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Preliminary Memorandum of the Justice Robert H. Jackson Conference on Federal Prosecutions of War Criminals

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At all times the false legal memoranda by civilian lawyers such as Yoo and Steven Bradbury, and by military lawyers such as Diane Beaver, and Mary Walker, were kept as secret as possible. So too the actions of torture and abuse carried out both before and after the false memos were issued.  The memos and actions were hidden not just from the public, but also from Congress and, startlingly, from many, perhaps even most, lawyers in the Executive branch who ordinarily would be expected to vet and opine on the memos and actions.  (Thus, DOD kept only a single copy of a memo from John Yoo providing it with the same unlawful advice he previously gave the CIA -- advice DOD then parroted in its own memo -- and that single copy was kept locked in the safe of the General Counsel of the Air Force, Mary Walker.)

The memos and actions were kept as secret as possible because the Executive Branch actors knew that if word of their authorizing memos and their actions ever became public, there would be a vast outcry among the public, in Congress and in the media, and at least part if not all of the attempted constitutional revolution would be jeopardized. Such an outcry is, indeed, precisely what happened, with increasing vigor, after the secrecy began to fail and unlawful memoranda and actions began to become public.

To this day, however, it remains true that an unknown (perhaps large) number of the memos remain secret.  (For instance, on a related subject, memos authorizing the NSA to violate the FISA laws enacted by Congress remain secret.)  They were kept such a “close hold” (in the culprits’ own terminology) that Addington would not even allow the NSA’s own lawyers to see them when they asked to do so -- that is to say, the lawyers for the agency being told to violate the law were not allowed to see -- and comment on -- the memos authorizing the illegality.  But public pressure has caused some of the unlawful memoranda to be declassified and thereby become public, or has resulted in a significant amount becoming known about memos which remain classified.  So a fair amount is now known about false, professionally incompetent memos by which the Executive Branch actors sought to secretly work a constitutional revolution.  (There are persons who consider their efforts to have been treason.  The Jackson Committee presently takes no position one way or the other on this claim.)

The attempted constitutional revolution seems to have begun with a secret decision, shortly after 9/11, that was sought by the CIA.  This decision, also sought by George Bush and signed by him on September 17, 2001, secretly gave the CIA power -- contrary to Congressional prohibition -- to murder or seize people all over the world. 

Subsequently, in January 2002, Dick Cheney’s office wrote a memorandum saying that the Geneva Conventions are “quaint” and are inapplicable to the war.  This memo implemented views propounded by Douglas Feith, views Feith had been vigorously arguing since the 1980s.  The January 2002 memo was signed by Alberto Gonzales, then the White House Counsel, but was actually written by Cheney’s attorney, David Addington.  On February 7, 2002 George Bush then stated that the United States was not bound by the Geneva Conventions.

At a point contemporaneous or near in time to these events, a so-called “War Council” of lawyers came into existence.  This “War Council” consisted of David Addington, John Yoo, Jim Haynes, Alberto Gonzales, and Tim Flanigan.  These five lawyers met in secret, with their views and resulting memos, written by Yoo, being kept from other lawyers and numerous officials in the Executive Branch.

An early problem arose because members of the CIA were very worried about actions they were taking against prisoners. From low levels to high, from on-the ground CIA perpetrators of torture to high CIA officials in Washington, there was knowledge that what the CIA was doing -- the torture and abuse of prisoners -- constituted war crimes for which CIA personnel could be prosecuted.  CIA personnel wanted a “golden shield,” a “get out of jail free card,” that would protect them against prosecutions.  It was hoped that an authorizing legal opinion from the Office of Legal Counsel of the Department of Justice would serve this purpose because the OLC opines on legal matters for the Executive Branch.  Thus John Yoo of the War Council and the OLC wrote two opinions on August 1, 2002. 

One of the opinions became known as “the torture memo.”  It was a long document purporting to legally justify torture.  The other was a memo listing approved techniques of torture, such as the techniques listed above.  The second memo remains classified to this day, but much about what it approved has become publicly known, including that it authorized waterboarding.

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Yoo’s work had input from and was signed by the head of OLC, Jay Bybee. For his actions as head of OLC, Bybee was rewarded with a federal appellate judgeship.  He was nominated and confirmed before any information relating to torture became public.

The first memo -- the “torture memo” -- has become infamous, for three reasons in  particular.  One is its definition of torture as requiring the pain associated with organ failure or death, a definition that was preposterous and one that was taken, remarkably, from the entirely different context of a public health statute defining when a person must be treated.

The second particular reason for the torture memo’s infamy was that Yoo falsely said there was no torture if the torturer’s intent was to obtain information rather than inflict pain. Since torturers who seek to obtain intelligence always want to gather information, and the torture is only a means to that end rather than an end in itself, no torturer could ever be guilty of torture under Yoo’s “principle” because every torturer’s primary goal is to obtain information.  Presto:  John Yoo, as if by magic, converted the worst tortures, e.g., waterboarding, into nontorture. 

The final particular reason, and the one which fully carried out the attempted constitutional putsch, was that Yoo’s torture memo said the President, as Commander-in-Chief, could do anything at all he wants with regard to so-called national security, and Congress can do absolutely nothing to stop him.  All power is his (and, one day, hers).  No power is Congress’.  If the President wants to torture, murder, or start wars, as Commander-in-Chief he can do it, and Congress has no say about anything.

The barbaric view of torture, and the Executive hegemony, implemented in Yoo’s memo were stated dramatically a few years later when Yoo said publicly that if the president wanted to try to force a prisoner to talk by crushing the testicles of the prisoner’s child, no treaty could stop this and, depending on why the president wanted to do it, neither could any congressional law stop the president from crushing the child’s testicles. 

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Yoo’s memo was secret for years, and the administration, from the president on down to soldiers and CIA officers who tortured people at Guantanamo, Abu Ghraib, Bagram and in CIA “black holes” around the world, acted in accordance with Yoo’s secret revolutionary principles. When the memo became public years after Yoo issued it, it became reviled by some of the nation’s leading lawyers as professionally inept, even as the single most incompetent piece of legal analysis some had ever seen.  It had, as a reporter said, the veneer of legal scholarship:  long, densely written paragraphs, a plethora of citations.  But the veneer was a fraud.  It ignored the cases and points contrary to -- devastating to -- its revolutionary principles, including the leading case in the field, Youngstown Sheet & Tube v. Sawyer (the famous Steel Seizure Case), and could provide no true authority for its secretly adopted positions.

So professionally inept was Yoo’s torture memo that it was later withdrawn by Bybee’s replacement as head of OLC, Jack Goldsmith (even though Goldsmith hated to do this because, among other reasons, he was a good friend of Yoo’s).  But the second memo of August 1, 2001, the memo which listed the approved techniques of torture, was never withdrawn.  That OLC memo remains on the books, remains operative, remains secret even though much of what it approved (including waterboarding) has nonetheless become known, and continues to unlawfully seek to justify war crimes.

One of the reasons it remains on the books is that Cheney, Addington, Gonzales and CIA officials have been very worried that their exposure to war crime prosecutions would increase if it were withdrawn by OLC, and extensive pressure was exerted to compel it not to be withdrawn.  This is the same reason, we note, that Cheney and Addington have conspired with others to exert overwhelming pressure to compel Congressional enactment of laws putatively granting immunity to war criminals in American courts.  Such laws are the self-protective product of a conspiracy to manipulate the law so as to try to immunize from federal prosecution those who organized and ran a conspiracy to commit war crimes. 

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.

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I don't think that I am alone in being mystifi... by PrMaine on Friday, Jan 9, 2009 at 9:47:23 AM
It is my understanding that any prosecutor at the ... by William Whitten on Friday, Jan 9, 2009 at 10:14:01 AM
Justice Robert H. Jackson, the chief United States... by Lance Ciepiela on Friday, Jan 9, 2009 at 8:07:06 PM
to see such a trial come to fruition. And how asha... by Nick van Nes on Friday, Jan 9, 2009 at 9:42:25 PM
If you think Mr. Obama or the rest of the wussy, p... by Bryan Emmel on Saturday, Jan 10, 2009 at 2:09:34 AM
on Bush Ashcroft Rumsfeld Rice Cheney Gonzale... by luckydjw on Saturday, Jan 10, 2009 at 7:01:09 PM