Was there a super-secret-squirrel executive office of the President that might have included Cheney, Giambastiani, et al which fed upon this?

And at what point do we stop giving the blue and green suiters a free ride and comfortable annuities after participating in these extra curricular activities?

"What makes this memo significant, I think, is the way that Defense Department (and other government agency) personnel relied on this memo to create the detention and interrogation regime . . . "

Attorney General Mukasey is now relying on the official nature of this memo to shield those who created that regime from investigation and prosecution.

This memo should not be a shield against prosecution. It should be a cause of prosecution, evidence of a crime and a crime, itself.

Sorry to be the turd in the punch bowl, but most Americans dont think its a bad thing to interogate enemy combatants a little enthusiastically. But keep acting like it is a bad thing, so Hilary will get 99.9% of the a-rab vote instead of 99.0%. Then when 8-12 happens or whenever it is, and it turns out Al-Jabar Skybook knew but exercised his 5th ammendment rights he would have if he was a citizen, even Cheney would win .

The bottom line, and the root cause of almost all of the controversy, is the use of the term "commander in chief power." Such as saying any law passed by Congress (pick one, any one, even laws held unconstitutional on other grounds) can ever be unconstitutional because they "conflict with the commander in chief power," as shown on the very first page of this 81-page memo.

There is no "commander in chief power." None. Nil. Zilch. Does not exist.

The RANK of commander in chief exists. It does not confer any power on the president - instead, it ensures that he is never "outranked" by anyone in the executive branch, including the military.

It is a military rank. It outranks all other military ranks, but that is all it is - a military rank. Period. End of story.

Is there a "captain" power that allows an 0-3 captain to disregard any laws because they conflict with his "captain power?" Of course not. Given that Congress and Congress alone is charged with regulating the armed forces, Congress can pass any laws it wants, and there is no conflict with any "Captain power" that would make such a law unconstitutional. That is, laws apply to the Captain just like they do to the rest of us.

What about generals? Can generals ignore laws passed by Congress without violating their oath? Of course not. Generals must obey our laws.

What about privates? Same thing of course - or does anyone here think that joining the Army as a buck private means you can unilaterally ignore laws passed by Congress? Of course nobody thinks that.

So how can the rank of commander-in-chief ever be a reason for finding a law - any law - unconstitutional? How can any rank in the military ever be found to outrank Congress?

Of course it can not. There are laws passed by Congress that have been found to be unconstitutional. But not on the grounds that it conflicts with the military rank of the president - that rank only applies to the military, not out of it. The president has no military authority outside of the military - unless martial law is declared, which is when our military then bosses us around rather than the civilians remaining in control.

It is not disputed that martial law has not been declared. We are not under martial law. The Bill of Rights has not been suspended. Therefore the president's military rank - which confers no powers of any kind outside of the military - can not be a basis for ignoring a law. Ever.

After 81 pages of argument, the flaw in page one remains - there is no such think as "commander in chief" power and the idea that there is such a "power" goes to the root of the problem: this president thinks he is the boss, rather than a public servant elected to serve US.

Commander in chief power? Our first, General George Washington, never thought for a single second that he could overrule the Continental Congress. Nor did the Continental Congress. But this guy does? I was a lieutenant once. Did I have "lieutenant" power to overrule Congress and ignore laws? I was a sergeant once. Was there a "sergeant power" that allowed me to do the same? It is just as ridiculous to assume there is this "commander in chief" power that Mr. Yoo and his fascist buddies write about. There is no such power. All power comes from the People, and it is delegated in writing - the Constitution - and there is no power that allows a president to ignore any law that he feels will impair his abilities as commander in chief. Congress regulates the armed forces, so when the president is acting as commander in chief he is, like the entire military, subject to Congressional authority - JUST AS THE CONSTITUTION SAYS.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense


To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

Thus even if the FISA law that made it a felony for the NSA to conduct their warrantless wiretaps upon US citizens were unconstitutional on other grounds, if Congress can regulate what military officers can do (as explicitly stated here) then Congress can regulate all officers regardless of rank - to include the Commander in Chief. Even if FISA was wrong on other grounds (and it is not, which is why Yoo relies on this so-called commander in chief power) it is still a lawful regulation for the armed forces - including the president when acting as commander in chief.

To assume the reverse is backwards, dangerous, and tyrannical.

This memo alone should be considered sufficient grounds for impeachment. It is a direct challenge to the Constitution of the United States, and the president should go to prison.

JD

Thank you ever so much to shining a bright light on this "commander in chief" bullshit.

WASF

Al

Sorry to be the turd in the punch bowl, but most Americans dont think its a bad thing to interogate enemy combatants a little enthusiastically.

There was also a time when most Americans didn't think that lynching black men for, well, for just about anything was a bad thing.

Today those kind of Americans are called "murdering racist shitheads" by the other kind of Americans, the ones with the opposable thumbs.

Trying to excuse this shit because the C.H.U.D. faction of the American public is for it is like saying that the Germans were right to gas Jews because most Europeans were antisemites in 1944.

Hey FD man cudos for the C.H.U.D. reference,{canabalistic, humanoid underground dwellers)bad on ya for hating on my mongoloid simian crease. Y'alls candidate is the one who talks about typical white ladies and goes to a black supremicist church. If it wasnt for a certain republican Obama would be shrinking heads in ghana.

Charles, you used the N-word again, you and Senator Craig should get a room.

Frankie: Like the illiterate johnny rebs you venerate, you have a tendency to get the facts wrong: Obama's father's family is not fron Ghana (west coast) but from Kenya (East coast)...you know that geography thing.

Here's an item from the latest PEGC Update...

NOTES ON WERNER BEST

[From an anonymous legal historian.]

Here is a description of an interesting character, Dr. Werner Best (Doctor of Law), who was a legal advisor to the SS and Gestapo:

"Werner Best was ambitious, a cool amoral technician of power, used his academic and legal skills to justify the totalitarian practice of the Nazi regime, "which corresponds to the ideological principle of the organically indivisible national community."

"As a leading constitutional theoretician and Nazi jurist in the Third Reich, Best did a great deal to give respectability and legitimacy to the political police and the concentration camps. As long as the Gestapo was carrying out the will of the leadership, it was in his view, "acting legally." " (Emphasis added.)

Holocaust Education &Archive Research Team (H.E.A.R.T.), WERNER BEST, undated web page available at:

www.holocaustresearchproject.org

Best was also the author of a book called THE GERMAN POLICE, 1941. It is a fair summary of his theory of constitutional police power, and I highly commend the book to those interested in the legal rationales propounded by Nazi theorists.

The following is from Best's Nuremberg testimony, from THE TRIAL OF GERMAN MAJOR WAR CRIMINALS, Sitting at Nuremberg, Germany 29th July to 8th August 1946, One Hundred and Ninety-First Day: Wednesday, 31st July, 1946, available at:

www.nizkor.org

Q. And how did the so-called intensified interrogations take place?

A. Concerning the Verschaerfte Vernehmungen (intensified interrogation methods), Heydrich issued a decree in 1937, which I saw for the first time after it had been issued, for I was not called in on such matters, being an administrative official. Thereupon I questioned him about it.

Q. What reason did Heydrich give for this decree?

A. At that time, Heydrich gave me the reason that he had received permission from higher authority to issue this decree. This measure was thought to be necessary to prevent conspiracy activity on the part of organizations hostile to the State and thus prevent actions dangerous to the State; but confessions were in no way to be extorted. He called attention to the fact that foreign police agencies commonly used such measures. He emphasized, however, that he had reserved for himself the right of approval on every individual case in the German Reich; thus he considered any abuse quite out of the question.

31 July, 1946 p. 149. (Emphasis added).

Q. What was the existing police law according to your theory?

A. In speaking about police law in my book, I started from the National Socialist conception of the State and from the development of State laws at that time in Germany. When after 1933 the legislative power was transferred to the Government, it gradually became the customary law of the State that the will of the head of the State automatically established law. This principle was recognized as law, for one cannot characterize the rules and regulations governing a great power for years on end as anything but customary law. On the same basis, the State's police law developed too. An emergency law issued by the Reich President on 28th February, 1933, removed the barriers of the Weimar Constitution, and thus the police were given much wider scope. The activities and the authority of the police were regulated through numerous Fuhrer decrees, orders, directives, and so forth which, since they were decreed by the highest legislative authority of the State, namely, the head of the State himself, had to be considered as valid police laws.

Q. What would be your judgment concerning the orders to the Gestapo or parts of it, to effect actions, deportations and executions?

A. I have already said that these were measures quite alien to the police, which had nothing to do with the ordinary activities of the police and which were not necessary from the police point of view. But, if the police received such orders from the head of the State or in the name of the head of the State, then, of course, according to the current conception each individual official had to take it upon himself as an obligation to carry out the decree.

Id. at pp. 150-151. (Emphasis added).

# # #

Frank, you are awesome.

For those responding angrily to Frank, the joke is on you. Read his "modest proposals" a bit more carefully (hint hint) before responding.

As for Charly's post, I once wrote a paper called "The Legalization of the Holocaust" which detailed much of what he cited - how what was formerly illegal and abhorrent was legalized by several methods: 1) changes in the law, 2) changes in the meaning of words so that the effect of prior laws was reversed but the effect was hidden, and 3) removal of certain activities from the reach of law altogether.

For instance, 1) the Enabling Act, 2) "Resettlement in the East," and 3) Generalgouvernement (the German military occupation of Poland, beyond the reach of German law).

Or, for instance,
1) the Patriot Act, 2) "enhanced interrogation techniques," and 3) Gitmo.

Is Bushco a Nazi regime? No. No way. Not at all. The very idea is insulting. Clearly they don't hate Jews, and... well, they don't hate Jews....

Well you can be sure they will do that Rick: the one thing these people are really good at is lying, and they never run out of excuses. The cure is obvious: prosecute, convict, and punish these gangsters for their crimes.

The notion that we have to reach an accommodation with these people is silly: it isn't possible to strike a reasonable compromise with malice and insanity. We have oppose them and defeat them. Anything less only aids and abets their crimes.

Impeachment, War Crimes Trials, Charges of Treason, personally I'd like to see Mischa Barton french kiss Scarlett Johannsen on free national tv but I don't obscess on it every single day.

Well I have to disagree with you on a couple of things Publius.

First, I respect the current Democratic leadership a lot. Like everyone, they're human, and it a given that politics are first and foremost political -- it is the art of the possible, and they are mostly guilty of representing their constituents.

And I do not accept the impossibility of bringing Bush and Cheney to justice either: if that's impossible then democracy and human reason are impossible, and I'll be dead before I believe that.

My next chore is to write down some thoughts I have about this latest memo, and one of the items on my list is the customary law of war, which is a topic the memo touches in a couple of places. Responding to you here is as good a place to start as any...

Yoo's introduction lays out the basic rationale for the administration's new-age version of the Nazi Fuhrer Principle in terms of the Unitary Executive Theory and Constitutional Doctrine of Originalism:

"The Framers understood the Commander-in-Chief Clause to grant the President the fullest range of power recognized at the time of the ratification as belonging to the military commander. In addition, the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- unless expressly assigned to Congress, is vested in the President. Article II, Section I makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President the "executive power" and contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I. Our reading of the constitutional text and structure are confirmed by historical practice, in which Presidents have ordered the use of military force more than 100 times without congressional authorization, and by the functional consideration that national security decisions require a unity in purpose and energy that characterizes the Presidency alone."

The part about the vesting clause is the basis for the UET in the way E = mc**2 is the basis for General Relativity. Originalism comes into it because according to the UET what the vesting clause vests are all the powers of executive as it existed when the Constitution was drafted.

Now what courts do is decide cases, and the do it by applying the law to the facts of a particular case. Where doctrines / rules of construction such as originalism come into plat is where a case presents some ambiguity in how the laws apply to the facts. A good example is habeas as it applies to the detainee cases, where habeas normally is applied by statute (18 USC 2241) but Congress has enacted the MCA, which retro-actively excludes "unlawful enemy combatants" from the statute and subjects them to alternative procedures under the MCA. Because habeas is guaranteed by the Constitution, the question is whether or not those procedures are an adequate substitute for the normal statute, and the answer depends on what precisely the constitution means by habeas. The established doctrine is that habeas means what it meant under the common law when the Constitution was adopted (and gallons of ink have accordingly been devoted to briefing that topic by the parties and amici, the crux being how habeas applies to non-citizens held overseas.

Now that's a classic example of originalism where both sides pretty much agree on the principle but nevertheless disagree on the historical facts, even though it's a fairly narrow question. The question of executive powers in general is a lot bigger obviously, but Yoo is invoking originalism in the same way.

So on the one hand these folks argue for the original understanding of executive authority to support the claim of unlimited executive authority, while on the other they ignore the plain fact that nobody who wrote the Constitution thought they were granting the President the powers of George III, James II, Charles I, let alone Caligula; and equally, inconsistent philosophers such as Rousseau, Montesquieu, Locke, and Grotius, etc. Then they turn around and argue that Presidents have gone to war 100 times without congressional authorization, which is a "living Constitution" argument of the sort they despise when the topic is something like Roe v. Wade or gun-control.

The other place this comes into play is in the customary laws of war, which they claim they can simply ignore at will, even though they are basing the claims for executive authority on precisely their own dishonest reading of the customary laws of war.

Yoo later dismisses 18 USC 2441(c)(2) which makes it an offense (war crime) to commit any violation of arts. 23,25, 27 or 28 of the the Hague IV 1907 annex of regulations by arguing that the statute only applies to such acts when committed by or against someone who is a citizen of a nation that is a party to Hague IV (which a list considerably shorter than Geneva, which is now recognized ny every nation on earth). But the statute doesn't actually say that, and the legislative history refers to the importance of the Hague regulations -- which were written to express the traditional laws and customs of war as they were understood in 1899/1907 -- in the proceedings at Nuremberg, and also mentions that the reason for similarly adding Geneva Common Article 3 was to cover events like those that had just transpired in Rwanda (unlawful combatants in spades).

Which brings me to what started me out on my preposterous little project: Nuremberg, and the IMT Charter. My view there is simple:

If anything on this earth is law, the IMT Charter is law. If anything reflects the laws and customs of war, the IMT Charter and Nuremberg trials do.

The IMT Charter is a valid treaty in force for the United States which was also adopted as a resolution of the UN General Assembly. The United States was the leading power in drafting that charter, and it was adopted at a time in our history when the people of the nation were united to a greater degree than any other point in our history, including the Revolution.

And that brings me to a question:

Is the IMT Charter a self-executing treaty?

I don't see how it could be considered anything else. It specifically states that acting under lawful orders is no defense to charges of crimes against peace, crimes against humanity, or war crimes, as defined by IMT art 6. It also states that there is no form of immunity for such crimes, and at Nuremberg, we even tried and convicted legislators for enacting laws to authorize such crimes.

Mr. Yoo isn't nearly as clever as he thinks he is: he's written his own indictment.

Umm, We ARE the goodguys dammit. Some terrible wrongs have been admitted I admit, like when the Yankee devils invaded my home state, but y'all are forgiven. And what is this "Nuremberg" you keep referring to?

Well Wisedup, the good news is that isn't any form of immunity for war crimes, crimes against humanity, or crime against peace, and Bush couldn't pardon himself even if there was.