Retired Military Officers Express "Deep Concern" About Gonzales Nomination

From the Washington Post:

"A dozen high-ranking retired military officers took the unusual step yesterday of signing a letter to the Senate Judiciary Committee expressing "deep concern" over the nomination of White House counsel Alberto R. Gonzales as attorney general, marking a rare military foray into the debate over a civilian post.

The group includes retired Army Gen. John M. Shalikashvili, former chairman of the Joint Chiefs of Staff. The officers are one of several groups to separately urge the Senate to sharply question Gonzales during a confirmation hearing Thursday about his role in shaping legal policies on torture and interrogation methods."

From the letter (pdf):

"During his tenure as White House Counsel, Mr. Gonzales appears to have played a significant role in shaping U.S. detention and interrogation operations in Afghanistan, Iraq, Guantanamo Bay, and elsewhere. Today, it is clear that these operations have fostered greater animosity toward the United States, undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world. Before Mr. Gonzales assumes the position of Attorney General, it is critical to understand whether he intends to adhere to the positions he adopted as White House Counsel, or chart a revised course more consistent with fulfilling our nation’s complex security interests, and maintaining a military that operates within the rule of law. (...)

Repeatedly in our past, the United States has confronted foes that, at the time they emerged, posed threats of a scope or nature unlike any we had previously faced. But we have been far more steadfast in the past in keeping faith with our national commitment to the rule of law. During the Second World War, General Dwight D. Eisenhower explained that the allies adhered to the law of war in their treatment of prisoners because “the Germans had some thousands of American and British prisoners and I did not want to give Hitler the excuse or justification for treating our prisoners more harshly than he already was doing.” In Vietnam, U.S. policy required that the Geneva Conventions be observed for all enemy prisoners of war – both North Vietnamese regulars and Viet Cong – even though the Viet Cong denied our own prisoners of war the same protections. And in the 1991 Persian Gulf War, the United States afforded Geneva Convention protections to more than 86,000 Iraqi prisoners of war held in U.S. custody. The threats we face today – while grave and complex – no more warrant abandoning these basic principles than did the threats of enemies past.

Perhaps most troubling of all, the White House decision to depart from the Geneva Conventions in Afghanistan went hand in hand with the decision to relax the definition of torture and to alter interrogation doctrine accordingly. Mr. Gonzales’ January 2002 memo itself warned that the decision not to apply Geneva Convention standards “could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.” Yet Mr. Gonzales then made that very recommendation with reference to Afghanistan, a policy later extended piece by piece to Iraq. Sadly, the uncertainty Mr. Gonzales warned about came to fruition. As James R. Schlesinger’s panel reviewing Defense Department detention operations concluded earlier this year, these changes in doctrine have led to uncertainty and confusion in the field, contributing to the abuses of detainees at Abu Ghraib and elsewhere, and undermining the mission and morale of our troops.

The full extent of Mr. Gonzales’ role in endorsing or implementing the interrogation practices the world has now seen remains unclear. A series of memos that were prepared at his direction in 2002 recommended official authorization of harsh interrogation methods, including waterboarding, feigned suffocation, and sleep deprivation. As with the recommendations on the Geneva Conventions, these memos ignored established U.S. military policy, including doctrine prohibiting “threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation.” Indeed, the August 1, 2002 Justice Department memo analyzing the law on interrogation references health care administration law more than five times, but never once cites the U.S. Army Field Manual on interrogation. The Army Field Manual was the product of decades of experience – experience that had shown, among other things that such interrogation methods produce unreliable results and often impede further intelligence collection. Discounting the Manual’s wisdom on this central point shows a disturbing disregard for the decades of hardwon knowledge of the professional American military.

The United States’ commitment to the Geneva Conventions – the laws of war – flows not only from field experience, but also from the moral principles on which this country was founded, and by which we all continue to be guided. We have learned first hand the value of adhering to the Geneva Conventions and practicing what we preach on the international stage. With this in mind, we urge you to ask of Mr. Gonzales the following:

(1) Do you believe the Geneva Conventions apply to all those captured by U.S. authorities in Afghanistan and Iraq?
(2) Do you support affording the International Committee of the Red Cross access to all detainees in U.S. custody?
(3) What rights under U.S. or international law do suspected members of Al Qaeda, the Taliban, or members of similar organizations have when brought into the care or custody of U.S. military, law enforcement, or intelligence forces?
(4) Do you believe that torture or other forms of cruel, inhuman and degrading treatment – such as dietary manipulation, forced nudity, prolonged solitary confinement, or threats
of harm – may lawfully be used by U.S. authorities so long as the detainee is an “unlawful combatant” as you have defined it?
(5) Do you believe that CIA and other government intelligence agencies are bound by the same laws and restrictions that constrain the operations of the U.S. Armed Forces engaged in detention and interrogation operations abroad?"

I think these officers are exactly right. Our country's refusal to engage in torture should not be a partisan issue. It is a basic moral point that left and right should agree on. Moreover, abiding by the Geneva Conventions is important militarily: it can protect our troops when they are captured, it avoids the kind of damage to our efforts to gain the trust of civilians that was produced by the pictures from Abu Ghraib, and it undermines important parts of military culture. Moreover, as the officers point out, it doesn't produce reliable results, so the damage to our soldiers' safety and our honor are not balanced by significant benefits. I realize, of course, that George W. Bush is entitled to appoint whomever he wants to serve in his cabinet. But the Senate is also entitled to advise him, and to withhold their consent if necessary. And we ought to be able to agree that the policy Gonzales crafted is wrong, and that he should at a minimum be asked to retract it personally.

He should also be asked to state explicitly whether he believes that the President as the right, in time of war, to set aside laws and treaties at will, since this is a fundamental Constitutional question that determines, among other things, whether we live in a democracy, under the rule of law, or under an absolute monarch.

Comments

[Edward]

Is it possible, as I hope, that Gonzales will not get the post?

[CaseyL]

That would make my day. My week. My year.

It's difficult to imagine who could rally support for him, or on what grounds.

About all that's left is "Well, the President wants him," and "He's Hispanic!"

Neither of takes a high moral road, esp. compared to "who cares about the Geneva Conventions?" and "'Torture' means exactly what I say it means, neither more nor less.'"

[lily]

I am very pleased at the signs of opposition to Bush's "mandate". Another sign: DeLay decided that the House Republicans shouldn't lower their already lowered ethics standards on his behalf. One of the House Republicans admitted that they didn't want to give the Democrats an issue.

[felixrayman]

One of the House Republicans admitted that they didn't want to give the Democrats an issue

Which makes me wonder why Democratic senators have been signalling that they won't filibuster his nomination. When it comes to opposing torture and standing up for the United States Constitution I don't see why any senator should fear being labelled an obstructionist (and as the link points out, Democrats will be labelled as such by liars like Bill Frist no matter what they do).

[Timmy the Wonder Dog]

In 1996, I wonder what the Democrats were saying about filibusters of judicial nominees, the democratic Senator from Vermont immediately comes to mind as does the Senior Senator from Delaware.

[Catsy]

If you have a point to make, Timmy, why don't you come out and make it instead of offering up these vague allusions that sound asinine, not enigmatic.

For that matter, why not try advancing a line of argument that actually addresses the criticisms of Gonzales, instead of a "you too" non-defense.

[Timmy the Wonder Dog]

I wonder who said

"object and fight against any filibuster on a judge, whether it is somebody I opposed or supported."

So it now takes 60 Senators to provide consent, who knew.

[Timmy the Wonder Dog]

Catsy, if you look real close, I wasn't the one who introduced this particular subject to this discussion, cuz that would be Felix.

Now Catsy if you weren't so obtuse, you would have noted that on a previous post, I agreed with Katherine on filibusters in order to bring this issue to the public debate.

[hilzoy]

New Year! New Tone! No personal insults!

Knock knock
Who's there?
Ammonia.
Ammonia who?
Ammonia bird in a gilded cage.

[liberal japonicus]

Catsy
Despite my intense sympathy for your point, 'asinine' is probably not the best word. Also, rhetorically speaking, the 'why don't you' structure obscures your point that you would like Timmy to address the issue of Gonzales qualifications, which he seemed to do in chiding Edward at the end of an earlier thread on Gonzales when he wrote
So Edward, you are happy with the new memo then. Such as,
-Terrorists aren't POWS and aren't subject to the Geneva Convention;
-Interrogation methods -- which are not allowed in interrogation of suspects in domestic criminal proceedings -- are perfectly permissible in dealing with terrorists; and
-Prohibition of severe mental pain or suffering includes only those practices that impose mental damage that extends for a prolonged period. (emphasis Timmy)

I also think that replacing 'you too' with the Latin 'tu quoque' might be better.

yours for a kinder gentler ObWi

[rilkefan]

"I also think that replacing 'you too' with the Latin 'tu quoque' might be better."

Thank g*d it's not the "et tu" non-defense...

[Timmy the Wonder Dog]

Actually Liberal, those comments represent the "new" DoJ memo. The new memo should be included in the overall debate. But in the overall context of the WaPo article, the Senate (preferrably individual Senators) certainly is in a position to comment on:

1. If terrorists are covered under the Geneva Convention
2. The parameters of interrogation methods to be used on non-citizen terrorists.
3. What constitutes torture, such as, is imprisonment without due process torture.

I suspect the Senate will decide not to engage in the above conversation for a variety of reasons, although they should. It simply reflects their preference to be back benchers.

[Timmy the Wonder Dog]

Liberal, just one other point, I really haven't seen anyone engage in a conversation here (part of the sites overall charm) on Gonzales or for that matter on torture. It remains Phil Specter's "wall of sound" with Catsy and Felix as just one of the sour notes.

[CaseyL]

What are they hiding?

Considering what we know the memos said, the GOP's refusal to release the actual documents makes me wonder what they want to hide. Did Gonzales present a legal case for something even worse than torture, even more egregious than absolute Presidential power?

Today I heard a news report on Bush Admin plans to permanently incarcerate prisoners - without charges, counsel, or legal review. I was stunned, to put it mildly; not least since the Bush Admin is openly defying a SCOTUS order to allow prisoners legal recourse, and yet that defiance wasn't even mentioned in the news report.

There was more to the news report than "merely" permanent incarceration at Gitmo, though. The other plans included a secret maximum security facility, where prisoners could be held not only indefinitely (again, without charges, counsel, and legal review) but without anyone knowing they were there. In other words, people would simply vanish from the face of the earth, never to be seen again.

Another plan was to build prisons in places like Saudi Arabia and Israel, and put the Disappeared in those. The US would pay for and build the prisons, but the host country would own and run them. This, of course, would make "extraordinary rendition" - where we consign people to the tender mercies of nations which have even fewer scruples about torture than the US - official policy of the US.

It strikes me as a definite possibility Gonzales wrote memos and briefs providing a legal gloss for turning the US into Pinochet's Chile. His fingerprints are all over the legal justification for torture and absolutism that we DO know about.

The WH won't release the information. The Democrats may or may not filibuster Gonzales' nomination. At this point, frankly, I wouldn't be at all surprised if the GOP leadership simply sprang a surprise confirmation vote at 3:30 am and locked the Democrats out of the chamber.

[rilkefan]

TtWD, appreciate your (to me understandable) 11:58.

Re Gonzales, is there much of a conversation to be had? Unless I'm missing something yet again, nobody would put him on the list of the top dozen or more highly experienced and qualified conservative candidates for the post, not even touching the partisan concerns and the torture memo fiasco.

[liberal japonicus]

Timmy
Then I misunderstood your purpose in chiding Edward. I thought that you felt that those points in the new memo were completely inappropriate, and that Edward was setting the bar too low in being thankful for noting the change. Why did you take Edward to task in this case?

I certainly think that individual Senators should express their opinions, but I haven't heard of any committees taking up the question of torture (with the exception of the 9-11 committee) nor have I seen any organization of such a committee by the Republican congress, though we don't get c-span here. But I hope that such discussions will take place during the confirmation hearing and not be sidetracked by discussion of the appropriateness of filibusters.

[Timmy the Wonder Dog]

Today I heard a news report on Bush Admin plans to permanently incarcerate prisoners - without charges, counsel, or legal review. I was stunned, to put it mildly;

You were, think of the conflict as war instead of a police action and you won't be stunned.

not least since the Bush Admin is openly defying a SCOTUS order to allow prisoners legal recourse

See US Constitution and CiC in the context of wartime

and yet that defiance wasn't even mentioned in the news report.

I wish it was, marvelous opportunity to discuss "separation of powers"

[rilkefan]

"Bush Admin is openly defying a SCOTUS order to allow prisoners legal recourse"

IANAL, but am I wrong to think that the court's take on Padilla/Hamadi/etc was highly nuanced to the point of approaching muddledness? Am I dumb to have hoped for something clear? Have any of the justices commented on the executive power arguments in the old torture memos? Isn't it too bad we can't expect a shoot-out at the corral?

[Timmy the Wonder Dog]

I thought that you felt that those points in the new memo were completely inappropriate, and that Edward was setting the bar too low in being thankful for noting the change. Why did you take Edward to task in this case?

I was just pointing out to Edward that his gloating was unwarranted. Where the bar should be set is established by Congress. Congress has passed a law on the subject and that law should be enforced. As for Conventions, thaty are enforceable if both parties are signatories. The terrorists have signed nothing.

We have approximately 14 AQ members, who are in limbo, nobody (IRC) knows where they are. I don't struggle with that.

We have residents of GITMO, who won't be getting out any time soon. I don't struggle with that.

Terrorists are not US citizens and aren't covered under the Geneva Convention. I don't struggle with that.

If the Congress, struggles with any of the above, Congress should change the law. I don't struggle with that.

[Josh]

Liberal, just one other point, I really haven't seen anyone engage in a conversation here (part of the sites overall charm) on Gonzales or for that matter on torture.

If you haven't seen anyone engage in a conversation here on torture, it's because you haven't been paying attention. I commend this post to you.

But if you want to have another conversation now, go for it. Here, I'll start: Under what circumstances do you think it's permissible to condone torture?

BTW, I specifically remember responding to a comment you made over on that other website whose name I won't mention regarding indefinite detention, asking you if you thought the government could truly be trusted with the power to detain people forever without notifying anyone (in that context, the International Red Cross). You never responded.

[CharleyCarp]

TtWD:

Perhaps you could quote for us the exact language of the Constitution that gives the President the power to hold persons without legal process. In wartime, or not. Note that the writ of habeas corpus has not been suspended, so you can skip over that part.

[rilkefan]

Mark Kleiman quotes Sen Cornyn with emphasis added:
"Opponents of the president were unsuccessful in beating him for re-election and now have decided to continue this sort of political insurgency against his nominees."

[CharleyCarp]

And TTWD, you might want to avoid emanations from penumbras, or any of that stuff, because it only inflames certain folks.

I want to see that actual words that give the President the power to hold any person without legal process.

And I guess I'd be interested in your citing us to the part where the Constitution says that even though the Supreme Court has said that a Gitmo detainee can seek a writ, that the President need not obey it. (If indeed that is what you mean to imply in yours of 12:26).

[rilkefan]

Gen. Clark on Gonzales: "How could Americans feel confident in the rule of law with an Attorney General who does not respect the most basic tenets of American law?"

[JerryN]

Guys, If TtWD has't managed to trash this thread with right at the start with snark, I'll eat my hat (nd anyone else's for that matter). If you want to see why tacitus.org went south, I give you exhibit A.

Ban me, disemvowel me, I don't care. This is kind of crap is gonna ruin one of the few sites where converstion was possible.

Peace out.

Jerry Newmark (aka JerryN)

[rilkefan]

Jerry, snark has to be fully acceptable (though obvious posting rules violations [like "obtuse" above] might be less pleasing to the powers-that-be) to get us through our sorry lives, plus Timmy is being a contributing citizen now. Patience out.

[CaseyL]

Gonzales is a Friend of George: a longtime ally, who enabled Bush to sign death warrants by presenting legal briefs which excluded inconvenient information. He's a Thomas Cromwell; a Robespierre. That's why Bush wants him.

[JerryN]

rilkefan - look, this:

Liberal, just one other point, I really haven't seen anyone engage in a conversation here (part of the sites overall charm) on Gonzales or for that matter on torture. It remains Phil Specter's "wall of sound" with Catsy and Felix as just one of the sour notes

is nonsense, given Katherine's series on extraordinary rendition, etc.

Back on topic, when the officer class is making these sorts of statements, we all should pay attention. These are folks who normally don't make public statements that are at odds with the policy of whoever the current administration is. They especially don't typically comment on political issues. That they have done so without any "unnamed sources" cover should really give us pause.

[liberal japonicus]

I was just pointing out to Edward that his gloating was unwarranted. Where the bar should be set is established by Congress. Congress has passed a law on the subject and that law should be enforced. As for Conventions, thaty are enforceable if both parties are signatories. The terrorists have signed nothing.

I see. It never occurred to me that Edward could be gloating, I thought he was merely trying to acknowledge had the potential of it being a good step. It would seem that any comment that Edward makes that acknowledges some potentially positive aspect of administration policy would be taken by you as gloating. I will keep that in mind in reading your contributions in the future.

[Jesurgislac]

CaseyL: Today I heard a news report on Bush Admin plans to permanently incarcerate prisoners - without charges, counsel, or legal review.

This was fairly extensively discussed on TalkLeft a couple of days ago. Basically, the Bush administration has, by disregarding the Geneva Convention on prisoners of war, managed to put the US into an untenable position with regard to the prisoners in Guantanamo Bay and other US illegal prison camps.

As for the presumption that the Geneva Convention doesn't apply to these prisoners, the GC actually covers this: in Article 4 it sets the categories of those who are entitled to the protection of the Geneva Convention.

In Article 5, it specifies "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

In short, if the Bush administration doubted that their prisoners were covered under Article 4 (as plainly they did so doubt) their legal course of action was to have each prisoner's status determined by "a competent tribunal". This they signally failed to do. Until the competent tribunal assessed each prisoner's status and determined which were entitled to PoW status and which were not, the US was required by law to treat all their prisoners as PoWs. This they signally failed to do: Guantanamo Bay is an illegal prison camp.

I have no idea whether Gonzales was in any way responsible for the bad advice that led to the Bush administration deciding it could disregard the law and take prisoners into legal limbo, but certainly, the setting up of illegal prison camps run by the US military is something that strongly merits investigation, along with (since they're related actions) an investigation into the acts of torture committed and condoned by the US military in Abu Ghraib, Bagram Airbase, Guantanamo Bay, and - possibly - elsewhere. With an Attorney General who is certainly implicated in the US military's breach of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, there is not much chance of a fair investigation, is there?

I sincerely hope that Gonzales does not get the post of Attorney General. He certainly shouldn't, for many reasons.

[Jesurgislac]

(closing blockquote, I hope)

[heet]

Timmy:
Terrorists are not US citizens and aren't covered under the Geneva Convention. I don't struggle with that.

Ah, but here's the rub... See if you can tell where this line of logic breaks down -
1) Terrorists are not US citizens AND
2) Terrorists are not covered by Geneva HOWEVER
3) Our war on terrorism is purposefully vague THEREFORE
4) A "terrorist" is defined as anyone the administration deems a terrorist.

This isn't a "until they came for me" moment but 4 bothers me very much and should bother any real conservative.

[Edward]

The new memo should be included in the overall debate.

I disagree. If Gonzales had demonstrated a change of heart BEFORE he was nominated for AG, then you might have a point, but he didn't. It took over 2.5 years for the DOJ to change the definition set out in the original memo, during which time untold numbers of prisoners were interrogated under the shameful guidelines Gonzales created.

The overall debate is about Gonzales' character, and nothing that has been whipped up since his nomination should go into that consideration. This debate is not about whether we're now recommitted to upholding our value system even in the face of adversity...it's about whether someone who morally buckled when the going got tough has the stuff to be our Attorney General.

[CaseyL]

Edward: But he's not meant to be "our" Attorney General. He's meant to be the President's AG. Vast difference, there: not a public servant, more a Privy Counselor.

[votermom]

I don't know anything about laws and courts, but I'm perplexed that the public, in general, seems unconcerned with defending the writ of habeas corpus. I looked it up -- goes back to 1679. I didn't know that.

As a kid, I remember my elders telling me that when any 3rd world president/prime minister/whatever suspended their country's writ of habeas corpus, that guy automatically went into the dictator category. And abuses would follow. I don't recall them ever being proven wrong.

I hope the old warriors get listened to, this time.

[fdl]

CaseyL -- flat wrong. The AG is different from White House counsel. The AG, as the nation's top law enforcement official, has the power and the obligation to uphold the law and prosecute violators of the law whomever they may be, including the president of the US.

see, e.g., Richard Nixon & the Saturday Night Massacre.

remember, please, that treaties are law of the land, equivalent to federal statutes. for a future AG to refer to binding provisions of federal law as "quaint" is, to this lawyer, extraordinarily troubling.

Francis

[Slartibartfast]

BTW, if Katherine's bothered to wade through the musket-volleys to this point, I'd be interested in seeing if she's directly addressed any of Gonzales' findings regarding torture, the status of prisoners at Gitmo, and/or the Geneva Convention. I can't promise to understand it, but I'd be interested in making the attempt. I've heard all sorts of amateur analysis (from many political directions) of the so-called "torture memo", but having read it I can't see what the hoopla is all about. Other than there are some serious voids in the law that might merit attention.

But it's entirely possible that I've failed to understand Gonzales. Probable, rather.

[CaseyL]

fdl: You profoundly misunderstood my remark; it outght to have been read in context with what I said earlier, about Gonzales = Robespierre.

I agree with you that the AG is *supposed* to be the nation's top law enforcement officer, as I agree with you that treaties which have been signed and ratified are the law of the land.

But those are normative positions; positions in keeping in American law and American mores.

But what's going on now isn't normative. We've traded normative government standards for ad hoc policies meant only to apply to, and benefit, the current regime.

Gonzales is not meant to be an AG who enforces US law. He's meant to provide bogus legal justifications for rule without oversight or limits. His job will be to allow Bush Admin spokespersons and supporters to say, with a reasonably straight face, that extraordinary rendition, permanent suspension of habeus corpus, and torturing prisoners Bush has pre-determined to be 'illegal combatants' are all perfectly legitimate under US law.

[Timmy the Wonder Dog]

Didn't Lincoln put a crimp into the writ of habeas corpus? I believe he did.

riflefan, given the parameters of the give and take, the use of obtuse was spot on.

[Anarch]

Didn't Lincoln put a crimp into the writ of habeas corpus? I believe he did.

Damn. Lost a bet with myself; I'd wagered that a conservative would bring up Lincoln within 3 hours of the main post. What took you so long?

[Timmy the Wonder Dog]

I'd wagered that a conservative would bring up Lincoln within 3 hours of the main post. What took you so long?

Well it took that long for someone to mention "writ of habeas corpus". But it took a great deal of self control not to comment on a value shared by Jackson, Lincoln, FDR and Bush.

But certainly Lincoln was very comfortable with putting US citizens into jails to let them rot.

[Slartibartfast]

I'm now betting myself how long it'll take before someone points out that the whole Lincoln/habeas thing is just our Republican heritage, with bonus points for speculating that Timmy said:

But certainly Lincoln was very comfortable with putting US citizens into jails to let them rot.

like it's a good thing. I'm thinking it'll be posted before I finish typing this, though.

[Timmy the Wonder Dog]

Slarti, I just wondering which troubled Lincoln more, putting citizens who were undermining the Union war effort into prison, or the 5,000 who died at "Cold Harbor".

Now do Jackson, Wilson and FDR represent the Democratic heritage on this overall subject. Just asking.

[Slartibartfast]

I truly wasn't serious, Timmy. And I can't speak for Democrats; I can't even speak for Republicans, and I are one.

[rilkefan]

"riflefan, given the parameters of the give and take, the use of obtuse was spot on."

Timmy, even if you're right (which I most certainly don't think you are - for starters, "obtuse" means something like "lacking quickness of perception or intellect" whereas you probably wanted something more like "ill-informed", plus I'd be obtuse too) I don't think the Posting Rules make an exception for truth.

Plus it's "rilke", as in Rilke, the author of many beautiful and stern and powerful and just generally some of the greatest poems ever written.

[Katherine]

Gonzales didn't write the main "torture memo" Slarti. He did specifically request and presumably approve it. Here is a link to my initial reaction. (I was rather more moderate than von was in responding to a very similar DoD memo released shortly before the OLC memo.) I could give you a more detailed reaction now that I've taken international and U.S. Foreign Affairs law as well as Con Law, not to mention the basic rules of statutory analysis the memo ignores.
Here is a link to Michael Froomkin's reaction, which is a bit more thorough than I was.

One other point that was widely made at the time, but not included in any of the links above, was that the memo simply fails to cite THE classic precedent on separation of powers during war or emergency, the Youngstown case. Another point that I can now make: if there is are two plausible interpretations of a federal statute, one that violates international law and one that complies with international law, the courts are supposed to pick the one that complies with international law. This is called the "Charming Betsy" Canon. And the OLC memo simply does not mention it.

People agree on next to nothing about international law. One thing they do agree on: torture is absolutely, categorically forbidden. This is in several treaties we have ratified, not only the torture convention. It is also a long tradition in customary international law, which we have long accepted. It is also one of a few rules, along with the prohibitions on slavery and genocide and not much else, that are called "jus cogens" rules, which bind all countries whether or not they consent to be bound.

(Ironically, another OLC memo I found in my googling does use the "Charming Betsy" canon as a caution--when the question is whether Canadian truck drivers can be charged for transporting explosives into the United States.

Read that memo, by the way, for an example of what a normal, decent legal memo sounds like. It has arguments on BOTH SIDES of the issue! That's what memos do: they are no fun to write because you have to throw in all sorts of "probablys" and "mights" and "on the other hands". If you're trying to make the best argument possible for your client's version of the law, that's called a brief.

The OLC document doesn't read like a memo. It reads like, in Froomkin's words, "a brief for the torturer."

[Katherine]

Or, as David Luban has put it:

"My claim is different. What makes the Bybee Memo jarring by conventional legal standards is that it barely goes through the motions of standard legal argument. Instead of addressing and rebutting the obvious arguments against its conclusions, it elects not to mention them; in several of its crucial sections it cites no statutes, regulations, or judicial decisions to support its most controversial conclusions (presumably because there are none); and when it does cite conventional sources of law, it employs them in utterly unconventional ways. I thus disagree entirely with Eric Posner and Adrian Vermeule, who describe the Memo’s arguments as “standard lawyerly fare, routine stuff.” It is nothing of the kind....

His full explanation of the memo, which puts a lot of my conclusions a lot more eloquently, starts on page 46 of this document. (That's a MS Word Document). Ignore all the stuff about the "liberal ideology of torture" as I didn't read it either and can't tell you if I agree with it.

[rilkefan]

karma

ahoy.

[Katherine]

D'oh. Formatting fixed, I think.

[Slartibartfast]

Thanks, Katherine. That should keep me busy for a while.

Odd that the memo you just linked to and the "torture memo" have the same author...or did I miss something?

The Gonzales memo reads oddly; it seems to be unsure of what to advocate. It seems to make much of how we're not entirely bound by the GCW under certain conditions, but then notes that Bush had decided to behave as if we were.

Anyway, odd. Thanks again, and maybe I'll have some actual questions later.

[Katherine]

Not a coincidence, I was googling "Bybee" and "Charming Besty" together.

It's not that I don't think Bybee--or Yoo, who actually drafted the memo--don't know about Youngstown or the Charming Betsy Canon. Of course they do. These are smart guys, smarter than me I bet. They sure as heck know more about foreign affairs law. That's what makes it so troubling: these smart, competent lawyers were making these lousy arguments, (see

Also: I cannot emphasize enough how bad the part about unlimited Presidential power is.

[rilkefan]

Katherine, you had a bit of an html mixup just now...

[Jesurgislac]

Slarti: Timmy said:

But certainly Lincoln was very comfortable with putting US citizens into jails to let them rot.

like it's a good thing.

It's difficult to understand this, I admit, because if Timmy is arguing that putting US citizens into jails to let them rot is a bad thing, why is he focussing on the suspension of habeus corpus of over a century ago, and not on the suspension of habeus corpus occurring today? It's too late for him to oppose Lincoln: it's not too late for him to oppose Bush.

Rilkefan, re. Rilke - My favorite translations of Rilke are (mostly) the Stephen Mitchell translations. I can't read German well enough to read a newspaper, let alone Rilke in the original. But he is one of the greatest poets of the 20th century.

[liberal japonicus]

I just thought Timmy got lost on his way to Vox Dei's blog and was waiting for Von to direct him there (^_^)

[rilkefan]

Jes, in my view Rilke doesn't translate well, even into such a close and great-for-poetry language as English - if you ever have reason to work on your German, that might be an extra motivation. I like Edward Snow's translations myself.

lj: wooosh.

[liberal japonicus]

Sorry, if the whoosh was 'that made no sense'. I remember Von mentioning it in this post

btw, bearing in mind rilkefan's comment about the inadequacy of translation, here are some hyperlinked translations of Rilke and a number of other poets if you go up the url.

[Jesurgislac]

Rilke: if you ever have reason to work on your German, that might be an extra motivation

Oh, it would be. My favorite editions of Rilke are those with English on one side of the page and German on the other - I buy them and sometimes attempt to puzzle my way through the German with the English as a crib. It's almost motivation enough in itself - just not quite. ;-)

I also like Edward Snow's translations. (LJ, thanks for the link - I read footnotes.)