John Yoo on Burying Detainees Alive

Think Progress has video of John Yoo refusing to give Rep. John Conyers, at the House Judiciary Committee hearings on torture, a straight answer on whether it would be legal for the president to bury a detainee alive:

CONYERS: Could the President order a suspect buried alive?

YOO: Uh, Mr. Chairman, I don’t think I’ve ever given advice that the President could order someone buried alive…

CONYERS: I didn’t ask you if you ever gave him advice. I asked you thought the President could order a suspect buried alive.

YOO: Well Chairman, my view right now is that I don’t think a President — no American President would ever have to order that or feel it necessary to order that.

CONYERS: I think we understand the games that are being played.

Marty Lederman is on the road and only has time for a “quick reaction” to John Yoo’s prepared remarks to the House committee. Then he proceeds to give what for anyone else would be enough details for 10 posts. Here is a portion:

… John is testifying that his torture memos could have had no bearing on the abuse that took place in Iraq, because “the Geneva Conventions provided the relevant rules for the war in Iraq.” There are several problems with this statement.

Most important is that OLC itself, when John was there, had advised the Pentagon that the Fourth Geneva Convention did not protect “unlawful combatants,” which includes most if not all of the insurgents in Iraq. (See page 4 of the April 2003 DOD Working Group Report.) As Jack Goldsmith reports in his book, the very first thing he decided when he arrived at OLC in October 2003 was that the Fourth Geneva Convention did protect Iraqi civilians — a decision that hocked and dismayed the White House. It is fairly clear (as reflected in the Working Group Report) that until that time, the Administration, based presumably on John’s own advice, was acting on the assumption that the insurgents in Iraq were not protected by the Geneva Conventions.

This explains why, according to several reports (most importantly those of Sy Hersh and Jane Mayer), the Pentagon and CIA placed Special Forces and CIA operatives in Iraq in 2001 or 2002, whose basic instructions were that there was no law — certainly not Geneva — that protected detainees, and that the “gloves were off” and that they could engage in widespread, wanton abuse and cruelty. Which they did. …

Via Memeorandum, more from Firedoglake, Emptywheel (liveblogging), TPMMuckraker, Steve Benen, and Dan Froomkin (writing in Slate).

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