677 online
 
Most Popular Choices
Share on Facebook 127 Printer Friendly Page More Sharing Summarizing
OpEdNews Op Eds   

Reagan's DOJ Prosecuted Texas Sheriff for Waterboarding Prisoners

By       (Page 2 of 3 pages) Become a premium member to see this article and all articles as one long page.   3 comments

Jason Leopold
Follow Me on Twitter     Message Jason Leopold
Become a Fan
  (7 fans)

"So why are none of these precedents mentioned? Obviously because each of them contradicts the memo's conclusions and would have to be distinguished away. Professional rules would have required that these precedents be cited, failing to do so reflects incompetent analysis."

In fact, the Justice Department's Office of Professional Responsibility (OPR) investigated whether the three lawyers purposely twisted their legal advice to satisfy the White House and knowingly avoided citing existing case law in order to reach conclusions the White House wanted. It's unknown what OPR has concluded about that point in its report, which is now being revised.

Beyond ignoring the case law on torture, Yoo, as a deputy assistant attorney general, pushed the theory that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force at a time of war.

"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said Yoo in another memo dated August 1, 2002, and entitled "Standards of Conduct for Interrogation."

In that opinion, Yoo failed to cite the key precedent relating to a president's war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman's order to seize steel mills that had been shut down in a labor dispute during the Korean War.

Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.

But the Supreme Court overturned Truman's order, saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Since Congress hadn't delegated such authority to Truman, the Supreme Court ruled that Truman's actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.

Yoo's Explanation

In his 2006 book, "War by Other Means," Yoo offered up a defense of his failure to cite Youngstown. "We didn't cite Jackson's individual views in Youngstown because earlier [Office of Legal Counsel] opinions, reaching across several administrations, had concluded that it had no application to the President's conduct of foreign affairs and national security."

Yoo added, "Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war....

"Detention and interrogation policy are at the heart of the President's Commander-in-Chief power to wage war, and long constitutional history supports the President's leading role on such matters."

But Horton disagrees. "The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield," Horton told me via email.

"Justice Jackson's opinion is the most persuasive of the opinions justifying the decision," Horton said. "If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.

"It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.

"But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did."

The four legal opinions released last week attempt to make the case that the "enhanced interrogations" of suspected terrorists needed to be done in order to save American lives and foil other plans to attack the United States. In defending the Bush administration's torture program, Republicans have likened the "high-value" detainees to mass murderers, who don't deserve to be treated humanely.

Next Page  1  |  2  |  3

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).

Must Read 4   Valuable 2   Well Said 1  
Rate It | View Ratings

Jason Leopold Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

Jason Leopold is Deputy Managing Editor of Truthout.org and the founding editor of the online investigative news magazine The Public Record, http://www.pubrecord.org. He is the author of the National Bestseller, "News Junkie," a memoir. Visit (more...)
 
Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Follow Me on Twitter     Writers Guidelines

 
Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

STAY IN THE KNOW
If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEd News Newsletter

Name
Email
   (Opens new browser window)
 

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

CIA Watchdog Report Says Detainees Died During Interrogations

Whistleblower: BP Risks More Massive Catastrophes in Gulf

Newly Released E-Mails Reveal Cheney Pressured DOJ to Approve Torture

Army's "Spiritual Fitness" Test Comes Under Fire

VA Confirms 18 Vets Commit Suicide Everyday

Newly Declassified DOD Documents Reveal Detainees Tortured To Death

To View Comments or Join the Conversation:

Tell A Friend