Thursday, March 05, 2009

Tortured Reasoning

Brian Tamahana explains exactly how atrocious the legal reasoning is in the OLC memos authored by Yoo, Bybee and (to a lesser extent) Delahunty. Here's an example:

Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

Now, I don't think you have to be a lawyer to see the massive leap to a conclusion at the end of that paragraph, but trust me, Tamahana is not at all misconstruing the argument with his simplicification. This is an argument that essentially amounts to "Well, if the President can do one crazy-ass thing with one amendment of the Constitution, surely he can do another crazy-ass thing with that same amendment!"

And in case you think Tamahana has an ideological axe to grind, don't forget who authored the memo that repudiated all of these wild claims.

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