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Yoo Memo Deliberately Undercuts Military Law — Rumsfeld Kabuki, Anyone?

Having read through and digested the Yoo memorandum that was recently declassified, the most striking feature of it — beyond its utter twisting of the law in a "might equals right" stomach churning justification tango — is that it reads like a document written in an after-the-fact criminal defense posture. Especially Part IV of the memorandum which spends pages outlining potential defenses and the mindset needed therefor should anyone be accused of committing war crimes or criminal acts. 

That this flies in the face of the UCMJ and the Field Manual appears to have no meaning to Mr. Yoo. That it downgrades the precepts behind all the human rights law advances that the United States used to champion for the betterment of people in more repressive societies is just a minor inconvenience for Mr. Yoo and his "superiors." That we will be generations in the repairing of this, if ever? Not even mentioned.

Whither Donald Rumsfeld in this public discussion? And, for that matter, Dick Cheney, in all of this minion kabuki? Which makes this passage from the Vanity Fair piece on the torture policy drafting all the more infuriating:

…The first was a November 2002 “action memo” written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense, to his boss, Donald Rumsfeld; the document is sometimes referred to as the Haynes Memo. Haynes recommended that Rumsfeld give “blanket approval” to 15 out of 18 proposed techniques of aggressive interrogation. Rumsfeld duly did so, on December 2, 2002, signing his name firmly next to the word “Approved.” Under his signature he also scrawled a few words that refer to the length of time a detainee can be forced to stand during interrogation: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”

The second document on the table listed the 18 proposed techniques of interrogation, all of which went against long-standing U.S. military practice as presented in the Army Field Manual. The 15 approved techniques included certain forms of physical contact and also techniques intended to humiliate and to impose sensory deprivation. They permitted the use of stress positions, isolation, hooding, 20-hour interrogations, and nudity. Haynes and Rumsfeld explicitly did not rule out the future use of three other techniques, one of which was waterboarding, the application of a wet towel and water to induce the perception of drowning.

Yoo sure as hell wasn’t writing this memorandum in a vacuum and William Haynes wasn’t asking for it in one either. Rummy and Dick wanted cover, and they were going to get it in the form of a memo from OLC written by a loyal and willing scribe that bought into their dictatorial unilateral executive ravings, and that was binding on the military — and which overrode the vociferous objections from the JAG corps.

And, as Scott Horton details, it was a perversion of the role and the mission of the OLC to use it in that manner:

The OLC was not being asked in a detached way to render its best professional judgment about a question. It was being used as a power redoubt controlled by the Neocon clique to reinforce legally indefensible positions which fellow Neocons (Haynes, Feith and Cambone) had locked themselves into. It was a pure powerplay. And it is fundamentally corrupt, in particular a crude debasing of the role of OLC.

Which serves as both a warning and a clarion call on the need for detailed oversight on who, ultimately, issued these marching orders — and for a holding to account of those involved. As Froomkin highlighted from yesterday’s WaPo piece on the memo:

Largely because of Yoo’s memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo’s March memo and did not know about the group’s final report for more than a year, officials said.

Thomas J. Romig, who was then the Army’s judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive."

It certainly is offensive. Scott Horton walks us all through the paces on the internal dynamics in sometimes graphic detail, and ends with this:

When the scandal erupted, Rumsfeld and his crew turned to a standard “soldiers are cannon fodder” response–let’s scapegoat some grunts, and then it’ll all die out, they reasoned. And some two dozen low-level soldiers were court-martialed. Serious officers, and more to the point, the political hacks who crafted the torture system and hammered it through faced no accountability in any form. They depart with a big party and go off to take in six-figure salaries as oil company executives, it seems. The heroic figures in uniform who stood against the criminality are intimidated, hounded, denied promotions, forced out of the service. It’s all like some dark parallel universe–not the America I thought I grew up in.

Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back?

Amen. To Scott’s list of people who ought to have their asses hauled publicly before Congress to answer questions, I’d add David Addington and Scooter Libby to the list, along with Rummy — the consigliere’s to Dick Cheney’s grand vision of Executive Fiat ought to answer for their role in promoting this twisted version of America. And I say give Sen. Whitehouse and Sen. Feingold the first whacks at all of them.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com