April 02, 2008

John Yoo's memo

In December 2005, I wrote the following about what we knew about John Yoo's memo justifying torture.

As noted when the illegal surveillance story broke, the bad apple at the bottom of yet another bad Bush policy was John Yoo. Yoo was the one who provided the justification that Bush could determine what was or was not torture, he could wage war against any enemy the President deems is a threat without any other buy in, and he can define what was legal without regards to the Congress or the Courts. Under Yoo's theories, Bush is only constrained by his own sense of what is right or wrong. Yoo was also the first person who I heard say that the American public validated Bush's approach because they elected him in 2004 - an argument I've since heard Bush baldly state when questioned on his approach to the war in Iraq.

...Yes, indeedy. Why have elections if your policies are kept secret from everyone except a select few that are bound by law not to talk to anyone about them? Americans don't want to know what Bush is doing in their name because it might give Osama bin Ladin an edge in the war on terror. What a brillant justification. One that the devil would find amusing.

This week, the memo he wrote was finally made public and it is indeed, everything we were told it was. Here's Marty Lederman's take on this obnoxious and creepy twerp's memo giving George Bush and his sadists everything they wanted so they could feel safe in "taking the gloves off."

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.)

As I've discussed previously -- see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)

Lederman follows up this with another post which ends with this observation:

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?

But if you remember, the administration excuse was that Abu Gharib was the fault of a few bad actors working on the night shift. Sure it was.

Has anyone asked Berkeley lately why they continue to have this asshole on their faculty teaching about the law?

Posted by Mary at April 2, 2008 12:05 AM | Law/Justice | Technorati links |

Why isn't John Yoo being arrested for treason?

Posted by: joe at April 2, 2008 01:11 PM

John Yoo should be demonstrating why he believes waterboarding isn't torture...with him being the one strapped to a board having water poured over his face...after he's experienced days of heat/cold extremes, sleep deprivation, and being hung up by his wrists, naked...as a course, in teaching, since Yoo reportedly is a professor...and we are all his students in America, so why would he not be willing to demonstrate for all of us his "expert judgment" that not all forms of torture amount to torture, in his mind.

Posted by: The Oracle at April 6, 2008 04:47 AM