Is it Ok To Torture In War Time?
I see that John Yoo’s memo of 2003 which provides the legal justification for the use of torture in times of war has been released. I haven’t read it yet but I have been following Marty Lederman’s posts at Balkinization as he commences his review. This quote absolutely floored me and I can’t believe that the memo actually supports it but I really would like to get it off my chest.
Here’s the remarkable thing: Page 11 of the Opinion states that “[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.”
In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.
The head of the Criminal Division at the time was Michael Chertoff (now Secretary of Homeland Security). Nine days before the memo was issued, President Bush nominated Chertoff, like Bybee, to be a federal judge on a U.S. Court of Appeals.
I have two observations. First, if this is an accurate accounting of the memo then anyone who claims that America does not or did not employ torture is terribly naive or a fool. Second, if the circumstances surrounding certain Administration appointments are accurately portrayed then anyone who claims that the Bush Administration has not engaged in cynical manipulation and hackery of the highest quality is naive or a fool.
If Lederman’s analysis turns out to be wrong then I will be quick to slap up a mea culpa and engage in ritual self-humiliation, the level of which has been never before seen on SA.
If Lederman is right, I will probably vomit.







