Third in a series
This is one of those "you just can’t make up something crazier than this" moments. Any 3rd grader taking American History could do better than this. You don’t need a law degree, or even a HS degree to see how wrong Yoo has gone with this one:
John Yoo begins a paragraph (footnote 13) by quoting the section of the US Constitution that provides that Congress can "make Rules for the Government and Regulation of the land and naval Forces" to conclude at the end of his paragraph that "Any effort by Congress to use its power to make rules for the armed forces would thus be ….. unconstitutional."
Lest you think I am unfairly taking his words out of context, let me give his ENTIRE paragraph exactly as written:
It might be thought that Congress could enact legislation that regulated the conduct of interrogations under its authority to "make Rules for the Government and Regulation of the land and naval Forces." U.S. Const. Art. I § 8, cl. 14. The question whether Congress could use this power to regulate military commissions was identified and reserved by the Supreme Court [LHP note-that means SCOTUS did not rule either way]. Ex Parte Quirin, 317 U.S. 1, 29 (1942). Our office has determined that Congress cannot exercise its authority to make rules for the Armed Forces to regulate military commissions. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Swift Justice Authorization Act at 7 (Apr. 8, 2002). If military commissions are considered an integral part of the conduct of military operations, then the conduct of interrogations of enemy combatants during wartime must be as such a core element of the President’s power to successfully prosecute war. Any effort by Congress to use its power to make rules for the armed forces would thus be unconstitutional, as such rules would be with regard to military commissions.
[All internal links supplied by LHP.]
Got that? The Constitution says Congress can make rules that govern the armed forces, the Supreme Court had never ruled that Congress is in any way prohibited from making rules that govern military commissions, but nonetheless OLC has decided that Congress cannot make rules pertaining to military commissions and therefore any attempt by Congress to use the power which the Constitution grants to it in plain unequivocal language is clearly unconstitutional.
Further, he does not accurately reflect what the court said in Quirin. What the court actually said was that the defendants in Quirin who were objecting to being tried by military commissions instead of in a civilian court had no basis for challenging the legality of the existence of the military commissions precisely because CONGRESS HAD AUTHORIZED the creation of military commissions in Articles 38, 46, 81 and 82 — of the Articles of War by which Congress declared war against the Axis powers in WWII.
The Constitution confers on the President the executive Power, Art II, 1, cl. 1, and imposes on him the duty to take Care that the Laws be faithfully executed. Art. II, 3. It makes him the Commander in Chief of the Army and Navy, Art. II, 2, cl. 1, and empowers him to appoint and commission officers of the United States. Art. II, 3, cl. 1.
The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.
By the Articles of War, Congress has provided rules for the government of the Army.
Get it? SCOTUS said that military commissions authorized by a law passed by Congress were legal for the president to use. How that translates to "Congress cannot make any laws" defies all logic.
Let me tell you something else the Quirin court found:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
I can’t tell what the Philbin memo might say, because as far as my googling skills can tell, it’s still a secret. But considering how he has misrepresented what a publicly available SCOTUS decision said, I’m not expecting much help for his position to show up in a memo he expected to remain secret. Call me suspicious.
UPDATE: with a big tip o’ the hat to Prof. Foland in the comments. He gives us this additional nugget
One might also take note of this other section of Article I, Section 8 (clause 11, if I managed to count right):
[The Congress shall have Power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
"captures on Land and Water" can mean booty and it can also mean detainees.