Law & Order – “Memos from the Dark Side.” (Season 20, Episode 1) (9.25.09)

(John Yoo Character)

LEGAL & POLICY STATEMENTS BY THE CHARACTERS

[For Stuart Malawer, National Security Law & Policy, Fall 2009.]

· Conspiracy statutes.

· Good faith defense to torture.

· Politicizing prosecutions.

· Constitutional crisis by bringing prosecutions.

· Prosecuting government officials for conduct of war – torture – on foreign soil and military bases.

· Legalities over ethics. (“Legal standing”)

· Ethical thing to do – to save lives no matter what. Use of force to protect ourselves.

· “Palestinian Hanging” and waterboarding was sanctioned. Used by Spanish Inquisition and U.S. convicted Japanese officers after WW II.

· How to take down terror networks?

· Torture doesn’t work. Works against us.

· Can’t use torture to protect own values.

· Persons in pain and mental anguish will say anything.

· The new administration doesn’t have a dog in the fight. To preclude newer prosecutions when administrations change? Why oppose prosecutions of government officials and policy makers?

· Information is most important and critical to defeat terrorists.

· Can’t the President under Commander-in-Chief power do whatever is necessary?

· Geneva and Hague Conventions aren’t applicable to “enemy combatants.”

· Constitution isn’t applicable either. (5^th amendment – due process and 8th amendment – cruel & unusual punishment).

· Even if detainees aren’t regular military soldiers aren’t they protected by our sense of decency?

· Nations of sovereigns are free to treat unlawful combatants as they wish. (“Right of Sovereigns.”) What about execution of Vietcong by South Vietnamese general? Polish resistance fighters by the Germans? American militia and irregulars by English during Revolutionary War?

· Don’t want to know how we are treating detainees. Just protect us. But now we know. Make a difference?

· Does Supremacy Clause of the Constitution preclude states from impacting foreign affairs -- by such state prosecutions of U.S. officials? Is such a suit illegal? Is there an overriding federal interest here? Can federal courts stop a state prosecution?

· Prosecution treasonous? Want to look forward, not backward.

· Memos are just memos. More than memos, laying out ways to avoid civil and criminal prosecutions. (Memos from OLC in USDOJ.)

· Memo was a plan to avoid prosecution, gave tactics. Creates special classification of prisoners. Illegal and immoral acts?

· Just following orders. Used law as a sword, not to protect.

· Washington and Lincoln told troops to not injure prisoners during Revolutionary War and Civil War.

· Is it disloyal to hold our efforts to highest level of conduct?