The White House finally released some of the torture memos to Congress — justifications of coercive methods by Professor John Yoo. What is most striking about the memo below is its rather low-grade effort to justify torture — citing a type of self-defense theory for why an isolated detainee might have died or been injured during rough interrogation.
The 81-page legal memorandum was sent to the Pentagon in 2003 — claiming that officials could assault or maim detainees under the sole authority of the President. Written by John Yoo, the memo was later retracted by the Justice Department, informing other agencies that it’s analysis could not be relied upon. For a copy of the memo, click here
In the memo, Yoo claims “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network, . . . In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.” Yoo suggests the use of a “national and international version of the right to self-defense.”
It is an argument that is radically out of line with controlling precedent and logic. Yet, despite the opportunistic analysis, it was enough for Mukasey to block a criminal investigation of the president in his circular logic, click here for a prior column. The result, however, was the embrace of torture by the United States government — a curious legacy for Bush. Click here.
The memo clearly tries too hard. It seems an example of the counsel capture, where an attorney is too eager to justify the views or desire of a client. Indeed, the newspapers are quoting former colleagues as saying that they called Yoo “Dr. Yes” for his willingness to accommodate the White House with such legal analysis.
I was surprised by the almost conversational level of analysis in the memo. It adopts highly transparent arguments to “spin” the legal questions in favor of the White House. It is not enough to say that it was the product of the times. Lawyers are trained to resist such impulses. If we have one critical function, it is to offer dispassionate analysis when passions run high.
I have long been saddened by the involvement of John in this scandal. I have enjoyed debates and conversations with him through the years. We strongly disagree about his view of presidential authority. However, this memo is far below the quality of work that we have come to expect from John Yoo, who is an accomplished academic. Like Viet Dinh, Yoo allowed himself to become a vehicle for the circumvention of the very laws that he teaches to his students. That is a sad moment for all of us in the academy.