs of War.
Specification 5. That in or about August, 1943, the accused, Genji Mineno, together with other persons did, willfully and unlawfully, brutally mistreat and torture George De Witt Stoddard and William O. Cash, American Prisoners of War, by strapping them to a stretcher and pouring water down their nostrils.
Specification 9. That in or about 15 May, 1944, the accused, Genji Mineno, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O. Cash, and Munroe Dave Woodall, American Prisoners of War, by beating and kicking them, by forcing water into their mouths and noses, and by pressing lighted cigarettes against their bodies.

http://www.woodenboat.com/foru…..stcount=27

based on

http://www.pegc.us/archive/Art…..061016.pdf

According to the WaPo, Yoo has “made clear he would prefer not to appear” at hearings on Capitol Hill. That new subpoena option, “ignorability” that comes bundled with the power windows. If Miers and Bolten can do it, Yoo can too.

beloved? somehow ‘other’ words come to mind

Yeah, I fear you’re right. Nancy is one who could give a shit what the “average” American thinks as long as she gets support from her rich friends and gets to keep her seat in Congress. She not only needs firing, she needs unemployment and bankruptcy. Then maybe she’d have an appreciation for the crap she’s allowed to go on in this country.

true, but it’s also true that anytime there’s a finding that directly on point, and it’s unchallenged for that long, I’d have a strong argument that judicial notice (in the courtroom) and even-an-idiot-masquerading-as-a-law-professor writing a memo would have to address the finding.
Between tossing convictions (plural – there were two separate cases) because the confessions were gained through what the court found (as a fact) was torture, on the one hand, and convicting later practitioners of that torture of civil rights violations – I’d say Yoo/Bybee’s research skills were lacking.

So lacking, that they wouldn’t pass the first-year writing class I once taught.

and a person of ordinary sense and understanding would not know the practices were unlawful.

that AND is very important. it means a two pronged test and the defendant has to satisfy both prongs: 1) didn’t know it was illegal (subjective test) plus
2) A sane person would not believe it was unlawful (objective test)

When it comes to waterboarding what jury will believe that the interrogator has made out the objective test? Really now?

It’s like the judge in the AT&T illegal wiretap case saying that whatever the secret memo was that the telcos are saying they relied upon, the memo is such crap (I’m betting another Yoo product) that no reasonable person would ever rely on it.

You don’t need a legal memo to tell you waterboarding is torture, all you need are eyes to watch the body writhe, and ears to hear the screams turn into gurgles.

I should add

Genji Meneno, another civilian, was convicted and sentenced to 20 years hard labor.

“Beloved” in that Kim Jong Il sense… LOL

Shirley Golub {audio}

Cindy Sheehan

Wow… I just learned that McVain “joined Democrats on Judicial Nominees”. Really? Seems that Roberts and Alito made it to The Court somehow….

I was referring to an earlier part of the series where we talked about a case he did not cite, which is why the title of this part is “ANOTHER case he did not cite”

Thank you for bringing U.S. v. Lee to our attention. How would this case be applicable to Yoo since he did not personally engage in torturing any individuals?

yoo gave legal advice that instructed the president that it is fine to torture, that he has imperial rule.

I do believe this must be some kind of crime, ianal either but man, if this is not a crime then I can tell someone to kill someone else and that the murder is legal and I am not culpable

yoo really must be disbarred, all his our base now belong to the ama, they must disbar yoo if we are not going to impeach the presdident

ahhhhhhh got it

yoo really must be disbarred, all his our base now belong to the

ama

, they must disbar yoo if we are not going to impeach the presdident

yup, the american medical association must disbar yoo since the aba will not

sorry about the typo

Loosehead’s post on Youngstown Steel, an egregious omission from Yoo’s analysis.

Can’t understand why the ABA is not doing something about this. Since people hate lawyers this would be a good chance to polish that apple a bit.

Thanks for the link.

I know Perris, I see your point, I do. Especially about disbarment, but I don’t think the FIX was in at SCOTUS. I think he might have thought that SCOTUS would never get to see b/c the memo would never be declassified and so no litigation over it.

And if he bought that crock of shit from Cheney and Addington, he is the most naive person on the planet.

Rush Limbaugh should be clamoring for the disbarrment of trial lawyer, Yoo. Is he?

How does Yoo’s boilerplate defense come into play?

4 out of 5 doctors agree!

so from everything I’ve been told, yoo has demonstrated constitutional competance, he is a professor and teaches law, has done such a good job he has earned tenure with a respected school

he could not have possibly written such a pedestrian brief if he was not told it would stand on it’s own, he could not, he would not

I have been lurking for this very reason. I believe in continuing to expose every detail of the Yoo memo and the principals’ choreography of his words. They are in power and I cannot see how this power can be overthrown regardless of what cases previously shows otherwise.

Personally, I feel the only thing I have left to use is exposure and that has a power of its own. I appreciate LHP recording this for awareness and posterity. It must be out there repeated over and over so the words of the people bare witness to the truth. We may be so far down this road of fascist government that like the Titanic it can’t be turned around in time. But maybe, one day in the future, this cry from citizens will be heard.

A couple of themes jump out.

This was the US Justice Department intervening in a local abuse-incident-to-arrest case in Texas. [St. Ronnie was el Presidente when these incidents and this case took place.]

That’s what the DOJ had been doing – until the Cheney/Bush presidency – for two generations. Using congressionally crafted themes – violations of federal, constitutionally guaranteed civil rights – as the legal basis to intervene and correct injustice at the state level. In this case, Texas. The local USA must have concluded that the Texas state judicial system would not a) give the defendant justice, and b) stop the abusers and their future abuse. He or she devoted resources at the trial and appellate levels to correct that injustice.

The neocons have hated that exercise of federal jurisdiction since they wanted that b**ch Rosa to git ta the back a th’ bus.

The Cheney/Bush regime has inverted the equitable role played by the DOJ. It has stopped the practice of correcting local injustice through the assertion of federal jurisdiction. And uses it to achieve the partisan political victory instead.

Mind you, it’s not the law the neocons disdain, but its application. They use the same power, founded on the same legal bases, but use it to enact injustice. They do that especially where state law enforcement upholds the law, or where it consistently (rather than selectively) ignores it out of recognition that it works an injustice in all but the most extreme cases. The poster children for their inversion of justice include the use of the vaunted Civil Rights Division to “defend” white, fundamentalist Christian access to public resources; and the political prosecutions of Don Siegelman, Cyril Wecht and Eliot Spitzer.

Last observation. The Circuit courts says that it analyzed the facts in detail (though its decision primarily deals with whether trying the defendants together was valid). The conservative Fifth Circuit dealt dismissively with the Nuremberg defense and assumed that “water torture” described in the case was torture.

The state court case would HAVE HAD TO HAVE been included in any genuine memo, even if only in a footnote, though it is not binding law in the federal system. But the Texas case is actually binding in that circuit, and the next best thing to binding everywhere else absent a Scotus decision.

Wigwam @ 55 – Yep, the Levine/McCain DTA has plenty of problems even before you get to the MCA. But on the front that you raised, I think it is helpful that Fallon and his crew raised the illegality of the actions (they didn’t even know about the waterboarding) from the beginning:
http://www.msnbc.msn.com/id/15361458/

“You’re talking illegal acts here,” Fallon said. “The secretary of defense can’t change the law. One of the things that we told all our personnel was the fact that during Nuremberg, Nazi war criminals were actually tried for acts that were perpetrated by them under orders of their superiors.”

A person of ordinary sense and understanding does understand.

That sounds pretty bleak. Like some day we’ll come out of our caves and start evolving again. Oh,wait….

I know Perris, I see your point, I do. Especailly about disbarement, but I don’t hink the FIX was in at SCOTUS. I think he might have thought that SCOTUS would never get to see b/c the memo would never be declassified and so no litigation over it.

are you saying you believe roberts, scalia, alito will not side with yoo’s opinion?

I really have to believe they will, I will have new respect for them if they do not

Looking through the Evan Wallach article, there are also these cases:

For torturing and waterboarding a Filipino lawyer Ramon Lavarro:
United States of America v. Chinsaku Yuki, Manila (1946) before a military commission convened by the Commanding General Philippines-Ryukyus Command. NARA NND 775011 Record Group 331 Box 1586.

For torture and waterboarding a Dutch POW A.A. Peters:
United States v. Yagoheiji Iwata Case Docket No 135 31 March 1947 to 3 April, 1947, Yokohama. NND735027 RG 153 Entry 143 Box 1036.

(((((lhp)))))

THANK YOU!

You solved the issue that has bothered me all along. If waterboarding isn’t torture, why can’t the cops use it to interrogate?

Perris, were you here for the Alstoetter thread? That case stands for the proposition that if you pervert the law and say something like torture is legal, reasonably knowing that such an opinion will lead to torture, and torture actually occurs, you are liable as a co-conspirator to the torture.

so, yeah, there is some kind of crime.

AMA are belong to Republicans. Many self-policing, anti-regulation doctors enjoy practicing medicine by telephone from the golf course though surrogate P.A.’s and nurse-practicioners.

LHP
I really appreciate your work and thanks for making it understandable. I always feel smarter just by arriving at the Lake every day.

ummm LHP–

the us vs lee was in texas, in 1984—where was gonzales then? was he a judge yet? is this a case of which he would have been aware?

and bush too, is this something that would have been common knowledge?

I agree, I absolutely love looseheadprops posts and this series is my favorite

the depravity must see the light of day, it really must

what I am doing here though is making the point that we need the aba to take the helm, there are lawyers that read this blog from across the country and they are now what looks like the second to last best hope, the fourth estate is in their pocket, the scotus is in their pocket, pelosi is in their pocket

shakespear said “first thing to do is kill all the lawyers”, this quote is taken out of context, they were going to overthrow the government and the plan could not work unless they killed the lawyers, it was not a perjurative phrase it was a compliement

on this day we need the lawyers to take the helm, all else has failed

Do legal circles form cabalistic, unspoken agreements to just not hire such a dangerous practitioner of the art?

This single sentence gave me some hope, because it brought to mind the story I read yesterday about how Gonzo is not having any easy time finding a job. Somehow nobody is taking him up on any of the feelers he’s put out. Poor Gonzo…say it with me now, “AAhhh!”

I want each candidate to be asked if they are willing to turn over all people indicted by the Hague for war crimes. From the overly ambitious functionaries like Yoo all the way to the ruling elites of Bush and Cheney! A 25 year sentence for Bush and Cheney would be an appropiate way for them to spend their golden years.

Hey, Mary, long time …

The Texas Sheriff case was also mentioned in a longer piece by that same author: Drop by Drop: Forgetting The History of Water Torture in U.S. Courts. It’s a PDF, but a good overview (perhaps a survey, scribe?) of the law on the point of what’s torture.

We discussed that in an earlier part of this series

Click link, read earlier post. or click on my name at the top of this post and it will take you to a list of the whole series

Who would want to be represented by that smarmy little b*stard? No me.

Time for American lawyers to take their cue from their brothers and sisters in Pakistan. The justice system, and the legal profession, are at a tipping point.

looseheadprop, read my 121

there will be no impeachemt and yoo’s memo will take the weight of presidential deferance, it will earh the historical weight and that will carry presidence

if bush is not to be impeaced, and he is not, yoo must be disbarred

the aba is really our only hope looseheadprop

93 – OTOH, the penalty for beatings of an Iraqi General who had turned himself in so he could see his sons who were being held, including beatings from both the military and the “others” (likely CIA) he was handed off to and the multiple suffocation sessions in a sleeping bag, finally resulting in death, IIRC got about a 60 day green zone arrest, with a standing ovation.

So it’s hard to think there’s really any rhyme or reason left anyplace.

Ok, thanks, haven’t been reading FDL as closely as in the past.

Really ironic.

The other day, I was over at EW’s place and proposed (at least as an interim measure) “shunning” these torturers and their facilitators. Or imposing “The Silence”, like West Pointers used to do to fellow cadets who’d been gigged on Honor Code violations and gotten a Scotch Verdict or an acquittal perceived to have been wrong.

Everyone made fun of it. “Impractical.” “Never work. These Rethugs will take care of their own.” “These clowns are too far gone to notice the opporbrium.” You name it.

Well, just this morning I came across this news item. The Mayor of Detroit – who has lots of problems of his own, mostly involving text messages which allegedly don’t correspond to his denials under oath on the same topic – got The Silence from his own City Council.

Seems to be working….

Wow… Tweety had even gotten Eugene Robinson to sell out. Is the money and perceived adulation so wonderful that people get stupid when they sit in front of those cameras.

Fineman: Obama has “chin in the air” defiance. Wow. Does Fineman happen to mention that McVain is playing felony politics with his FEC issues? No, becuz he’s a Straight-talking War-hero Maverick.

Excellent first comment post! Better than zed, even, for the topic at hand.

(and I’m a pretty big fan of the zed…)

Do American lawyers have the integrity to do what is called for? Far too many Republican lawyers are reminescent of German lawyers that tried to give legitimacy to the Nazi’s.

“To hold hearings to examine protocol Additional to the Geneva Conventions of 12 August 1949″

What’s the point of ‘additional protocols’ when Yoo/Shrub have already abrogated the underlying treaty? Repeatedly.

Well, let’s see that law tested in court, or better yet, repealed. The Lee case and others suggest that no trained law enforcement officer, or soldier or former soldier-cum-mercenary (with their mandatory basic training in the UCMJ) could reasonably conclude that water boarding was not torture.

i repeat my mantra…… we are soooo fucked – bushco has cowed the country into a stupor – all the bad news and yet they still carry on – bushco’s approval rating ? in the tank but ahhhh soooooooooooo

I’m saying that they are only 3 votes out of 9, and I’m saying that my working theory at the moment is that Yoo might not have believed these memos would ever see the light of day.

Guys, these memos are so bad, so farcical, it’s like the ridiculous curse in Harry Potter.

The thing Yoo would have anticipated and feared was being laughed at by the rest of the profession. Without ANY credibility at all his powers are gone. I cannot believe he is not already a pariah at Boalt Hall.

No, it is those who soiled the linen in the first place who brought shame upon the Dpeartment and theose who would air this linen in sunlight will therby cleanse it

Really, all of your response to me was why I keep advocating for impeachment of Mukasey! He seems to me to be the pivotal person in all of this. He is standing in the way of enforcement of duly authorized Congressional subpoenas. He is the lynchpin of the entire operation at this point, and an investigation of his tenure is bound to lead everywhere, IMHO!

the us vs lee was in texas, in 1984—where was gonzales then? was he a judge yet? is this a case of which he would have been aware?

dmac- are you fucking kidding? Abu Gonzales know the law? Sheeeeit, he can’t tell a lawbook from a coloring book… prefering of course, the latter. They have pic-shers n stuff.

Bush back then wasn’t sober enough to know the law, much less able to spell L-A-W.

Actually.. on what grounds could he be disbarred, other than on broad qualifications of his general unprofessionalism or his miserablness as a pathetic excuse for a human being? As I understand it those memos were presumably not pieces Yoo prepared in his capacity as a sitting member of the bar for a judicial proceeding… any policy analyst, with or without a law degree could have prepared them, presumably.

Tweety on Colbert 2nite. Should be good.

well, i don’t know what will be covered in the hearing. but in general ….because, imo, it’s not over yet. and to give up means they win. (at least that is my thinking on my good days *g*)

Hi Cujo! I think there was a Horton piece that linked to that longer Wallach pdf you linked and I couldn’t remember that it had been by Wallch as well, and I’ve been looking for that piece for a few days now. Thanks for the sharerendipity.

So what will she do when the Democrats have the White House and both houses of Congress with stronger majorities. Will she correct past wrongs so that they do not justify future ones, or will she hope that that fetid lump under the carpet doesn’t smell too much while she remains in charge.

The Texas Sheriff case was also mentioned in a longer piece by that same author: Drop by Drop: Forgetting The History of Water Torture in U.S. Courts. It’s a PDF, but a good overview (perhaps a survey, scribe?) of the law on the point of what’s torture.

This is also the original source for my references to the Japanese cases above.

the us vs lee was in texas, in 1984—where was gonzales then? was he a judge yet? is this a case of which he would have been aware?

and bush too, is this something that would have been common knowledge?

Holy cow, Batman! dmac, I never even picked up on that! I bet is was in the papers in Texas at least. Nice catch!

Thank you, LHP!

Bob in HI

“Radio Silence“

Radio silence on Bush’s torture admission
ABC News reported a few days ago that a group of so-called “Principals” — including Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, CIA Director George Tenet, Attorney General John Ashcroft, and National Security Advisor Condoleezza Rice — met dozens of times in the White House to “discuss and approve” specific interrogation techniques to be used against suspected terrorists.

Initial reports indicated that Bush was “insulated” from the “series of meetings where CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved.” Bush eventually dispelled the notion that he was out of the loop, though, and said — arguably, bragged — that he endorsed the Principals’ work from the outset. The president told ABC News White House correspondent Martha Raddatz. “I’m aware our national security team met on this issue. And I approved.”

I realize that Barack Obama’s making some clumsy comments about economic blight and the culture war may be mildly interesting, but this is a fairly big deal. Torture is, you know, illegal, immoral, un-American, etc. As Dan Froomkin noted today, “If you consider what the government did to be torture, which is a crime according to U.S. and international law, Bush’s statement shifts his role from being an accessory after the fact to being part of a conspiracy to commit.”

And yet, major news outlets have decided not to bother mentioning these revelations to the public at all. Froomkin observed, “There was no mention of Bush’s admission in the New York Times, the Wall Street Journal or the Los Angeles Times. There was nothing on the major wire services. And nothing on CNN, CBS or NBC.”…

Glad to help. I wrote about this during the Mukasey hearings. That plus this piece from a guy who used to train U.S. service members to resist torture pretty much convinced me that if Mukasey didn’t think waterboarding was torture, he had no business being a criminal lawyer, let alone an AG. When a part-time engineer can find this stuff on his own time, it’s clearly not that hard…

barbara at 21–kirk posted the rules of calvinball one night….

The ABA cannot disbar anybody. Your bar admission is not an admission into a bar association–those are like clubs. Your bar admission is to a particular court. you have to be separately admitted to each court you want to practice before. So I was admitted to state Court in NY on one day, to federal 2 courts in NY on two other days and to the SCOTUS several years later. Other courts at other times (I’m even admitted to the JAG court). Each court you are admitted to would have to disbar you separately.

However, once you are disbarred from one, the rest usually follow suit

Doesn’t Yoo’s whole opinion rest on the assumption that the Prezidinent can do anything he wants during wartime. There has been no declaration of war, only an authorization to use military force, and the Administration has even named the whole Iraq debacle, “Operation” Iraqi Freedom. Yes, there was combat, but it is not really a war, so really I don’t see how they can rely on that….even if they say, well, traditionally there have been many “wars” that were not “declared by Congress”…..There is no such thing in the Constitution that says that war is anything other than war when Congress declares it war. That has not happened. Iraq and Afghanistan are both armed invasions and occupations using force…but no matter what they say…neither one is war, and to say that the Global War on Terror is war…still fails, because Congress has no declared war on terror. So!

I like it. Cheap, easy, portable, and effective.

Oh and eco friendly too

Wikipedia says:

Gonzales was an attorney in private practice from 1982 until 1994 with the Houston law firm Vinson and Elkins, where he became a partner. In 1994, he was named general counsel to then-Texas Governor George W. Bush, rising to become Secretary of State of Texas in 1997 and finally to be named to the Texas Supreme Court in 1999, both appointments made by Governor Bush.

Maybe Abu has an alibi.

Raddatz: “And approved that?”

Bu’ush: “Yes.”

Raddatz: “You have no problem with that?”

Bu’ush: “In 2003?”

Raddatz: “Yes.”

Bu’ush: “No. I mean, as a matter of fact, I told the country we did that. And I also told them it was legal. We had legal opinions that enabled us to do it. And, no, I didn’t have any problem at all trying to find out what Khalid Sheikh Mohammed knew.”

Raddatz: “OK.”

Bu’ush: “And guess what? I think it’s very important for the American people to understand who Khalid Sheikh Mohammed was. He was the person who ordered the suicide attack — I mean, the 9/11 attacks. And back then, there was all kinds of concerns about people saying, ‘Well, the administration is not connecting the dots.’ You might remember those — that period.”

Raddatz: “I remember.”

Bu’ush: “Well, we started to connect the dots, in order to protect the American people. And, yes, I’m aware our national security team met on this issue. And I approved. I don’t know what’s new about that; I’m not so sure what’s so startling about that.”

_______________

Yeah, asshole, you never fail to throw out the “Khalid Sheikh Mohammed” straw man. Like torturing him justifies torturing anyone we collar in the War on Terrah (90% of whom are false positives).

I think Gonzo was still learning the ins and outs of shopping center development in Texas. Twenty-four years ago, I don’t think Shrub had dried out yet. He was still drilling dry holes; he wasn’t involved with the Rangers until the early 1990’s and wasn’t governor until the late 1990’s. The observation that local justice in Texas was a contradiction in terms, especially in the Valley and for minorities, is of older provenance.

Perhaps someone at the Houston Chronicle might want to give P&H a call to ask for a comment. (Spotlight, anyone?)

Good idea. I spotlighted it to 5 people at the Houston Chronicle and 5 more at the Dallas Morning News.

Bob in HI

Lhp at 147–(blushing, thanks, i’m honored, just call me robin, eureka said i’m the little turtle with the spunky bullhorn : ))

i just thought that even if you don’t read update journals etc that come in the mail, or read the papers, it would have been mentioned by someone somewhere, and if he was a judge, he would have gotten a list of decided cases-if he was a judge he would have had to have known about it.

that’s why i wondered if he was practicing law at the time, didn’t he do real estate? or if he was a judge at the time.

but he would have been getting (can’t think of the names of things right now) career/associations related stuff in the mail.

i find a lot of stuff in academia related obscure sources, so, made me think he would have known even if he wasn’t a judge.

and a person of ordinary sense and understanding would not know the practices were unlawful.

that AND is very important. it means a two pronged test and the defendant has to satisfy both prongs: 1) didn’t know it was illegal (subjective test) plus
2) A sane person would not believe it was unlawful (objective test)

Unfortunately, McCain’s Section 1004 continues directly:

Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

bobbyg at 156–whenever bush says things like ’and guess what?’ or ’and let me add’ here it comes…..

if martha had interrupted him with anything else but-’i remember’ encouraging him to go on, he never would have said it……

The silence is deafening. Silence from Congress. Silence on the networks. Silence from the newspapers. The President of the United States of America admitted to authorizing war crimes that he has long been claiming never occurred. …. And silence throughout the land. It’s spooky. I’m becoming paranoid, even more paranoid than usual.

In an attempt to channel Yoo, would he not argue that the case US v Lee is not applicable because the waterboarding was not ordered by the President during wartime? Would he not simply try to argue that the President during wartime has plenary power to do whatever the fuck he wants, Caesar-style, until the war is over? I believe that is the basis of his tortured logic (so to speak).

I am more interested in applying the precedent of Nuremburg and the trials of Japanese soldiers/interrogators after WWII for their use of waterboarding during wartime. Sure, the argument that being at war gives the President literal dictator powers is bullshit, but that logic destroys itself when faced with the prosecutions of other nation’s personnel who did exactly the same thing during wartime. It absolutely cannot be argued that the US can do X but NO ONE ELSE CAN.

Great point.

Unfortunately, McCain’s Section 1004 continues directly:

Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

Valid point. But Yoo’s memo was hidden from almost all eyes. It was held as the ace in the hole by Addington, et al., for precisely the reason the cited section was enacted into law by their congressional enablers.

Which means that virtually everyone, possibly Bush included, were acting on what Addington or Cheney was telling them, not on Yoo’s memos directly. I think that undercuts the value of their “under advice of counsel” defense. That when revealed to the light of day, that advice was so quickly dismissed as incompetent or fraudulently rendered, undercuts it even more.

He might argue that, but US v Lee calls “Bullsh*t!” on Yoo’s “it’s not really torture” defense.

There are lots of bogus arguments that need to be knocked down in Yoo’s memo, and this case does a good job of taking one of them out of play.

Next?

I would think Yoo had a staff he could call on to do any research, wouldn’t he? If so, certainly his staffer found this case and he decided to pretend like it didn’t exist. Or he knew about it and didn’t use staff, knowing they would find it.

He was working at the Department of Justice when he wrote it. So, yeah, he had a staff and resources.

He violated his oath to support and defend the Constitution which he took to become an employee of the government. He also violated his lawyerly code by intentionally (!) doing the job incorrectly.

He’s out of government, but still a lawyer. Go figure!

dibarment. yum yum yum. where do we start? The problem seems to be no one knows where, e.g. at which Bar. I am working on it, but so far, no leads. Other than search the rest of the lower 48 (with apologies to Edward Teller, I don’t think Alaska wld suit this Harvard AB/Yale lawyer), what’s to be done, LHP?

nothing on his web page/fac bio about his admittance to the bar. according to TPM comments, he is not admitted to the CA bar.

http://tpmmuckraker.talkingpoi…..s_a_ba.php

and here among Glenn’s commenters,the fact that he is not admitted to the Va or DC bar.

could not find any current or former registration in any of those jurisdictions. However, I would encourage all lawyers in California to lodge complaints with the California Bar Association and the Berkely law school regarding Yoo’s employment as a law professor.

snip

Finally, I the American Bar Association annual meeting is set to take place in New York on August 7-12, 2008. The ABA has been quite outspoken about the rights of lawyers in Pakistan, but to my knowledge has been fairly quiet regarding abuses here in the United States. It does not appear that the agenda has been set as of yet, so I would encourage all ABA members to try to draft and introduce a resolution condemning these individuals and their legal interpretations, and stripping them of their membership in the ABA (assuming they are members). I am willing to work on this with anyone who is interested. If you are not a lawyer but know someone who is and is as outraged as I am, please pass along this plea.

http://letters.salon.com/opini…..ndex5.html

That said, his Dean has already defended him. No link, sorry.

He’s a member of the Bar in PA.

Well, I suppose that our Preznit could argue that the water cure is an old American custom:

Dunking is a form of torture and punishment that was applied to scolds and supposed witches.

In a trial by ordeal, supposed witches were immersed into a vat of water or pond, and taken out after some time, and given the ability to confess. If she confessed, she was killed. If she did not confess, she was submerged again. This process usually was repeated until the victim drowned or gave up and let herself be executed in another way (hanging or, rarely, burning).

George didn’t need to appeal to Yoo; he could just appeal to the precedent of the Salem Witch Trials– oh, wait, I can’t verify that. Who did use “dunking” in the Colonies?

Bob in HI

However, once you are disbarred from one, the rest usually follow suit

thanx for this information looseheadprop

so now to find somewhere yoo is submitted that will disbar him

somewhere, anywhere.

I’m most interested in the case of General Yamashita who was executed for failing to prevent torture that included waterboarding. IMHO, the Yamashita Standard applies to Congress, and most especially to Conyers and Pelosi, who have block congressional action toward impeachment.

I know, but this is just SOOOO craptastic. You didn’t need me or any lawyer to tell you that waterboarding was torture, did you? And even if I stood on my head insisting it was not torture, you still wouldn’t change your mind about it, would you?

A jury will make that same analysis

The next installment in the series is currently scheduled for 5 AM FDL (8 AM EST) tomorrow. I’m going to go home now, but I will cheak this thread in the AM for EPU’d comments. Catch ya ‘ll on the flip

Bush is feeling on the “defensive”, and because he is, he opened his mouth and inserted a big boot. Sooner or later they are going to get nailed because of all of this.

IMHO, the Yamashita Standard applies to Congress, and most especially to Conyers and Pelosi, who have block congressional action toward impeachment.

BRILLIANT!

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

First, let’s clarify whether ‘AUTHORIZED INTERROGATIONS’ is the same as ‘AUTHORIZED TORTURING’.

(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.

So, we have to ask a person being charged with a crime if they knew what they were doing was unlawful? Who is gonna admit to that?

Of course, all our soldiers are taught it’s illegal. They’ve all been taught to follow the Geneva Convention rules — except the oddballs brought in to Abu Ghraib who had never been interrogators. I wonder if they teach CIA interrogators about the Geneva Conventions. I can hardly imagine they don’t.

So, it’s highly unlikely any of them thought what they were doing was lawful.

Of course, they might claim to NOT be “a person of ordinary sense and understanding”. In these strange Bushie times that is possible.

So today Baker’s defense would hold water, so to speak.

It’s a stretch.

When did this become law?

When did the torturing begin?

Are there extenuating circumstances for Gitmo or other overseas activities?

What do they teach CIA interrogators is legal or illegal?

Did the military tell it’s interrogators about this law? When? Was it incorporated into their manuals? When?

Bush has been putting his boots in his mouth for so long, he would only notice when they weren’t in there. Kerry and Gore’s victories in ‘04 and ‘00 illustrate that bland optimism – that the GOP are so bad that their sophisticated propaganda won’t get them elected – isn’t enough.

Bush……..”We had legal opinions that enabled us to do it.”

The client relied upon and acted on the opinion. Yoo did the cherry picking. (At whose direction?) That quote is paydirt.

A google on Yoo’s name and PA bar admission, gets a number of cites, including his alleged PA Bar#.

160 – that’s what I like about Fallon’s contemporaneous objections, even in light of the Hayne’s authorizations for Rumsfeld. Not determinative, but nice to have in the back pocket.

LHP – I know you sometimes check back so I’m going to put this here bc I think you’d be interested if you haven’t already seen it (I tagged it on a post at EWs too)

Glenn Fine makes some interesting references to the things his office had to give up to OPR

Every other inspector general does have unlimited jurisdiction in their agencies. We don’t. In the Department of Justice, the Office of Professional Responsibility has jurisdiction over attorneys in the exercise of their legal duties.

We think we ought to have full jurisdiction within our department just like every other inspector general. I also think it can create a conflict of interest when an entity like OPR, which reports up the chain of command to the department and to the attorney general, is asked to review the actions of their superiors. That is what inspectors general are set up for. I think the limitation on our jurisdiction ought to be removed. If it had been removed, there are areas where we could have gotten involved and should have gotten involved.

Bush……..”We had legal opinions that enabled us to do it.”

and “the patriot act” reads as though it is plagiarized from Hitler’s “enabling act”

good catch

I am terribly confused.

Didn’t Yoo argue the President can do anything in time of war? Aren’t the cases outside of war that were not authorized by a President beyond Yoo’s boundaries? If so, why would Yoo mention them?

IIRC, PA is the easy to pass bar, the one Monica Goodling the Bad passed. Our own Bmaz was trying to figure this one out, way back when:

http://proctoringcongress.blog…..g-was.html

Am I in fact RCly?

Ok, so where do we start?

As this info. was not immediately available via google, just getting it into an LHP post would probably useful. E.g. anyone with Wiki privileges could add it to his bio:

http://en.wikipedia.org/wiki/John_Yoo

Lawyers of PA, hear our cry: “Will no one rid us of this man?” By legal means, of course.

Why would Yoo need to mention cases that don’t deal with the el Presidente’s powers during wartime?

Because for Yoo to write a competent memorandum of law – rather than the script for a political argument – Yoo must give reasons why and to what extent the existence of war, declared or undeclared, enlarges the President’s peacetime powers. He has to support his reasons with decisions about the language of the Constitution and decisions about what that means by the Supreme Court, or less persuasively, federal appellate courts.

To do that properly, Yoo has to describe the limits on presidential power in peacetime, and explain what additional powers he claims the President acquires during wartime, especially when exercising his authority as the civilian commander of the country’s armed forces.

Yoo does none of that. He asserts that the President’s wartime powers are unbounded, without supporting his claim. He asserts that the President’s powers cannot be restricted by the Constitution which creates his office – a logical Cheneying. Nor can they be restricted, Yoo claims, by the two competing bodies that same Constitution also creates – Congress and the Supreme Court – which explicitly authorizes those bodies to restrict the President’s wartime conduct, starting with vesting exclusively in Congress the power to declare war, to regulate its conduct and to fund it. All problems Yoo avoids by ignoring them.

That’s not legal scholarship, which Yoo, who graduated from Yale Law and from Harvard (with highest honors) would know. Nor is it zealous advocacy of a narrow view, which requires admitting but exposing the flaws in contrary views. Yoo simply uses the form of a memorandum of law to parrot back to Addington et al., what they want to hear.

Here are a couple more cases that Yoo could have cited.

One would expect an argument that Congress cannot infringe on the President’s authority as commander in chief to include a Supreme Court case upholding Presidential authority as commander in chief against Congressional infringement. I have found only one such case, Swaim v. United States, 165 U.S. 553 (1897), but Yoo did not cite it.

Yoo probably did not do so because it shows the limited scope of being commander in chief. The plaintiff sued for the pay he lost after the President convened a court martial that suspended him from his army commission. He argued that, by statute, only a general officer could convene a court martial. The statute allowed the President to do so only when the defendant’s commanding officer was the accuser.

The court of claims rejected this argument: if the President is commander in chief, then he must have all the authority that his subordinates have. 28 Ct. Cl. 173, 221 (1893). Swaim appealed to the Supreme Court, which also disagreed: any authority an officer had the commander in chief must have as well. 165 U.S. at 556, citing Runkle’s Case 19 Ct. Cl. 396. In other words, the courts have said that the President’s constitutional authority as Commander in Chief prevents Congress from doing one thing: exempting an officer’s act from the chain of command extending up to the President. Pretty boring, and not enough to show that the President’s authority over warmaking is “plenary.”

Another case Yoo forgot is Kinsella v. United States, 361 U.S. 234 (1960), on the scope of Congress’s constitutional authority to establish rules and regulations for the government of the armed forces. The Uniform Code of Military Justice provided for courts martial not just for members of the military but for their dependents on overseas bases. The court held the statute unconstitutional because it deprived a civilian of constitutional trial rights. The “rules and regulations” clause, Congress’s only authority to create courts martial, applied only to the military.

The opinion’s significant language rejected the government’s argument that it should be allowed to court martial civilians for noncapital but not capital offenses. The court refused to draw that distinction: the Congressional power to make rules and regulations for the government of the armed forces “bears no limitation as to offenses.” 361 U.S. at 246.

In other words, the court said that Congress’s authority over the military, not the President’s, is plenary. Weak authority, it is true, but it beats anything that Yoo dragged up.

Yikes. The name of that case is Swaim, not Swain, v. United States.

[edit: fixed for you]

I should add that it appears Yoo briefed the President’s top advisers at some of the recently disclosed White House meetings. I don’t recall whether Cheney’s lawyer, Addington, attended those same briefings. But Yoo’s boss, the AG, did, and wondered aloud why they were discussing such topics in the White House. In a lawyer, a sure sign that the topic was outside the law or so close to it that they were hanging by a fingernail. The statement attributed to Ashcroft was given to a journalist, which suggests he may well have been more, if mildly, outspoken in person.

Yoo’s claims were so outlandish, so outside prior law and practice, that the most senior politicians in this White House would not have accepted them at face value without seeing his work or verifying it with their own staffs. (Except those who didn’t care if it was legal, but only wanted to check a box on their legal defense form.) Almost certain Powell did that and heard objections.

The whole process so reeks of “loading the dice” that it’s difficult to imagine anyone but Justices Thomas or Alito considering their subsequent conduct as being based on upon reasonable reliance on counsel’s advice.

OK, I’ve found a reference to dunking in the American colonies:

Dunking of Baptist Ministers
David Barrow was pastor of the Mill Swamp Baptist Church in the Portsmouth, Virginia, area. He and a “ministering brother,” Edward Mintz, were conducting a service in 1778, when they were attacked. “As soon as the hymn was given out, a gang of well-dressed men came up to the stage . . . and sang one of their obscene songs. Then they took to plunge both of the preachers. They plunged Mr. Barrow twice, pressing him into the mud, holding him down, nearly succeeding in drowning him . . . His companion was plunged but once . . . Before these persecuted men could change their clothes they were dragged from the house, and driven off by these enraged churchmen.”

The Dunking of David Barrow and Edward Mintz in the Nansemond River, 1778
Oil on canvas by Sidney King, 1990
Virginia Baptist Historical Society (141)

A famous variant was the “Ducking Stool“, described on the Colonial Williamsburg website in an article with the title, “Bilboes, Brands, and Branks: Colonial Crimes and Punishments,” by James A. Cox:

Most self-respecting settlements also had a ducking stool, a seat set at the end of two beams twelve or fifteen feet long that could be swung out from the bank of a pond or river. This engine of punishment was especially assigned to scolds—usually women but sometimes men—and sometimes to quarrelsome married couples tied back to back. Other candidates were slanderers, “makebayts,” brawlers, “chyderers,” railers, and “women of light carriage,” as well as brewers of bad beer, bakers of bad bread, and unruly paupers….

I can find plenty of references to these “ducking stools,” but few to actual instances of their use. New York and Philadelphia were among the cities that ordered them for use in dispensing justice.

Bob in HI

Good bit of work there, to dig up those cases.

Kinsella means that Congress’ explicit constitutional right to regulate the military does not extend to civilians, who have not agreed to be subject to military discipline. Civilians, even immediate family of members of those in the military, remain protected by the broader rights given in the Constitution.

Among other things, that means that the government’s interest (expressed by Congress in legislation) to conveniently try family members’ infractions of base rules or the criminal law by way of courts martial, does not outweigh the civilians’ constitutional rights, including, for example, their right to a public trial by a jury of their peers.

By implication, the President would not have authority to do that either. Not even under his “plenary” or full powers as the civilian commander of US armed forces, because the acts complained of are not those of the armed forces he commands, but of civilians – distinctions Yoo’s writings ignore entirely. More significantly, the case doesn’t deal with conflicts between the President’s general authority and specific rules proposed by Congress to regulate the armed forces.

In Swaim , the President was dealing with a military matter – convening a court martial – to deal with a member of the armed forces about a claimed infraction of military rules. That’s squarely within the President’s authority. The more detailed rule enacted by Congress did not bar the President from doing that; as is intended with most statutes, it dealt with the most common circumstances under which courts martial would be convened.

Neither case supports Yoo’s claim that Congress has no authority to restrict the President’s powers during wartime or that the President’s wartime powers are without limit because he is protecting America.

That construction is an emotionally charged fiction invented to get around the legal reality that the President’s primarily obligation is to uphold the Constitution and all other laws consistent with it, including international treaties incorporated into US law. That fiction aggressively argues that a single role of the President, to act as civilian commander of the armed forces, trumps all his other obligations, as well as the intentionally conflicting rights the Constitution give to Congress and the Supreme Court. Novel and dangerous claims.

I am terribly confused.

Didn’t Yoo argue the President can do anything in time of war? Aren’t the cases outside of war that were not authorized by a President beyond Yoo’s boundaries? If so, why would Yoo mention them?

Perhaps this is Yoo’s fig leaf. The problem, of course, is that there was only an AUMF, not a Congressional declaration of war. Yoo, or Preznit Bush, can pretend all they want to that a fig leaf is a mink coat, but that doesn’t make it a mink coat. Or maybe I should make that pairing a “sow’s ear” and a “silk purse.” Whatever.

Bob in HI

I know, but this is just SOOOO craptastic. You didn’t need me or any lawyer to tell you that waterboarding was torture, did you? And even if I stood an my head insisting it was not torture, you still wouldn’t change your mind about it, would you?

A jury will make that same analysis

You scoff, but …

FWIW, I consider DTA 1004 to be very dangerous for a number of reasons, the most basic of which is that it’s important this time to punish those who defied our constitution and the rule of law. Nixon and Reagan got off free as did most of their henchmen. Until we put teeth behind our laws, subsequent administrations will become ever bolder and they won’t always be so incompetent.

So, what about Section 1004. The first principle of stacking the deck for committee meetings is to arm your friends and do your best to disarm your opponents. Give your guys stones to thow and don’t leave stones around for anyone else. And, the law is run by an elaborate system of committees.

The first committee is the one that considers whether or not to prosecute. The Justice Department has a long tradition of cutting slack for those who act in good faith on advice of counsel, especially if the advice came from the Justice Department, as it did in this the cases that I hope are coming up.

The legal teams on both sides of a case are committees, but they’re paid to take their respective positions. They are not committees that decide on substance but rather on tactics, strategy, and relative advantage. But when pleas are being bargained between these teams, you can bet the defense will run Section 1004 up the flag pole. It won’t carry the day, but it’ll add to their weight.

The jury is a committee, and the lone holdout juror can sit there all day saying, “but I just think he acted in good faith believing he was doing the right thing to save the American people.” Armed with Section 1004, nobody is going to be able to shame him or her out of that positions.

It’ll be the same if it goes to appeal. It’ll be the same at SCOTUS.

And I agree. To you and me the good-faith variant of the Nuremberg defense is every bit as bogus as the original. But that’s not so for the millions who tune to “24.”

“He asserts that the President’s powers cannot be restricted by the Constitution…”

Key Log. Thanks.

If it is illegal, and I believe it is.

For the scapegoats of the Lindi Englands to be punished when echelon ranks were aware and perhaps ordered misuse and torture. For Yoo and his ilk to walk away with no address of justice. Makes what is illegal in itself condoned into legal. It seems Nixon has re-arose again to remind us that there were no impeachment and only Nixon steping down to spend more time with his family. Crime and no time for the well to do?

I want any of you to imagine, You are a bank manager and you get caught embezzling billions of dollars. You tell the prosecutor and the judge that your stepping down as bank manager to spend more time with your family. And it all goes away. Then me or you wakes up!

We are not talking about those. Youngstown Steel deals with the extent of a president’;s power IN TIME OF WAR.

Us v. Lee goes only to Yoo’s defintion of torture, not the extent of presidential power.

So, in both cases , he should have dealt with the,–however, both cases demolish his position, which is why he deliberatley left them out