Into the rabbit hole (updated).
One of John Yoo’s fateful 9/11-justifies-all memos was released this week, as a result of a Freedom of Information Act lawsuit filed several years ago. Lowlights from the Washington Post:
“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.
Yoo, who teaches law at Berkeley, still defends his reasoning (which has significantly changed since the Clinton administration).
“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.”
And yet the memo was abrogated by the Office of Legal Counsel just nine months after it was written. (Wonder why?)
Marty Lederman will be dissecting the memo at Balkinization. His preliminary thoughts on how the memo came to be issued under Yoo’s name:
Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is “no,” then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn’t anyone check with [correction: Bybee] and/or Ashcroft? If not, why not?
This was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms — so that an unconfirmed, rogue deputy in OLC can’t just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned.
From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four “canons of construction”: (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief’s prerogatives.
The memo’s application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I’ll discuss in further posts. And this section is the heart of the Opinion — the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.
Here’s the remarkable thing: Page 11 of the Opinion states that “[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.”
The head of the Criminal Division at that time? Current Homeland Security Secretary Michael Chertoff.
Here is an audio clip from John Yoo’s appearance on a Chicago panel discussion, in which he argues that– depending on the president’s motives–there is no treaty than can bar the president from having a suspect’s child’s testicles crushed.
Does this man have tenure?
Update: Esquire nabbed an interview with Yoo, who responds to the latest controversy over his conscience-shocking memos.