Saturday, April 12, 2008

'Scalia, Yoo and Fitzgerald'

See full post here.

In the 2003 memo released on Tuesday April 1, 2008, there is a discussion of whether the Constitutional guarantees in the Bill of Rights would protect anyone from torture at Gitmo.

John Yoo thinks that detainees subjected to torture are not suffering cruel and unusual punishment as prohibited by the 8th Amendment because they are not being "punished" [pdf] for a crime since they were never found guilty of anything. . . .

Justice Scalia thinks that the 8th Amendment prohibition of cruel and unusual punishment cannot apply to pre-trial detention, because the defendant is not being "punished" because he has not yet been convicted of any crime and the same principle applies to other torture. . . .

Two days after the Yoo memo was released, Pat Fitzgerald indicted a cop for beating an arrested man while that man was handcuffed to a wheelchair. The cop administered the beating with club on April 2nd and was indicted by a specially convened Grand Jury. . . .

So, which of these is not like the others?

You know, this whole Yoo memo thing has had me very down about being a fellow lawyer; but that indictment from Chicago served as a reminder that a "J.D." degree is just a tool, like a hammer. It can be used for a good purpose or a bad purpose, but is not inherently good or bad itself.

You can used that hammer to rehab a house in New Orleans Habitat for Humanity, or you can use it to crush a child's testicles to get his parent to answer during a Yoo-authorized interrogation.

Similarly, you can use that JD degree tool as a bludgeon to destroy the freedoms and protections that Framers described so eloquently in the Constitution, but which are inalienable rights bestowed on us by the Creator not by our government or by any piece of paper no matter how revered; or you can use that JD degree to rehab and rebuild the liberties, freedoms and justice that once were the hallmark of the American way of life.

Me, I want to use all my tools for rehabbing and rebuilding what has been broken or destroyed. So, when the time comes to rebuild our system of justice, call me, I have a hammer and I have a JD.

From the comments:

Maybe Justice Scalia and Mr Yoo need to be reminded of the Presumption of Innocence inherent and specifically stated in our legal system. . . .

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If the detainee has not been convicted of any crime, and therefore cannot be subjected to punishment, cruel and unusual or not, [and] then the detainee . . . [turns out to be] innocent, . . . [then] any application of physical force is assault and battery, and possibly attempted murder.

And anyway, torture is illegal under the laws and treaties of the United States of America. period.

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You know if we just execute people before trial or buried them alive, we could avoid the cost of a trial and accusations of cruel and unusual punishment altogether.

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Mr. Bush’s “justice” is biblical retribution. It assumes and requires that he is as omniscient as his God. In reality, his “justice” is the vendetta of the Montagues and Capulets, not the considered conduct of the state. Except that by virtue of his authority, he has made it so.

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Not to put too fine a point on it, Bush’s “justice” isn’t justice, nor are his enhanced interrogation methods interrogation. They are both punishment intended to intimidate would be opponents, both foreign and domestic.

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What Yoo and Scalia have done is craft an artificially narrow definition of punishment (like the artificially narrow definition of torture).

Absolutely, post conviction punishment is a subset of all punishment.

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When a [supposedly] learned man, like Scalia advances the “ticking bomb” theory of torture we have gone a long way towards our own damnation. The chances of someone so ideologically motivated enough to commit genocide being willing to give up information that would defuse their plot is nil.

Torture only works on “24″ because the writers make it work. Someone ask John McCain how many of the “confessions” he (and other POWs) “signed” while in the Hanoi Hilton were “genuine”, heartfelt statements of contrition and sorrow for being “running-dog imperialist air pirates”. My bet? Zero. And those guys were being severely tortured, physically, and psychologically for years.

Scalia is a fool, and unfortunately a fool who can influence policy in this country for years to come.

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If a diabolical lawyer whose activities endanger the American republic were to plant a bomb under the Bill of Rights, could a patriotic interrogator crush his testicles with a hammer to get him to talk before the bomb goes off? I mean really, is that so different, Mr. Yoo? I’m talking to Yoo. We’re defending the American way of life. If it’s not torture, Yoo shouldn’t really mind when it’s his *ss in the chair.

After all, if he hasn’t been convicted, Justice Scalia told us that it isn’t cruel and unusual punishment.

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This inverts everything we know about the law. In the Yoo Universe those convicted of a crime are immune from cruel punishment, but those who are not can have their testicles crushed.

In the Yoo Universe we will all be compelled to wear electric-shock collar devices to assure our docile compliance with the State. It will be perfectly legal, of course, since we aren’t “technically” under arrest. There is nothing against it in the Constitution, any more than there is anything about behavioral control microchips or drugs.

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