Posted by Richard Painter, guest-blogging: One example only: http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238270722
I am not going to go through each of the "torture memos" and point out where each one appears well off the mark. I will give just one example of the type of analysis that should make someone stop and think. One of the memos reads �As we have made clear in other opinions involving the war against al Qaeda, the Nation�s right to self defense was triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch�s constitutional authority to protect the nation from attack justified his actions. The national and the international version of the right to self defense could supplement and bolster the government defendant�s individual right.� March 14, 2003 Memorandum from OLC to William J. Haynes II, General Counsel of the Department of Defense. This can�t possibly be right. Many wars and other military engagements arise out of one side attacking the other and the need to respond so there will be no more attacks. Yet inflicting physical harm on prisoners during interrogation is widely believed to be contrary to the laws of war. If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States. The United States did not do that, and the White House did not ask OLC for an opinion saying that we could. President Roosevelt asked the Justice Department for a lot of other dubious opinions in his years in office, but not that one. It is true that the memo only states that a government agent, if charged with torture, could �argue� this as a defense. He could. This is also a lousy argument and the memo does not point that out. I fail to see why people at the highest levels of the United States government would be interested in hearing from OLC what specious arguments could be made by a government agent in defense of otherwise illegal conduct. Even more shocking, there is no further discussion on this argument. There is not even an attempt to answer questions that are obvious to the most casual reader. The paragraph quoted above is instead followed directly by a short three paragraph conclusion, the last sentence of which simply states that �necessity or self defense could provide justifications for any criminal liability.� One does not have to be an expert in international law, or even a lawyer, to read this and know that something is wrong. The most basic questions about this �self defense� argument are not answered. This dog does not hunt.
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