The Yoo Torture memo, part I
Two Wednesdays ago, the New York Times featured an op-ed by an attorney named Vicki Driscoll, a former counsel to both the CIA Counterrorism Center and the Senate Intelligence Committee, who now teaches at my own sister institution the US Naval Academy. She addresses the issue of Congressional oversight of CIA covert action, focusing upon a loophole in the 1976 legislation passed in the wake of the revelation of longstanding abuses, that sought to give Congress the right of approval of such activity. That loophole allowed the executive branch not to inform the full House and Senate Intelligence Committees of proposed actions when “extraordinary circumstances affecting vital interests of the United States” were at stake. In such cases it could under the law inform only eight members, the ranking majority and minority members of the two committees and the leaders of the House and Senate. With respect to its use of “enhanced interrogation” techniques, however—that is, torture—the Bush Administration went well beyond this, giving only short, totally confidential briefings to only four members, the ranking members of the intelligence committee, and making the briefings conditional on pledges not to reveal anything further. Although Ms. Driscoll does not mention this, the Bush Administration—not coincidentally in my opinon—reverted to the way things were done in the 1950s and 1960s, when notification was consistently limited to just a couple of favored and friendly members of Congress—exactly the situation that the 1976 law was passed to undo.
Now I certainly agreed with Ms. Driscoll’s argument, but as it happens, I have been preparing two long posts on John Yoo’s now-famous torture memo of March 14, 2003, and it makes it very clear that the problems raised by the Bush Administration’s policies go well beyond the simple observance of the details of the laws relating to covert operations. It is very clear that Yoo, Jay Bybee, Alberto Gonzales, Vice Presidential Counsel David Addington, and the rest of the Bush leadership would never have let such a law stand in their way. I have decided to read this and other of the memos over the next few months to assess the damage that the Bush Administration did to the Constitution and to try to decide for myself what kind of remedies are now necessary—one of the most difficult questions that I have ever wrestled with. I do think, and hope to show starting today (when I will not be able to come close to exhausting the subject), that the Bush Administration used the Justice Department’s Office of Legal Counsel (OLC), where Yoo worked, to carry out a kind of coup d’etat. Rather than do their actual job—to inform other agencies of the government such as the CIA and the military services—what the state of the law was, they set themselves up, in effect, as an alternative Supreme Court, creating a new jurisprudence that threw out all the checks on the power of the executive that the American Revolution, the Constitution, and many of our greatest Supreme Court decisions were designed to put in place. They also (as I plan to show next week) effectively tore up the entire structure of international law that the United States had taken the lead in building up over the last century. None of this, meanwhile, came out of nowhere. Yoo’s memo reflects a particular tradition of legal argument—one in which its adherents believe devoutly, even though most of it has never been endorsed either by Congress or the Supreme Court. That tradition seems to have originated under Richard Nixon, when the head of the Office of Legal Counsel was a young lawyer from Arizona named William Rehnquist, and blossomed further under Ronald Reagan, when Theodore Olsen held that job. One of the more striking aspects of Yoo’s memo is how often its key points rely upon OLC opinions signed by one or the other of those two men, rather than upon statutes or court decisions. Meanwhile, one by one, provisions of domestic and international law that obviously constrain the behavior of the executive are torn up and tossed into the waste basket with frightening ease.
There are essentially two levels of argument in both this memo and many of the others. Yoo and company wrote a brief reminiscent of the classic criminal lawyer’s defense of a guilty client: “My client wasn’t there; but if he was there, he didn’t do it; and if he did do it, the victim obviously deserved it.” Their version argues, first, that the President isn’t bound by any laws or treaties in anything he does in wartime, but that secondly, even if he were, the laws and treaties that ban cruel and unusual punishments, torture, and cruel, inhuman and degrading treatment wouldn’t forbid anything the Administration wanted to do anyway. I shall deal with the first, broader argument this week and the second next week.
The task of providing legal advice to the executive branch has now devolved upon the Justice Department’s Office of Legal Counsel, whose opinions legally guide the actions of the rest of that branch. Yet members of that office cannot, any more than other public or private attorneys giving legal advice to a private party or entity of government cannot issue opinions that bind the courts, who under the American system remain the ultimate arbiters of the law and of what it allows, or juries, who in criminal cases make the key findings of fact. As I have been informed by former government attorneys who have dealt with the OLC, it generally is presented with legal arguments by this or that government agency upon which it gives its opinion. The Yoo memo responded to requests from the general counsel of the Department of Defense, but it does not simply respond. Instead, Yoo (with the help, I am inclined to suspect, of David Addington of the Vice President’s office), began by explaining exactly why it was necessary to make new law to deal with Al Queda—a role which, one should think, would more properly have fallen to the parts of the government directly charged with that problem. I quote:
“Given the ongoing threat of al Qaeda attacks, the capture and interrogation of al Qaeda operatives is imperative to our national security and defense. Because of the asymmetric nature of terrorist operations, information is perhaps the most critical weapon for defeating al Qaeda. Al Qaeda .is not a nation-state, and has no single country or geographic area as its base of operations. It has no fixed, large-scale military or civilian infrastructure. It deploys personnel, material, and finances covertly and attacks without warning using unconventional weapons and methods. As the September 11, 2001 attacks and subsequent events demonstrate, it seeks to launch terror attacks against purely civilian targets within the United States, and seeks to acquire weapons of mass destruction for such attacks. Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Given the massive destruction and loss of life caused by the September 11 attacks, it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks of a similar (if not greater) magnitude from occurring in the United States.”
Now that whole paragraph has nothing to do with law—it is merely a highly debatable statement of policy and strategy. Interrogation is NOT the only means by which one could learn of an Al-Queda attack; electronic eavesdropping or, better still, infiltrating the organization would be much, much more effective. More importantly, to use this statement of policy and strategy as a basis for ignoring laws and treaties such as the Geneva Conventions leaves aside the obvious point that the same arguments could have been used in previous conventional wars to justify the torture of captured prisoners, particularly airmen. Captured British, American or German flyers during the Second World War could have been interrogated about what new targets were likely to be struck, or about the tactics that bombers were relying upon, on the assumption that such information would allow their captors to save lives. But this was not done, to my knowledge, because it was banned by rules of war that even Germany was still observing, at least in its war with the western powers.
Now the abuse of persons in custody is, of course, banned by numerous laws of the United States, including at least one that applies to the acts of Americans abroad. To justify coercive acts, including torture (and we shall see that there is no doubt that this memo went that far), Yoo and company had to explain why such laws did not apply. They relied on a combination of two highly debatable arguments: first, that the President has essentially absolute power to conduct wars as he sees fit, and second, that the other branches of government have no more power over what the President and his subordinates do to detained individuals than they have over the conduct of actual military operations. This is bluntly stated as follows:
“In the area of foreign affairs and war powers in particular, the avoidance canon has special force. In contrast to the domestic realm, foreign affairs and war clearly place the President in the dominant constitutional position due to his authority as Commander in Chief and Chief Executive and his plenary control over diplomatic relations. There can be little doubt that the conduct of war is a matter that is fundamentally executive in nature, the power over which the Framers vested in a unitary executive.”
“In order to respect the President's inherent constitutional authority to direct a military campaign against al Qaeda and its allies; general criminal laws must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress cannot interfere with the President's exercise of his authority as Commander in Chief to control the conduct of operations during a war.”
“As we have discussed above, the President's power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maimmg, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President's constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.”
This is an extreme view of Presidential power—the exact same view taken by Richard Nixon in the 1970s when he argued that he was entitled to order warrantless burglaries carried out by White House staffers for the sake of national security. But the OLC doesn’t mention that, of course, and its failure to cite a single Supreme Court authority for this view shows that it is making this doctrine up as it goes along. And indeed, the footnote that follows this passage—no. 13—deserves to be quoted in full to show exactly how the OLC defined its own powers.
“It might be thought that Congress could enact legislation that regulated the conduct of interrogations under its authority to "make Rules for the Government and Regulation of the land and naval Forces." U.S. Const art. I, § 8, cl. 14. The question whether Congress could use this power to regulate military commissions was identified and reserved by the Supreme Court. ExParte Quirin, 317 U.S. 1,29 (1942). Our Office has determined that Congress cannot exercise its authority to make rules for the Armed Forces to regulate military commissions. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick F. Philbin, Deputy Assistant Attorney General,Office of Legal Counsel, Re: Swift Justice Authorization Act at 7 (Apr. 8,2002). If military commissions are considered an integral part of the conduct of military operations" then the conduct of interrogations of enemy combatants during wartime must be as much a core element of the President's power to successfully prosecute war. Any effort by Congress to use its power to make rules for the armed forces would thus be just as unconstitutional as such rules would be with regard to military commissions.”
In other words, although the Supreme Court has confirmed Congress’s power to regulate the operation of military commissions, our own office, whose members have been appointed by the President and his Attorney General, disagree, and our opinion is controlling. Rather than telling the Department of Justice what the law is, which was their real job, the OLC was telling them what they thought the law should be, and assuming that that was, therefore, what the law was. That is, of course, exactly how many Baby Boomers have been treating any law that got in their way for the last forty years, first in schools and colleges, then in the economy, and then in politics. But this passage, it seems to me, is so contrary to the most basic principles of American law that it entitles a bar association to consider disciplinary proceedings against its authors.
In further attempts to show that U.S. statutes cannot apply to the executive treatments of “illegal combatants,” the memo crafts language that would have brought a smile to the lips of George III.
“Under traditional practice as expressed in the customary laws of war, the treatment of unlawful belligerents is left to the sovereign's discretion . . . Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to ,regulate the conduct of the United States toward such combatants would interfere with a well established prerogative of the sovereign.”
Now this is as good a time as ever to introduce a problem with this new jurisprudence which in my opinion has not gotten enough attention. Extraordinary measures against “illegal combatants”, that is, enemy fighters who do not wear uniforms or belong to a recognized national army, have always been justified precisely on the grounds that they cannot be identified and dealt with like regular troops, as called for by the laws of war, because of their attempts to conceal themselves among the civilian population. The Bush Administration was trying to use this tradition literally to treat its captives as outlaws, that is, as men with no legal protection whatever. (To my knowledge no woman has been classified as an enemy combatant.) But the attempt to conceal themselves introduces another gigantic problem which this memo totally ignores: the difficulty of determining who was, and who was not, part of Al Queda or the Taliban. It has long since become clear that many of the people held at Guantanamo for as long as seven years simply happened to be in the wrong place at the wrong time. The Administration was claiming a Presidential power to deprive of all rights not enemy combatants, but people who it thought might be enemy combatants. In 1848, writing his friend William Herndon, Abraham Lincoln discussed a parallel claim of Presidential power. “Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him,--‘I see no probability of the British invading us"; but he will say to you, "Be silent: I see it, if you don't.’" The same argument applies to the Bush Administration claims, which effectively turned the President into a dictator holding the power of life and death over anyone he deemed dangerous.
I return in conclusion to the question of how Yoo and his colleague came to believe they could write such opinions. They represent a particular and widespread school of American legal thought today, one that has grown up over the last forty years, centered in the Federalist Society and holding important positions in law schools and, thanks to Republican Presidents, in the federal courts. Yet many of their broadest claims of Presidential power have never been endorsed by the Supreme Court. Many, in fact, have been specifically rejected, explicitly or implicitly, by that court, for instance in the Pentagon Papers case. Let us look for instance at the opinion of Justice Black, who joined the majority, discussing the same conflict between assertions of Presidential power on the one hand, and the Bill of Rights on the other. (In that case it was the First Amendment that was in question; in this opinion, the OLC argues that the Fifth and Eighth Amendments cannot restrain Presidential authority in wartime. Black’s reasoning applies in either case.)
“Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.
“In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. [n1] They especially feared that the [p*716] new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. . . . The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. news, whatever the source, without censorship, injunctions, or prior restraints.”
The Bush Administration Justice Department failed to mention either that case, or, even more remarkable, Youngstown Sheet and Tube vs. Sawyer, in which the Supreme Court, through Justice Jackson, threw out President Truman’s seizure of the nation’s steel emergency, which he had also defended as an emergency measure in wartime. To have written this entire memorandum without once mentioning that decision is truly breathtaking, all the more so since Yoo’s statements about Congress’s supposed inability to interfere directly conflict with it. Here is a sample statement from the memo:
“In light of the President's complete authority over the conduct of war, in the absence of a clear statement from Congress otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas. We presume that Congress does not seek to provoke a constitutional confrontation with an equal, coordinate branch of government unless it has unambiguously indicated its intent to do so. . . .In the area of foreign affairs and war powers in particular, the avoidance canon has special force. In contrast to the domestic realm, foreign affairs and war clearly place the President in the dominant constitutional position due to his authority as Commander in Chief and Chief Executive and his plenary control over diplomatic relations.”
Here, on the other hand, is what Justice Jackson wrote:
“1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
“2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
“3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
This omission goes to their most fundamental violation of essential American law: the idea that the Executive Branch can make new law simply by asserting it. Much of this memo, as I have said, relies not upon statutes or court decisions, but rather on other OLC opinions written during the Nixon and Reagan Administrations, which Congress also found to have committed flagrant abuses of Presidential power, abuses serious enough to deprive Nixon of the Presidency. The OLC memo implicitly rejects Marbury vs. Madison, the most fundamental of all Supreme Court opinions, which made that Court the arbiter of what the Constitution says. Somehow, 35 years after Watergate, the nation needs once again to find a way of making clear that this is both illegal and worthy of some kind of punishment. I do not myself as yet feel sure what the best way of doing so might be, but I am told that it has been well-established that lawyers can give so obviously fraudulent legal advice as to make them parties to a conspiracy, for instance, in cases having to do with tax shelters. The OLC, in any case, was not designed, in my opinion, to grant immunity to members of the executive branch. Its opinions are only opinions, and if they depart sufficiently from American legal traditions that could certainly raise questions about the qualification of their authors to practice law.