With the disclosure of a key 81-page memo on Tuesday, the story of the Bush administration’s devolution on the subject of torture became clearer this week. The March 2003 memo — sent by then-Justice Department lawyer John Yoo to the general counsel of the Pentagon — asserted that the president essentially has absolute power during wartime.
Although some of the memo’s contents had been known, this week’s disclosure allowed a fuller look at the administration’s legal reasoning as it contemplated how to deal with people captured during the war in Afghanistan, and later in Iraq. The disclosure came about through a lawsuit filed by the American Civil Liberties Union and others.
A New York Times story provided a copy of the memo. The document gave the government a legal rationale for flouting laws and international treaties governing torture, under reasoning that relied on a “national and international version of the right to self-defense”:
“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. 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.”
That, along with separate reasoning about what might or might not constitute torture, was provided as a legal underpinning to protect U.S. interrogators if they were accused of wrongdoing.
Memo had lasting effects
A new set of leaders at Justice withdrew the memo after nine months, disavowing its reasoning. The Times story said, “Justice Department lawyers later rescinded both Mr. Yoo’s memorandum and the similar one written for the C.I.A. in August 2002. In a book published last year, Jack Goldsmith, who as head of the Office of Legal Counsel [OLC] made the decision to rescind the memorandums, criticized the documents, saying they had used careless legal reasoning to provide national security agencies with sweeping interrogation authority.”
However, the Washington Post said, “Largely because of Yoo’s memo … a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics.”
The Post article noted out that “the top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo’s March memo and did not know about the group’s final report for more than a year, officials said. … 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.’ ”
A news release on the ACLU’s website also discusses the memo’s lasting import, saying it “sheds considerable light on the development of interrogation methods for use at Guantánamo Bay and elsewhere. In a recently published book, Administration of Torture, ACLU attorneys [Jameel] Jaffer and [Amrit] Singh explain that, in early 2003, a Defense Department working group convened by then-Secretary of Defense Donald Rumsfeld was supplied with the March 2003 Yoo memo and told that it should regard the memo as ‘definitive guidance.’ Relying on the Yoo memo, the working group ultimately endorsed a slew of harsh interrogation methods, some of which violated U.S. and international law. Secretary Rumsfeld relied on the working group memo to authorize a new interrogation directive for use at Guantánamo Bay. General Geoffrey Miller, who was in charge of Guantánamo, was later sent to Iraq to encourage the adoption of abusive methods there.”
‘A law-free zone’
A number of legal experts this week responded to the memo in near disbelief. According to the Post, “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.’ “
Lederman expanded on this on the Balkinization blog, pointing out that in 2004, when new OLC head Jack Goldsmith reviewed the memo, he “was stunned by what he later called the ‘unusual lack of care and sobriety in [its] legal analysis’ – [saying] it ‘seemed more an exercise of sheer power than reasoned analysis.’ “
The Times story reported, “Some legal scholars said Tuesday that they were amazed at the scope of the memorandum. ‘This is a monument to executive supremacy and the imperial presidency,’ said Eugene R. Fidell, who teaches military justice at Yale Law School and the Washington College of Law at American University. ‘It’s also a road map for the Pentagon for fending off any prosecutions.’ “
The memo, the Times noted, “was prepared after an internal debate in the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden’s top aides, after his capture in April 2002. The document provided a legal foundation for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, who is believed to be the chief architect of the Sept. 11 attacks and was captured in early 2003.”
All of this has current, as well as historical, significance. GOP presidential candidate Sen. John McCain, who was tortured in North Vietnam, persuaded President Bush to sign a 2005 bill prohibiting military interrogators from using waterboarding and other “cruel, inhumane or degrading” methods. However, McCain supported the president’s veto of legislation that would have applied the same prohibition to the CIA. His Democratic opponents did not.
As the debate over CIA interrogations continues, considerable additional government-provided information is available from the ACLU, which reports that “to date, more than 100,000 pages of government documents have been released in response to the ACLU’s FOIA lawsuit.” It has been posting the documents online.
Susan Albright, a MinnPost managing editor, writes about national and foreign developments. She can be reached at salbright [at] minnpost [dot] com.