Balkinization  

Thursday, July 15, 2004

Vermeule and Posner Defend the Torture Memo

JB

Two very fine young scholars at the University of Chicago, Adrian Vermeule and Eric Posner (son of Judge Richard Posner), have defended the OLC torture memo's legal analysis, and its restrictive view of what constitutes torture as "standard lawyerly fare, routine stuff." They also argue that the there is nothing particularly problematic about the memo's conclusion that the President cannot be bound by federal laws prohibiting torture overseas:
As for the constitutional arguments, the memo explicitly limits their context to the interrogation (1) outside the U.S. (2) of identified enemy combatants (3) concerning the enemy's plans of attack. The logic of the arguments might be stretched further, but need not be, and it is routine for executive-branch lawyers to proceed one step at a time, just as courts do. Everyone, including even the most strident of the academic critics, agrees that Congress may not, by statute, abrogate the president's commander-in-chief power, any more than it could prohibit the president from issuing pardons. The only dispute is whether the choice of interrogation methods should be deemed within the president's power, as the memo concludes. That conclusion may be right or wrong -- and we, too, would have preferred more analysis of this point -- but it falls well within the bounds of professionally respectable argument.
. . . .
The Justice Department memorandum came out of the OLC, whose jurisprudence has traditionally been highly pro-executive. . . . Not everyone likes OLC's traditional jurisprudence, or its awkward role as both defender and adviser of the executive branch; but former officials who claim that the OLC's function is solely to supply "disinterested" advice, or that it serves as a "conscience" for the government, are providing a sentimental, distorted and self-serving picture of a complex reality.

There is an important intellectual context behind the academic critics' complaints. An older generation of legal academics developed something like a consensus in favor of enhanced congressional power over foreign affairs; support for the War Powers Act; and a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars who emphasize constitutional text, structure and history rather than precedent, and who argue for an expansive conception of presidential power over foreign affairs, relative to Congress.

Among this rising generation are legal scholars who have recently held office in the Justice Department, including John Yoo at Berkeley. The memorandum thus focuses not on restrictive Supreme Court precedents, but on the constitutional text, the structure of foreign affairs powers and the history of presidential power in wartime. From this perspective, the academic critics' complaints have a distinct methodological valence, one with intellectually partisan overtones.


Vermeule's and Posner's citation of John Yoo is not adventitious. It appears from this Newsweek report that although the torture memo was signed by Jay Bybee, it is the work of John Yoo during his days at the OLC.
The memo, drafted by former OLC lawyer John Yoo, has been widely criticized for seeming to flout conventions against torture. It defends most interrogation methods short of severe, intentionally inflicted pain and permanent damage. White House officials told reporters that such abstract legal reasoning was insignificant and did not reflect the president's orders. But NEWSWEEK has learned that Yoo's August 2002 memo was prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative. And it was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and David Addington, Vice President Dick Cheney's counsel, who discussed specific interrogation techniques, says a source familiar with the discussions. Among the methods they found acceptable: "water-boarding," or dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations.

Vermeule and Posner must deal with the rather embarrassing fact that the OLC memo does not even cite the famous 1952 Youngstown decision, which held that President Truman did not have constitutional authority to seize steel mills in the U.S. as part of the Korean War effort. Youngstown is a central pillar of separation of powers jurisprudence, and it explodes the OLC torture memo's constitutional arguments. Vermeule and Posner appear to argue that OLC lawyers can simply disregard existing precedents limiting Presidential power and rely solely on their own interpretations of the Constitution's text, history and structure.

This view is deeply flawed. The decisions of courts, and in particular the Supreme Court, are binding law, and in particular, they bind the parties to the original litigation, in this case the President of the United States. Law professors like myself, Vermeule, and Posner, are of course free to contend that Youngstown is bad law and should not be followed. But as lawyers representing the Nation, the OLC does not have the same latitude.

In effect, Vermeule and Posner argue that government officials need not follow existing law if it conflicts with the academic theories of a "dynamic" new generation of legal scholars. They argue that critics of the torture memo "have a distinct methodological valence, one with intellectually partisan overtones." But it seems to me that the OLC's memo better fits this description.

Much as I respect Vermeule and Posner's other work, I must confess that I'm deeply worried about the abdication of moral responsibility in this op-ed, as well as its cavalier assumption that the purpose of the OLC is to push a particular ideological agenda heedless of any larger responsibilities to the Nation as a whole. The notion that government officials can simply discard relevant precedent if it gets in the way of ideology is inconsistent with the basic obligations of government lawyers. Is this truly, as Vermeule and Posner tell us, characteristic of the next generation of constitutional scholarship? I shudder at the thought.


UPDATE: For reasons unclear to me, the op-ed has been removed from the University of Chicago Law School's website. I've provided a link to the Google cache.


UPDATE: In the L.A. Times, Professor Yoo, in his role as academic commentator, defends the OLC Torture Memo, which Newsweek tells us he wrote himself:

It is easy now for critics to claim that the work was poor; they haven't produced their own analyses or confronted any of the hard questions. For example, would they say that no technique beyond shouted questions could be used to interrogate a high-level terrorist leader, such as Osama bin Laden, who knows of planned attacks on the United States?

Here Professor Yoo shows himself to be the master of the false dichotomy. Either the torture memo is right or Osama gets off scot free. How silly of us to think that there might be a third alternative that doesn't give the President carte blanche to torture and maim. Professor Yoo is certainly right about one thing: It is easy for critics of the torture memo to claim that the work was poor. That's because it is poor work. Yoo has done many fine things in his career. This is not one of them.


UPDATE: Michael Froomkin has more.



Comments:

I am confused. Is the US not still bound by international agreements to which it is a signatory? And do not treaties have the same status as constitutional law? What exactly is the argument here beyond a breathtakingly and implausibly broad interpretation of the president's commander-in-chief powers?

If Yoo and Bybee are making coherent arguments here, what is to stop a president from unilaterally abrogating any international agreement without any other institution having the capacity to review or object?

Sorry, for me the "it's an emergency and only carte blanche to the executive can save us" is a nonstarter. We're a constitutional republic, not a strongman system. Do these guys seriously see al Qaeda as more of a threat to the survival of the US than the Civil War? That has to be the implication of their argument, given the history in back of all this.

If Bush is serious about trying to exercise power this far beyond his constitutional prerogatives, then we need to get serious about impeachment. Our international credibility and our commitment to liberal democratic values are at stake.
 

As you rightly point out, there is a crucial difference between an academic's criticizing Supreme Court precedent and a lawyer's giving advice to a client that ignores that precedent. What makes this more striking is that the very judges who have pushed the allegedly historical and structuralist theories of the "dynamic" professors have also vigorously asserted the courts' primacy in interpreting the Constitution. This is especially true in the Supreme Court's repeated treatment of Congress as little better than an inferior court when it comes to Section 5 of the Fourteenth Amendment (particularly because the Court's approach to Section 5 doesn't even pretend to stem from the historical understanding of the amendment, supposedly the touchstone of today's conservative jurisprudence).

I'm not familiar with Vermeule's and Posner's work; perhaps they have criticized the Court's aggressiveness. If so, they would be in a distinct minority among today's young, dynamic scholars of the Federalist Society mold. For conservatives who have applauded the Court's aggressiveness towards the political branches in so-called "federalism" cases now to say that the President can ignore Supreme Court doctrine is, let's just say, problematic.
 

Did they ignore Youngstown or is it so off point that they didn't even consider it relevant? Re-reading the opinion of the court, it has much to do with labor relations, congressional action and legislation on the subject of seizing property in the United States, not much to do with what was considered in the memo.
 

The key question considered in Youngstown is whether the President may act when Congress has explicitly or implicitly told him not to do something. That's directly relevant to the question whether the President is bound by 2340A (the federal torture statute), which says that the President can't commit torture. Saying that Youngstown is not relevant to this case because its about labor relations is like saying that Gibbons v. Ogden isn't relevant to contemporary commerce clause disputes because it's just a case about the coasting trade.
 

A small insignificant quibble (as I largely agree with your post). The United States government (or a state for that matters) is not barred from relitigating issues in the exact same way a private citizen or corporation would be, although the main reasoning for it probably does not apply to Supreme Court decisions. State AGs and the Department of Justice routinely have to make decisions on whether or not to appeal that involve other considerations (particularly their budget) and federal court jurisdiction as I understand it, at least in practice (if not in theory), allows them to not be held in certain circumstances. Those circumstances are fairly complex, of course, and too long for a simple post. I'm sure this is all basic fed courts to you, though.....but maybe not exactly to your readers. Furthermore, I believe that although they cannot disregard ex ante supreme court decisions, they are (or at least should be) given some lattitude in trying to relitigate issues before them to prevent the law from remaining static.
 

Hey Balkie: you forgot this part of Youngstown, which removes the subject of the OLC memo from that case completely:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day?to?day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Hmm. Youngstown not dealing with acts in a theater of war. I guess OLC should have cited it for the idea that it does not apply in a theater of war. And they probably should have cited Lee v. Weisman to make clear that they weren't talking about establishment clause violations either. Yeah, in fact, they should have cited everything that was *not* relevant, so that partisan hack law professors wouldn't accuse them of being less than professional post-hoc.

Cubbie
 

To me, the scariest assumption here is that the only way to gather sufficient intelligence to stop a future attack is through torture. It seems as if only the colossal breakdown in our intelligence community's ability to protect us through information gathering allows for the posturing of a groundless either/or like either we all get attacked or we torture individuals who may be responsible for future attacks. And at some point that morphs into the assumption that intelligence gathering cannot work without violations of 2340A.

But to counteract Mr. Yoo's suggestion, as to critics providing their own analysis on this issue. I've read dozens of them. My understanding, as confirmed by this blog and Youngstown, was that the determination of the method of takings in wartime was a congressional power, and simple logic would seem to apply that to the taking and holding of prisoners of war. The Geneva convention could, I think, certainly be considered a countervaling point of view. Not to mention the deeply held american ideal that this kind of behavior is contrary to the foundations of our country itself.

I think what he's in fact pointing out is the fact that no other opinion was given the Attorney General's stamp of approval, and as such, what other opinion can compete? The executive has evidently hired its own judiciary, unwilling to bother with the other branches anymore, and that new court system has, prior to any case being filed, already issued its opinion.
 

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I'm surprised no one has made this observation: Should we grant carte blanche power to a President to continue to wage a war that most of the world considers illegal in the first place? I believe the Geneva Conventions and our tradition of civil liberties and right not to be held without charge were intended to protect us from would-be dictators like Bush. That is what he is, a would-be dictator, attempting to seize power in the same way as other dictators thoughout history, circumventing democratic and legal processes, invoking paranoia and demonization of the enemy (same thing they do with us). Thank goodness our countries founding fathers had the foresight to set up legal traditions to protect us against the likes of Bush (and Cheney).
 

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