Bit by bit, the truth comes out. Today's bit, however, is a big one.
Washington Post has the details:
The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.
The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."Although the existence of the memo has long been known, its contents had not been previously disclosed.
Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department's use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.
Sent to the Pentagon's general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department's Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers.
"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," Yoo wrote. "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."
Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self-defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations -- that it must "shock the conscience" -- that the Bush administration advocated for years.
"Whether conduct is conscience-shocking turns in part on whether it is without any justification," Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
You don't need a law degree to understand this argument for what it is. The ends, Yoo explained, can be used to justify the means. Torture in service of the national interest is fine. Torture in service of a personal desire to torture is not. And yes, although it is true that this is explicitly not what the laws of the land say, because the president's authority is unlimited in all things related to national security, even if the congress and the courts want to stop the president, they cannot. Because when it comes to national security, the president is not an elected official who is accountable to the people and their laws, he is a king who is above them.
Lest you doubt this interpretation, read the documents for yourself. Part One and Part Two are both available online for all of the world to see.
Before getting to the reactions of some of the blogosphere's best constitutional law experts, lets return to the Post's account for the reactions of officials both inside and outside the Bush administration:
In his 2007 book, "The Terror Presidency," Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos "stood out" for "the unusual lack of care and sobriety in their legal analysis."
... Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive."Martin S. Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown University, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib.
"What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?" Lederman asked. "It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone."
In a 2004 memo for the Navy inspector general's office, then-General Counsel Alberto J. Mora objected to the ideas that cruel, inhuman or degrading treatment could be allowed at Guantanamo and that the president's authority is virtually unlimited.
Mora wrote that he spoke with Yoo at the Pentagon on Feb. 6, 2003, and that Yoo "glibly" defended his own memo. "Asked whether the President could order the application of torture, Mr. Yoo responded, 'Yes,' " Mora wrote. Yoo denies saying that.
I'm not really sure I understand why Yoo would deny this. If his memo didn't explicitly argue that the president could order torture, what did it do?
Any review of reactions from around the blogosphere has to start with four names: Georgetown Law's Marty Lederman, Salon's Glenn Greenwald, Slate's legal blog, Convictions, and Harper's Scott Horton. But before getting to them, a short excerpt from a post by Lederman's colleague Jack Balkin over at Balkinization:
Orin Kerr notes that John Yoo's torture memo sounds very lawyerly in its arguments. This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization....
Nobody should underestimate what lawyers in high places can do armed with legal language.
One of the dangers of Yoo's "analysis" (and I use that word very loosely here) is that it has been carefully cloaked in the language of the law. No matter how absurd his argument, it often sounds reasonable because of the specific way he has combined him words. Do not let that fool you. As JB point out later in that same post, "nobody should underestimate what lawyers in high places can do armed with legal language."
Before getting to Lederman's analysis, a bit of background is necessary:
On Friday, March 13, 2003, Jay Bybee resigned from his Office as the Assistant Attorney General for the Office of Legal Counsel, to become a judge on the U.S. Court of Appeals for the Ninth Circuit. The very next day -- a Saturday, mind you -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which was addressed only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. None of those statues, you see, limits the conduct of war if the President says so. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004...
Think about that: Either Jay Bybee -- who actually signed the August 2002 torture memo concerning the CIA -- did not know of this explosive memorandum, or it was so implausible that Bybee refused to issue it to the Pentagon. And as soon as he was quite literally out the door, John Yoo did not hesitate to issue the opinion on a weekend, presumably bypassing the head of the office (Acting AAG Ed Whelan) and the Attorney General. (I am assured that Ed had no involvement in this matter.)
It was not an accident, in other words, that this happened this way. More reasonable people knew and understood that the reasoning within this memo was deeply and fundamentally flawed. More reasonable people, therefore, were circumvented so the the president could his his way.
Also, this:
What makes this memo significant, I think, is the way that Defense Department (and other government agency) personnel relied on this memo to create the detention and interrogation regime at Guantanamo, Abu Ghraib, and Bagram Air Base.
Now, let's move on to Lederman's initial take on the content of the memo:
1. The classification of this memo was entirely unjustifiable. And it's fairly outrageous that Congress didn't release it when they received it. The classification and oversight systems are hopelessly broken.
2. The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.
Absolutely true. Fortunately for all of us, good men like Sen. Leahy are already on top of this. Unfortunately for all of us, nothing is going to change until after January of 2009. Our Attorney General refuses to even discuss the issue with Congress, so it is already abundantly clear that they have no plans whatsoever to cooperate. And yes, we could turn to the courts for assistance, but no matter how quickly they move it is simply impossible that anything significant will be resolved before early next year. So... if you are looking for yet another reason why this election will likely be the most important one in your lifetime, here you go.
Nevertheless, Lederman is correct to press on with three specific questions and demands, and despite what I've just written, I think it is well within the powers of congress to address them this year:
3. Did the AG, DAG, head of OLC (Ed Whelan) and just-resigned head of OLC (Jay Bybee) even know of the existence of this 81-page memo that was causing such heartache at the Pentagon? Or was John Yoo, a Deputy AAG, somehow authorized to speak for the Justice Department without any oversight or supervision? If so, how did anyone come to think that that was ok?
4. Did Yoo consult with other DOJ components and other agencies with expertise on these matters? (A rhetorical question, to be sure.)5. When will Congress insist upon hearings at which Geoffrey Miller, Jim Haynes, Donald Rumsfeld, and other DOD officials, explain why they kept the Yoo memo and the Working Group Report secret -- undisclosed even to the Working Group itself -- and why they briefed Miller on Yoo's multiple theories of legal absolution on his way out to Iraq? It's no longer very hard to figure out just why, all of a sudden, as soon as Miller arrived in Iraq, everyone there just suddenly and magically came to think the Geneva Conventions, UCMJ, federal assault and torture statutes, etc., simply no longer applied -- that Iraq was a law-free zone and that the gloves had come off. If you were Miller and you had been briefed on the Yoo theories, wouldn't you feel awfully confident that you could get away with, well, murder and everything short of it, in interrogation operations in Iraq? This memo is the source of the Nile for the abuse that occurred in Iraq in 2003.
Yoo clearly has answers to most if not all of the questions. And as a private citizen who is now a member of the faculty at Berkeley Law (shame on you, Berkeley!), he can and must be brought before Congress to answer questions.
Over at Slate's Convictions, they've been digging into the text of Yoo's memo. As Emily Bazelon writes, what' s most shocking about it is his "glib certainty." An example:
One after another, complex questions of constitutional law are dispatched as if there's no cause for any debate. The president has all the war-making power. Congress has none. The president's commander in chief powers extend to interrogations (no matter how far from the battlefield in space and time they take place). Guantanamo Bay detainees and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow...
On Page 47 of the Yoo memo, if I'm not mistaken, there's the amazing assertion that the Convention Against Torture doesn't apply whenever the president says it doesn't. "Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." Doesn't this mean that whether or not a treaty has been ratified, with or without express reservations, Yoo is saying that the president can implicitly and on his own authority withdraw the United States from the treaty simply by not abiding by it? Is there precedent for such a claim?
Yes, that is precisely what that means. If the president orders it, it must by definition be legal. There are no laws that can bind him, no limits to what he can order. We had our "accountability moment," but beyond that, there is nothing the people can do. The president has spoken. So let it be written, so let it be done.
On to http://www.salon.com/opinion/greenwald/index.html">Glenn Greenwald:
It is not, of course, news that the Bush administration adopted (and still embraces) legal theories which vest the President with literally unlimited power, including the power to break our laws. There are, though, several points worth noting as a result of the disclosure of this Memorandum:
1) The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we're now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes....
(2) While Yoo's specific Torture Memos were ultimately rescinded by subsequent DOJ officials -- primarily Jack Goldsmith -- the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws -- from our nation's spying and surveillance statutes to countless Congressional oversight requirements -- and to detain even U.S. citizens, detained on American soil, as "enemy combatants." So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection.
(3) This incident provides yet more proof of how rancid and corrupt is the premise that as long as political appointees at the DOJ approve of certain conduct, then that conduct must be shielded from criminal prosecution. That's the premise that is being applied over and over to remove government lawbreaking from the reach of the law.
That's the central argument behind both telecom amnesty and protecting Bush officials from their surveillance felonies (it's unfair to hold them accountable for their illegal spying behavior because the DOJ said they could do it). It's the same argument that CIA Director Gen. Michael Hayden just made on Meet the Press as to why CIA interrogators should be immunized from the consequences of their illegal conduct ("when I go and tell him to do something in the shadows and point out to him it is perfectly lawful, that the Department of Justice has reviewed it . . . I need him to have confidence in that DOJ opinion").
The DOJ is not the law. They are not above the law and they do not make the law. They are merely charged with enforcing it. The fact that they assert that blatantly illegal conduct is legal does not make it so. DOJ officials, like anyone else, can violate the law and have done so not infrequently. High DOJ officials -- including Attorneys General -- have been convicted of crimes in the past and have gone to prison.
Embracing this twisted notion that the DOJ has the authority to immunize any conduct by high government officials or private actors from the reach of the law is a recipe for inevitable lawlessness. It enables the President to break the law, or authorize lawbreaking, simply by having his political appointees at DOJ -- including ideologues like John Yoo -- declare that he can do it. As these incidents ought to demonstrate rather vividly, the mere fact that Bush officials at the DOJ declare something to be legal cannot provide license to break the law with impunity.
(4) Since the Nuremberg Trials, "war criminals" include not only those who directly apply the criminal violence and other forms of brutality, but also government officials who authorized it and military officials who oversaw it. Ironically, the Bush administration itself argued in the 2006 case of Hamdan -- when they sought to prosecute as a "war criminal" a Guantanamo detainee whom they allege was a driver for Osama bin Laden -- that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so.
That legal question was unresolved in that case, but Justices Thomas and Scalia both sided with the administration and Thomas wrote (emphasis added):
"[T]he experience of our wars," Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. . . . . In [World War II], the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the "Regulations Governing the Trial of War Criminals" provided that "participation in a common plan or conspiracy to accomplish" various offenses against the law of war was cognizable before military commissions).The political reality is that high government officials in the U.S. are never going to be held accountable for war crimes. In practice, "international law" exists as a justifying instrument for powerful countries to impose their will on those which are less powerful, and war crimes tribunals are almost always a form of victor's justice. So neither John Yoo, David Addington nor Alberto Gonzales, and certainly not their bosses at whose behest they were working, are going to be sitting in a dock charged with war crimes any time soon -- regardless of whether they ought to be.
But those who propound these principles and claim to believe in them ought to apply them consistently. John Yoo is not some misguided conservative legal thinker with whom one should have civil, pleasant, intellectually stimulating debates at law schools and on PBS. Respectfully debating the legality and justification of torture regimes, and treating systematic torture perpetrators like John Yoo with respect, isn't all that far off from what Yoo and his comrades did. It isn't pleasant to think about high government officials in one's own country as war criminals -- that's something that only bad, evil dictatorships have -- but, pleasant or not, it rather indisputably happens to be what we have.
Under the interpretation of the law offered by conservative Justices Thomas and Scalia, these men are war criminals. Period. The End. Goodbye. Unless you are willing to argue with Yoo that once elected the president takes on the power of a king and a dictator, of course. That is your only out here. Few things in life are black and white, but this is.
No doubt some who read this will remain unconvinced. Perhaps a timeline will help clear things up. As Harper's Scott Horton points out here, Philippe Sands's article "The Green Light" in Vanity Fair very carefully examines the chronology of events. As Horton puts it, "what came first, the decision to use torture techniques, or the legal rationale for them?"
Gonzales and Haynes laid out their case with considerable care. The only flaw was that every element of the argument contained untruths. The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld's office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib.
The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse....The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn't want to be seen as the ones applying it--they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Qahtani. If they did, then the administration's official narrative--that the pressure for new techniques, and the legal support for them, originated on the ground at Guantánamo, from the "aggressive major general" and his staff lawyer--becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantánamo.
...the torture lawyers fully appreciated from the outset that torture was a criminal act. Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make-they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.They have dragged the Department of Justice, as an institution, straight into the gutter. And amazingly, five years later, it continues to sit there in the muck, unable to stand up and step out of it.
Of course they missed some things along the way. The legal analyses were so poorly crafted-making the sorts of sophomoric arguments that would land a law student a failing grade on an examination, that Justice was forced to rescind them. It immediately crafted new opinions, which it continues to keep under lock and key, with the certain knowledge that when they are disclosed the resulting public uproar will force their withdrawal as well. This is the quality of legal work that emanates from the Justice Department under Alberto Gonzales, and now, Michael Mukasey.
Always remember: all of this was done in your name.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
I'll give the last word (for now) to Publius:
...critics have quite correctly focused on Yoo's utter disregard for both law and complexity. They've also expressed disgust at the "executive is king" theory. And I agree with all that. But, for you empiricists out there, it's also worth noting that Yoo's theory has already had terrible consequences. It doesn't have to be an abstract debate about what these theories may lead to. We have proof - tortured dead people, Calvinball courts, revived communist prison camps, etc. - that vindicate the more abstract theory that executive power needs limits in wartime. Recent history has confirmed ancient wisdom in this respect. When executives can do what they want without checks, horrible things tend to happen - more precisely, horrible things have already happened.
Second, while surely recognizing Yoo's obvious genius and his ability to navigate murky constitutional issues with moral clarity, I suspect the administration remained wary of the legal underpinnings of their actions. And frankly, I think this concern extended to the highest levels (there's a reason Cheney himself was dispatched to defeat McCain's anti-torture amendment). This concern explains in part why Roberts and Alito got the nod. The White House likely suspected that these issues would eventually bubble up through the judiciary. It was important then to have Justices who defer to executive authority in place. If McCain gets to add a Justice, they will have largely succeeded. (I had originally thought Scalia was a swing vote on torture issues until his paean to Jack Bauer -- I guess hippie hatred is more of a motivating force with him these days).
UPDATE: I should have added this before but did not. TPM has put together a brief but nevertheless apparently complete timeline of events for those who need and/or want it.
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