《民意，誰說了算？人民知情的抉擇》註腳-第十四章

第十四章：學者因法律備忘錄被送懲戒

                    法律分析與論理

註腳

【1】 黃丞儀，立院應即彈劾馬總統，想想論壇，2015年11月4日，http://www.thinkingtaiwan.com/content/4782（最後瀏覽日：2016年4月12日）。

【2】 同上。

【3】 Third Annual Report to the Congress on United States Foreign Policy, Foreign Relations of the United States, 1969–1976, Volume I, Foundations of Foreign Policy, 1969–1972, Document 103, February 9, 1972, http://www.presidency.ucsb.edu/ws/?pid=3736 (last visited May 10, 2016).

【4】 U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

【5】 Id. at 319 (“He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”); Congressional Research Service, The Constitution of United States of America Analysis and Interpretation, U.S. Congress, 2002, p. 492, http://constitution.org/cons/GPO-CONAN-2002.pdf (last visited May 10, 2016) (“Negotiation, a Presidential Monopoly.—Actually, the negotiation of treaties had long since been taken over by the President; the Senate’s role in relation to treaties is today essentially legislative in character. “He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it,” declared Justice Sutherland for the Court in 1936. The Senate must, moreover, content itself with such information as the President chooses to furnish it.”).

【6】 憲法第63條：「立法院有議決法律案、預算案、戒嚴案、大赦案、宣戰案、媾和案、條約案及國家其他重要事項之權。《立法院職權行使法》第十七條：行政院遇有重要事項發生，或施政方針變更時，行政院院長或有關部會首長應向立法院院會提出報告，並備質詢」。

【7】 黃丞儀，註1。

【8】 司法院大法官會議釋字第520號解釋，2001年1月15日。

【9】 黃丞儀，註1。

【10】同上。

【11】同上。

【12】司法院大法官釋字第613號解釋，2006年7月21日。

【13】司法院大法官釋字第585號解釋，2004年12月15日。

【14】司法院大法官釋字第391號解釋，1995年12月8日。

【15】司法院，註12。

【16】History Commons, Profile: William Howard Taft IV, http://www.historycommons.org/entity.jsp?entity=william_howard_taft_iv (last visited May 10, 2016) (“William Howard Taft IV, the State Department’s chief legal adviser, responds to John Yoo’s January 9,2002, memo (see January 9, 2002) saying that Yoo’s analysis is ‘seriously flawed.’ Taft writes: ‘In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.’ Applying the Geneva Conventions, according to Taft, would demonstrate that the United States ‘bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.’ Taft ends with a scorching criticism. ‘Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let’s talk.’”).

【17】The New York Times, A Guide to the Memos on Torture, http://www.nytimes.com/ref/international/24MEMO-GUIDE.html (last visited May 10, 2016) (“JAN. 25 Alberto R. Gonzales, the White House counsel, in a memorandum to President Bush, said that the Justice Department's advice in the Jan. 9 memorandum was sound and that Mr. Bush should declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law that carries the death penalty.”).

【18】Id. (“JAN. 26 In a memorandum to the White House, Secretary of State Colin L. Powell said the advantages of applying the Geneva Conventions far outweighed their rejection. He said that declaring the conventions inapplicable would ‘reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops.’ He also said it would ‘undermine public support among critical allies.’”).

【19】Id. (“FEB. 7 In a directive that set new rules for handling prisoners captured in Afghanistan, President Bush broadly cited the need for ‘new thinking in the law of war.’ He ordered that all people detained as part of the fight against terrorism should be treated humanely even if the United States considered them not to be protected by the Geneva Conventions, the White House said. Document released by White House.”).

【20】History commons, supra note 16, (“Jay Bybee. The Justice Department’s Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad ‘may be justified.’ This memo will later be nicknamed the ‘Golden Shield’ by insiders in the hopes that it will protect government officials from later being charged with war crimes. Multiple Authors- The 50-page ‘torture memo’ is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. It is later revealed that Yoo authored the memo himself, in close consultation with Vice President Cheney’s chief adviser David Addington, and Bybee just signed off on it. Deputy White House counsel Timothy Flanigan also contributed to the memo. Addington contributed the claim that the president may authorize any interrogation method, even if it is plainly torture. Addington’s reasoning: US and treaty law ‘do not apply’ to the commander in chief, because Congress ‘may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.’”)

【21】Id. (“Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position, effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. ‘If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,’he later recalls.”); Michael P. Scharf & Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, 193 (Cambridge University Press) (January 2010), https://books.google.com.tw/books?id=ZaQgAwAAQBAJ&pg=PA193&lpg=PA193&dq=Goldsmith+called+them+%22cursory+and+one-sided+legal+arguments%22&source=bl&ots=KgB1dFe5Cb&sig=OYnJU2ZMcpUC1Rt4QIv0Xf-vE8Y&hl=en&sa=X&ved=0ahUKEwi8kdagt87MAhUCFpQKHeGrBQIQ6AEIIDAB#v=onepage&q=Goldsmith%20called%20them%20%22cursory%20and%20one-sided%20legal%20arguments%22&f=false (last visited May 10, 2016) (“Goldsmith explained that he rescinded the torture memoranda not because they had reached the wrong conclusions, but rather because he thought the memoranda ‘rested on cursory and one-sided arguments,’ and were ‘legally flawed tendentious in substance and tone and overbroad and thus largely unnecessary.’”).

【22】The New York Times, Reaction to C.I.A. Torture Report, The New York Times, December 09, 2014, http://news.blogs.nytimes.com/2014/12/09/cia-torture-report/ (last visited May 10, 2016) (“After senior administration officials gave permission to the C.I.A. to use all previously approved “enhanced” interrogation techniques except waterboarding, Mr. Ashcroft sent a one-paragraph memo to the agency stating that it would be lawful to use those techniques on Mr. Gul. This memo, the report said, simply stated that conclusion and contained no legal analysis to support its claim.”).

【23】Eric Lichtblau & Scott Shane, Report Faults 2 Authors of Bush’s Terror Memos, The New York Times, February 19, 2010, http://www.nytimes.com/2010/02/20/us/politics/20justice.html (last visited May 10, 2016) (“ The ethics lawyers, in the Office of Professional Responsibility, concluded that two department lawyers involved in analyzing and justifying waterboarding and other interrogation tactics — Jay S. Bybee, now a federal judge, and John C. Yoo, now a professor at the University of California, Berkeley — had demonstrated ‘professional misconduct.’ It said the lawyers had ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture.”).

【24】Id. (“But David Margolis, a career lawyer at the Justice Department, rejected that conclusion in a report of his own released Friday. He said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001. ‘Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,’ Mr. Margolis said.”).

【25】Id. (“Mr. Margolis said that in rejecting harsher sanctions, “this decision should not be viewed as an endorsement of the legal work that underlies those memoranda.” But he said the legal advice of Mr. Yoo and the other lawyers, while ‘flawed’ and insufficient in some areas, did not rise to the level of “professional misconduct,” which could have resulted in bar reviews or other disciplinary action...... ‘While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,’ Mr. Margolis said.”).

【26】 Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 165-66 (W. W. Norton Company) (2007) (“How could this have happened? How could OLC have written opinions that, when revealed to the world weeks after the Abu Ghraib scandal broke, made it seem as though the administration was giving official sanction to torture, and brought such dishonor on the United States, the Bush administration, the Department of Justice, and the CIA? How could its opinions reflect such bad judgment, be so poorly reasoned, and have such terrible tone?...The main explanation is fear [of a new attack]. Fear explains why OLC pushed the envelope. And in pushing the envelope, OLC took shortcuts in its opinion-writing procedures.”).

【27】The Lectric Law Library, http://www.lectlaw.com/files/att05.htm (last visited May 10, 2016) (“The legal profession as we know it today barely existed at that time. Lawyers were generally sole practitioners who trained under a system of apprenticeship. There was no national code of ethics; there was no national organization to serve as a forum for discussion of the increasingly intricate issues involved in legal practice.”).

【28】American Bar Association, History of the American Bar Association, http://www.americanbar.org/about_the_aba/history.html (last visited May 10, 2016).

【29】Id. at http://www.americanbar.org/groups.html (last visited May 10, 2016).

【30】Id. at http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html (last visited May 10, 2016).

【31】劉慶候、王冠仁，馬政府執政八年 司法信任度 溜滑梯探底，自由時報，2016年2月23日，http://news.ltn.com.tw/news/focus/paper/960769（最後瀏覽日：2016年6月9日）。