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.
The ends not only fail to justify the means,
they are a heedless testament to the means.
regulararmyfool,
Brendan’s idea of writing letters to Boalt Hall at Berkeley may help. I would prefer to see Yoo brought up on criminal charges either domestically or internationally. But we may have to settle for putting pressure on Yoo and his employer(s).
This bird roosts at the Boalt Hall School of Law at the University of California – Berkeley.
Brendan over at brendancalling is trying to light a little fire in his nest.
If you are interested you might check it out and if you can get behind it, pass it on, please.
http://brendancalling.com/2008/04/02/shaming-and-shunning/
Niblet,
Are you sure you weren’t called “msnbc bs er” in another life? If the President of the United States and his administration being involved in the torturing of detainees is not a huge story, I don’t know what is. Plus, this so-called legal Memo has such bad reasoning, by a Law professor no less, that even someone named Niblet can tell it is a feeble attempt to legitimize an illegal act. The wacko left does not have to post comments about stoning deaths in Pakistan because what more can you say about a barbaric act? Besides, isn’t torture just as barbaric as stoning? What about the detainees that were beaten to death while under U.S. detention? I think you also need to check into how many people were put to death in the State of Texas alone during George W. Bush’s tenure.(over 150) Of course, death by lethal injection may not be as bad as stoning, but the result is the same.
Nibbles, only one of those stories affects our Constitution and only one concerns the actions of our own government, so it would be logical for us to focus on the issue that we can most directly affect.
The fact that you fail to comprehend the scope of the memo’s implications is not surprising, but I’d assume you’d at least recognize the difference between accepting the things we cannot change and trying to change the things we can.
And, as a conservative, what the hell are you doing supporting someone who is literally discarding entire sections of the Constitution in favor of an executive branch power-grab? God, like you’d be half this blase if President Clinton had done a fraction of what Yoo advocated.
Wow! The wacko left posts 14 comments to a non story about non torture and almost nothing about stoning to death human beings.
D.W.,
Thanks for posting the memo. What is the No Bad Council entry?
Jill
Damn it Jonathan, didn’t you get the MSM memo? It’s Enhanced Interrogation Techniques. No wonder we don’t see you to much on TV. Seems Keith is the only one with balls big enough to put you on.
I have stated before that U.S. v Alstoetter may be the case that people like Yoo, Bradley, Bybee, Addington, et al, lie awake at night worrying about.
This was more than simply bad lawyering.
I can’t believe Mukasey keeps a picture of Justice Jackson up on his wall. How does he face it?
A a former sleuth of sorts, my money rides on that fact that the Bush administration Justice Department, will continue to amaze us with a series of Easter Eggs (like this memo) that were created to provide a documentary trail, when and if they were needed.
While we have been talking about transparency in Government for years, at best, its Opaque – and this administration has mastered their use of the ‘blind.’
Imagine what an investigator could deduce with a glimpse of the memo stockpile.
Here is Jack Goldsmith’s successor’s reaction to the memo (i.e don’t use it)
http://balkin.blogspot.com/Levin.Haynes.205.pdf
At the very minimum, Bob, esq. the UC system should reconsider his tenure!
But on a more serious note, I think that if we had a time-machine and could transport John to Bagram circa 2003-2005 (much less Abu Ghraib and other sites less known), and forced him to watch some of the goings-on there (not allowing him to squinch his eyes shut or cover his ears) then I think a wiser man would have emerged who would never have dreamed on penning those arid justifications for the unjustifiable.
He has earned a horrid place in history, and I would guess he knows it.
So, when John Yoo conspires to render the constitution into a urinal puck, does the categorical imperative compel us to treat him in the same way that he would have us treat those who do the same; as illustrated above?
Do I hear it said that not torturing John Yoo would be a show of disrespect for him as an individual?
I’m confused (but in a good sarcastic way)
Regards,
Bob
I posted this here last night on the “No Bad Counsel” thread.
For those interested in the actual memo, here it is:
http://gulcfac.typepad.com/georgetown_university_law/files/march.14.memo.part1.pdf
Part two has the same URL but with “part2” substituted.
Pay attention to the footnotes.
Rafflaw,
JT would know.
IMHO, I think that there are several angles that can be pursued, but they require we have a new chief executive. Since the Medellin case came down, the obligations of US courts to enforce treaty obligations has been much weakened. Add to that we have exempted ourselves from the ICC jurisdiction and we carefully avoided allowing jurisdiction in the Inter-American States convention against torture. The Bush Admin cannot be blamed for all of this, some of this dates back to Clinton and even before.
There are plenty of precedents for trying the torturers, the orderers of torture, and the legal folks who served up the requested legal justifications…its just that practically everyone with real power in Washington seemingly wants the whole issue to go away.
I agree with all of you. Yoo’s memo should have been released long ago, but it would have shown the world how badly the Bush Administration wanted to torture if they relied on this sub-standard legal reasoning. Mukasey has turned out to be a disgrace just like his predecessor. Who would have thought that Ashcroft would turn out to be the most professional of all of the AG’s? Maybe Professor Turley would know if the Bush administration and its hacks who authorized and/or enabled the illegal torture to happen can be charged under U.S. and/or international law, once Bush is out of office? These people are nothing better than war criminals.
GREAT QUOTE!
the point of the geneva conventions is of voluntary self-restraint, it doesn’t matter if others are signatories are not: it is not a contract between parties, it is an undertaking not to act in certain ways. As Dean Kuo said, “it is to protect us from ourselves” (or words to that effect)
I hold Yoo in contempt not merely because of his “low-grade” legal analysis, but more for his outright plagiarism. As William Shire wrote in “The Rise and Fall of the Third Reich” quoting Hitler’s words in lecturing his General Staff:
“The war against Russia will be such that it cannot be conducted in a knightly fashion. This struggle is one of ideologies and racial differences and will have to be conducted with unprecedented, unmerciful, and unrelenting harshness. All officers will have to rid themselves of obsolete ideologies…. German soldiers guilty of breaking international law will be excused. Russia has not participated in the Hague Convention and therefore has no rights under it.”
For a disturbing analysis of the historical parallels see:
http://www.new-federalist.com/other/2004/3126torture_memos.html
What Mespo said. 🙂
Stupid is, as stupid writes, and stupider still is he who acts on it. Any excuse is a good one when you want to do something.