John Yoo Wrote the Torture Memos and Never Paid for It. At All.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:09 Thomas: And welcome to opening arguments, this is Vapid Response 45, I'm Thomas, that over there is Matt Cameron, real life immigration attorney, how you doing Matt,

0:00:17 Matt: Everybody, it's a beautiful day and I'm ready to talk about torture. I don't know about you guys, but we got some torture to discuss. Yeah, I'm just going to surprise you with some torture. That's usually how it works. Uh,

0:00:21 Thomas: It's not okay. Never mind. Cancel the show

0:00:27 Lydia: You slot in the picture of me and I can leave and I'll just be the fake Lydia?

0:00:28 Thomas: Yeah so it's a Matt solo episode today. Um, okay, the fun kind or no? I don't

0:00:38 Matt: No. But we're going to have some fun with what we can have fun with. We do have some Dershowitz torture, so You know, that's

0:00:38 Thomas: Uh Yeah, okay thank God, I was gonna say the torture of Alan Dershowitz not getting what was it a pierogi. Oh

0:00:48 Lydia: Pierogies. Mm-hmm.

0:00:50 Matt: He's still suffering from that, the PTSD. I'm sure is. Yeah.

0:00:50 Lydia: Yep. The best.

0:00:51 Thomas: Boy and producer Lydia, how you doing? I

0:00:55 Lydia: Pretty good if we're gonna be talking about Alan Dershowitz suffering, so yeah.

0:00:58 Thomas: Know. It's the best. I just, I love him so much now. I've come around. He's just such, he's the content that never stops. He always just, yeah.

0:01:04 Lydia: Yeah,

0:01:02 Matt: But there's just a vault. He's just a treasury. It's just open forever. We're gonna read a piece from right after 9-11 where he has some opinions about torture, and you'll never believe what they are.

0:01:06 Thomas: Never never not producing that guy. Oh

0:01:16 Lydia: Yeah.

0:01:15 Thomas: Boy, I think I will believe what they are, Matt. I just have this I, I have this weird feeling that I might believe what they are.

0:01:19 Matt: You may you might just Yeah, the

0:01:23 Thomas: Wow. Okay. Well, yeah, it's Vapid Response. It's the middle of the week. It's when we find the vapid things like, say, Alan Dershowitz pieces. He's got to be the most frequent feature on the show, and for good reason. But what else are we going to be talking about today, Matt?

0:01:38 Lydia: Yeah, oh

0:01:39 Matt: Gold standard. So That's just for a little fun warm-up, uh, of course. We also have an amused douche, as always, from something that just happened the day of recording that everyone needs to hear. We'll get there. Uh, but I do want to talk a little bit about the legal legacy of September 11th, because we did have a 25th anniversary, obviously, this month, and I don't think enough people are talking about the, you know, I could do a whole other probably six hours on bad takes just from 9-11 of, like, people saying which Oh, no, we're getting to that too. Uh, but we obviously Obviously, people kind of lost their minds. And, you know, it's very easy to, obviously, to go back and read Ann Coulter talking about how we should burn down their mosques and, you know, behead them all and whatever. Like, that's easy targets.

0:02:04 Thomas: It's Bad Legal Text.

0:02:07 Lydia: My god.

0:02:18 Thomas: Yeah. Yeah.

0:02:19 Matt: But it's interesting to look at what the government responded with. And

0:02:22 Thomas: Well, on the plus side, Matt, at least we've, we've come so far as to completely cast those people out of our society and, you know, they don't have a say or anything. I mean, look, we, we did some, some things, people got caught up and then we fixed it. You know, they're gone.

0:02:29 Lydia: Yeah.

0:02:22 Matt: Yes, no say. Yep. Canceled. Yep. That's right. Beyond the pale. We all know it.

0:02:36 Thomas: Not a one is, oh boy.

0:02:39 Matt: Who even knows? I mean, then again, I haven't heard from Ann Coulter in a while, but that's probably for other reasons.

0:02:36 Lydia: Handled

0:02:43 Thomas: That's true. Yeah. It is probably for other reasons. It's not for that. She's probably the other way. It'S like, oh man, Trump's too, what a peacenik, although until Iran, yeah Yeah, it's, uh, it's a little late. We were going to do this more, you know, closer to the anniversary, um, the 25th anniversary of 9-11, but we had a we had some scheduling things. But yeah, it still in the month, you know. By the time you get to 25 years later, like, we're close, you know, it's close enough, um,

0:02:48 Matt: Yeah. What a lib. Yeah.

0:03:07 Matt: Yeah.

0:03:00 Lydia: It's the month of September, you know, it counts. It's like people who celebrate their birthday all month long, you know, regardless of the date, I think maybe we can approach 9-11 the same way.

0:03:08 Thomas: Yeah, again,

0:03:10 Matt: Sure. It's a pretty important anniversary. And it is also, I think that people really need, I mean, we talk about the torture memos. We talk about what John Yoo did to the system, but actually going through and reading them, and I'd like to focus a little bit more on on some of the actual torture memos. You can see the mechanisms, something I've been talking about my entire time on this show about how lawyers enable fascism and just with this kind of language, just authorize everything and allow everybody out there to say it's legal.

0:03:14 Lydia: Yeah,

0:03:36 Thomas: Matt, at least they're all in prison now. At least that That guy, you know, what's he doing? He's got to be in jail. There's no way we just moved on. Right.

0:03:38 Matt: That's That's right. Yeah, there's no way that

0:03:44 Thomas: Well, that could still be true if you were in jail, yeah.

0:03:44 Matt: He's been honored multiple times with the Federalist Society and is now teaching. Where is he now? He's at UC Berkeley, actually. That's true. That is true. Probably a few of those out there. But yeah, John Yoo, who we're going to talk about a lot today, who I hope people have heard of before, but certainly you'll know who he is by the time we're done. He is still a law professor at UC Berkeley. So yeah, not great.

0:03:53 Thomas: Wow. Wow.

0:04:03 Lydia: At Berkeley. Wow.

0:04:03 Matt: Not great.

0:04:04 Thomas: We were just near there. We could have punched him right in the dick. Damn it, yeah.

0:04:05 Lydia: You know, I'll be yeah. Yeah. I'll I'll be perfectly honest too, like, I was pretty young when 9-11 happened, and like, the immediate fallout and stuff, like, I was a freshman, I think, when we invaded to go ahead and launch an entire war because of fake stupid stuff from Bush. So like, I was 13 I years old and stupid, right? Like, I didn't really understand the mechanisms behind everything that was happening, really.

0:04:29 Thomas: It's amazing how cartoonish it feels now with Iran. And then I was thinking about I was like, it was, I mean, 9-11 was a fucked up thing, that's like it, you know, on some level I get, like, people were like, what to do, uh. Not that it justifies it, but at least to understand, like, Iran hasn't 9-11'd us. They haven't, like, 8-11ed us. They haven't done anything. There's no reason. But it feels like in retrospect, it actually was this level of cartoony back then, too. Just I was younger and couldn't really see through it as much. That's been my impression reading later on, you know, like like, oh, they were just kind of doing Republican warmongering. It's kind of the same thing. It's like some of the some people.

0:04:34 Lydia: Yeah. Oh

0:05:09 Matt: Yeah. And pushing for the same war that we now have. So that was one of the places they wanted to attack too. And there's a whole other subject and a whole another parallel thing I can do that I've been saving up on, just like people who just had everything wrong in 2001, you know, about and like how they pushed us to war, how the New York Times got us into Iraq. That's a lot of the thing. But I want to focus on the law today. And it's a little more interesting that people might think to actually delve into the actual legal basis for a lot the way things went wrong. So a lot to get into. And then I've got quite a punchline at the end for I'm going to save it. But after all of this, we're going to be writing something that really brings it home.

0:05:28 Thomas: Yeah. Yeah. Yeah. All right. Hmm. Oh, can't wait. Well, I'm excited for that. Let's take our first break. Hey, support the show. We need it now more than ever. It really, truly this environment is, uh, it's, it's getting harder every day to be a small independent podcast doing this kind of stuff.

Um, it's just, I think, you know, I don't know how AI is going to affect us, but I do think there's just, there's going to be a supply deluge of stuff there already is, you know, and I feel like it's It's just getting thinner and thinner, you know, like the content market. And so I really hope if you if you could tell a friend, you know, if you like the show or if you can support, really help us out.

Matt's out there doing the real work and bringing us the real facts. And if that's something you guys appreciate, tell a friend, we'd love it. Support the show at patreon.com/law if you can. And I've got to thank our Hall of Famers, our all-time greats. It's been too long since we've done it. Thank you to help. I'm trapped in a Patreon shout out. Uh, Weyoun 10, don't

0:06:37 Thomas: Know what that is. Is that something?

0:06:36 Matt: More Star Trek jokes. I do appreciate that it's another Jeffrey Combs joke, actually. We're gone deep here.

0:06:40 Lydia: Yeah.

0:06:39 Thomas: Oh, okay. My house is a mess, but I read a lot of books. Griff, the Tired 2L. Matthew Cutler (twitch.tv/MTC_streams). A propensity for jokers. Unpronounceable nerd reference. I've had Crunch wraps more supreme than this court. Yeah, I mean, that, I think that for the entire existence of the Crunch wrap, it's out supreme to the Court, right? Was there, we didn't have crunch the country wrap supreme in the Warren Court. Okay, that would be the one time where it maybe give the edge to the Court. But no, this is, of course, Burrito Supreme, anything supreme, really. The Supremes, they've always been better than the Court.

0:06:42 Matt: Oh, Yeah. Oh, Sure.

0:07:17 Thomas: I'd say probably not 20 mangoes. Wait, oh, it says probably not twenty mangoes. What is man that? That sounds familiar and I don't know what it is. Aminah, Donna Treadaway, Mother of Harridans. Mike Lapinsky, a shoe full of rice.

0:07:17 Matt: That's easy. All

0:07:19 Lydia: Easily. I feel

0:07:35 Thomas: Okay, is that something? No, can't think of anything. Sionitus, good grief. Grey Pouponderance of the evidence. Last train to Skanksville. Love that one every time. Please vote at least once, agreed. Apprentice of Adventure and Charlie Kelly, attorney at Byrd Law. Thank you so much, Hall of Famers. That's the first third. We thank a third at every break on Vapid Response. That's how we do it. All right, we'll take a break and then we'll dig into it. Oh, right. Matt, what the douche am I looking at here?

0:07:59 Matt: Is quite a douche. This is a defining moment. It should be a career-defining moment for, uh, Eric Schmitt of Missouri. Uh, this we had Jack Smith before Congress coming in and talking about his work, and of course the Republicans are very, very mad at him because he prosecuted Donald Trump quite a lot, uh, righteously reason.

0:08:15 Thomas: Yeah. Okay. So I've been seeing headlines. So I saw a post that was like, oh, Jack Smith says he had Trump dead to rights, you know. And what was funny is I thought it was like, oh, they're just people, some, you know, on the internet or Reddit when somebody finds something from a year ago and then repost it, and then it's like, oh, that's weird. Maybe, maybe someone's trying to re-up this, like, hey, you missed that this happened. Because I watched the whole Jack Smith, um, videos last time, that were, were those behind closed doors or something, I can't remember, like, wasn't, or maybe there was. Anyway, for some, for whatever reason it wasn't quite, it didn't quite make the headlines, but he said all this. Then I think, unless there's, is there something new here, Matt, in the last few months? Well, in terms of what Jack Smith is saying, I mean, okay.

0:08:28 Matt: Right. Right. Uh,

0:08:37 Lydia: Yeah yeah

0:08:50 Matt: There's something completely new because it's made up. I don't know that he said anything new in this hearing. I think it was just an excuse for them to try to go after him. What they really, really want to do is to be able to get Jack Smith for perjury. They're just not going to be able to do it.

0:09:04 Matt: But this is the dumbest -assed way you could possibly try to get somebody for perJury. It

0:08:57 Thomas: Oh, Right. Now, I I see a certain candy lurking in the background, so I'm guessing is the perjury going to be like, hey, you purchased this dildo in 2007 or something, because he's, he only does sex stuff, that's all that guy does.

0:09:14 Lydia: Yeah yep

0:09:20 Matt: Have a cameo in this amazing clip. And we should pretty much watch this whole clip because it is really something. So just to set this up, Schmidt thinks he's got something. He really thinks he has. He really things he's gotten something. And what he thinks he had is proof that at one time, Jack Smith was in Atlanta. And what that would prove, I know, can you believe it? Atlanta, one of our major cities. What that would prove would be that he was conspiring with Fani Willis and Nathan Wade. And he thinks that he can prove this because it was the day after that he supposedly was in Atlanta that the

0:09:24 Thomas: Okay, Holy shit. Wow. That's the only thing you could do in Atlanta

0:09:49 Matt: Relationship was announced.

0:09:49 Thomas: Yeah

0:09:49 Lydia: Well, those are the only people who live in Atlanta, so if you're going to Atlana.

0:09:51 Matt: That's right, that's right.

0:09:51 Thomas: That's such a Republican thing too, to be like, I heard of some black people that live there, so you're probably talking to them.

0:09:57 Matt: Yes, right. So, but the way that he is doing this is so spectacularly bad. You're going to love this. It's incredible. I'm just, I'm not going to give you any more context than that.

0:10:04 Thomas: Oh, I can't wait. I am prepared to be amused by this douche. Here

0:10:10 Clip: You got to an N .B .A. game between Golden State warriors and the Hawks February 3 2024?

0:10:10 Matt: There Watch the look on his face.

0:10:19 Clip: I'm sorry, could you say that again? Did you get to an n .b .a. game on February third 2024?

0:10:29 Clip: What city would that be in? Atlanta. No. Okay.

0:10:35 Clip: So your testimony today is that you did not go to a Hawks game. On February 3rd, 2024. Is that correct? I have no

0:10:44 Thomas: Always so funny to do the, the typical lawyer thing in every movie and every whatever is Oh, I've got him, I've got him, you got the monologue, you've got them, and you try really so It is your testimony that you did not attend an MDV an NBA game, like, okay?

0:10:48 Matt: Yeah, yeah. Yep.

0:10:51 Lydia: Then smug smile like starting to come through. Yeah yeah yeah

0:11:00 Thomas: I don't, yeah.

0:11:00 Clip: Recollection of that. Okay. Is it your testimony that you were not in Atlanta on February third, 2024?

0:11:01 Matt: What's the opposite of Perry Mason? Because that's what's going on here. The

0:11:08 Clip: Let me, let me just give you a little context. The day before Fannie Willis came clean with her affair with the prosecutor, you know, the Atlanta prosecutor that was also trying to get Trump the next day. Were you in Atlanta?

0:11:03 Thomas: Mary He play for the NBA or

0:11:20 Clip: I do not believe so. Okay, did you ever go to Atlanta during your time as special counsel? I really don't think so. It's possible I flew through the Atlanta airport on the way to Florida, but I do not have a recollection of going to Atlanta. I definitely did not go to a Hawks game. I'm sure of that. Did you ever meet Nathan Wade or Fannie Willis in your time as special counsel? No. What would you say if I had a series of text messages from your team that said you were in Atlanta at a Warrior Hawks game on February 3rd, 2024, the day after Willis and Wade announced their affair?

0:11:33 Thomas: I'd

0:11:33 Lydia: Oh

0:11:58 Thomas: Be very surprised Yeah.

0:12:05 Matt: Look on his face. So

0:12:06 Thomas: Oh.

0:12:06 Clip: I don't think you know that we have this stuff. So I'll give you a second to process it so you don't, you know, perjure yourself.

0:12:09 Matt: You have to stop for just a second. So Just explain this to the audience, the listening audience.

0:12:11 Thomas: Sorry. Okay.

0:12:13 Clip: You just took it down

0:12:10 Lydia: Okay. So It's

0:12:13 Thomas: Yeah. Somebody

0:12:13 Matt: Uh, Kennedy just helped him hold up a sign that had text on it

0:12:15 Thomas: Held up God, but we didn't get it on the camera. I gotta freeze-frame it to see. Ah, it's a bad angle. Okay.

0:12:19 Matt: You're not, you're barely going to be able to see it, but It's a sign

0:12:23 Thomas: Hey, hey.

0:12:23 Matt: With Fanny Willis and Nathan Wade.

0:12:25 Thomas: Okay, JP, wait, JP, what, who's that, JP? Something. Okay.

0:12:28 Matt: So some assistant, I think, someone who works for different people. Oh,

0:12:30 Thomas: Hey, man, man. Do you have the text of this somewhere, Matt, that you can actually read it? Or hey, hey, man, how I reserve to Jack. What? Something how I is

0:12:36 Matt: Yeah, I could pull it up. Uh, is uh right

0:12:42 Lydia: Just well, most of the poster board, just for folks who aren't watching this and are just listening, is mostly Fonny Willis's face, Nathan Wade's like body, and then Jack Smith off in the corner, and then I guess where the Hawks play, potentially, is is down there at the bottom, and there's there's a, a clipping

0:12:47 Thomas: Black people who are scary to Republicans. Yeah. Oh, yeah. It looks like some sort of arena. Sure. The scene of the crime. Yeah. It's like Clue. You don't understand being a senator, Lydia. It is like Clue. You say, say Jack Smith with the basketball in the something arena, like that's where you have to say, you guess where the crime was, and then they, Jack Smuth, has to say if you got any of those wrong, and then you you can check the cards that are in the little packet. Yeah.

0:13:05 Lydia: Yeah. Uh huh. Yeah. Right. And But there's literally just like a clip on the left side which says that Fonny Willis confirms, I guess, a fair right, um, February 2nd and then over on the right.

0:13:20 Thomas: Yeah.

0:13:28 Matt: Yeah.

0:13:27 Thomas: I I love the idea of this, because I like, I love when you could grant all parts of it and be like, one at a time, tell me where the crime is, like okay, their basketball exists. Yep, we got that. He went to a game. Okay.

0:13:39 Lydia: Yeah. Okay.

0:13:44 Thomas: So far it's in Atlanta. Yeah, I maybe okay, sure. Was that something?

0:13:48 Lydia: So

0:13:44 Matt: He Went to a game. Yep. And I've sent you the text, so you can see for yourself that does not mention the Hawks or Atlanta. Yep.

0:13:50 Thomas: Yeah. It's the day after she

0:13:55 Matt: A big announcement.

0:13:55 Thomas: They, they announced and, quote, their affair. Okay, I'm still, still waiting for the thing is Yeah. What is, I think a lot of people were in Atlanta that day, so did they all do it?

0:14:00 Lydia: What what are you just trying to say yeah Oh,

0:13:56 Matt: Yep. And these texts Bring them all in. Uh, these texts confirm that he got tickets to a game. That's what they confirm. There's nothing about where he's at. Uh, so we don't have to read the text, but yeah, I know he went, but there was nothing to do with Atlantis in these texts. I don't want to spoil what's, what's coming, because it's Amazing.

0:14:13 Thomas: Ah, so he didn't go. Oh. Okay, oh. Okay. So keep

0:14:16 Lydia: Just a game. Oh, Okay.

0:14:23 Matt: You have no idea what's coming.

0:14:23 Lydia: Okay. Yeah.

0:14:23 Thomas: Playing. Sorry. Yeah. Okay. Apologies.

0:14:24 Matt: It's so good. And they take it down immediately. They put the sign up for 10 seconds.

0:14:25 Thomas: Yeah. Yeah.

0:14:27 Lydia: Oh,

0:14:24 Clip: Really quick. If I could look at that again? Okay. Mr. Chairman, can we give the witness a copy so he can see what's being read to him? Well, I think you've already sufficiently answered. I want to run through.

0:14:37 Thomas: Usually you do that. Oh, my God. You've

0:14:44 Clip: We'll put it in a file. You can respond. I think that you've all ready perjured yourself, but did

0:14:45 Thomas: Already I think I've sufficiently won. Just don't. What?

0:14:48 Matt: You've already purchased yourself.

0:14:49 Thomas: What? Oh

0:14:50 Clip: You, for your office, can we see it? Can we see? Did you or your office seek? This is my time. Senator, can I see? If you want to use your time to criticize my question, go ahead, ranking member. Just very briefly, if this

0:14:59 Lydia: Wow, they're Not trying to. They just want to see it. Oh.

0:15:01 Matt: Ready? Here it comes. You know, you're

0:15:01 Clip: Is the correct basketball game, I recall going to a University of Maryland basketball game where Kaitlin Clark was playing right around that time, and the Marshal Service was there with me. You could check if that was the exact date. It was Maryland playing Iowa, I think, February of 2024. But again, you could check that out if that's what we're talking about.

0:15:24 Thomas: Yeah. Were they the Hawks? The

0:15:26 Matt: Very close. Klobuchar is about to nail it.

0:15:30 Clip: The Hawkeyes. Yes.

0:15:31 Thomas: Hawkeye.

0:15:32 Clip: Could it then be that the University of Iowa is the Hawkes? Could that be it? And maybe before we show this kind of thing... I know, but if he was at an Iowa game, is that correct? It was because Kaitlin Clark was coming to Maryland to play. I know.

0:15:32 Thomas: Oh yeah, oh my god. Oh my god, yeah.

0:15:38 Lydia: My God, yeah.

0:15:50 Lydia: Yeah.

0:15:51 Clip: But that might be the confusion over the names of the team. But perhaps you should have looked at it more carefully.

0:15:51 Thomas: Oh, my god oh my God, oh, my God.

0:15:57 Lydia: Sorry.

0:15:58 Clip: Whose questioning is this, by the way, Mr. Chairman? Are you using your time, Senator? Is this what this is? Are we just having an open session here? I'm glad you're trying to rehabilitate the witness, but it's not your time. You are calling a witness a dirtbag and showing him these things. I presented him with text messages about him wanting to meet with people that could have obviously been related to the prosecution that was coordinated with his office in Atlanta.

0:16:02 Thomas: Who cares? You're an idiot. Really?

0:16:07 Lydia: Yeah, you're an, an idiot. No. But

0:16:07 Matt: Wait, wait, wait for this.

0:16:17 Thomas: What? We don't see what you...

0:16:21 Lydia: It, but it couldn't have been Yeah.

0:16:23 Clip: Okay, well, I'm going to begin my questions now, but I think that people should have their facts straight

0:16:23 Matt: It could have been related.

0:16:25 Thomas: I love... Okay, here's what I love. The photographers started for the, for the listeners. You could see the photographers who've probably been sleeping because this is so fucking stupid start getting in there, they're like, okay, hold on, we've got an idiot who's an asshole like we got to get and not on Smith, they start getting it on the senator because, like, clearly this guy has just made a complete fool of himself. And I love they're like, "Oh, oh, whose time is this? Are we, are we all just, oh, is this just open feedback day? Is that what we're doing here? Everyone's criticizing my made-up thing. Come on, who

0:16:36 Lydia: Some close -ups of an idiot yeah, man

0:16:38 Matt: Yeah, this is good. Yeah. Yep. Yep, yeah,

0:16:58 Lydia: Man

0:16:58 Clip: Before they accuse someone of being a dirtbag and not get the team wrong. I'm sorry about that, Satan. Teams, you have the teams wrong, sir. Mr. Chairman. As the floor. Proceed with your questions.

0:17:09 Matt: That's it. So amazing.

0:17:05 Thomas: Owned him?" Oh, my god, that is so good.

0:17:11 Matt: Amazing. Like, now I will say, obviously this is the kind of mistake I would make, but I'm not. I well, between the Hawks and the Hawkeyes.

0:17:11 Thomas: Oh, wow. No, it's not Matt, it is not the kind of mistake you

0:17:19 Matt: Well, That's true. You're

0:17:12 Lydia: That's so crazy, but

0:17:20 Thomas: Would make. That's

0:17:20 Lydia: Also Matt, it's like

0:17:21 Thomas: Not, Met. That's even the mistake that's been made.

0:17:22 Matt: Right. No, you're right. I was trying to be generous.

0:17:24 Thomas: That's like the last step of a 99-step process of stupid that doesn't even impact it. God, the that thinking that I hear you, but, but thinking that, like, okay, if, if he was at that Hawks game in Atlanta, we got him, you know, like that's art. You've already done so many stupid steps before that. Right. Like they

0:17:24 Matt: You're ready. You're it, it's a sports thing, so I'm just selling you yeah. Yep. Right.

0:17:47 Lydia: Here's the other piece too. Like, like, maybe, Matt, you would have made that particular mistake in a vacuum, but Schmidt isn't sitting here collecting all this stuff himself and making a poster board in the middle of the night by himself. Like, he has an, an entire staff that all agreed to put up this stupid thing, so he has surrounded himself with idiots and yes men, right? Like that it's just bad across the board that this is somebody who's representing constituents in the United States.

0:17:58 Thomas: Went to Kinko's like, yeah, God, that is incredible. That is the funniest thing.

0:18:14 Lydia: That's crazy. If I were if I were a constituent, I'd be so pissed that what

0:18:15 Thomas: That's amazing. There's

0:17:57 Matt: Yeah. Yeah. Yeah. Oh, yeah. Yeah. And I'm imagining yeah. Oh, oh, yeah. They should be.

0:18:19 Thomas: A lot,

0:18:19 Lydia: An idiot

0:18:19 Thomas: There's a lot of dumb, corrupt idiot things that have happened in that chamber, but that's up there, like that is up there. He's got the full prop with the scary pictures of black people and the, in the stadium, the arena.

0:18:30 Lydia: Ridiculous. Oh,

0:18:25 Matt: I know. I had to show you. And the meaningless texts, they mean nothing. Even if you take them on their face, they means nothing.

0:18:35 Lydia: Yeah. Yeah.

0:18:33 Thomas: God. Even if That's a thing. Grant all of it. Be like, "You know what? Fine. Sure. I went. I simultaneously teleported to, you know, it was a quantum thing. I existed in two places at once. Yes, I, I was at the game." We'll just say, just for fun, like, "Yeah, sure, hypothetically." What's the next step, dude? What's the next up of that equation? Oh,

0:18:40 Matt: Yeah.

0:18:52 Lydia: Also, like, in what world was he saying, like, "And, you know, the, the text that you're trying to meet with people," and I'm looking at them now. Matt, you, you have the close -up of them. Hey, man, is 109 row one reserved for Jack question mark from JP Cooney, JPCooney also. Damn, thank you for saving, but we are good. Ask Harbach something, probably unrelated. Gavin Wallach response: he is already down here, thanks. That's the smoking gun.

0:19:04 Thomas: My god, this is so good. That's

0:19:20 Lydia: That has, has nothing to do with wanting to meet with people. It's literally just, yes.

0:19:19 Thomas: Nothing and then hold up. Well, hon, you are besmirching this man's good name, because you didn't read the other thing he's pairing it with, which was the day before that, a headline saying Fanny Willis acknowledges his personal relationship with Nathan Wade. So this

0:19:24 Lydia: Okay, yes. Okay. Oh, yeah, right, personal relationship yes, of course. Naturally.

0:19:37 Matt: The other thing that's amazing, because I think they're trying to suggest that maybe Fannie Willis gave him free tickets or something because they were colluding, but they didn't bother finding out who J .P. Cooney or Gavin Wallach were. I don't know who they are. I doesn't care. It doesn't matter because none of this matters. But some 20 -year -old obviously thought this was incredible. Somebody on the staff was like, we got him. This is a perjury trap. You're going to make your career right now. And I think he did. I hope he did, I hope this is what he's remembered for. Because, yeah, it's

0:19:39 Lydia: Yeah. Oh,

0:20:01 Thomas: Is, it's amazing. Like it also, so

0:20:02 Lydia: JP Cooney was principal deputy to Special Counsel Jack Smith so he you know worked for him. I'm

0:20:03 Matt: Incredible. Well, there you go. Yeah.

0:20:07 Thomas: Then yeah, is Gavin Wallach affiliated with Fonny Willis in some way? Who's Lydia will find it, but

0:20:13 Matt: No, obviously not. I don't know, but yeah, we'll find out.

0:20:16 Thomas: What?

0:20:16 Matt: But like, ah, right,

0:20:15 Lydia: Gonna find out uh u .s marshals that's why jack smuth said oh I remember the u .S. marshals being involved with this thing when I I tried to get tickets to see Caitlin Clark.

0:20:20 Thomas: Yeah,

0:20:20 Matt: That's right. Coordinating where he is, because they have to know where he ist, because there are threats in his life because of these people.

0:20:23 Lydia: Yeah.

0:20:27 Thomas: Actually, this has nothing to do with tickets or anything like that. This is just, just like, security or something, yeah. Dude, is 109 row one reserved for Jack, right?

0:20:31 Lydia: Yeah, right.

0:20:31 Matt: Yeah, yeah. Where is he? Keeping eyes on him. Yeah, and I

0:20:37 Thomas: Yeah.

0:20:37 Lydia: Yeah because he already has tickets lined up. Yeah and

0:20:41 Thomas: Yeah.

0:20:40 Matt: Mean, And again, we have to talk about why there were so many threats on his life. I mean, it's just these people. It's this stuff.

0:20:46 Thomas: But like I want to know, I, I wish I will, I yield my time to that senator to come back and explain, like, "Hold on, I think you've got it. You've, you've stumbled on the, the conspiracy. Can you take me through the last step?" Like, so they acknowledge their personal relationship the day before and then that gave, gave him tickets to basketball and um, so I'm just not clear on, like, what's the next thing of that, what yeah but

0:21:04 Lydia: Then to a basketball game.

0:21:15 Matt: Yeah, there's everybody's brains are cooked. That's that's what's happening. I mean it's it's, it just incredible. This is bad.

0:21:23 Lydia: It's so bad. So bad.

0:21:23 Thomas: This guy's more than a lot of

0:21:25 Matt: Oh no. Yeah, no, he's he's an idiot. No, he is and I will point out if you live in Missouri, he is also a white nationalist. This is obviously this idiocy is not, yeah, no, he's bad. He's, like, he's given some pretty bad speeches already. He's a young senator, and I mean, he's not young, but he's a, you know, new senator, um, but you know, he, yeah, this is just really embarrassing for Missouri and for him.

0:21:25 Thomas: People. He's leading the cook he's the

0:21:25 Lydia: Oh wow.

0:21:41 Thomas: Nazis aren't sending their best, you know. God, that was

0:21:46 Matt: Yeah.

0:21:46 Thomas: Wow, man.

0:21:47 Matt: I promised Yep. It's

0:21:47 Thomas: That was incredible. We took way too much, much time on that, but it was, it was worth every minute of it all.

0:21:49 Matt: It's a legendary moment. Yep. So

0:21:52 Thomas: Right? Well, we better, we better move on because we're going to be out of time, but I, I would stay on this all day. That is the funniest thing.

0:21:52 Lydia: Totally worth it. I know. I'm

0:21:58 Thomas: Did, did he resign in disgrace yet? Because that's, I know we don't live in those times anymore, but this is, this is bad. This isn't, it meant, it would even be another thing if he was like, "Oh, I just was handed a piece of but "Did you get tickets to some "Oh, it's a Hawks. Okay, never mind."

0:21:52 Matt: Yeah. I don't

0:22:02 Lydia: So embarrassed.

0:22:13 Thomas: You know, like they they made a whole board, and then he's like, "Well, you took it down really, really fast."

0:22:12 Lydia: Yeah yeah exactly. Yeah this

0:22:19 Thomas: Yeah,

0:22:19 Matt: Even know what you know

0:22:19 Thomas: No, we don't, you don't need to, you don't needs to see it, that's, you,

0:22:23 Matt: What you did

0:22:22 Lydia: Is my time. This is my time.

0:22:24 Thomas: Yeah he's perjured himself, but, like no, I'm not showing it, but like, he definitely did you know, he's,

0:22:31 Matt: Now this, this might be, like, Jack Smith even more. It is his whole, the

0:22:33 Lydia: Yeah,

0:22:34 Thomas: I like Jack Smith he's the one that I like, I think he's a good dude he's one of

0:22:34 Lydia: Lots

0:22:35 Matt: Look on his face. Yeah. Yeah. And he handles it so well, well.

0:22:39 Lydia: Of integrity.

0:22:39 Thomas: The last real ones, yeah alright, well, what could even compete with that, Matt?

0:22:46 Matt: We're gonna move on from integrity now and go on to Alan Dershowitz. So there's

0:22:49 Thomas: Oh, I see a link here that you wanted me to click.

0:22:51 Matt: Our transition. Yeah.

0:22:51 Thomas: Let's see.

0:22:52 Matt: So we're going to talk about torture.

0:22:52 Thomas: Oh,

0:22:53 Clip: The viral bad arguments to headline mistakes we're calling them out on bad legal takes all right so are

0:22:56 Thomas: Bad legal takes. Wait,

0:22:58 Lydia: It's so good. I love it.

0:23:00 Matt: So, I just...

0:23:01 Lydia: Um, yeah.

0:23:01 Thomas: That wasn't sped up? Was it because I don't want, want to be deprived of any amount.

0:23:02 Matt: No, that is It's natural speed. It's already that way.

0:23:04 Thomas: Okay. Yeah. It's A little, it's It goes at a clip, you know, I think They could have slowed it down, especially because the, that gavel sound is inhuman. No, no, no judge can go like That's, man, that's

0:23:10 Lydia: Yeah.

0:23:06 Matt: Yeah. They could slow it down. Yeah. That's a coked up judge. Yeah, you got some problems.

0:23:17 Thomas: That's A judge with two gavels. It's like, otherwise, like, you're not getting your wrist to do that. There's no way.

0:23:19 Matt: Uh, I just want to point out that what we're going to be looking at today are truly bad legal takes. These are some of the worst legal takes ever come up with by the federal government. These are not like bills that you think are a little weird or people online saying things that you think are stupid. These are incredibly bad legal takes. And I, I think I'm obviously trivializing it with a stupid song, but you know what? That song is ours now. They stopped using it, so finders keepers.

0:23:23 Thomas: Wow. They've

0:23:44 Lydia: Wow.

0:23:44 Thomas: Abandoned their Their copyright or whatever, like, they've abandoned their, what is it, their trademark?

0:23:45 Matt: Yeah. Come on, shitheads. It's ours now. That's I'm the lawyer here. That's how it works. It's yours. You made it by AI anyway, so I, you know, Thomas suggested it before, and you're right. Just Take it, it was a studio recording.

0:23:49 Thomas: Yeah. It's I It's not AI man. That's It's so good, I love it. That's a human did that. It's

0:23:50 Lydia: Yeah yeah. Yeah. Belongs to the people.

0:24:02 Matt: Yeah, I'm sure all

0:24:04 Thomas: Oh good.

0:24:05 Lydia: Man.

0:24:05 Thomas: I don't love that song. What if we could just take it? Like, what? Okay.

0:24:05 Matt: Right. So We can. Why not? I'd

0:24:10 Thomas: You're saying we can?

0:24:11 Matt: Love to have them.

0:24:11 Thomas: I don't.

0:24:11 Lydia: Eminent domain.

0:24:11 Matt: See this. Yeah.

0:24:12 Thomas: An artist toiled at that, Matt. An artist did that. I don't, I don't respect the show, but I respect the artist who made that. You know, I don't want to can

0:24:12 Lydia: Eminient domain.

0:24:20 Matt: I've been checking every week. The Arena podcast has abandon it. It's ours now. They've ceded it to us after we did an episode about it.

0:24:24 Thomas: We find the musician? I will pay that musician money to take the song just for fun. It's bad legal thanks. Oh, my God. And I love that. That is, yeah, we're doing that, but for like the worst legal takes that led to horrors and, you know, were the official legal takes of the fucking nation. Um, so yeah, all the fun, I think, ends here. Yeah.

0:24:28 Matt: There we go. There we do. I'll do the piano ballad version. Yes.

0:24:29 Lydia: Yeah. Yeah.

0:24:48 Matt: Right. For a bit. Well, we do get to talk about Dershowitz, but very quickly before we talk about Dershouitz, I want to talk to somebody I'm very disappointed in, Jonathan Alter. We're not going to read this, but I wanted to pull up the headline. He was the first person to say it, I believe. Actually, Dershowitz might have been first, but they were right around the the same time. This Jonathan Alter piece is from November 4th, 2001. So obviously very shortly after the event, he's a well-known liberal journalist, not lefty, but like liberal.

0:24:52 Thomas: Who's That I don't I don't know who that is. I don't think. Oh. Wow. Yeah.

0:25:12 Matt: And he still is. But I'm more interested in the liberal takes or, you know, obviously at the time people at Dershowitz pretended to be liberal. But check out this headline from Alter. We're not going to read it, but this is a theme that was going on. Time to think about torture. And he's like, you Know, I don't mean like,

0:25:25 Lydia: Yikes.

0:25:26 Thomas: I mean if is that, like, in what way? You know, like, oh.

0:25:27 Matt: Yeah, like doing it to people that we did 9-11. Yeah. Yeah. He's like, I don't, to be clear, I didn't mean rubber hoses. I just mean blasting rap at them. But like, you know, yeah, that's, oh

0:25:32 Thomas: Okay. No, it's probably not not a good take. That's a bad legal take. Oh, what? If they blasted the bad legal take song, that could be then

0:25:41 Matt: No. That's horribly sadistic.

0:25:43 Lydia: This is bad though. Yeah, like the stuff he wrote in here, Matt, Couldn't we at least subject them to psychological torture like tapes of dying rabbits or high decibel rap?

0:25:44 Thomas: They join our side, I

0:25:54 Lydia: How about truth serum administered with a mandatory IV or deportation to Saudi Arabia, land of beheadings? This is crazy.

0:25:47 Matt: Yeah. Yeah, yep. Oh, yeah. So, but, so, yeah.

0:26:05 Thomas: Love when they announce themselves by having gone to the trouble of thinking of whatever that weird bullshit is like Dude, that's not healthy. What are you doing?

0:26:11 Matt: Right. He does end by saying we can't legalize physical torture. It's contrary to American values, but guess what? We're going to legalize fiscal torture.

0:26:14 Thomas: Oh, well, he got he got that

0:26:19 Matt: Torture.

0:26:19 Thomas: Wrong. Yeah.

0:26:19 Matt: It's coming. But let's move on. Speaking of physical torture, to Alan Dershowitz's take on the same subject. I just want to point out that John Alden Alter was also doing this because I think he deserves a special shout out for that.

0:26:19 Thomas: Yep. All right.

0:26:31 Matt: But we're going to read this Dershowitz.

0:26:31 Thomas: Well, this is someone I, I do know.

0:26:33 Matt: Yeah, too well, all too well. And we've already read his take on how we should be able to have sex with 13-year-olds. So you might remember, could

0:26:34 Thomas: Oh boy. Okay. Let me, uh, get this. Oh my God. I forgot about

0:26:43 Lydia: I had blocked that. Why is that back in my consciousness?

0:26:44 Thomas: That. That was also the LA times now that I think about it. Right. I remember for some reason I remember that.

0:26:50 Lydia: Huh.

0:26:48 Matt: Have been, just publishing whatever he comes up up with he probably had a regular column, uh so this is November 8th, a little few days later, uh, from Altar. So here we go. No

0:26:51 Thomas: Yeah. I think it was like, Nope.

0:26:58 Lydia: Is there a torturous road to justice is the headline. Line. The FBI's frustration over its inability to get material witnesses to talk has raised a disturbing question rarely debated in this country. When, if ever, is it justified to resort to unconventional techniques such as truth serum, moderate physical pressure, and outright torture?

0:27:01 Matt: Uh

0:27:02 Thomas: Done here.

0:27:18 Thomas: Did everyone believe in truth serum back then or something? I mean, I know there's sodium pentothal or whatever that does something, but it, uh,

0:27:25 Lydia: Yeah,

0:27:23 Matt: There is actually I believe a supreme court case on that you can't that It's not admissible if you do things like that to drug people to get them to say things. Believe it or not, you would think so.

0:27:25 Lydia: Yeah, that's what he cited, but yeah.

0:27:27 Thomas: Okay, yeah, You would think it would be, you know, contrary to Fifth Amendment. Oh,

0:27:36 Lydia: The constitutional answer to this question may surprise people who are not familiar with the current U.S. Supreme Court interpretation of the Fifth Amendment privilege against self-incrimination. Any interrogation technique, including the use of truth serum or even torture, is not prohibited. All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used.

0:27:54 Thomas: Okay, yeah.

0:27:55 Matt: That's fine. You just can't use it, it

0:27:59 Thomas: Yeah, so you can't, it's sort of like the police, yeah, they can, can't beat a confessional to someone, they just can't use it, like, that's right. I mean, obviously that's how it should work.

0:28:07 Lydia: But the evidence could be used against that suspect in a non-criminal case, such as a deportation hearing, or against someone else. If a suspect is given, quote, quote, use immunity, a judicial decree announcing in advance that nothing the defendant says or its fruits can be used against him in a criminal case, he can be compelled to answer all proper questions. The issue then becomes what sorts of pressures can constitutionally be used to implement that compulsion. We know that he can be imprisoned until he talks, but what if imprisonment is insufficient to compel him to do

0:28:07 Thomas: Oh, I see. Is

0:28:38 Lydia: What he has a legal obligation to do?

0:28:39 Thomas: This a is this a paywall one? Oh, no.

0:28:42 Lydia: Keeps going.

0:28:42 Thomas: Okay. It's letting me. All right.

0:28:42 Matt: Shouldn't be.

0:28:43 Lydia: Can other techniques of compulsion be attempted? Let's start with truth serum.

0:28:43 Thomas: He Hey, you slow down, man, you're already way ahead of me here. I, so he's already gone from, like, all right, yeah, you're not allowed to get a confession to use that if you torture someone, but what about if you torture confession out of someone to use against someone else? That's probably fine yeah, and then you could, if you have two, like, defendants, you get to probably do that alternate them to each other, you know like, okay, you confess about this guy, you confess it out, this guy, was it coerced out of out of them with torture? Yes, but I didn't use it for them, I use it for the other guy. Totally fine, right? Matt, this one weird trick there.

0:29:00 Matt: Or for fun, just for your own entertainment. Switch them off.

0:29:06 Lydia: Yep, yep, right.

0:29:19 Matt: I mean, Just as this all checks out, great. Nothing to say about this, obviously. It's incredible that Dershowitz, I mean it's not incredible, but he's sitting around thinking through gaming scenarios where you could be allowed to torture people. He's fantasizing about torture is what he's doing. And if you're looking at the let's start with truth serum thing, he's like, how's a way we could torture somebody and get away with it? That's what he's asking. Harvard

0:29:44 Lydia: Let's start with Truth Serum. What right would be violated if an immunized suspect who refused to comply with his legal obligation to answer questions truthfully were compelled to submit to an injection that made him do so? Not his privilege against self-incrimination, since he has no such privilege now that he has been given immunity.

0:30:01 Thomas: You go, yeah.

0:30:02 Lydia: What about his right of bodily integrity? The involuntariness of the injection itself does not pose a constitutional barrier. No less a civil libertarian than Justice William J. Brennan rendered a decision that permitted an allegedly drunken driver to be involuntarily injected to remove blood for alcohol testing. Certainly there can be no constitutional distinction between an injection that removes a liquid and one that injects a liquid. Yeah.

0:30:28 Matt: Professor Alan Dershowitz, everybody. That's incredible. Brennan would be fine with that

0:30:37 Lydia: Yeah.

0:30:29 Thomas: Yeah. If, if you can take fluid out, you can put whatever you want in constitutionally. That's the same Yeah, bleach. Fucking poison. It's just a fluid that's going in or out of a person's bloodstream, so yeah.

0:30:37 Matt: Yeah. Oh.

0:30:40 Lydia: Via A needle. So It's the

0:30:47 Thomas: What It just, this really does highlight, like, the, the environment at the time really was fucking crazy. Like, it was like everybody was like, we, it wasn't even a question of, like, should we do this, it's like, all right, everyone, how can we do this? And a lot of people, even who were, again, on the left at the time, a lot of people were into it.

0:30:47 Lydia: Same.

0:31:10 Lydia: Yeah.

0:31:10 Thomas: They're so angry. Yeah. Wait

0:31:10 Lydia: There's a blood lust Yeah, uh, What if the truth serum doesn't work? Oh no, sorry. What About The Nature of the substance injected, if it is relatively benign and creates no significant health risk, the only issue would be that it compels the recipient to do something he doesn't want to do. But he has a legal obligation to do precisely what the serum compels him to do: answer all questions truthfully. What if the truth serum doesn't work? Could the judge issue a, quote, torture warrant authorizing the FBI to employ specified forms of non-lethal physical pressure to compel the immunized suspect to talk? Oh,

0:31:18 Thomas: What? Oh, what

0:31:18 Matt: Yeah. What if we made torture legal, that's what he sang it.

0:31:47 Thomas: I think if this this reads, needs, like a satire, like if you were this is, this is like, um, an immodest proposal or whatever. Like, halfway through you're like, oh, I get the joke. Yeah, no. And what if we did this? And what if judge was like, yeah, hit that guy in the face, you know? Like, yeah. You're right, good points.

0:31:50 Matt: Does uh, he's

0:31:54 Lydia: Yeah, yeah. Yeah. Here

0:32:04 Matt: Never made a modest proposal in his life. Most

0:32:07 Lydia: We run into another provision of the Constitution, dang it, the Due Process Clause, which may include a general, quote, shock the conscience test. And torture in general certainly shocks the conscience of most civilized nations but what if it were limited to the rare, quote, ticking bomb case?

0:32:20 Thomas: Yeah. What if it didn't Sure.

0:32:24 Lydia: The situation in which a captured terrorist who knows of an imminent large-scale threat refuses to disclose it. Would torturing

0:32:20 Matt: Of them. What if I've been watching a lot of 24. What about that? Like, this doesn't happen. These are not, like, this has been widely discredited. There's never a situation where you need to do this to somebody. Why

0:32:31 Thomas: Man yeah. It's

0:32:31 Lydia: Yeah. Exactly. Would torturing one guilty terrorist to prevent the deaths of a thousand innocent civilians shock the conscience of all decent people?

0:32:46 Thomas: One tortured terrorist, Michael, how much could it cost? Ten dollars? Here

0:32:49 Lydia: To prove that it would not, consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen.

0:32:57 Matt: Why am am I considering this situation? What's wrong with you, Alan Dershowitz?

0:32:57 Thomas: You go. Yeah. The things that made sense to an idiot Thomas back in high school, you know, we're just like, this is a great argument. Yeah. What if? Yeah, yeah.

0:33:03 Lydia: Yeah. The kidnapper

0:33:05 Matt: Yeah. Also, just want to point out, he's hanging out with Jeffrey Epstein at this point, so I just mentioned that.

0:33:10 Lydia: Refuses to disclose its location. Should we not consider torture in that situation? All of that said but

0:33:18 Thomas: All right, let me know when that comes up, you know, let me go, when that comes out, and in that situation, I wouldn't, like, be that mad at a parent who, like, beat the shit out of that person. I'm gonna be like yeah.

0:33:27 Matt: Yeah, if you want to hit him.

0:33:28 Thomas: That's probably still a crime, but I get it. But that has nothing to do, that is the, the way idiots and assholes have argued for centuries, is find the edgiest of edge case, like, well, this is the edgest of edge cases. So, so why not the systematic torture of Muslims just for being Muslim, like, right?

0:33:27 Lydia: I get why you would act like that. Yeah. Yeah.

0:33:37 Matt: See, yeah, what about this? And just imagining going to the judge to get, well, how about,

0:33:49 Thomas: I mean

0:33:49 Matt: In fact, we create a torture warrant in which I can go to the Judge and be like, hey, Judge, we got another one of these kid -in -a -box situations, so you know how it is, you know torture warrant

0:33:54 Thomas: Yeah. Boy, someone's putting kids in boxes. It's just so many of them. Yeah.

0:33:56 Matt: Yep.

0:33:58 Lydia: All of that said, the argument for allowing torture as an approved technique, even in a narrowly specified range of cases, is very troubling. We know we

0:34:05 Thomas: Well, then better not do it then. We

0:34:08 Lydia: Know from experience that law enforcement personnel who are given limited authority to torture will expand its use. Okay, yeah.

0:34:15 Thomas: Also know from experience that law enforcement personnel will just torture Black, Black people no matter what, without any authority to do it, especially in Chicago. Yeah, okay.

0:34:21 Lydia: They don't need torture, torture warrants. The cases that have generated the current debate over torture illustrate this problem, and concerning the arrests made following the September 11th attacks, there is no reason to believe that the detainees know about specific future terrorist targets. Yet there have been calls to torture these detainees. I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. Okay, the answer to this seems clear

0:34:36 Thomas: What is happening. Look, torture's gonna happen, it just is. So should we justify it morally and legally first, or after? I don't know. What oh.

0:35:01 Lydia: Yeah. How can we figure this out constitutionally, like, for this to be okay? Yeah.

0:35:07 Thomas: I thought you were reading for a sec, like, that's how dumb this is. Yeah. It's not different than what he's saying. Yeah, yeah.

0:35:07 Lydia: Oh.

0:35:10 Matt: You might as well be again I just can't get out of my head that this is the same guy who's just asking questions about the age of consent. I mean this is all the same thing. No.

0:35:19 Thomas: Okay.

0:35:14 Lydia: The yeah. The answer to this seems clear: if we are to have torture, it should be authorized by the law. What or you can just say there's Yeah, we shouldn't have torture And even if it occurs, then that's, yeah, don't have it.

0:35:27 Matt: No. Never. We'd

0:35:29 Thomas: But what if we aren't to have, have torture. Yeah. And

0:35:36 Lydia: Repeat.

0:35:36 Thomas: Then he points to his sign, child in a box. He's like, if you're saying we should have torture, then go back to step two. There's a child, could be a child in a box, yeah.

0:35:45 Lydia: The Flow chart, your decision matrix: judges should have to issue a quote "torture warrant" in each case, thus we would not be winking an eye of quiet approval at torture while publicly condemning it, right?

0:35:56 Matt: Just be sanctioning it completely through the judicial system. It's not legal. Yeah.

0:35:57 Thomas: Yeah, this is really, really sick.

0:36:01 Matt: It's dark still.

0:35:58 Lydia: Democracy Requires accountability and transparency, especially when extraordinary steps are taken. Most

0:36:07 Thomas: And mark my words, we will have that about this whole torture stuff.

0:36:11 Lydia: Important, it requires compliance with the rule of law, and such compliance is impossible when an extraordinary technique such as torture operates outside of the law. Okay?

0:36:20 Thomas: I mean, yeah, I agree.

0:36:21 Lydia: Yeah.

0:36:22 Matt: Professor emeritus at at Harvard University, Harvard Law School, after all this.

0:36:26 Lydia: It needs to be part of the laws so it stops not being part of the law all right.

0:36:31 Matt: Yeah, that's

0:36:30 Thomas: Yeah I don't know why we didn't think Think of this. Hey, horrific, cruel, and unusual punishments and executions. Here's the thing. They're going to happen. They're gonna happen. So we can't, it will undermine the rule of law if we don't make them legal, right?

0:36:32 Lydia: Yeah. Yeah.

0:36:31 Matt: Right. Yeah, yeah. You know, something else that's gonna happen is a lot of guys are gonna kill their wives, but then all in all, it's a bit of a job, so I guess that would be a problem. It's represented a lot a wife killers. So I think it's good time for a break so we can all think about torture.

0:36:48 Lydia: Does

0:36:55 Thomas: Oh boy. Think about punching this guy, punching Ellinger's with,

0:36:58 Lydia: Martha's

0:36:59 Matt: Well, not without a warrant.

0:37:00 Thomas: Yeah.

0:37:00 Lydia: Vineyard Like Martha's Vineyard has, like, a season to it, right? Like they're probably closed in November, so he didn't get his pierogies. Maybe he was like feeling a little bothered. Gross.

0:37:03 Matt: Yeah, yep.

0:37:10 Thomas: Oh man. What an asshole. I could, this is, what a crazy indication of the times. You know, it really, it was a weird time, man. A weird time. All right, let's take that second break that you alluded to and, uh, cheerier topic. Thank our second batch of Hall of Famers. Thank you to, probably a real person, Nick Fish, who sucks more, Alex Jones or Stephen Crowder? Oh, are we doing, like, a tournament thing? Because this is a new one. Um

0:37:10 Lydia: Mm. -hmm Oh That's interesting. Because

0:37:35 Matt: Alex Jones.

0:37:34 Thomas: Gosh. How do you measure it? I'm gonna say by impact. I'm going to say Stephen Crowder now, because Alex Jones doesn't have anything anymore.

0:37:37 Matt: Alex Jones has caused more harm.

0:37:43 Lydia: He still has a platform. Mm. -hm But

0:37:46 Thomas: But throughout history, yeah. You got to say Alex, Alex Jones likes to add it all up.

0:37:45 Matt: That's true. That's a good

0:37:50 Lydia: Also Alex Jones is like such a cartoon character though too, and Steven Crowder has, like, a little tiny bit of like additional credibility.

0:37:53 Thomas: Yeah. Remember that clip we just

0:37:58 Lydia: I know. I know.

0:37:58 Thomas: Did of Steven Crowder? What show

0:38:00 Lydia: Dub

0:38:00 Thomas: Was that on? God, that was fucking insane.

0:38:01 Lydia: To that probably. Yeah.

0:38:02 Thomas: God, that was insane. A Negative Phenomenon. Mr. Owl Ate My Metal Worm. Is that a, holy shit.

0:38:12 Thomas: That might be the best palindrome ever made. Mr.

0:38:13 Matt: One It's pretty solid. Nice.

0:38:16 Thomas: Owl eight, my metalworm.

0:38:12 Lydia: Is It Mr. Owl Get him

0:38:19 Thomas: Well done. Yeah. You got, you got to fight for your right to ex parte. Jaysank, VMLs still seething at Patreon, but fine because VML.

0:38:18 Matt: Work

0:38:19 Lydia: To the vet if he ate a metal worm, that's not good. Oh Yeah. He had to abbreviate Yeah. We see you

0:38:31 Matt: Shorten his name all

0:38:34 Thomas: And I are in the second third. It's objectively the best. Oh, okay. It worked because V ML and I are in the 2nd and 3rd, but subjectively the best yeah. Okay, they're still going together. That's good. They're a great couplet there. Let me, let me give them due credit. VML still seeting at Patreon, but fine because VML and I are in D 3rd, the 2rd 3rd. It's objectively the best. And then Theodore Biperineum disrespects the News Hoes. Today's episode is brought to you by the letter or something. David Souther, Thomas Freeman, Cajunkilla, Cavalry Fraud, Fishy hates everything, Chris Simpson: how do I get in the top third? You're on your way. Anonymous Aquila, uh, and check out galenacomic.com for a cool webcomic. All right, thank you, Hall of Famers. We'll take another break and we'll get to more bullshit, all mad, all that. Um, you know, legal justification that didn't have any, like, impact or anything. It didn't have any effects on on

0:38:40 Lydia: Oh Yeah. Yeah. Yeah. Oh Buddies.

0:39:31 Matt: Apparently

0:39:32 Thomas: The world for

0:39:32 Matt: Somebody at the DOJ office of legal counsel was reading the LA Times, and they decided, yeah, let's legalize torture, let's do this. So there's a series of for the good of the nation, for everybody's, because you don't have kids in boxes. So this is August 1st, 2002. So we're not even a year out from 9-11. And the terrorists are winning because we are legalizing torture. So this is the famous Bybee Memo. It was written by John Yu. And if you can, I was thinking for this episode, if you could do your best Alanis Morissette voice, this is You Ought to Know. This is a title of this episode because John Yu is responsible for some of the worst legal stuff that's ever happened in the 21st century. Pretty much all of it: the mass surveillance, the Gitmo, and legalizing torture.

He was in the Office of Legal Counsel, and the purpose, of course, as we've discussed before, of the Office of Legal Counsel within the AG's office is to do whatever the AG wants to be legal, to make it legal. So let's read the first paragraph, and then I'm going to, I want to get back into the torture memos and a gavel gavel sometime in the future, because they are good reading. Like, I mean, they're kind of tough, but it's incredible to read a lawyer explaining exactly how and why you can torture people. You've heard of the torture memos, but you have not seen them until you've read them. So let's just check out the first paragraph, little introduction. All

0:39:39 Thomas: The good of the nation Yes

0:40:00 Lydia: You have Asked for this office's views on whether certain proposed conduct would violate the prohibition against torture found at section 2340a of title 18 of the United States Code. You have asking for this advice in the course of conducting interrogations of Abu's As we understand it, Zubaydah is one of the highest-ranking members of the al-Qaeda terrorist organization with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001. This letter memorializes our previous oral advice given on July 24, 2002, July 26, 2002 that the proposed conduct would not violate this prohibition.

0:40:50 Thomas: End of memo. It's a beta. Yeah.

0:41:14 Matt: Right. So We're gonna We're writing it down. Uh, page three. Uh, we're going to take a quick look at one example, and there's a lot of examples in here. Uh, but check out, "you would like to place." Now he talks about sleep deprivation, which I find to be particularly abhorrent because I already do that to myself. Uh But check out page three: you would like to place Sabadiah in a cramped confined box

0:41:36 Thomas: Yeah.

0:41:41 Lydia: You would like to place Zubeda in a cramped

0:41:44 Thomas: Sorry, we skipped a lot. What the fuck are we talking about here?

0:41:46 Matt: Yes. We're gonna come back to these, I promise. But he's talking about different kinds of torture they want to do, and he's like, here's all the different things you've proposed, and here's why they're legal.

0:41:47 Thomas: Okay. Oh My god.

0:41:49 Lydia: Confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubedo that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. That doesn't matter.

0:42:11 Thomas: Well, that's fine then. Yeah, you

0:42:13 Lydia: You have orally informed us that you would, in fact, place a harmless insect such as a caterpillar in the the box with him redacted.

0:42:18 Matt: Redacted. So a national security secret. In the cat, after the caterpillar, I guess. I don't know, like, what kind of caterpillar they're going to use or what its name is or something. I don't. Uh, but check out, uh, the next paragraph. Of course, we're going get into something that everybody recognizes as torture. It's

0:42:19 Thomas: Have pinky, pinky swear and sworn. What's redacted there, Matt? Yeah. The caterpillar is a double agent, can't reveal it slightly.

0:42:36 Lydia: Yeah, finally, you would like to use a technique called the quote waterboard. In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once Once the cloth is saturated and completely covers the mouth and nose, airflow is slightly restricted for 20 to 40 seconds due to the presence of the cloth.

0:43:07 Lydia: This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide levels stimulates increased effort to breathe. This effort plus the cloth produces the perception of, quote, suffocation and incipient panic, I .e. the perception of drowning. The individual does not breathe any water into his lungs. Lungs.

0:43:03 Thomas: Yeah. How I've always wondered that. How is that supposed to not happen? I mean, I guess we have this doctor's word on it. Like, like, what is this? Is fucking weird, Matt. Like what, what is So It's like, like they've been obviously wanting to do all this stuff, and they've already given them the oral okay of, like, yeah, do whatever the fuck you want. And then, like, all right, you have to, like, give us a memo that, like, outlines exactly what it's okay to do. And so they're like, you've said you want to do this, okay?

0:43:39 Matt: Very strange. Yeah.

0:43:53 Matt: Well, There's a reason for this that we'll talk about. Uh, but in the next paragraph. And I just want to get a sample of, like, the way they're describing this. And everybody, I think, understands at this point that waterboarding is torture torture. Uh, even that people

0:43:58 Thomas: Yeah. I want to You know, I don't give, uh, Christopher Hitchens, obviously, a lot of bad takes. The one good take he had, the one good thing he did, one of them, is he just decided to waterboard himself to see what it was all about. So he had someone waterboard him, and then he's like, oh, that's, he lasted a second. There's a video of it. You can see it and from then

0:44:06 Matt: Yeah. Yep. Yep. It's horrible. Yeah. And they say in this paragraph that you can do it for up to 20 minutes.

0:44:30 Thomas: He ever since then he was like, oh no, it's, it is drowning, you're just dying. It's horrible and it's awful. I don't remember if that, I don't know what it changed in his opinion. I, because he was pro the war, I don't know if he was pro the torture part, I can't remember. But I mean, give him credit for that. But that always stuck with me with, of like, you can talk a big talk, and then, like, this, he literally, the minute someone poured water on him, he dropped the little things that he was holding that was to indicate that he couldn't do it anymore, and it was literally like the same second and It, it was like, yeah, that's horrible. It's, this is not, the minimizing, the minimization in this paragraph is just like unreal.

0:44:31 Matt: Yeah. Yeah. Yeah.

0:45:08 Lydia: Yeah, yeah.

0:45:01 Matt: That's And You have orally informed us that, as likely, this procedure would not last more than 20 minutes in any one application. So that's, and then they mentioned there's medical people, so we're not gonna read all this, but I just want to point out that the purpose of this memo, we're going to get to on page 16, let's skip down, and little drive-by here, I do want to come back and talk more about the torture memos and how they did this legally, how they constructed this. But 16 gives the legal explanation about why they're writing all this down, because you would think they're recording a criminal conspiracy here, but in fact they think that they're providing a justification that will keep anybody from getting charged with a crime, because the, the statute they're looking at, 2340A, requires specific intent. So a little further down the page, you'll see after that, all the laws being cited, based on the information, right?

0:45:47 Lydia: Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering.

0:45:56 Thomas: Sorry, how?

0:45:57 Lydia: But

0:45:58 Thomas: We've just, we've just outlined all the ways we're trying to cause, inflict severe physical pain and suffering.

0:46:04 Lydia: They told us it was going to be a harmless insect. So and they told us it's going to Be 20.

0:46:07 Thomas: Were they pouring fake water on, on him?

0:46:10 Lydia: Well, but there's been a medical professional there. So like you don't want to actually harm them. I'm being sarcastic,

0:46:07 Matt: Right. That's

0:46:13 Thomas: Yeah, but

0:46:14 Matt: What he says, "That's What he's actually saying: no, and, but this, this is literally because the lawyers told us we could do it, is going to be the justification for why they're going to do it. And he's saying we can do it because the medical people are there. This paragraph, though, is really worth reading.

0:46:14 Thomas: That's still physical. That's okay.

0:46:15 Lydia: Obviously. Yeah.

0:46:27 Lydia: Yeah yeah. Yeah.

0:46:28 Thomas: Yeah. Yeah, go ahead.

0:46:28 Lydia: The objective of these techniques is not to cause severe physical pain.

0:46:28 Thomas: Sorry. Really?

0:46:34 Lydia: First, the constant presence of personnel with medical training who have the authority to stop the interrogation should it appear it is medically necessary indicates that it is not your intent to cause sever physical pain the

0:46:34 Thomas: Really?

0:46:45 Thomas: It indicates the opposite to me.

0:46:46 Matt: Yeah, that you can really hurt somebody

0:46:47 Lydia: Personnel.

0:46:47 Thomas: That would indicate that you're trying to cause as much pain as possible without killing them is what it indicates to me what

0:46:52 Matt: Going to the edge. Exactly.

0:46:53 Lydia: The personnel on site have extensive experience with these specific techniques as they are used in SERE school training.

0:46:53 Matt: Yeah.

0:47:00 Thomas: The fuck is that Jesus Christ yeah what is that, yeah?

0:47:00 Matt: Oh, good. They're experienced torturers. They certified. I don't know.

0:47:05 Lydia: Second, you have informed us that you are taking steps to ensure that Zabeda's injury is not worsened or his recovery impeded by the use of these techniques. Oh,

0:47:14 Matt: So that program is actually the famous thing you might have heard about. It's the survival school that they put a lot of military, the special forces guys there. And they do actually do all kinds of torturous things to the people who died doing it. But I just wanted to show you because, yeah, behind enemy lines.

0:47:19 Lydia: Okay well to to prepare them for what could happen if they're captured in a different

0:47:29 Matt: Yeah. Yeah. And just like having, right, exactly. It's something the North Koreans might do and now we do.

0:47:29 Lydia: Country, because this is not something that should be okay anywhere. Yeah, yeah. I

0:47:36 Matt: So this is, again, we're going to read a couple of the things here, but this is what I want to do with the torture memos for the moment because there are a lot to take in at once. But the purpose of all of this is to say, I'm describing exact careful detail about how professionals are going to torture, but they're not going to have a specific intent to harm. So therefore, we don't believe the Department of Justice would ever be able to charge these because they are the people that would charge them, federal prosecutors, would be deciding if these military people, I mean, obviously could be court-martialed for torture as well, but they're going to rely on an OLC memo. This is how they justify it. This is how it works. These memos are really important. And, yeah. So let's, yep,

0:48:07 Thomas: Especially because we've seen it with Trump too. I mean, obviously this is horrible, but just looking at the, just trying to separate for a second, look at the legal monstrosity of it. It's like, if you can get a guy in a suit to write down "pretty sure this is fine," then you can be like, "Well, that's the lawyer. I get to do whatever the lawyer said."

0:48:23 Matt: Yep.

0:48:27 Lydia: Did this based off of guidance, legal guidance so I can't be in trouble for that

0:48:27 Thomas: Yeah yeah but like I know that doesn't that has limits in just basic criminal law, right, Matt? I mean, I feel like I remember in the Trump trial the judge said you're not allowed to argue it was legal, uh, advice you were getting, that, you know what I mean? Like, there's limits to saying, "Oh well, my lawyer told me." Like, if your lawyer tells you to kill somebody, you're still, you still have to be like, "That that doesn't sound like good legal advice," right? I mean, yeah, yeah.

0:48:53 Matt: And, you're pretty sure I can't do that. Yeah, that's, yeah,

0:48:56 Thomas: And I would think torture would be right up there with that.

0:48:32 Lydia: Yeah Yeah. Right. Like

0:48:59 Matt: No, this is, George W. Bush famously said that he just did what the lawyers told him was okay. And John Yoo specifically said when he was asked about that quote, he's like, oh, yeah, George W. Bush was a great client. That's what a client should do. So it just goes around, just the circle that comes around. Let's look up another.

0:49:13 Thomas: Can we get these guys still now? I know we're not going to, but like hypothetically you come back in, you come in and you're like, Hey, no, there's not a statute of limitations on torture. Is there? I would hope there isn't.

0:49:21 Matt: I mean, there isn't a murder. So certainly if you kill somebody doing this, but I don't know about torture. I mean it is still a federal crime.

0:49:26 Thomas: Yeah. They did kill people doing this in certain instances. Yeah, the

0:49:31 Matt: Certainly. So John Yoo should still be on the hook. Let's go to the next one. He is going to explain to us about why Guantanamo Bay is okay. Okay. I'm just going to, if we go to the next memo.

0:49:43 Thomas: Next memo.

0:49:44 Matt: Yeah, yeah. There's a wealth in that torture memo alone, but we'll go deep on the torture memos another time so we can really see the mechanics of what lawyers can do when they want to be evil.

0:49:44 Thomas: Oh, okay.

0:49:53 Thomas: Yeah, I don't know. I'm not, not sure I can do that, we'll see, this is, this is a lot for me. Wow.

0:49:58 Matt: Sure. No, it's pretty intense. I had to read it in pieces. This one, though, is just so obviously somebody arguing something they know is wrong.

0:50:10 Matt: They're trying to create a constitution-free zone in Guantanamo Bay. What's the date on this? We've got December 28, 2001. So we're obviously, we've got this perfectly nice space that's not in the United States. Could we perhaps torture people there? So get on the second paragraph.

0:50:17 Thomas: Predates the last one, right?

0:50:26 Lydia: An international waters kind of thing. Like, you know, okay.

0:50:28 Matt: Yep. So they're basically, they're being asked to look at the constitutionality and whether people would be able to file habeas petitions once they're in Guantanamo Bay, Cuba, a military base. So here's the second paragraph,

0:50:41 Lydia: "We conclude that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at GBC. Nonetheless, we cannot say with absolute certainty that any such petition would be dismissed for lack of jurisdiction. A detainee could make a non-frivolous argument that jurisdiction does exist over aliens detained at GBC, and we have found no decisions that clearly foreclosed the existence of habeas jurisdiction there. On the other hand, it does not appear that any federal court has allowed a habeas petition to proceed from GBC either. While we believe that the correct answer is that federal courts lack jurisdiction over habeas petitions filed by alien detainees held outside the sovereign territory of the United States, there remains some litigation risk that a district court might reach the opposite result."

0:51:27 Matt: Litigation risk. And of course, yeah, yeah.

0:51:28 Thomas: Yeah, I was gonna say this is about litigation risk, like, yeah.

0:51:31 Lydia: Mm -hmm.

0:51:32 Matt: That they might win, that the people in Guantanamo Bay might win. And which they did. Ultimately, the Supreme Court had to find that you do have to be able to bring a habeas one way or another. And so they go through all this stuff with the military and everything else. But I just wanted to point out that just like this is what OLC does. This is their purpose, is to take things, and especially during this time after 9-11, and they're basically saying there's a risk here that we're going to lose if we put people in Guantanamo Bay, that eventually they're going to get out. But, you know, we know it's not really legal. And they're saying pretty much essentially, yeah. Yeah, and there's much more to this here, but I wanted to hit the core of it there.

0:51:46 Thomas: And

0:52:07 Lydia: Right. They

0:52:07 Thomas: Matt, how much of this happened? My memory is that most of this was just out in the open, right? I mean, was there was there any of these memos? I mean, we had that little redacted part about the double agent caterpillar, but like, pretty much, I mean, this was, I feel like this was out in the open, right? It wasn't like, oh, they've discovered these secret memos. Was it? You

0:52:13 Matt: Oh, yeah.

0:52:27 Matt: I don't know if the memos were published at that point, but certainly the justifications were being discussed at the time, and they weren't shy about saying they thought they could do all of this. So I did want to look at another Yoo greatest hit before we go to the break. We've got surveillance. This is his other big category. So we've got a couple of surveillance memos.

0:52:45 Thomas: Know it's worth saying again, this fucking guy is a professor of law. Is any professor of, not the worst fucking person to ever live, just question any of them, sure?

0:52:53 Matt: Yeah, right. Yeah. Yeah. Um, I mean, they have the potential to be, because, and he's asked, too, there's an interview, if we get into the torture moment sometimes we'll listen to this John, John You interview where he talks about how his job is not to decide the morality of the things in front of him, just the legality, completely different subjects, obviously. It's

0:53:10 Thomas: And then the people doing it's job is not to just, their, their job is to, well, the late law people said it's okay, so my job is just to do it because they said it was fine. It's like that it happened with, um, gosh, uh, I don't know if it was, um, who am I thinking, I can't remember, but, uh, remember when the cops came, it wasn't Brianna Taylor, was it? But when the cops came and just shot into the apartment and all that, and, uh, cases related to that where the police officers say, well, I can do, fill out a warrant, and you know, it might be bullshit, but it's the judge's job to say like, this warrant is bullshit and you shouldn't just go in there guns blazing, and the judge said, well, I mean, I assume that the police are just, you know, they're doing their due diligence, and I assume if it was a good warrant that it was bad warrant, they wouldn't submit it to me. And so they both are able

0:53:16 Matt: Legal, that's the way these systems work and

0:53:55 Lydia: Get to pass

0:53:56 Thomas: To say yeah, the other side's probably doing the right thing, and then nobody does now.

0:53:56 Lydia: The buck.

0:54:01 Matt: The entire immigration system is built on this too, and all of fascism is of like, it's nobody's responsibility, it's nobody's job, nobody did it. Uh, these things are just happening, they're, they're an endemic. So yeah, this is amazing. So this is the redacted version. I just wanted to bring up very quickly of this November 2nd, 2001 memo. There's some really funny, if you just flip through, just grab one of the non -redacted sections, because there are very few of them. There was like six of them, this one right here.

0:54:11 Thomas: What is this, Matt? This is like a weird document. Oh, well oh, FISA only provides a safe harbor for electronic surveillance and cannot restrict the president's ability to engage in warrantless searches that protect national security and those redacted

0:54:33 Matt: That's the part they didn't redact when they're saying the president can just do anything he wants with that for national security. Yeah. But look at the theme here, because John Yoo is very much a unitary executive guy, as you can see.

0:54:34 Thomas: Yeah. Wow. Oh,

0:54:46 Matt: Such a reasoning of FISA would be an unconstitutional infringement on the the president's article to authorities, like to say that he can't just go on, because obviously Bush was doing warrantless surveillance for quite a while.

0:54:50 Thomas: Yeah. Can't limit his authorities. Yeah.

0:54:56 Matt: But I wanted to pull up one of these actual memos. I just wanted to point out that this is the stuff they thought we could see for a while on, it was a stellar wind was the operation, I think.

0:55:00 Thomas: But yeah, it's crazy. There's a sentence every page or so. Wow. All right, so some of it was definitely secret, I guess. I've

0:55:03 Matt: Yeah. Yeah, yeah. But if you pull up another one of this, we're going to catch John Yoo lying after the break about what he put in this memo. And I think that's important. So the question here, yeah, a little bit.

0:55:19 Thomas: Got the next one here. It feels like we're going back in time now. We're at September 25th,

0:55:22 Matt: I just, yeah, So this is a, within days of 9-11, right? And they're immediately trying to figure out how they can start surveilling Americans. Um, so look at paragraph two. So

0:55:23 Thomas: 2001. See,

0:55:32 Lydia: It should be made clear at the outset that the proposed FISA amendment cannot cause a facial violation of the Fourth Amendment because,

0:55:39 Matt: Let me explain what he's doing here. What he is, what he was taking up is the idea that right now to get the FISA warrant, you have to say that the, the purpose is national intelligence, right? To get the warrant, the purpose. Now he wants to amend it to a purpose, which means you could start doing criminal law enforcement. It could be mixed in, right? Or it could just, because you think you're interested in somebody and you want to, to listen in on their conversations. A purpose is very different from the purpose. And I wanted to point this out because this is how fascism works in the law. This is what you do, is you start quibbling over A's and The's, and suddenly you've changed the law completely.

0:56:13 Lydia: Quote, a purpose would include the current warrant applications in which foreign intelligence is, quote. The purpose of the search, a significant class of valid searches would continue to fall within the new statutory language. It may be the case that some warrant applications, for example, those instances where criminal investigation constitutes an overwhelming purpose of of the surveillance, will be rejected by the FISA court.

0:56:34 Thomas: The court will, will handle it.

0:56:35 Lydia: In those situations, the FISA amendment would not be unconstitutional so much as the court would be construing the statute according to the canon that statutes are to be read to avoid constitutional problems so as not to require the issuance of a warrant that would go beyond the Fourth Amendment. In other words, the proposed amendment cannot violate the Fourth Amendment because it would simply allow the department to apply for FISA warrants up to the limit permitted by the Constitution as determined by the FISA court. Amending FISA merely gives the department the full flexibility to conduct foreign intelligence surveillance that is permitted by the Constitution itself.

0:56:36 Matt: You're the FISA court.

0:56:37 Thomas: Here we

0:57:07 Matt: So you get the idea. He's basically saying, let's start listening up and let's get in on these civil liberties because we've got too many of them and we want to start listening to people. The justification here is anybody who might be communicating with anybody abroad, right? There's one more. I don't know if it's not really worth taking it too much, but right at the end of the other one I linked to. There's a paragraph that's highlighted that's particularly helpful for what we're going to read after the break.

0:57:30 Thomas: Go. This one.

0:57:32 Matt: Yeah.

0:57:33 Lydia: Just to be clear in conclusion, we are not claiming that the government has an unrestricted right to examine the contents of all international letters and other forms of communication. Rather, we're only suggesting that an individual has a reduced privacy interest in international international communications. Therefore, in applying the balancing test called for by the Fourth Amendment's reasonableness analysis, we face a situation here where the government's interest on one side, that of protecting the nation from direct attack, is the highest known to the Constitution. On the other side of the scale, the intrusion into individual privacy interests is greatly reduced due to the international nature of the communications. Thus, we believe there to be substantial justification for a warrantless electronic electronic surveillance program undertaken in response to the September 11th, 2001 attacks that would be reasonable under the Fourth Amendment.

0:58:22 Matt: And guess what they did after that? A warrantless electronic surveillance program called Stellar Winds, an extremely large one, I remember that came out years later. And we only got these memos, I think, within the last 10 or 15 years. So that's John Yoo. His signature is at the bottom of this page, in case you had any doubt about the author um and hmm

0:58:26 Lydia: Yeah.

0:58:39 Lydia: If anyone's listening and in his class, I see there's 27 people enrolled right now. He is teaching advanced constitutional law this fall, separation of powers. So if any of you guys are listening, you want to ask?

0:58:44 Matt: There's

0:58:49 Thomas: Yeah. Advanced is where you really just like, you know, really fuck with the constitution. Look.

0:58:53 Lydia: Yeah. Yeah. Yeah.

0:58:54 Matt: No separation isn't like the president has the power that's that's it no there's a stingy

0:58:58 Thomas: Yeah, normal constitutional law is like, you're not allowed to do this. You're not allow to do that. Advanced like, well, we can let's pull some strings. See what I can do. Yeah, all right. We got to take that third break, uh, and, uh, thank our last group, our amazing Hall of Fame patrons. Thank you to Bob Loblaw's Law.... Podcast et Philly Placement Bar says we should take off and nuke the site from orbit, it's the only way to be sure. Elect Thomas Smith President, American Honky-Tonk Bar Association. Bulkett, Philip Kizer, f Patreon and their new 50-character name limits, Coryn_Lann. I didn't know this was a new thing, so yeah, that did, that did fuck us up. Sorry. Yeah.

0:59:04 Lydia: The

0:59:36 Matt: In

0:59:37 Thomas: Stupid Patreon. Coryn_Lann, a string of unpronounceable characters. Malaika Chandler, David in Brooklyn, RhondaTheDork.com, Milo Meadsong argues the plural form of footnote, kind of like attorneys general, should be notes feetsies. Chris Well, Trip, Big Easy, Blasphemy, Hors d'oeuvres in the Court. Before we report, Sam Donow, FRED R GROOTHUIS, Classic Libtard, and Mitchell. Thank you so much, top patrons, you're the best. And, uh, when we come back, we will prove that this asshole is a lying asshole.

1:00:06 Thomas: Yeah, right, Matt. What do we, this is a weird old website we're looking at here. Oh 2006.

1:00:02 Lydia: Best we Good times. The

1:00:12 Thomas: Okay, this is on the Internet Archive, a snapshot of a good times. Wow, it was a better time.

1:00:06 Matt: Public this and we've got Eric Posner Eric Posner and John Yoo writing about how everything is fine don't worry about it um Yeah. Very common theme around 2006. So he's going to be contradicting quite a few things that he has already said. So let's just read the first few paragraphs.

1:00:17 Thomas: Sure. Sure. Oh.

1:00:35 Lydia: Patriot Act has become a magnet for claims that the government is violating our individual rights. Yesterday the federal commission investigating the September 11th attacks heard testimony from several prominent law professors on the dangers of the act. Last month Al Gore called for the act's repeal, accused accused the Bush administration of suspending civil liberties and claimed that the government was using, quote, fear as a political tool to consolidate its power and to escape any accountability for its use.

1:01:00 Thomas: Wow, yet another Democrat people hated saying exactly what the truth was. A hundred percent. But

1:01:05 Lydia: Yeah. Democratic frontrunner Howard Dean has called the act, quote, morally wrong, quote.

1:01:10 Thomas: Then he said so. Then, you know, fuck him.

1:01:13 Lydia: Quote, shameful and, quote., unconstitutional. Many cities have refused to assist the federal government in its implementation. Implementation, putting aside the hysterics the worst thing about the Patriot Act is its Orwellian name. It creates no revolution in government powers, nor does it violate the Constitution. If the act marginally reduces peacetime liberties, this is a reasonable price to pay for a valuable weapon against al-Qaeda, a resourceful and adaptable enemy that is skilled at escaping detection. It's

1:01:14 Matt: Yeah,

1:01:17 Thomas: Yeah. The hysterics. So What you're saying is giving up freedom for, uh, for a feeling of safety is a good idea. Okay. I feel Like there's a famous quote that said the opposite of that. But

1:01:52 Lydia: What conservatives think. Yeah. The

1:01:51 Matt: Absolutely. He's going play some games in the next few paragraphs, but if you just want to read the next one, I'll explain.

1:02:00 Lydia: Patriot Act's most controversial provisions concern electronic surveillance of individuals who threaten national security. But the act did not initiate this practice. The system of secret search and wiretap warrants, granted in a secret hearing by a group of federal judges without notice of the target, was established 25 years ago by the Foreign Intelligence Surveillance Act. FISA was passed because before 1978, authorities could conduct searches to stop threats to national security without any judicial warrants at all. No court has ever found FISA to be unconstitutional, and just last year, a special panel of federal appeals court judges reviewed the Patriot Act's central modification of FISA and unanimously found it constitutional.

1:02:38 Matt: So remember in that Swiss cheese memo that we looked at before, that was mostly chopped up, he's saying the president doesn't need FISA. The president can just do whatever he wants. So he's correct that they haven't found FISA to be unconstitutional. And FISA, by the way, as far as I know, has never denied a warrant that we know of. They're pretty much a rubber stamp. But at the same time, he's already said in writing at this point that he doesn't believe FISA is necessary. So, he is assuring everybody, don't worry about it. It will go through courts. Your civil liberties are protected.

1:03:02 Lydia: Yeah, yeah.

1:03:04 Matt: And then, check out the next paragraph.

1:03:07 Lydia: Before the PATRIOT Act, FISA warrants were issued upon a showing that the, quote, primary purpose of the surveillance was to gather foreign intelligence information. Both the Department of Justice and the special FISA court that issued the warrants interpreted this language, for reasons known only to themselves, to mean that any such information gathered by counterintelligence services could not be shared, except under rare circumstances, with law enforcement officials. This, quote, wall prevented law enforcement officials and counterintelligence officials from pooling their information, a dangerous and stupid practice given that al-Qaeda has demonstrated that terrorists can easily operate outside and inside the United States.

1:03:42 Matt: For reasons known only to themselves, which were literally the Fourth Amendment, those were the reasons. And he's saying in that memo that we just read that I'm going to, or the one before it, actually, I'm gonna argue for a change in the law, which they made, they changed it to primary purpose, right, to strip it down and water it down. And so you'd never know that this was the guy that got the law changed the way he's writing here. Yeah, I mean, it's really like, yeah, so you get the idea. It goes on like this. I mean he's just like, he talks about, you know, if the political branches are using emergency powers, the courts will step in, except he's argued over and over again, the courts shouldn't step in or can't step in. Obviously, he's already told us that he thinks that Guantanamo is a good idea because the courts are least likely to get involved, right? I mean, this is like, this is who John Yu is. He's just lying in public now at this point in 2003 to continue

1:03:43 Lydia: Yeah. Right. Right. Right. Exactly. And

1:04:29 Matt: The unitary executive.

1:04:29 Lydia: He he's never had, like, pieces following all of this where he's like, you know, upon reflection, anything like that. Like he's just kind of, I'm just asking, you know. You don't know, sometimes people can be honest sometimes.

1:04:37 Matt: Not that I know of. Yeah.

1:04:40 Thomas: Maybe the torture guy showed some personal growth. Wouldn't care?

1:04:44 Lydia: I don't know. I would

1:04:47 Thomas: If he did, he should be in prison.

1:04:49 Matt: Yeah. You'll never believe his opinion on, yeah. Let's move on to our final piece to kind of put a bow on all of this. This is incredible. This Is from July. I had missed it and I just saw it the other day and I know we had to read it. This I official announcement from the U.S. Department of state under Marco Rubio. And after everything that we've just talked about, and we've only hit the surface of these memos, yep, we're up to now, July.

1:04:51 Lydia: Hope for both things. Oh

1:04:52 Thomas: Yeah.

1:05:12 Thomas: This is now times Oh, boy. Yep.

1:05:16 Matt: Check out the title.

1:05:18 Lydia: We're dismantling the ICC.

1:05:20 Matt: The International Criminal Court. They're coming hard.

1:05:22 Lydia: America never agreed to a world tribunal that can override our own courts and the the Constitution, like

1:05:28 Thomas: I mean, he's right about that. Didn't we never agree to? Yeah. Wait.

1:05:32 Matt: Yeah, he's right. Yeah. But now he wants to, but now he's very concerned that they might come after us anyway.

1:05:34 Lydia: That's Shocking, though. Yeah. Because no one should be able to hold us. Okay.

1:05:39 Thomas: Why does it say "by this guy" but then "author Marco Rubio"? What's happening here? Oh.

1:05:44 Matt: So the mission in Rome would be the embassy, but I guess officially everything the embassy puts out is signed off on him by him. I don't know. It is a little weird, but maybe he personally wrote it. Who knows? But the first paragraph is really something after what we just read. Imagine

1:05:50 Thomas: Huh. Boy.

1:05:50 Lydia: Interesting. Most of us would struggle to imagine a world in which U.S. soldiers, police officers, border patrol agents, and elected leaders could be dragged before an international court, tried by judges from random countries across the globe, found guilty under international laws we neither consent to nor control, and then imprisoned thousands of miles from America for

1:06:15 Thomas: Yeah. I agree.

1:06:16 Matt: Imagine.

1:06:17 Thomas: It's like, look, most of us struggle to imagine a world of puppies and rainbows, but it's I can try. You know. Yeah.

1:06:17 Matt: Yeah. I do. Try to imagine justice every day. Yeah. Uh, and I mean, you could, I not to put too fine a point on this, but you could imagine Herman Goring saying this at Nuremberg, right? Like, can you believe I'm being tried by these random judges of this law I never consented to just because I killed all those people? Yeah.

1:06:25 Thomas: Yeah. Yeah.

1:06:36 Lydia: Something that happened in my own country, you know.

1:06:37 Matt: Right. Domestic stuff. Domestic affairs. They did try that, domestic affairs at Nürnberg. Yeah, let's wait a little more.

1:06:38 Lydia: Yeah. Yeah. Wow. But

1:06:43 Thomas: What In the hell of it, I'll read the next sentence now.

1:06:45 Lydia: That is what the International Criminal Court now claims the power to do. Yeah.

1:06:45 Matt: Yeah, yeah,

1:06:50 Thomas: Yeah. What, what would be the point without that power, right? I mean, yeah. It's pretty amazing start. Hey, it sounds insane that war criminals would, would be prosecuted, right? I mean, right. I mean, come on, but that's what this criminal court is claiming they can do. It's like, yeah. Agree.

1:06:50 Lydia: Yeah.

1:06:55 Matt: Yeah.

1:07:13 Matt: Just complaining about the fact that we might be held accountable for anything, for crimes in Afghanistan, for what, most specifically for the boat strikes, the alleged narco -terrorist boat strikes in South America. I mean there's so obviously war crimes that somebody's gotta do something. Check out, yeah

1:07:30 Lydia: Well, Exactly. And like like who is the somebody in that situation if not our peers you know across the world? Yeah.

1:07:31 Matt: Right, if not us, that's right. Yeah, and if the Pentagon's not gonna do it, then other countries are gonna have to step in, and, you know, these people should be court-martialed, but it's being ordered by Hegseth, so, um, if you get onto, uh, it's only a matter of time. We can wrap this one up. Yeah.

1:07:48 Thomas: I can't wait. That sounds great. Oh,

1:07:50 Lydia: It is only a matter of time before the ICC begins making good on these threats. Border patrol agents working to remove violent criminals from our country.

1:07:56 Thomas: Oh my God. Slow down. Slow down, God. This is great.

1:07:59 Matt: It's Too exciting. Oh.

1:08:00 Thomas: Hold on. What was the, what was the thing before that? What Cause threats I want to see? At Americans found. I think that's, I thinkthat's good.

1:08:08 Matt: Sure.

1:08:07 Lydia: In Americans found themselves in the crosshairs anyway. In 2020, the Icc launched an investigation into what Chief Prosecutor Fatou Bensouda of Gambia described as, quote, war crimes by members of the United States Armed Forces in Afghanistan.

1:08:08 Matt: Yeah.

1:08:21 Thomas: Good. Shouldn't we launch an investigation into that? Wouldn't that be good?

1:08:26 Lydia: Yeah. Declaring that the U.S. government hadn't prosecuted enough American soldiers to satisfy the court.

1:08:32 Thomas: I could see why they would think that, right?

1:08:35 Lydia: In effect, Ms. Bensouda was anointing herself the final judge of U.S. military policy and the entire U.S. justice system. Right.

1:08:43 Thomas: Okay. I mean, a judge, I guess. I meant like, yeah. If the alternative is nobody ever faces any consequences, someone in an international court being like, "Shouldn't there maybe be consequences?" That seems reasonable to me.

1:08:53 Lydia: Yeah.

1:08:54 Matt: And To be clear, what she's talking about are black sites in Afghanistan in 2003 and 2004 that tied direct back directly to what we were just talking about, where we tortured people. So, so yeah, maybe we should be investigated for that if we're not going to do it ourselves.

1:09:07 Lydia: Right.

1:08:55 Thomas: Oh. Wow. Uh. But keep going, because he's gonna, really, you're gonna want him to slow down in a moment as he describes the, the, uh, slippery slope that he sees here.

1:09:15 Lydia: The Afghanistan investigation was only the opening move in the assault against American self -government. The ICC is backed and run by a powerful network of leftist non -governmental organizations, smug globalists, and hostile third -world governments united by their enmity toward the U.S. In the second Trump administration, these calls have continued to grow. Last year, major activist groups urged high -ranking international officials, quote, to take immediate and meaningful action against the Trump administration's deportations of violent criminals to El Salvador. Months later, a former ICC chief prosecutor declared that President Trump's strikes against narco -terrorists amounted to, quote. A crime against humanity and should

1:09:20 Thomas: Yeah. Sure, wish it was. Yeah.

1:09:45 Thomas: Sure.

1:09:56 Thomas: Did.

1:09:56 Lydia: Be treated as such under international law. A line that was echoed by United Nations leaders and major leftist non -governmental organizations, Democratic Party officials and politicians.

1:09:56 Thomas: Yep. Yep. Can you imagine having the gall to say, maybe don't just fucking assassinate people, Yeah.

1:10:10 Lydia: Blow up boats? Yeah.

1:10:11 Thomas: Fishermen.

1:10:11 Lydia: Yeah.

1:10:12 Matt: Well, no, there was a Soros script that we all got. Obviously, that's what he's saying. Like, it was echoed, you know, that everybody had their script.

1:10:12 Thomas: Yeah. It's it's, yeah, but conveniently enough for me, this group said, "Hey, have a problem with extrajudicial assassinations of fishermen for no reason?" And I was like, that, way ahead of you. I already have a problems with that."

1:10:24 Matt: Yeah. Yeah. Thanks, script.

1:10:31 Thomas: Yep. Yep.

1:10:33 Lydia: In March, the washington -based Democracy for the Arab World Now urged the Iranians regime to request an ICC investigation of, quote, "apparent war crimes committed by American personnel." U.

1:10:42 Thomas: Yep.

1:10:42 Matt: Like, the entire Iranian operation, maybe? Starting with the bombing a school full of girls?

1:10:44 Thomas: Yep, yep. This is great. Ah. This is great. Good.

1:10:49 Lydia: .S. efforts to push back against the ICC's illegitimate interventions have been framed as a further reason for the Iccc to target Americans when 12 u .S. senators wrote to the Icg prosecutor about their concerns. The prosecutor's office accused them of crimes.

1:10:56 Thomas: Oh. God. I'm, this is just for me for later, but I'm clicking that link, whatever that is. Oh, that's good. Yeah.

1:11:07 Lydia: When Mr. Trump imposed sanctions against ICC personnel, a former head of Human Rights Watch said that, quote, all 125 ICC member states would have a legal duty to arrest him were he to show up.

1:11:19 Matt: Yes, please.

1:11:20 Thomas: Guys, and listen to this. Ah.

1:11:22 Lydia: It is only a matter of time before the ICC begins making good on these threats. Border patrol agents working to remove violent criminals from our country, U.S. Marines risking their lives to restore order in the Western Hemisphere, federal prosecutors working to dismantle terror networks plotting attacks on the American homeland all would face the constant risk of persecution for the quote "crime" of defending our country. Right?

1:11:26 Thomas: Yes. God. So good. Does He mean prosecution. I know. He's like, doesn't he mean actual prosecution, not persecution? But okay, maybe I'm wrong. Bombing

1:11:44 Matt: Just to, people love to confuse this, but let's just make sure we recap there. He's talking about Border Patrol agents that kill and torture people. People. He's talking about U.S. Marines killing fishermen for no reason and bombing schools in the Western Hemisphere, he's saying. And then federal prosecutors, you know, doing things like Prairieland and the Minnesota investigation that we looked into, right?

1:12:00 Thomas: Schools. Yeah. Oh. Oh, yeah. Mm hmm. Yep.

1:12:07 Lydia: Oh.

1:12:08 Matt: Plotting attacks on the American homeland. They're nothing. They are just none.

1:12:10 Thomas: Hey, maybe those people shouldn't be allowed to travel to countries that like to have the rule of law. You know, like I heard somebody say the other day that like, you know, George W. Bush hasn't ever gone to like these other countries in the entire time since. And it's like, yeah, at least there is something, you Know, at Least there is a tiny modicum of, like, hey, we're not 100 percent sure you won't be arrested if you go to these countries. And so I, I feel like, um, if you are a fascist and you do the fascism things, I hope that you're worried about that. You should be worried about. Yeah.

1:12:16 Matt: Yeah. Yeah?

1:12:26 Lydia: That's probably good for him Yeah. Or Okay.

1:12:42 Matt: Oh, I meant to point out there was an amazing moment in the Jack Smith testimony today in which, you knows, because he went off to do international prosecution. That was a big part of his deal in The Hague. And one of the senators was like, so you fled America to go prosecute the leader of Kosovo? And he's like, like, yeah. And he's like, "And then you came back to do the same thing to Donald Trump?" And he was like, "Yeah, I mean, it was obviously it was people for bad crimes and like the the implication that the Kosovo guy was like as wrongfully accused as Trump for war crimes and crimes against humanity. I mean, the whole thing. Anyway, Yeah.

1:12:53 Lydia: Yeah. Wow.

1:13:00 Thomas: I do prosecute criminals wherever they happen to be wherever I happen to be." That's

1:13:14 Matt: Keep

1:13:13 Lydia: First

1:13:13 Thomas: So good. Oh, boy, I love it though. I'm just being like, oh, it's just a matter of time if they start prosecuting the war criminals. What about these other war criminals? It's like, yep, no, that's the idea. I love it. Good job.

1:13:24 Lydia: They come for the war criminals.

1:13:25 Matt: It going. And

1:13:25 Thomas: Yeah. Then they come for the ICE murderers. Oh yeah.

1:13:27 Lydia: Yeah. All right.

1:13:30 Thomas: Nope, good. I love that. Poem.

1:13:31 Matt: Then for the genocide years.

1:13:32 Thomas: Yeah. Uh, all right, anything else we got hit here? Or yeah? That's this

1:13:32 Matt: Yeah, uh, you get the idea, just more about how we're going to protect and we're gonna dismantle the ICC.

1:13:40 Thomas: Is only the beginning.

1:13:40 Matt: Yeah. Dismantle to the ICC brick by brick. He's actually going to take it apart, apparently. Yeah. So I thought that was a good cap on this whole thing after looking at all the different ways that we have done absolutely internationally prosecutable stuff on purpose at the advice of counsel.

1:13:41 Thomas: Oh. Boy. Yeah. Could Democrats, hypothetically, again, because none of this will ever happened, but could they just, like, ratify or join that or something? Like, could they, could a Congress, how could we do that? Because we're not, aren't we not officially a part of that? Yeah.

1:14:07 Matt: We need the Senate. It's a treaty. So let's do it. Let's do the Senate Let's get the Senate There

1:14:09 Thomas: Okay. So hypothetically all right. Let's do it. Yeah. Prosecute our own war criminals. That's that would be great. All right.

1:14:12 Lydia: Midterms time. Let's make it happen. Yeah. Yeah.

1:14:18 Matt: Are a lot of us who

1:14:19 Thomas: Well, thanks so much, Matt. That was grim stuff, but uh, it really is important to be reminded, especially because, again, these people, I make the joke, these people all got got away with it. Like, nobody had anything happen to him except George Bush had to paint his weird paintings here instead of in France or something. Like, that's about it, you know? And it's like they're, they're teaching at fucking Berkeley. What?

1:14:19 Matt: Want to see that.

1:14:32 Matt: Yep.

1:14:33 Lydia: Yeah.

1:14:42 Thomas: I, that's, that's insulting. Like, I can't believe that that is still happening. God. Unreal.

1:14:47 Matt: His signature is on those memos, and he stands by them today. Well, if we ever get into this again, we'll listen to some of his interviews about them because he's unrepentant.

1:14:50 Thomas: We gotta go protest him.

1:14:54 Lydia: I'd be curious about that. Yeah.

1:14:56 Thomas: Like, we're close enough if I'd have known that, God, I would have put up a sign or something thing like, fuck he probably gets some amount of that, right? Like It's Burke, it's the area in the school. Okay, well, thank you, uh, Matt, thank you, Lydia, thanks most of all to listeners, and we will see you for Rapid Response Friday. All

1:14:57 Lydia: I know what day his class meets. I know where they meet. We could go see.

1:14:57 Matt: Yeah,

1:15:14 Lydia: Ya, what?

1:15:18 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.