The Shocking Incompetence and Dishonesty of the Yoo Memo

Looseheadprop of Firedoglake has just begun to critique the Yoo memo on torture, but in this introductory posting, he makes a series of cutting comments based on the simple, basic principles of how to write a legal briefing. Yoo doesn't even come close to meeting the standards and, in fact, is deliberately misleading. For example:

Last item for this post: citation placement. When you place a footnote at the end of a sentence, the reader is meant to assume that the footnote supports the ENTIRE sentence. If you have two clauses in the sentence (or several examples listed in a sentence) then you are required to place your footnote at the point in the sentence where the clause you are supporting ends. If your footnote only supports the second half of a two clause sentence, the wording of your footnote should make that clear, so the reader will be alerted that the first part of your sentence lacks support.

In the Yoo memo, there are repeated examples of multi clause (or multi item) sentences in which the first part of the sentence contains a statement that is unremarkable and clearly well settled law, but the second half is an outrageous claim, yet the footnote appears at the end of the sentence falsely implying that the entire sentence actually has support.

Here's an example out of the Yoo memo:

"It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans" footnote 9"

This is what footnote 9 says:

Although Article 17 of the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3517, places restrictions on interrogations of enemy combatants, members of al Qaeda and the Taliban militia are not legally entitiled to the status of prisoners of war under the Convention. See generally memeorandum for Alberto R.Gonzales, Counsel to the President and William J. Hayes, III, General Counsel, Department of Defense, from Jay S. Baybee Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan 22, 2002) ("Treaties and Laws Memorandum")

This is what the entirety of Article 17 of the Geneva Conventions says:

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.

If he willfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner's surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.

The questioning of prisoners of war shall be carried out in a language which they understand.

So, the legal authority Yoo is citing to support his stunning assertion "that the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans" not only DOESN'T SAY YOU ARE ALLOWED TO ASK FOR THAT INFORMATION, IT SAYS THE EXACT OPPOSITE. Sorry, didn't mean to shout. What Article 17 says is that you can only ask for name, rank/regiment, birthdate and serial number, period.

Oh yeah, and it also says specifically that you can't torture.