Balkinization: Whadda Ya Know?: Might We One Day See the Notorious March 2003 John Yoo Opinion?

Whadda Ya Know?: Might We One Day See the Notorious March 2003 John Yoo Opinion?

Marty Lederman

Apparently, White House Counsel Fred Fielding has provided Senator Leahy with four previously undisclosed documents involving interrogation practices prior to the tenure of Alberto Gonzales as Attorney General. The four documents include the infamous John Yoo Opinion signed on March 14, 2003 (the day after Jay Bybee left OLC), which appears to have been the genesis for the terrible abuse that occurred in the Department of Defense during the remainder of 2003. (More on this memo in the last few paragraphs of this post. See also the posts here and here.) Jack Goldsmith writes of this memo in his book -- it's one of those that he repudiated, as I discuss here.

I have not been able to find online the Fielding letter to Leahy, or any of the four released documents. (If someone has them, please post.) But according to Senator Leahy, the Administration has designated the March 2003 memo as classified. In a new letter to Fred Fielding, Leahy asks that the Yoo memo also "be provided in non-classified form as completely as possible consistent with national security requirements. To the extent possible, this document should become part of a frank and public discussion on these crucial issues." That's for sure.

Leahy continues:

Further, the Committee does not yet have a complete picture of the Administration’s historic position on the legal basis and standards for detention, transfer, and interrogation in connection with counter-terrorism efforts. It is important that you share with the Senate Judiciary Committee all other legal opinions on these issues from the Office of Legal Counsel and elsewhere in the Department of Justice and the Administration.

Finally, and most importantly, these documents aid our understanding only as to the Administration’s policy until the beginning of Attorney General Gonzales’ tenure in February 2005. You have provided to us some documents demonstrating the Administration’s expansive and disturbing position on torture and related issues in 2002 and 2003, as well as documents from 2004 and very early 2005 withdrawing and minimizing those previous positions. However, we have not yet seen the 2005 memoranda recently reported in the New York Times, which apparently authorize the use by the Central Intelligence Agency of combinations of cruel and extreme interrogation techniques and indicate that enumerated harsh techniques do not constitute cruel, inhuman, and degrading treatment of detainees. These documents fall squarely within the scope of requests that I and other Senators have made, including my November 15, 2006, request to Attorney General Gonzales for "any and all Department of Justice directives, memoranda, and/or guidance … regarding CIA detention and/or interrogation methods."

Posted 7:13 AM by Marty Lederman [link]