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

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!

Key Log. Thanks.

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.”

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

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.

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

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.

[edit: fixed for you]

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.