We’ve long been aware of the 2003 “Yoo memo,” written by John Yoo, then a top official in the Justice Department’s Office of Legal Counsel, and the almost-laughably expansive views the memo takes on presidential authority. For that matter, we’ve also known that Yoo effectively argued that the administration could break the law on a whim, just so long as the president was using his authority as Commander-in-Chief.
But it’s one thing to know about the Yoo memo; it’s another to actually see it.
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. […]
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.”
Nixon once argued, “When the President does it, that means that it’s not illegal.” It’s since become something of a punchline, but the Yoo memo made the tenet official government policy — so long as administration officials were trying to defend the country, they need not concern themselves with the law.
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.”
Now there’s a good phrase to help capture the Bush administration’s appreciation for the rule of law: “It was a law-free zone.” Emily Bazelon also noted:
What takes my breath away about the Yoo memos, now that we can finally read them, is their air of utter certainty. 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 in space and time from the battlefield they take place). Guantanamo Bay and enemy aliens enjoy no constitutional protections. … Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support.
Basically, the president can authorize any action at all as commander-in-chief in wartime. Congress can’t bind him, treaties can’t bind him, and the courts can’t bind him. The scope of power the memos suggest is, almost literally, absolute. And since this is a war without end, the grant of power is also without end.
As we all know, this memo was eventually rescinded. So in a sense it’s moot. But Marty Lederman asks a good question: now that we know what was in the memo, what justification was there for classifying it in the first place? It wouldn’t have been moot in 2003, and there was nothing in it that compromised national security either then or now. The only thing it compromised was the president’s desire not to have to defend his own policies — policies that led directly to the abuses at Abu Ghraib, among others.
The memos themselves are available online — here’s Part 1, and here’s Part 2. Read ’em and weep — in this case, literally.