More than five years after its composition, we finally see a copy of John Yoo’s March 14, 2003 memo to William Haynes, then the Defense Department’s general counsel. It was, as The New York Times and Washington Post report, a green light for military interrogators to use just about any technique the Pentagon deemed useful. Criminal statutes prohibiting torture stopped at the water’s edge, because, Yoo wrote, “such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution’s grant of Commander in Chief power solely to the President.”
As Thomas J. Romig, who was then the Army’s judge advocate general, tells the Post, “it appears to argue there are no rules in a time of war.” As Marty Lederman, a former lawyer at OLC writes, “it is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004.”
Despite the fact that Congress has been asking for the declassification of this memo, it appears to have only been released now as a result of a Freedom of Information Act request by the American Civil Liberties Union.
In that section, Yoo explains how even if a particularly brutal interrogation might “arguably cross the line drawn” by the law, “certain justification defenses might be available.” Those are “necessity” (the “choice of evils,” the evils being torture and a terrorist attack) and “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.”) Just about the only actions that were impermissible and indefensible in Yoo’s eyes, it seems, were those motivated strictly by malice or sadism.
The memo was rescinded just nine months later by Jack Goldsmith, when he came in to head the Justice Department’s Office of Legal Counsel.
Yoo himself doesn’t see what all the hubbub is about. From the Post:
Yoo… defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions “for appearances’ sake.” He said his successors “ignored the Department’s long tradition in defending the President’s authority in wartime.”
“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.”
But as Marty explains, the legal reasoning of Yoo’s memo is only half the scandal. The circumstances under which it was instituted constitute the other half. More on that in a bit.