are scary things. Dawn Johnsen had them.
Outrage at the Latest OLC Torture Memo
Posted Thursday, April 03, 2008 7:38 AM | By Dawn Johnsen
I want to second Dahlia's frustration with those who don't see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.
Yes, we've seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law--and not just for the remaining nine months of this administration, but for years and administrations to come.
Dahlia's aptly summarizes this just-released memo's constitutional conclusion: "if the president authorizes it, it isn't illegal."
OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. The earlier-leaked 2002 OLC torture memo said the same in connection with the CIA (a program the Bush administration sought to reassure us was extremely limited and controlled). Here, the military is the group exempt from the laws.
One striking example of the memo's plainly flawed reasoning: In an 81-page memo, Yoo relegates to a footnote (footnote 13) and then quickly dismisses the clearly correct counter-argument that Congress may regulate interrogations under its constitutional authority to "make Rules for the Government and Regulation of the land and naval Forces." His only support to the contrary is another still-secret OLC Bush administration memo, issued just the year before, that concluded Congress "cannot ... make rules for the Armed Forces to regulate military commissions." If Congress cannot regulate military commissions, Yoo argues, it cannot regulate interrogations. Of course, the Supreme Court in Hamdan has since held that not only does Congress have the authority to regulate military commissions, it had regulated them to render Bush's military commissions unlawful.
(snip)
I served at OLC for 5 years, including in the very position Yoo held and then later as its head (as acting assistant attorney general from 1997-98) and I have studied OLC and presidential power for the 10 years since. I know (many of us know) Yoo's statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.
the rest:
http://www.slate.com/blogs/blogs/convictions/archive/2008/04/03/outrage-at-the-latest-olc-torture-memo.aspx
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