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UC Berkeley Prof OutlinesTorture Legalities

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    Former Justice Department lawyer John C. Yoo now teaches law at the University of California at Berkeley. Permissible Assaults Cited in Graphic Detail Drugging
    Message 1 of 1 , Apr 6, 2008
      Former Justice Department lawyer John C. Yoo now teaches law at the
      University of California at Berkeley.

      Permissible Assaults Cited in Graphic Detail
      Drugging Detainees Is Among Techniques
      By Dan Eggen
      Washington Post Staff Writer
      Sunday, April 6, 2008; Page A03

      Thirty pages into a memorandum discussing the legal boundaries of
      military interrogations in 2003, senior Justice Department lawyer John
      C. Yoo tackled a question not often asked by American policymakers:
      Could the president, if he desired, have a prisoner's eyes poked out?

      Or, for that matter, could he have "scalding water, corrosive acid or
      caustic substance" thrown on a prisoner? How about slitting an ear,
      nose or lip, or disabling a tongue or limb? What about biting?

      These assaults are all mentioned in a U.S. law prohibiting maiming,
      which Yoo parsed as he clarified the legal outer limits of what could
      be done to terrorism suspects as detained by U.S. authorities. The
      specific prohibitions, he said, depended on the circumstances or which
      "body part the statute specifies."

      But none of that matters in a time of war, Yoo also said, because
      federal laws prohibiting assault, maiming and other crimes by military
      interrogators are trumped by the president's ultimate authority as
      commander in chief.

      The dry discussion of U.S. maiming statutes is just one in a series of
      graphic, extraordinary passages in Yoo's 81-page memo, which was
      declassified this past week. No maiming is known to have occurred in
      U.S. interrogations, and the Justice Department disavowed the document
      without public notice nine months after it was written.

      In the sober language of footnotes, case citations and judicial
      rulings, the memo explores a wide range of unsavory topics, from the
      use of mind-altering drugs on captives to the legality of forcing
      prisoners to squat on their toes in a "frog crouch." It repeats an
      assertion in another controversial Yoo memo that an interrogation
      tactic cannot be considered torture unless it would result in "death,
      organ failure or serious impairment of bodily functions."

      Yoo, who is now a law professor at the University of California at
      Berkeley also uses footnotes to effectively dismiss the Fourth and
      Fifth amendments to the Constitution, arguing that protections against
      unreasonable search and seizure and guarantees of due process either
      do not apply or are irrelevant in a time of war. He frequently cites
      his previous legal opinions to bolster his case.

      Written opinions by the Office of Legal Counsel have the force of law
      within the government because its staff is assigned to interpret the
      meaning of statutory or constitutional language. Yoo's 2003 memo has
      evoked strong criticism from legal academics, human rights advocates
      and military-law experts, who say that he was wrong on basic matters
      of constitutional law and went too far in authorizing harsh and
      coercive interrogation tactics by the Defense Department.

      "Having 81 pages of legal analysis with its footnotes and
      respectable-sounding language makes the reader lose sight of what this
      is all about," said Dawn Johnsen, an OLC chief during the Clinton
      administration who is now a law professor at Indiana University
      "He is saying that poking people's eyes out and pouring acid on them
      is beyond Congress's ability to limit a president. It is an
      unconscionable document."

      Yoo defends the memo as a "near boilerplate" argument in favor of
      presidential prerogatives, and says its fundamental assertions differ
      little from those made by previous presidents of both parties. In
      comments to The Washington Post and other news organizations, Yoo has
      also criticized the Justice Department for issuing new legal opinions
      that do not include detailed discussions of specific interrogation
      tactics, which he views as crucial to defining the boundaries of what
      is lawful.

      "You have to draw the line," Yoo said in an Esquire magazine
      interview posted online this past week. "What the government is doing
      is unpleasant. It's the use of violence. I don't disagree with that.
      But I also think part of the job unfortunately of being a lawyer
      sometimes is you have to draw those lines. I think I could have
      written it in a much more -- we could have written it in a much more
      palatable way, but it would have been vague."

      The 2003 memo includes long discussions of the relative illegality of
      a wide variety of coercive interrogation tactics, including a British
      technique in which prisoners are forced to stand in a spread-eagle
      position against a wall and an Israeli technique, called the Shabach,
      in which a suspect is hooded, strapped to a chair and subjected to
      powerfully loud music.

      Various courts had declared both tactics to be inhumane, but not
      torture, Yoo noted. This meant that they were illegal under a
      provision of the Geneva Conventions that the administration said had
      no relevance to unlawful combatants in its custody.

      In another passage, discussing the bounds of Eighth Amendment
      protections involving confinement conditions, Yoo concluded that "the
      clothing of a detainee could also be taken away for a period of time
      without necessarily depriving him of a basic human need." Yoo cited
      the need to prove "malice or sadism" on the part of an interrogator
      before he or she could be prosecuted.

      The interrogation memo was considered a binding opinion for nine
      months until December 2003, when OLC chief Jack Goldsmith told the
      Defense Department to ignore the document's analysis.

      In his 2007 book "The Terror Presidency," Goldsmith, who now teaches
      law at Harvard University said that some of the memos written by Yoo
      and his colleagues from 2001 to 2003 were "deeply flawed: sloppily
      reasoned, overbroad, and incautious in asserting extraordinary
      constitutional authorities on behalf of the President."

      Douglas W. Kmiec, a Pepperdine University law professor who served as
      constitutional legal counsel for Presidents Ronald Reagan and George
      H.W. said Yoo can be faulted "for not writing more narrowly." It is
      often better to "brush in hazy gray" rather than "spray paint in black
      and white," Kmiec said.



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