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...The memo's application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I'll discuss in further posts. And this section is the heart of the Opinion -- the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.
Here's the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."
In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.
The head of the Criminal Division at the time was Michael Chertoff (now Secretary of Homeland Security). Nine days before the memo was issued, President Bush nominated Chertoff, like Bybee, to be a federal judge on a U.S. Court of Appeals.
Update: A former Hill lawyer finds this testimony by Chertoff on this issue:
Posted by Laura at April 2, 2008 08:00 PMSEN. CARL LEVIN: Now, do you agree with the definition of torture contained in the August 1, 2002 memo?
MICHAEL CHERTOFF: Let me begin by saying first of all, of course, torture is illegal. We begin with that proposition. And, in fact, the President has said that on a number of occasions. Second, I don’t—since I saw a draft of what I believe became this memo, I don’t remember if that language was in it, or if it was in it, whether it was used as—or purported to be kind of a bottom line definition.
SEN. CARL LEVIN: My question is, do you agree, not did you agree? I’ll get to the “did” in a moment.
MICHAEL CHERTOFF: I do not believe that definition is a sufficiently comprehensive definition of torture.
SEN. CARL LEVIN: Now, let’s go back in time. Did you object to the definition in the memo in 2002?
MICHAEL CHERTOFF: As I said, because I don’t remember the way it was specifically worded, I can tell you that my role in dealing with the memo was limited to this: I was asked to communicate what my views were as a kind of practical prosecutor about how a statute like the torture statute would be applied. And my essential position—again, this is talking to other lawyers, so it’s really lawyer to lawyer kind of discussion—was that when you are dealing with a statute with a general standard and an intent issue, the question of good faith and an honest and reasonable assessment of what are you doing becomes critical, and whether or not a particular type of thing that someone proposes to do violates the statute is going to depend, or whether a prosecutor views it as a violation of the statute, is going to depend a great deal upon whether the particular technique is specifically mentioned in the statute, or if it’s not, whether the people who are thinking about doing it are making an honest assessment about whether what they’re going to do rises to the level of the statute. I guess my bottom line advice was this: you are dealing in an area where there’s potential criminal liability, you had better be very careful to make sure that whatever it is you decide to do falls well within the—what is required by the law.