As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.”
It's the "core" — the core — of the commander-in-chief function, to be used at his sole discretion whenever he feels like it. The founders, apparently, valued it so highly that no one, not even Congress, can restrict its use. God help us.
First, I would note that Drum is using the third-hand quotation, far removed from the context of the Yoo memo, to imply that the "core function" wording was directed at the President's ability to direct torture. In fact, the "core function" part of the memo was specifically referring to "the power [of the President] to decide when to use military force" with respect to "foreign relations".
This is not a tendentious reading. As the memo notes, "Given the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently to assert the President's plenary authority in foreign affairs ever since". There is no shortage of Supreme Court precedent, either.
Oh, and, while arguing that the Yoo memo claimed "that no one, not even Congress, can restrict its use", Drum does neglect to mention the very next sentence in the article he cited: "If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment."
So, it's not entirely accurate to claim that torture can be "used at [the Presidents'] sole discretion whenever he feels like it", as Drum claims. Or, really, accurate at all.
Further, Drum mocks this position by citing the Founding Fathers...
The founders, apparently, valued it so highly that no one, not even Congress, can restrict its use.
Surely the Founding Fathers could not have intended such a course of action! Or, could they?
While Thomas Jefferson spoke highly of humane treatment of POWs -- "The practice...of treating captive enemies with politeness and generosity, is not only delightful in contemplation, but really interesting to all the world, friends, foes and neutrals" -- he was no shrinking violet when faced with more urgent problems of realpolitik:
"If the enemy shall put to death, torture or otherwise ill-treat any of the hostages in their hands,... recourse must be had to retaliation as the sole means of stopping the progress of human butchery, and... for that purpose punishments of the same kind and degree [should] be inflicted on an equal number of their subjects taken by us till they shall be taught due respect to the violated rights of nations." --Thomas Jefferson: Report to Congress, 1776
"When a uniform exercise of kindness to prisoners on our part has been returned by as uniform severity on the part of our enemies,... it is high time, by other lessons, to teach respect to the dictates of humanity; in such a case, retaliation becomes an act of benevolence." --Thomas Jefferson to William Phillips, 1779
"Humane conduct on our part was found to produce no effect; the contrary, therefore, was to be tried. If it produces a proper lenity to our citizens in captivity, it will have the effect we meant; if it does not, we shall return a severity as terrible as universal. If the causes of our rigor... were founded in truth, that rigor was just, and would not give right to the enemy to commence any new hostilities on their part; and all such new severities are to be considered, not as retaliation, but as original and unprovoked. If those causes were not founded in truth, they should have denied them. If, declining the tribunal of truth and reason, they choose to pervert this into a contest of cruelty and destruction, we will contend with them in that line, and measure out misery to those in our power." --Thomas Jefferson to George Mathews, 1779
Oh, and George Washington not always a saint, either, once warning an opponent that he would treat prisoners "exactly by the rule you shall observe toward those of ours now in your custody".
[NOTE: No endorsement of torture is made or implied in the above post. I have been loudly critical of our abuses and the reactions to it, and I think Sebastian Holsclaw puts it well when he writes of torture that "it perverts our moral core and gains us nothing but the illusion of doing something important. The mid-term elections are two years away. If we can't make a principled stand now, we never can."
The problem, is the precedents that liberals are using; in the Rasul, Ghazi and other decisions. are unconvincing; Under the old US v. Nixon standard, much of this information, is privileged. In terms of authority; a whole network of cases stemming from Curtis Wright, in General presidential authority; ex parte Merryman & Quirin, for general detention authority; Hiribayashi & Korematsu, probably doesn't even apply in this circumstance. Alvarez Machain & Urquido Verdugo; even the 9th Circuit would have a tough time writing Impeachment language
People talk about POW treatment without knowledge or historical background. Examination of American history shows US treatment of fellow Americans, such as the Lincoln government's treatment of Confederate POWs amounted to deliberate starvation. Union Camp Elmira exceeded even Andersonville in numbers of prisoners who died. Today we seem to be concerned if people who behead women have cable TV.
Torture? I endured worse at a college fraternity. These folks need to get real. I wonder where they were when our troops were being entertained in Hanoi.
Thomas, Hanoi Jane was right there betraying our POWs to their jailers.
The whole issue of torture is confused, both legally and morally. The core isue is how do you persuade a captive who may have important information to divulge it? Physical injury has often proven ineffective. It either damages the captive to the point where he cannot tell you anything, or it elicits a response where he will tell you anything you want to hear just to get you to stop. Chief Wiggles had a post back right after Abu Ghrab which addressed the whole issue. It was particularly pertinent because he had been a military interrogator.
What are you talking about? That's a direct quotation from an interview with John Yoo by Jane Mayer, in an article by Jane Mayer. Here's the full thing:
"In a recent phone interview, Yoo was soft-spoken and resolute. Why is it so hard for people to understand that there is a category of behavior not covered by the legal system? he said. What were pirates? They werent fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didnt deserve the protection of the laws of war. Yoo cited precedents for his position. The Lincoln assassins were treated this way, too, he said. They were tried in a military court, and executed. The point, he said, was that the Geneva Conventionssimple binary classification of civilian or soldier isnt accurate.
Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nations defensea position that has drawn dissent from many scholars. As Yoo saw it, Congress doesnt have the power to tie the Presidents hands in regard to torture as an interrogation technique. He continued, Its the core of the Commander-in-Chief function. They cant prevent the President from ordering torture. If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bushs victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was proof that the debate is over. He said, The issue is dying out. The public has had its referendum."
It's not a third hand quote from the memo, it's a first hand quote from a phone interview.
Yoo says the president can break the law against torture at will, and neither Congress or the courts or the people can do anything about that but impeach him. In other words, WHILE THE PRESIDENT IS IN OFFICE HE CAN BREAK THE LAW AT WILL. If you don't see anything wrong with that...
As for the Founding fathers, they specifically gave Congress the following enumerated powers, in Article I of the Constitution:
"To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."
(Torture is an offense against the law of nations. )
"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
(Like, for instance, a rule that says "don't torture captives.")
"To make Rules for the Government and Regulation of the land and naval Forces."
(Like, for instance, a rule that says "the armed forces may not torture prisoners.")
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
(Including the power to make and ratify treaties, like the Convention Against Torture.)
Two other relevant Constitutional provisions:
from Article II: "[the President] shall take Care that the Laws be faithfully executed"
(shall, not may. It's a Constitutional command to the President. This means, among other things, that the President does not get to violate laws at will.)
from Article VI:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The first poster seems to be under the impression that the 9th circuit would have something to do with impeachment. I don't know where that comes from. Courts can't impeach a president, only the House can impeach and only the Senate can convict and remove from office. As for Rasul and Hamdi (yeah, Hamdi, not Ghazi,) and whether you like it or not it's now the law of the land.
As for Thomas Jackson, I was -5 years old or more when people were being tortured in Hanoi. And if you accuse some people of being ignorant of history, you are clearly many times more ignorant of what has happened in the last two years. "Torture? I endured worse at a college fraternity." You're alive, so therefore you definitely didn't. I kind of doubt your fraternity managed to match what went on in the Syrian or Egyptian prisons where we've sent people, either, or any of Charles Graner's antics. Try actually READING Andrew Sullivan's summary of the relevant government reports, or Jane Mayer's article, or better still the results of the ACLU's FOIA request, instead of just blindly believing what Rush Limbaugh or John Derbyshire tell you.
It's not a third hand quote from the memo, it's a first hand quote from a phone interview.
Yoo was specifically addressing the situation brought up by the interviewer in light of the broader "core function" subject broached in the memo. As such, it's important to note that Yoo wasn't declaring "torture" to be the core function, but the ability to direct the military.
As regards the relevant Constitutional questions, I'd note that the memo addressed quite a bit of precedent, and that the Founding Fathers drew distinctions between normal operations of the military, and war-time powers. For example, it was held--and upheld--that a "Declaration of War" was only necessary to initiate a war. When war was already a fact, the President didn't need Congressional permission.
Please understand, I'm not defending torture. We've discussed that quite a lot at QandO, and we're all heartily against it. (though, the "stress position" question is more complicated than some would have it) I have read Sullivans rundown of the torture issue, and I blogged about it, along with this post you might find worthwhile.
<i>It’s not a third hand quote from the memo, it’s a first hand quote from a phone interview. </i>
Actually, the article is ambiguous about when and where Yoo made the statement attributed to him. It is not in quotes, so it is, presumably, not a direct quotation. It is exactly the same mischaracterization that has been made of Yoo’s memo elsewhere in the anti-Bush media, which makes me wonder.
I think the author was mixing in what she thought Yoo had said in the past as a way of giving context to the rest of the interview, and in doing so was attributing things to Yoo that he has never said.
Regardless of whether torture can be legal or acceptable, impeachment
is of course the proper recourse to stop a President who is ordering
his armed forces to engage in torture.
The President is Commander in Chief until he is impeached or otherwise
removed from office. Judges cannot and should not impose themselves in
the chain of command, both because divided command has always been a
recipe for failure, and because a President could always countermand a
judge’s order to the armed forces.
Judges could, hypothetically, jail the President, but he would remain
President and Commander unless and until he was impeached and convicted
(whether for the torture order per se or for ignoring or countermanding
judges’ orders, or for whatever reason considered by House and Senate).
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
(Like, for instance, a rule that says "don’t torture captives.")
Do you know what a Letter of Marque is?
It’s the legal authority a Privateer operates under. In that context, ’Captures’ very likely refers to such things as captured ships and the associated booty, and how the proceeds from their sale are to be divided, not prisoners.
Context matters. Words written in the 18th century might not have precisely the same meaning in the 21st century. Always keep these things in mind when interpeting such documents.
Seems we’re doing some very selective quoting with the excerpt. Let me balance it out:
"I am exceedingly sorry to learn that the enemy are committing such
cruel depredations... however, it may tend to produce immoveable hatred
against so detestable a nation and thereby strengthen our Union." —
Thomas Jefferson to Cols. Skinner and Garrard, 1781.
"Although we [have] great cause of complaint against [another nation],
and even of war, yet whenever we should think proper to act as her
enemy, it should be openly and above board, and... our hostility should
never be exercised by... petty means." —Thomas Jefferson to Valentine
de Foronda, 1809.
"To do wrong is a melancholy resource, even where retaliation renders
it indispensably necessary. It is better to suffer much from the
scalpings, the conflagrations, the rapes and rapine of savages than to
countenance and strengthen such barbarisms by retortion. I have ever
deemed it more honorable and more profitable, too, to set a good
example than to follow a bad one." —Thomas Jefferson to M. Correa de Serra, 1814.
"Those who act together in war are answerable for each other. No
distinction can be made between principal and ally by those against
whom the war is waged. He who employs another to do a deed makes the
deed his own. If he calls in the hand of the assassin or murderer,
himself becomes the assasin or murderer." —Thomas Jefferson to William
Phillips, 1779.
"Is an enemy so execrable that, though in captivity, his wishes and
comforts are to be disregarded and even crossed? I think not. It is for
the benefit of mankind to mitigate the horrors of war as much as
possible. The practice, therefore, of modern nations, of treating
captive enemies with politeness and generosity, is not only delightful
in contemplation, but really interesting to all the world, friends,
foes and neutrals." —Thomas Jefferson to Patrick Henry, 1779.
"[We endeavor] as far as possible to alleviate the inevitable miseries
of war by treating captives as humanity and natural honor requires."
—Thomas Jefferson to Benedict Arnold, 1781.
And, in case you’re wondering, none of this says that Jefferson
believed that selected prisoners should be tortured in order to elicit
information to better enable the winning of the war. Perhaps,
with the most shallow of readings, one could find support from
Jefferson for torturing prisoners if the enemy is torturing our own,
but the principle he at times suggests (and other times rejects) is to
get them to stop doing brutalities to our prisoners by offending their
own conscience by letting them know the fate of their own (and he
specifically mentions we should be open and above board about it), and
this doesn’t really apply to enemies like Al Qaeda.
To my knowledge, Al Qaeda killed a bunch of folks, but they’re not
torturing our prisoners. So this excerpt tells you nothing about
Jefferson’s thoughts on the matter, which would be "if they’re going to
kill us, we’re going to kill them 10-fold". "Them" is Al Qaeda,
not Iraqis, or Afghans, and we were torturing at Abu Ghraib long before
Al Qaeda starting chopping off heads of random hostages in Iraq (which
coincidentally seemed to become common once the story of Abu Ghraib
broke).
Seems we’re doing some very selective quoting with the excerpt.
Seems you’re doing some very highly selective reading. Read
it again, and you might notice that it included the phrase "While
Thomas Jefferson spoke highly of humane treatment of POWs", and a quote
to go along with that.
Also, there was no suggestion that 1) Jefferson would approve of the
current torture scandals, or that 2) I approve of the torture
scandals. I believe he would not, and I have been rather
outspoken in my criticism of the instances of torture.
But my point was that they did not draw a sharp line short of anything
of the sort. Jefferson was not the only FF willing to be
merciless when called upon.
So, ultimately, you’ve written a good comment, in response to a post I never wrote. Thanks, anyway.
