Moral Conundrum du Jour: Could the President Have Prisoner's Eyes Poked Out?

by C. L. Cook

Dan Eggen reports today in the Washington Post of former Justice Department lawyer John C. Yoo's 2003 memo regarding the "limits" to be applied to the Bush administration's ministration of "enhanced interrogation techniques" to be applied to its freshly taken prisoners in the 'Global War on Terror.'

 

 

In the eighty-one page memo, Yoo responds to the question posed by a 'nervous Nellie' legislator, to wit:

 

• "Could the president, if he desired, have a prisoner's eyes poked out?" 

Of course the president could ask, and there are certainly no shortage of sycophants hanging around the Oval Office willing to do the job, but what the question is essentially asking is:

 

• "Will there be legal repercussions if the congress codifies for the executive powers not seen since the days of the Spanish Inquisition?"  
  

 

What's striking about Eggen's account of Yoo's memo is the cool tone in which the legal beagle discusses the erasure of centuries of jurisprudence, blithely parsing arguments against employing horrific outrages against the minds and bodies of the unfortunates taken into U.S. custody; unfortunates in many cases innocent of any crime, or activities deemed against American interests, but sold into U.S. hands for broadly advertised bounties in Afghanistan.

 

Yoo is no longer with the Justice Department, instead rewarded his part in moving the United States, and by extension its "Coalition of the Willing," back in time with a position instructing the youth of the nation aspiring to legal careers from the University of California at Berkeley.

 

Some of Eggen's "highlights" include;

 

• "In the sober language of footnotes, case citations and judicial rulings, the memo explores a wide range of unsavory topics, from the use of mind-altering drugs on captives to the legality of forcing prisoners to squat on their toes in a "frog crouch." It repeats an assertion in another controversial Yoo memo that an interrogation tactic cannot be considered torture unless it would result in "death, organ failure or serious impairment of bodily functions."

• "Yoo, who is now a law professor at the University of California at Berkeley, also uses footnotes to effectively dismiss the Fourth and Fifth amendments to the Constitution, arguing that protections against unreasonable search and seizure and guarantees of due process either do not apply or are irrelevant in a time of war. He frequently cites his previous legal opinions to bolster his case.

• "Written opinions by the Office of Legal Counsel have the force of law within the government because its staff is assigned to interpret the meaning of statutory or constitutional language. Yoo's 2003 memo has evoked strong criticism from legal academics, human rights advocates and military-law experts, who say that he was wrong on basic matters of constitutional law and went too far in authorizing harsh and coercive interrogation tactics by the Defense Department.

• "Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about," said Dawn Johnsen, an OLC chief during the Clinton administration who is now a law professor at Indiana University. "He is saying that poking people's eyes out and pouring acid on them is beyond Congress's ability to limit a president. It is an unconscionable document."