Yoo Torture Memo Analysis Part I
I just finished reading through Part I of the recently released “Yoo Torture Memo.” Given the memo’s balkanizing (pardon the pun) content, I figured I would run through a part by part analysis as I read through it. I apologize for not going through it in whole, but 83 straight pages of analysis is beyond my pay grade here at SayAnything. That said, I would appreciate any additions/critiques of my reasoning, though I suggest that you send any non-legal (read: emotional opinions) directly to your congressman.
Part I: Does the Constitution prohibit the president from authorizing torture of alien enemy combatants?
Short answer: No.
Long answer:
The Fifth Amendment due process clause and the Eighth Amendment proscription against “cruel and unusual punishment” provide potential Constitutional barriers to Presidential authorization of torture.
Fifth Amendment Analysis:
1.
The Constitution vests the Executive Branch with the sole authority to conduct war. The Fifth Amendment was not designed to restrict the Executive Branch’s authority to conduct war (plenty of case law over 200 years is cited in the memo to back this up). Were we to take the view that it was, then the President would have to turn to Congress before making any war time decision. If this were the case, we would not need a Commander-in-Chief, and the Founding Fathers would not have bothered providing for one.
2.
Even if we assume that the Fifth Amendment applies to war conduct, it would make no sense that the Due Process clause would apply to alien combatants. If it did, we would get some freaky outcomes. Example: The US government would have to provide a trial (including habeas corpus) for every single enemy soldier in an enemy fortification before we authorized our troops to attack and take that fortification. Or, we would have to put every single one of our soldiers on trial for murder whenever he killed an enemy combatant.
Eighth Amendment Analysis:
This one is simple. The ban on cruel and unusual punishment only applies to criminals that we punish after they receive their Fifth Amendment due process. If the Fifth Amendment does not apply to enemy soldiers (for the above reasons), then we never make it into the area of the Eighth Amendment.
Stay tuned for Parts II-IV – the much tougher, ethics-laden, area of analysis.
Rusty
robert108
nunez
QueenZel
ellinas
thetodd