It's as bad as we thought:
In a sweeping legal brief written in March 2003, when the Pentagon was struggling to determine the appropriate limits for its interrogators, the Justice Department gave the Pentagon much of the same authority it had provided to the Central Intelligence Agency in a memorandum months earlier. Both memorandums were later rescinded by the Justice Department.
The disclosure of the 2003 document, a detailed 81-page opinion written by John C. Yoo, who at the time was the second-ranking official at the Office of Legal Counsel at the Justice Department, is likely to fuel the already intense debate about legal boundaries in the face of a continuing terrorist threat.
The NYT repeatedly uses the terms "harsh" and "extreme" to describe the authorized "interrogation methods." Honest, sentient people simply call it "torture."
Perhaps more importantly:
“This is a monument to executive supremacy and the imperial presidency,” said Eugene R. Fidell, who teaches military justice at Yale Law School and the Washington College of Law at American University. “It’s also a road map for the Pentagon for fending off any prosecutions.”
The "Unitary Executive" rears its ugly head.
Emily Bazelon:
One after another, complex questions of constitutional law are dispatched as if there's no cause for any debate. The president has all the war making power. Congress has none. The president's commander-in-chief powers extend to interrogations (no matter how far in space and time from the battlefield they take place). Guantanamo Bay and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support. And yet he brooks no doubt.
If there are no checks on presidential power - Congressional, Judicial, Constitutional - then the president can simply rule by fiat. There's a word for this: Dictatorship. And that is exactly what sociopaths like John Yoo are arguing for.
Yoo:
Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self-defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations -- that it must "shock the conscience" -- that the Bush administration advocated for years.
"Whether conduct is conscience-shocking turns in part on whether it is without any justification," Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
What amazes is that Yoo can't get his mind around the fact that torture is by definition "malicious" and "sadistic" - in short, a "shock to the conscience."
The "sadistic" part of me wants to see Yoo (and George and Dick and Don and Condi and...) undergo "harsh interrogation methods" so they can maybe understand what they are. But that's not going to happen and the reasonable, justifiable alternative - prison - isn't going to happen either.
And they have 292 more days in which to lead us into the abyss.
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