Category: Law

The disclosure this week of a March, 2003 memo from Justice Department lawyer John C. Yoo, asserting that laws banning torture were trumped by the president’s authority as commander-in-chief in a time of war, appears to offer a direct line to subsequent abuses at Abu Ghraib prison.

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The 81-page document, declassified as a result of a lawsuit by the American Civil Liberties Union and first reported by the Washington Post, argues that federal laws prohibiting assault, maiming and other crimes during military interrogations of al-Qaeda captives would not give rise to criminal liability. It also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

Part One of the memo is here, and Part Two is here.

The memo was intended to deal with “unlawful combatants,” a label that would not apply to the largely Iraqi population captured during the Iraq war. But as our friends over at TPM Muckraker point out:

The natural suspicion remains that Yoo’s expansive parsing might have migrated over to Iraq. After all, Major General Geoffrey Miller, then the commanding officer at Guantanamo Bay, did travel to Iraq in August of 2003 to advise officials there on interrogating Iraqi detainees. Miller had been briefed on the Pentagon’s guidelines for interrogation, which owed much to Yoo’s green light.

Yoo denies that, noting that several military investigations have found that the abuses at Abu Ghraib were not authorized by military policy.

The ACLU also points out that the March, 2003 document refers to other still-secret Justice documents, including one from 2001 that found that the “Fourth Amendment had no application to domestic military operations.”

The October 2001 memo was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued.

The existence of the March, 2003 document, which was addressed to William Haynes II, then the top lawyer at the Pentagon, has long been known, but its contents had not been disclosed before. Although the Justice Department told the Defense Department to stop relying on it nine months after it was written, the Post’s Dan Eggen and Josh White assert that Yoo’s reasoning provided the legal foundation for the military’s use of harsh interrogation tactics at a crucial time, as captives were pouring into military jails in Afghanistan and as the U.S. was preparing to invade Iraq.

Yoo’s opinions in the months after the 911 attacks have come to be known collectively as the “Yoo Doctrine.” Critics accused him of enabling torture and claiming unlimited powers for the president, charges which Yoo has denied.

In his 2007 book, “The Terror Presidency,” Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos “stood out” for “the unusual lack of care and sobriety in their legal analysis.”

Yoo was born in South Korea, grew up in Philadelphia, and earned degrees from Harvard and Yale Law School. After graduation, he clerked for Supreme Court Justice Clarence Thomas, and became a favored legal philosopher in conservative circles. He is now on the faculty of the school of law at the University of California, Berkeley.

UPDATE:
In his first interview since the release of the 2003 memo, Yoo denied to Esquire today that his memo applied to soldiers in Iraq or Afghanistan, or that it authorized the kinds of abuses revealed at Abu Ghraib.

“The memo released yesterday does not apply to Iraq. It applied to interrogations of al Qaeda detained at Guantanamo Bay. I don’t [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq.”

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