Yoo’s Boilerplate From Hell
Fourth in a series
John Yoo has said that portions of the chilling March 14, 2003 memo he wrote are just cut and paste of boilerplate from other OLC opinions.
You know what? I believe him. Really, I do. I absolutely believe him.
There are these paragraphs in section B, 2. where there are perfectly sensible, well-supported assertions of the state of the law — the citations actually stand for the propositions they support and everything.
You know what those passages are? The accurate descriptions of the elements of crimes and examples of behavior that would qualifiy as those crimes. The problem is that Yoo is claiming the U.S. military can commit those crimes with impunity based on his say-so. He describes those crimes perfectly.
Let me walk you through a couple of examples:
From page 24:
At common law, an assault is an attempted battery or an act that puts another person in reasonable apprehension of bodily harm. See, e.g., United States v. Bates, 210 F3d. 64, 68 (1st Cir. 2000).
By far the most common formulation is that attempted battery is a "willful attempt to inflict injury upon the person of another." United States v. Fallon, 256 F3d. 1082, 1088 (11th Cir. 2001), cert. denied, 534 U.S. 1170 (2002).
From page 25:
In the context of interrogations, if, for example, an interrogator attempted to slap a detainee, such an act would constitute simple assault.
In interrogating a detainee, if interrogators were to, for example, show a detainee a device for electronically shocking him and threaten to use it should he refuse to divulge information, such an action would constitute this type of assault.
Here’s a long one from page 27, I’m going to leave out the citations to the cases and statutes because it is WAY too much typing, but they’re all in the memo itself [long pdf].
With respect to substantial bodily injury, for example, a defendant was convicted of assault resulting in substantial bodily injury for injuries to the victim that included: fracturing the victim’s skull, burning his face, and biting him which left a human bite mark on the victim’s leg. [citations omitted]
And in In re Murphy, [citation omitted], the magistrate concluded that a "loss of consciousness and a two-day stay in a sick room could qualify as allegations of substantial bodily injury." [citation omitted]
With respect to serious bodily injury, evidence establishing that the victim’s cheekbone and eye socket were fractured, and a large laceration created, requiring the victim to undergo reconstructive surgery and leaving her suffering from a permanent disfigurement, established that she had suffered serious bodily injury. [citation omitted]
There’s more in this paragraph, but you get the drift.
His description of maiming is even more accurate and gruesome:
Another criminal statute …makes it a crime for an individual (1) "with the intent to torture (as defined in section 2340), maim, or disfigure" to (2) "cut, bite, or slit the nose ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." [citation omitted] It further prohibits individuals from "throw[ing] or pour[ing] upon another person any scalding water, corrosive acid, or caustic substance" with like intent.
There are two things that really strike me about this memo, not just how dishonest the "scholarship" is, but also how cold blooded it is. There is no sense in the memo that any of these actions is wrong, or to be avoided. They are described in full gruesome detail yet completely without any sense that they are wrong. He could just have easily been describing something that was going to be done to insects rather than fellow human beings.
Remember the thrust and conclusion of this 81-page nightmare is that the President has the power to authorize all kinds of torture; that if the President authorizes such torture, the persons who commit it are immune from prosecution; and despite clear language in the Constitution that empowers Congress to make rules for the governance of the armed forces (e.g. see my previous post, Up is Down, Hot is Cold), that Congress has no power to pass laws either stopping torture or making it a criminal act.