The Two Best and One Worst Op-Eds of the Week

And you can decide how partisan you wish to be. But the price of that is that you aren't believed by most reading your stuff--unless you want to preach to the choir. And you can make a nice living doing that.

But I followed the links on your summary of the bad, and you just can't draw those conclusions from the Q&A with John Yoo. The question was what was written in the treaty--asked in a yes or no fashion. The testicles example was brought up in a hostile way by the questioner, and Yoo just pretty much ignored that part of the question. There are regulations regarding intensive questioning, and no, the US can't go around crushing testicles. If the regulations aren't as specific as you would like, that is the job of Congress to correct that.

It was a murky Q&A, and it isn't clear (linguistically, and dude, step away from that way of analysis) whether Yoo is referring to the president's right to determine harsher interrogation methods (very general) from the very specific testicle crushing (which Yoo probably ignored, and for good reason).

There is a very legitimate question as to whether the Geneva conventions even apply in this war. A re-examination of the nature of warfare is needed, from the ground up. The conventions definitely applied in WWII and Korea, less so in Vietnam, and maybe not at all in Iraq. It's possible to draw that conclusion.

The claims that Andrew Sullivan makes have to be checked very carefully. And that doesn't count three people just repeating what Sullivan says. I would not recommend going down Sullivan's path.

But, it's your choice.

Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?

Yoo: No treaty

Cassel: Also no law by Congress -- that is what you wrote in the August 2002 memo...

Yoo: I think it depends on why the President thinks he needs to do that.

No, Yoo is specifically responsive. He believes that if the president is acting under his Commander in Chief authority --- an it is up to the president to decide the scope of Commander in Chief authority --- there is literally nothing he doesn't have the right to do, including torture children.

"it depends on why the president thinks he needs to do that"

Conceivably, if the president gave as his reason a desire to torture a child, Yoo would agree that's illegitimate. But the president's reason is entirely his to declare. As long as he says "national security," Yoo believes, the only limitation on his power is re-election/term limits. 

First, it would be nice to have a transcript of the five minutes before that exchange, but Yoo's answer is "No Treaty". It appears he is responding to some question about a treaty, about regulations regarding interrogation, some document. He doesn't answer the question directly.

If he is responding to the latter clause, about a law, there is the possibility that there isn't a specific law relating to Cassel's question. In other words, is Cassel asking about a specific law that covers kid's testicles? Then Yoo's answer should be no--because laws are usually written in the kind of legalese that lawyers think is specific but everyone else views as completely incomprehensible, and oddly enough, requires more lawyers to interpret it. Or, is Cassell just grandstanding, as if a member of Congress would do that, trying to get his name in the paper or footage of himself on television?

It's a pretty bad question, just vague enough to have no meaning, specific enough to be inflammatory. The question is whether Yoo took Cassell's grandstanding seriously, or did he just brush it aside as more Congressional theatre. I suspect he brushed it aside.

Then Cassell appears to change subjects, moving away from testicles (and you see how farcical this all is), to a congressional law pertaining to the president's powers in authorizing interrogation techniques or (and this is a big OR) is Cassell asking Yoo to reiterate what he said in a previous memo? It appears as though Yoo is saying that there is an area in the law that is vague, or that there is no law, and that the president has discretion depending upon the circumstances. Is this his present opinion, or is this what he wrote in 2002? There is no way to tell.

I don't know the law, if there is a law, but given the way that we are looking at the same quotes and differing on interpretation, is seems plausible that two people can look at a law or lack of a law and have different interpretations. That's why there are courts, that's why there is congress.

But this isn't a new debate, the courts and congress have been, since John Marshall, trying to define the limits and authorizations of each branch of government. And this is a time of war, like it or not. You may argue that Congress didn't declare this war, but they certainly keep authorizing funding for it. So this factors into law in some form or fashion.

Cassell's questions were trap questions--as if a member of Congress would do that. It is not at all clear how Yoo interpreted these two questions, or even clear which part of these two clause questions he was responing to.

Man, it's Congress. The only thing missing is Mack Sennett.