Tuesday, April 01, 2008


We now have the infamous torture memo by John Yoo. Here is part one and part two. This has generated some discussion and here I give my opinion.
In Prof. Yoo's judgment, the President's war powers allow him to ignore the 5th Amendment:
First, the Fifth Amendment Due Process Clause does not apply to the President's conduct of a war.

The memo justifies this in part by citing Lincoln's Attorney General, James Speed. The memo does refer to this section of Ex Parte Milligan (1866):
"The constitution of the United States is a law for rulers and people, equally in war and peace, and covers with its shield of protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of men that any of its great provisions can be suspended during any of the great exigencies of Government."

But disingenously claims that it does not apply to the current argument:
11Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

The general Alice in Wonderland logic is this: Because we are at war, the U.S. laws about war are not applicable:
The assault, maiming; interstate stalking, and torture statutes discussed below are generally applicable criminal prohibitions, applying on their faces to ''whoever'' engages in the conduct they proscribe. 18 U.S.C. § 113; id. § 114; id. § 2261A; id. § 2340A. Each of the canons outlined above counsels against the application of these statutes to the conduct of the military during war. As we explained above, the application of these statutes to the President's conduct of the war would potentially infringe upon his power as Commander in Chief. Furthennore, the conduct at issue here--interrogations-is a core element of the military's ability to prosecute a war. As a general matter, we do not construe generally applicable criminal statutes to reach the conduct of the military during a war. Moreover, the application of these statutes to the conduct of the military during war would touch upon a prerogative of the sovereign, namely its discretion regarding the treatment of unlawful belligerents.16

Note that in 2340A, the law applies to ANY American:
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

You may recall that Jose Padilla's lengthy isolation led to a disintegration of his (here & here) personality, something that is expressly prohibited by definition in 2340:
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;


Anonymous said...

Btw isn't there something in the constitution that says that ratified treaties are part of the supreme law of the land?

Steve J. said...

Yeah, there's that too, ANON.