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Torture Memo Released: Yoo Argues Self-Defense in Cases of Interrogation Deaths or Injuries

4_18.jpgThe 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.

64 thoughts on “Torture Memo Released: Yoo Argues Self-Defense in Cases of Interrogation Deaths or Injuries”

  3. Rufflaw:

    The one great immutable law of American History: Sooner or later everybody gets their day in court.

  4. Mespo,
    I long for the day when the Truth wins out. I long for the day when the President actually has to answer for breaking the law. I long for the day when the Press does their job and digs for the truth in the midst of pressure from the Administration that is being investigated and does not delay embarassing stories because the President claims National Security is at stake. I long for the day when Congress has the sense and courage to realize that the only way a power hungry President can steal power from them is if they allow it. I also look forward to the day when the truth is forced out of its hiding place.

  5. JT:

    I agree there was a conservative cabal advocating this obsequious homage to our Chief Executive. While I understand the intellectual contortions needed to reach such an outrageous position as the “unitary executive”, I am more curious about the motivations of the actors. Normally,I would ascribe good faith to controversial positions taken for the purpose of testng existing law or advocating a modification. But this defense of the indefensible is so contrary to our national principles and the law, that the presumption of good faith is overcome in my opinion.

    As for the advocates, Bybee’s reasons are straight forward enough, as ambition over principle is certainly nothing new. But for Yoo and Viet Dihn, the reasons are less clear. If we rule out ambition and error, neither of which is apparent, we are left with choices that run the gamut from fear to the more sinister of motives. Not knowing the men involved puts me at a decided disadvantage, but I am certain that their motivations will become apparent sooner rather than later. Public pressure tends to force truth from its hiding places. I eagerly await that day.

  6. Rafflaw wrote:
    Maybe Obama or Clinton need to be asked point blank if they will support an investigation into war crimes by George W. Bush and his administration.
    ***************************

    Personally, I don’t think there’s any “maybe” about it. I think EACH Presidential candidate in this election needs to have that question asked directly, with NO way to wiggle out of it. But I don’t know how that could be done now, since (to my knowledge), there are no more debates scheduled. Or are there?

    I certainly don’t want another President in the White House who believes torture of any kind is acceptable, and I want to know exactly where all the candidates stand on this point. If they think torture is acceptable for one kind of person, then there’s nothing stopping them from gradually broadening that “acceptability” for other kinds of people as well. Including people whose only “crime” is questioning or dissenting from the Administration, just like in banana republic countries. And if that ever comes to pass, we will BE like those countries, with justice for none and terror for all.

  7. I would expect that the insurance company might be raising its rates after the Bush Administration leaves office. They will have a lot of claims to deal with.

  9. Yoo has an agenda when he writes these kind of memos and makes these kind of statements. That agenda is to break the constitution, at least in respect to the power of the President in comparison to the power of the other two co-equal branches. Professor Turley is exactly correct that the Dems have been enablers of this kind of dictatorial power grab by not yelling and screaming and fighting every constitutional battle. I keep thinking back to Sen. Schumer backing Mukasey as AG and looking bewildered when Mukasey refused to agree that waterboarding is torture. Maybe Obama or Clinton need to be asked point blank if they will support an investigation into war crimes by George W. Bush and his administration.

  10. I agreed that this would take an act of unrestrained and willful blindness by Yoo. He in not alone in this. There is Viet Dinh at Georgetown and Jay Bybee, who was rewarded for his work with a federal judgeship (with no effort by democrats to filibuster).

  11. Glad you saw JT on KO from 4/3/08.

    I heard those chilling words attributed to Yoo before. It’s hard to
    believe he didn’t know what he was advising was wrong as soon as he said it. I can only imagine that he had to have been swept up in the prevailing culture because this is what he was being tasked with producing, and so he did.

    George Tenet behaved much the same way even though the CIA had been independent since its inception – and for good reasons, as well.

    We’ll see how this all plays out.

  12. Patty C:

    Wow. JT called it what it is, namely “war crimes.” He has more guts than me to do that on a national show, although he is certainly right about it. He’s right about the dark chapter part too. I heard from a friend at U. Cal. Berkeley that the Dean of Boalt Hall Law School has been getting lots of unsolicited input on Yoo’s employment status after the memo came out. Wonder how that will work out tenure or no tenure?

    Here’s a little more insight into Mr. Yoo’s ideology as recorded during a debate with Notre Dame Law professor Doug Cassell:

    Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
    Yoo: No treaty.
    Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
    Yoo: I think it depends on why the President thinks he needs to do that.

    Here’s the MP3 audio if you can stomach it:

    http://rwor.org/downloads/file_info/download1.php?file=yoo_on_torture.mp3

    If Yoo keeps this up, we’ll have to outfit him with jackboots. What the hell is he saying, and more importantly why would he say this? It’s positively tyrannical and monstrous and I want to believe he knows better.

  14. Yes, in that JT ties ‘it’, being what we’ve all been talking about for months now, all together in a neat package called ‘not torture but a Torture Program’ carefully orchestrated from the top with a green light given to the ‘low lying WV fruit’ etc.

    And he talks about how it’s a dark chapter for all lawyers and the Bar.

    Worth watching.

  15. Patty:

    I missed him, but I will catch it on the net. Did he add anything to his comments here?

  17. I have now read the Yoo memo and I am surprised by the tone and content. It seems light on authority and,instead of the usual Issue/Rule/Analysis construction so common in legal memoranda, it reads more like a footnoted political position paper. The work is decidedly “unlawyerly”, and fails the classic yard stick of legal advice which is: when the client is hell bent to do something stupid and unlawful we have a duty to tell him so in a cool, dispassionate voice. Sadly for Yoo, this is not simply a failure of intellect but of will. It what could be the motto of the times, professional accolades do not guarantee professional courage.

  19. You know DW, in one respect, I dislike rehashing this subject, but it’s something that needs to be remembered.

    It’s crazy-making to think about all the turmoil this President has caused, with, by, and, through, his Administration; the several players of which are still conspicuous, though now, mostly by their absences, rather than their ever-presence-with many simply having been replaced by their ilk.

    JT, you should have your own ‘Countdown’ on this site.
    How many days left?

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