“Marty Lederman at Balkinizatin points to a second instance of this kind of thinking this weekend, in an interview given by John Yoo to the British weekly Spectator, and reprinted in the Montreal Gazette. Yoo, author of the infamous ‘torture memo’ that came out of the Office of Legal Counsel in August of 2002 and became public in the summer of 2004, continues to defend the legality of the president’s right to torture suspects. (The OLC subsequently withdrew the memo.) Yoo’s argument rests largely on more of this same ‘greater-power-includes-the-lesser-power’ analysis. As he explains to his interviewer, ‘Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them.’ He goes on to say, ‘I don’t see how it can be reasonable to have an absolute prohibition on torture when you don’t have an absolute prohibition on killing.'”
“The real trick, as Jack Balkin of Yale Law School points out, is convincing your listener that the same rules and norms that govern the ‘greater’ category also govern the ‘lesser.’ You need to convince them that if the state is allowed, for instance, to execute criminals, any laws regarding cruel and unusual treatment simply go away. In the case of the U.S. attorney firings, that would mean insisting that the same rules and norms that govern presidential authority over U.S. attorney appointments govern everything to do with the Justice Department’s oversight of individual (partisan, political) criminal investigations and prosecutions. You would similarly need to insist that the rules that govern the president’s power to kill someone during wartime also govern his authority to torture a suspect during an undeclared war on terror. Professor Dave Glazier makes this point very clearly at the blog Balkinization.”
When Less Is More – The nutty legal syllogism that powers the Bush administration, by Dahlia Lithwick, Slate, Posted Wednesday, March 21, 2007, at 6:12 PM ET (via Rebecca’s Pocket)
Let me get this straight: because the Federal government has the power to execute people (kill them, destroy their bodies beyond functioning), it therefore also has the power to just maim them. Huh. Sounds more like a good abolish the death penalty argument to me.
Does anyone know why John “Torture Memo” Yoo is teaching at one of the finest universities in California? Does anyone know why the man who was able to stick his finger far enough into his moral throat and puke up a justification for the psychos of the bush junta to torture, well, anyone really is teaching at UC Berkeley? Anyone? I mean, Berkeley of all places. Does Berkeley even know what they’ve hired to teach “law”? Perhaps someone should tell them.
Added 061907: “2. Who is ultimately responsible for the abuses?
If there’s a smoking gun, it’s in the hands of John C. Yoo. He worked at the Justice Department’s Office of Legal Counsel, and he’s the guy behind the August 1, 2002, memo that said interrogators could do what they wanted as long as the intensity of pain inflicted was less than “that which accompany serious physical injury such as death or organ failure.” It created conditions that allowed for almost any sort of physical abuse. So guys like Yoo and Timothy Flanagan, who was deputy White House counsel under Alberto R. Gonzales, discussed techniques like stress positions and sleep deprivation that were approved for high-level Al Qaeda suspects—and those techniques were used on Iraqi civilians. I had a heartfelt conversation with Flanagan and told him what I had heard from Iraqis: that these techniques had been used on men, women and children in Iraq. He feels bad about it; I know he does. But the fact is that he and Yoo and some of these other people from the best law schools and universities in this country were the ones who came up with the legal definitions that allowed for the abuse to happen.”
Six Questions for Tara McKelvey on Detainee Abuse, Harpers, May 9, 2007
Thank God for Harpers Magazine.