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.
I did qualify it by saying ‘something of a pawn’ – perhaps I should have also added that in many respects, he placed himself there.
I loved Addington’s shrug of the use of of the term “unitary” (theory) as being attributed to him, whatsoever.
Patty C,
I watched Mr. Yoo’s performance and I was less than impressed. I would not consider him a “pawn” as you suggested because he has not backed off of his radical right agenda when it comes to pushing the Unitary Excutive theory. I believe that the term Unitary Executive is interchangeable with Dictatorship.
I watched the whole thing, mespo.
Yoo is at least smart enough to know that his interests and the government’s are not necessarily coextensive.
He’s something of a pawn in this lame game of chess.
I mean, Gourevitch,sorry. Or was that slip a part of my left wing agenda???
mespo,
I missed the mendacity of mediocrity himself but according to Philip Gouvrevitch, author of Standard Operating Proceedure, he could be held to account legally in an international court, even when Bush pardons him here.
Jill
Did anyone happen to catch Yoo’s testimony before the House Judiciary Subcommittee chaired by Rep Conyers? I have never see such equivocating, trifling responses to legitimate questions this side of an organized crime hearing involving mob bosses. At one point he asked “what do you mean by implementing the memo?” When asked if he asserted a privilege, Yoo looked like a deer in the headlights and stammered something about the DOJ “ordering” him not to comment but said he didn’t think it was a privilege. Law professors sure have changed since I knew them on a daily basis. I can’t imagine guys like Bill Spong (from W&M Law) or Dean Muse (from UR Law) heeding any order by anyone or anything to say or not to say anything they damn well pleased if the law or the Country was at stake. I have no idea if Yoo is guilty of war crimes, but he sure looked like he was guilty of something.
And here is Boalt Hall’s response to mounting pressures to can Yoo:
http://www.law.berkeley.edu/news/2008/edley041008.html
Vince:
That is scary. Dissent always has a price but some of these neo-cons want blood. I suspect the investigation into this thuggery will take years.
It is getting even more dangerous to criticize Bush for exceeding his powers under the Constitution. As they say in the sci-fi movies, be afraid, be very afraid.
April 9, 2007
Constitutional scholar who criticized Bush added to terrorist ‘no-fly’ list
A top Constitutional scholar from Princeton who gave a televised speech that slammed President George W. Bush’s executive overreach was recently told that he had been added to the Transportation Security Administration’s terrorist watch list. He shared his experience this weekend at the law blog Balkinization.
Walter F. Murphy, the McCormick Professor of Jurisprudence, Emeritus, at Princeton University, attempted to check his luggage at the curbside in Albuquerque before boarding a plane to Newark, New Jersey. Murphy was told he could not use the service.
“I was denied a boarding pass because I was on the Terrorist Watch list,” he said.
When inquiring with a clerk why he was on the list, Murphy was asked if he had participated in any peace marches.
“We ban a lot of people from flying because of that,” a clerk said.
FROM THE ABC REPORT:
“According to a top official, Ashcroft asked aloud after one meeting: `Why are we talking about this in the White House? History will not judge this kindly.'”
The topic of that conversation was torture/interrogation techniques.
I said above that we will have to wait for a new administration to proceed on any meaningful corrective actions.
What I am worrying about is the Executive’s pardon power being used to shield the main actors, even before any action can be taken. I am unsure of the limits and will have to haul down some books…
I just found out about this movie.
Taxi to the Dark Side
“Powerful. One of the really pivotal documentaries of this decade.” – A.O. Scott, The New York Times
Academy Award Winner: Best Documentary Feature. Alex Gibney’s perpetually shocking documentary focuses on the Bush administration’s use of torture when dealing with political prisoners, with a particular focus on those captured in Iraq and Afghanistan. The title of Gibney’s movie is derived from the treatment meted out to an Afghani taxi driver named Dilawar, who was mistakenly fingered as a terrorist, then killed during a torture session conducted by American troops. Despite the title, Dilawar’s case is just a small part in Gibney’s jigsaw, as the director uses excruciating and comprehensive details surrounding the taxi driver’s death as a starting point in his search for the people who have permitted such incidents to occur. Gut-wrenching and fully uncensored pictures from Abu-Ghraib feature alongside interviews with military personnel (some of whom tortured Dilawar) as Gibney’s search slowly heads into the upper echelons of the military and, ultimately, into the Bush regime itself. Rated R. 106 minutes.
Official Website Trailer
Merci D.W. That was interesting reading!
Jill
Jill, I think that is essentially correct. Apparently we did threaten to cut off various monies as the stick in the Article 98 agreements at least with our western hemisphere friends.
http://ciponline.org/facts/art98.htm
She said we threatened to cut off funding to the smaller countries. That would be a hugh club.
Jill:
Sound plausible to me. There are lots of side deals when alliances are formed and this war would be no different.
Correction to above…making certain that they…
Sorry,
Jill
D.W. and Mespo,
I heard this from a woman who worked at the State Dept. I have no personal knowledge as to the truth of her statement, but it doesn’t sound implausible. She said before we invaded Iraq the S.D was sent out to strong arm other countries into 1. supporting the U.S. in a “coalition of the willing” and 2. making certain that we would not prosecute any U.S. officials for war crimes. Her name is: Ann Wright and her book is: Dissent; Voices of Conscience.
I mentioned Medellin somewhere above. Now a curious piece from OpinioJuris on whether that case has the “unintended consequence of trashing the US/Canada border”!
I know its horribly off-topic, but can’t resist, apologies, apologies:
http://opiniojuris.org/posts/1207705553.shtml
Mespo,
I am unaware of anything brewing overseas. The European Parliament would, if it could, support anti-torture prosecutions, but it is being stalemated by some member states that may have some complicity themselves. Belgium is always a go-it-alone source of war crime indictments since it has a universal jurisdiction law still on the books, but in practice it has bowed to US/Brit pressures.
Outside of the EU, the US has signed well over 100 Article 98 agreements with other, primarily third-world governments, which guarantee that the signatories will not surrendor each other’s nationals to the ICC court. These facts work against Andrew’s remarks hopeful, but not supported.
The ASMPA also provides immunity from overseas prosecutions for personnel in the armed forces, and I believe, DOD contractors (although DOS contractors are a special case).
rafflaw & DW:
I was taken aback by Andrew Sullivan’s recent remarks on The Chris Matthews show that “Donald Rumsfeld, David Addington and John Yoo should not leave the United States any time soon. They will be at some point indicted for war crimes. They deserve to be.” Does he know something we don’t?