Yoo Interrogation Memo Paranoia

Marty Lederman, writing at the blog Balkanization, has his hands on, as he so objectively calls it, "The Big Kahuna: The Torture Memo that Makes the August 2002 Memo Look Like Objective and Thoughtful Legal Analysis."

This is the "notorious" memo ... well, allow me to let Lederman describe it:

On Friday, March 13, 2003, Jay Bybee resigned from his Office as the Assistant Attorney General for the Office of Legal Counsel, to become a judge on the U.S. Court of Appeals for the Ninth Circuit. The very next day -- a Saturday, mind you -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees.

The paranoid implication here is that Bybee read the memo, wouldn't sign it, was forced out, and Yoo issued it. There may be some level of truth there; there may not. But the override here is that Bybee left not because of a tiff over a memo, but to become a U.S. Court of Appeals judge, a position that doesn't exactly open up over night. He was not forced out; his departure date was known long in advance.

And the 81-page memo is hardly something that could be whipped up overnight. (I know that's not part of the passing hysteria here, but Lefties quick to conspiracy theories will take it there, trust me.)

Lederman goes on to say,

Needless to say, the classification of these memos all these years was ridiculously unjustified. There's no reason at all that this roll out could not have occurred in 2004.

Needless to say? Really? You've read all 81 pages and can say that with certainty? You can't see any scenario whatsoever that would allow the classification of a document that discusses at length what may and may not be legal when interrogating enemy combatants? Nothing at all that might not give the enemy combatants a wee edge against our forces?

To the American Left, conspiracy is a one-way street: America is capable of all the evil in the world; our opponents and enemies are capable of none of it.

Lederman also calls the memo "the blueprint that led to Abu Ghraib," hyperbole on a par with Obama's endless incorrect parsing of McCain's "100 years in Iraq" statement. We all know that Abu Ghraib's perps followed no blueprint and were summarily punished for their renegade actions, and Lederman's insistence at blaming Bush for what happened there befouls every other argument he makes.

As for the memo itself, it is thorough and comprehensive, the work of a government trying hard to figure out the legal limits of working with stateless terrorists bound by no legal limits.

Here's just a taste of that thoroughness, from the introduction:

In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. In Part II, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President.

Although we do not believe that these laws would apply to authorized military interrogations, we outline the various federal crimes that apply in the special maritime and territorial jurisdiction of the United States: assault, 18 U.S.C. § 113 (2000); maiming, 18 U.S.C. § 114 (2000); and interstate' stalking, 18 U.S.C. § 2261A(2000). In Part II.C., we address relevant criminal prohibitions that apply to conduct outside the jurisdiction of the United States: war crimes, 18 U.S.C. § 2441 (2000); and torture, 18' U.S.C. § 2340A (2000 & West Supp. 2002).

In Part III, we examine the international law applicable to the conduct of interrogations. First, we examine the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1988,1465 D.N.T.S. 113 ("CAT") and conclude that U.S. reservations, understandings, and declarations ensure that our international obligations mirror the standards of 18 U.S.C. § 2340A. Second, we address the U.S. obligation under CAT to undertake to prevent the commission of "cruel, inhuman, or degrading treatment or punishment." We conclude that based on its reservation, the United States' obligation extends only to conduct that is "cruel and unusual" within the meaning of the Eighth Amendment or otherwise "shocks the conscience" under the Due Process Clauses of the Fifth and Fourteenth Amendments.

Third, we examine the applicability of customary international law. We conclude that as an expression of state practice, customary international law cannot impose a standard that differs from U.S. obligations under CAT, a recent multilateral treaty on the same sUbject. In any event, our previous opinions make clear that customary international law is not federal law and that the President is free to override it at his discretion.

In Part IV, we discuss defenses to an allegation that an interrogation method might violate any of the various criminal prohibitions discussed in Part ll. We believe that necessity or self~defense could provide defenses to a prosecution.

This is not the work of an administration, as portrayed by the braying donkeys on the Left, that is riding roughshod over human rights. It is, rather, the work of an administration that is rigorously seeking appropriate guidance in a thick forest of often conflicting laws, regulations, treaties and court decisions.

It is also the work of an administration that knows it has to deal with enemies besides the ones who bow to Mecca daily -- it is an administration that anticipates and plans for attacks from the ACLU; various Soros-funded activist groups; Harry Reid, Chuck Schumer and a Congress-full of other anti-Bush, agenda-driven electeds; activist judges, and paranoid bloggers.

Of course, unaddressed by Lederman or his colleagues is anything about the nature of the enemy, anything about the nature of the interrogation procedures that actually have been used, or any analysis of benefits vs. cost of the administration's policy on the interrogation of foreign enemies intent on killing us.

But then, being a leftist has never required being rational.