Mad About YooApril 9th, 2008

The document affectionately known as the “torture memorandum” is the work of one John Yoo, Law Professor, formerly of the Office of Legal Counsel in the Department of Justice. This 2003 tome, which Yoo presumes to refer to as a memorandum of law, is the most egregious case of legal bootstrapping since Nixon claimed: “When the President does it . . . it is not illegal. ”

The most sweeping pronouncements–for example, that Constitutional due process of law does not apply to people held captive by the military–are supported by no authority whatsoever, and a substantial proportion of the citations in the 80 pages of text are to opinions from Yoo’s own Office of Legal Counsel and not to cases that ever came before the courts.

When there are citations to actual cases, these are steeped in deception, with only a pretense of responsible legal reasoning. The overall presentation seems intended to obfuscate rather than illuminate. Yoo relies principally on a 1942 case that was unprecedented at the time (wartime, officially, pursuant to a congressional declaration) and that hasn’t ever been followed by the Supreme Court. He cites a work from 1612 for the proposition that people who don’t obey laws aren’t entitled to their protection, and he cites opinions from the Israeli Supreme Court laying out what is and isn’t cruel and unusual punishment.

Among the most outrageous legal claims made by Yoo:

  • The Justice Department has no authority to prosecute crimes committed in the course of military activities (citing Justice Department opinions)
  • Congress has no authority to regulate the military, and criminal laws that explicitly cover government employees are to be interpreted to exclude the president and his military subordinates
  • Torture during the interrogation of military “detainees” is exempt from criminal laws
  • the President can suspend or terminate any treaty or provision of a treaty

Yoo employs the word “detain” (detention is temporary, by definition) when he means “imprison,” and this exemplifies his dishonest use of language throughout. Phrases without legal meaning, such as “unlawful combatant” and “Commander-in-chief power,” are used to justify vast areas of unlawful conduct. Coinages and neologisms have no place in legal writing, but they are a staple of this author.

Taken in sum, Yoo’s arguments, which are without legal merit, amount to a prescription for tyranny. Although the memo has since been “withdrawn,” it served as legal justification for uncounted acts of torture and kidnapping, atrocities for which Yoo is personally responsible.

Yoo includes a ten-page discourse on the definition of assault, concluding that torture in the course of interrogation doesn’t qualify. A third of the opinion is devoted to the Convention against Torture, which the US ratified and which Yoo sifts for loopholes. It turns out this treaty is all but unenforceable against the U. S. president. There’s no legal scholarship behind Yoo’s finding on these points, just a lot of miscellaneous musings, almost as if the opinion were bulked up to compensate for the weakness of its logic.

Yoo must have been very confident that this memo would remain forever secret, because the arguments expose the author as an anti-lawyer and an enemy of the rule of law. Or maybe he’s just confident of his own immunity to accountability. He can be fairly certain that there will be no searching legal analysis of his arguments by any major news-monger. This memo has already been critiqued and tossed aside by the people who tell us what to believe, as if the document itself were something less than a crime against humanity and an assault on the Constitution.

The House Judiciary Committee has invited Yoo to testify about the memo. Committee staffers are presumably taking the memo apart now piece-by-piece, and we can only hope that they take the miscreant to task for his grievous breach of professional responsibility. Yoo ought to be disbarred for this.