On the OPR torture report

Who ordered John Yoo to write the torture memo? And can Congress strip Jay Bybee of jurisdiction to hear any case?

Mark is going soft. He’s excited about John Yoo getting disbarred, but I think it could go higher than that.

John Yoo is a moral cretin, but essentially he’s just an apparatchik: he does what he’s told. The real issue is who told him to write the memo in the way that he did. Those are the people whom it is really necessary to get. The question is what is in the e-mails: my sense is that David Addington and Dick Cheney are very good at covering their tracks. We’ll see.

The other sidelight is what to do with Bybee. It’s simply unconscionable that he should be judging others, with life tenure. Impeachment will follow, but Bybee will be able to count on Senate Republicans to prevent his removal. That means he’ll draw a government salary for the rest of his life, but I’m wondering whether it is possible for Congress to forbid him from hearing cases.

This would take jurisdiction-stripping to whole new level: if Congress can forbid federal courts from hearing certain cases, why not a single federal judge? As John Yoo himself has said, the greater power implies the lesser. Like most of Yoo’s legal “arguments,” this one doesn’t have much purchase, but it’s worth a try. Petard, meet hoist.

Extension of remarks (by MO):

I suggested to Jon the correction “petard, meet enginer” and he invited me to supply the following military science (or Shakesperian exegesis, for the peacable reader), which I owe to Edwin R. Tunis. (I love Tunis’ books, which are well written, well-researched, and both beautifully and amply illustrated with the author’s wonderful drawings.)

The line from Hamlet is “…tis the sport to see the enginer hoist with [not by] his own petard.” (Delving beneath mines extends the siege metaphor, but reversing roles, because the mines were tunnels advanced under a castle’s walls by the attacker, and going underneath them was a defender’s strategy.) A petard was a mediaeval grenade in the form of a cast iron bottle with a bail, filled with powder. A fuse was stuck in the top. The enginer (the old word for an ordnance specialist) would drive a nail in the wooden door of a stronghold, hoist (hang) the petard on it, light the fuse, and scamper back to his lines. This was exciting for him in more ways than one, as the defenders would be trying to pour hot oil or water on him, or shoot him full of arrows. If in his haste he nailed his sleeve to the door, or caught his garment on the nail, the scampering back part would be problematic as the fuse burned down…you get the picture.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.