Tuesday, April 01, 2008

[Post No. 1] The March 2003 Yoo Memo Emerges! (not an April Fool's Joke): The Torture Memo to Top All Torture Memos

Marty Lederman

Subhead: The Big Kahuna: The Torture Memo that Makes the August 2002 Memo Look Like Objective and Thoughtful Legal Analysis

[UPDATE: As explained here, this timeline is mistaken: Jay Bybee had been confirmed to be a judge, but had not yet resigned from OLC, on March 13, 2003, a Thursday.] On Friday, March 13, 2003, Jay Bybee resigned from his Office as the Assistant Attorney General for the Office of Legal Counsel, to become a judge on the U.S. Court of Appeals for the Ninth Circuit. The very next day -- a Saturday, mind you -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC.

The Yoo memo effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which was addressed only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. None of those statues, you see, limits the conduct of war if the President says so. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004. Here, finally, is Part One of that memo, and here is Part Two. (Thanks to the Washington Post for forwarding the memo.) (Needless to say, the classification of these memos all these years was ridiculously unjustified. There's no reason at all that this roll out could not have occurred in 2004.)

[UPDATE: This next paragraph is mistaken.] Think about that: Either Jay Bybee -- who actually signed the August 2002 torture memo concerning the CIA -- did not know of this explosive memorandum, or it was so implausible that Bybee refused to issue it to the Pentagon. And as soon as he was quite literally out the door, John Yoo did not hesitate to issue the opinion on a weekend, presumably bypassing the head of the office (Acting AAG Ed Whelan) and the Attorney General. (I am assured that Ed had no involvement in this matter.)

As I've discussed previously -- see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)

Much more to follow in subsequent posts on the substance of the March 14th torture memo.


Now that we have Yoo's March 2003 memorandum, can Eric Posner and Adrian Vermeule's defence of the memorandum be far behind?

Yoo seems to think that "necessity" (or "self-defense") is not only prudent "policy" but also a "legal defense".


Footnote 10 is interesting. Apparently Yoo also issued an opinion that the Fourth Amendment does not apply to actions of the US military within the United States.

Amazing what a hack this guy is. One of the REASONS we have a Fourth Amendment was because the British government claimed its soldiers had the right to enter houses.

Footnote 11 is also interesting. The Supreme Court has never overturned Ex Parte Milligan. So where does Yoo get off implying that it isn't good law?

On page 11 et seq., Yoo confuses the Ashwander v. TVA canon of construction (construing to avoid conflict with the Constitution) with a "clear statement" rule, which permits Congressional action in certain areas but requires a clear statement that Congress intends to act.

He is trying to argue that Congress' statutes should all be construed to not apply to actions by the US military in wartime. He knows he can't get away with saying that they are all unconstitutional (given Article I's grant of Congressional power to make rules for captures and to govern the armed forces), so he says Congress has to specifically say that it intends to regulate the military in wartime.

This is not, however, what the Ashwander doctrine does. Rather, the Ashwander doctrine construes statutes to avoid constitutional questions because if the questions are reached, the courts would strike down the statute. What he is looking for is something more akin to the Court's presumption against extraterritoriality, where Congress has full power to legislate extraterritorially but just as to clearly indicate that this is Congress' intent.

The problem is, if he argues for that sort of a presumption, he can't really imply (as he wants to) that Article II grants the President plenary authority over detainees. So he's offering citations to Rule A even though the rule he wants is Rule B.

Hard to believe he ever got a professorship at Boalt Hall.

let them eat NutraLoaf!

i noticed in one of the footnotes on one of the last pages of part one, nutraloaf is described merely as a change in the prisoner's diet.

Fox News has their panties in a twist over another lawsuit, filed on behalf of prisoners, claiming that Nutraloaf is so disguting, having to eat it is cruel and unusual punishment.

these prisoners complained they had been served it for up to seven day straight.

want to bet some gitmo boys have been eating it for years?

it was sort of a shock to me to see it so casually mentioned.

Footnote 13 is an absolute howler. It is his first mention of the EXPRESS power of Congress to regulate military captures, which is absolutely fatal to Yoo's argument (because OBVIOUSLY Congress can prohibit torture as part of that power). What does he say? He says that the Bush OLC, in commenting on a bill before Congress in 2002, already determined that Congress didn't have the power to regulate military commissions under that power. (This, I might add, was later rejected 9-0 by the Supreme Court in Hamdan.)

But of course, whether the captures power extends to military commissions is completely separate from whether it extends to prohibitions of detainee abuse. What does Yoo say? Well, he says that if the captures power does not extend to military commissions, it can't, by definition, extend to interrogations, because interrogations are part of the military commission process. That's like saying that because the Chief of Police doesn't have the power to control the criminal trial process, he or she also lacks the power to regulate the conduct of interrogations at the stationhouse!

And note, THIS ENTIRE DISCUSSION IS IN A FOOTNOTE. All these references to Article II powers in the text, but the EXPRESS Article I power that APPLIES DIRECTLY to interrogations is dismissed in a footnote.

This guy violated his oath of office to defend the Constitution.

On page 14, Yoo says that the War Crimes statute meets his clear statement rule, because there's no doubt that Congress intended it to apply to actions by the US military during war.

He says generally applicable laws, like the laws prohibiting assault, do not apply to the military because there is no clear statement by Congress.

OK, let's assume that's true. BUT YOO THEN GOES AND LUMPS THE TORTURE STATUTE IN WITH THE ASSAULT STATUTE. That's right, the Torture Act-- which was passed to implement a treaty which provides for NO EXCEPTIONS TO THE BLANKET RULE AGAINST TORTURE and which CLEARLY WAS INTEND TO BAR TORTURE BY MILITARY FORCES-- actually doesn't apply to the military. Wow.

I hope he made as much as Spitzer's whore did.

Adding onto my previous comment, on page 16 Yoo argues that the torture statute can't apply to unlawful combatants. I wonder how the other nations negotiating the Torture Convention would have reacted if the US delegate had said that we understood the convention not to prohibit torture of anyone conducting an act of violence while not wearing a distinctive insignia and fighting as part of a regularized military or militia.

On page 17, we learn that the torture statute doesn't apply to the US military too, because the UCMJ is more specific and specific statutes always trump the general.

Only they don't; plenty of offenses violate both more specific and less specific criminal statutes. He's just grasping at straws now.

He's impeachable, right?
Who better but you guys to draft the memo setting out the grounds?

At page 33, we see why these guys hung so much on Common Article III of the Geneva Conventions not applying to the detainees. It's basically their entire argument as to why they are not war criminals.

Someone ought to ask Yoo this now. "Professor Yoo, given that the Supreme Court held that the detainees were in fact protected by Common Article III, doesn't this mean that under your analysis the War Crimes Act was violated by the President's interrogation policies"? Seems to me if he were honest (which he obviously isn't), he would have to say "yes".

Footnote 41 notes that the torture statute carries the death penalty if the torture results in death. We know that at least 1 detainee died from extreme hypothermia in US custody. That was a capital crime.

The reasoning on page 38 has already been extensively discussed; Yoo decides that the most analogous statute to determine what severe pain means in the context of torture is a statute defining severe pain in the context of providing health care benefits!

He construes the mental pain portion of the torture statute to apply only to four specific acts listed in the statute-- even though, again, the torture statute was an IMPLEMENTING STATUTE of a treaty which was intended to BROADLY ban the imposition of severe mental pain or suffering.

Strangely, the "threat of imminent death" section on page 44 actually makes pretty clear that waterboarding is torture.

On page 47, once again, waterboarding is torture. Didn't someone tell John that the whole point was the President wanted to authorize mock executions?

On page 47, Yoo contends that any authorization by the President of an illegal interrogation is the same thing as suspending a treaty. He cites the US' withdrawal from the ABM treaty as support.

No, John, it isn't. Bush announced the US' withdrawal from the ABM treaty. That's not the same thing as saying that Bush could have not announced the US' withdrawal and simply started deploying anti-ballistic missiles in violation of the treaty. 2 different things.

According to Yoo on page 53, the Senate's formal understandings at time of ratification are meaningless in treaty interpretation. Wow. Goldsmith was right. Even when Congress might help these guys, they were such fetishists for executive power they wanted no part of it.

So even if the Senate says "we're signing the torture convention but only on the condition that we understand this provision to be limited to X", according to Yoo, that understanding has no role in interpreting the treaty. Like I said, wow. He just turned 200 years of established international law on its head.

On page 57, according to Yoo, with NO citation to authority, a treaty that EXPRESSLY says that there can be NO justification for torture, including war, and which was NOT subject to any reservation or understanding on that point, still HAS to be interpreted as permitting torture during wartime, because John Yoo, who is apparently our platonic guardian, has decided that nations cannot limit their right to self defense.


On page 76, our brilliant legal theorist argues that because Congress simply prohibited torture, and didn't say anything in particular about the purposes of torture (whereas the CAT said specifically that torture to obtain information is illegal), that means Congress didn't actually intend to prohibit torture to obtain information. Got that? A statute that says "don't torture", to implement a treaty that says "don't torture, including but not limited to for the purposes of obtaining information", really means "you can torture as long as you are seeking information". Lovely legal reasoning.

On pages 78-79, we get the argument that because there may be a self-defense defense to a charge of assault, i.e., you can assault someone who places you in danger of harm, or who places someone else in danger of harm, that means that a torture statute that was specifically passed to implement a treaty that said you can't torture someone for ANY REASON allows a defense that the torturer was protecting the public.

I would love to see Yoo argue that one in court. "So you mean that dunking captives in water, freezing them to near death, beating them, and subjecting them to electric shocks is the same thing as shooting a burglar who pulls a gun on you in your home?"

The Washington Post story on the Yoo memo wasn't linked above. It's Terrorism Interrogators Immune From Prosecution, '03 Memo Says by Dan Eggen and Josh White.

It would seem that by Yoo's arguments that torture would be legal even if the constitution forbade it.

I'm not being sarcastic. That would seem to be his reading, no?

The business about only violating the mental disturbance part of the torture statute if you actually had the intent to cause profound mental disturbance - that can't be a fair reading of the law, can it?


It would appear that the only thing that would satisfy Yoo would be a constitutional amendment that specifically barred torture during warfare and which categorically ruled out exceptions. Anything short of that and either it would be unenforceable because it was in conflict with Article II powers or could not be construed to impinge on the nation's right to self-defense or both.

Dilan--Could the President detain and torture those who advocated such an Amendment? After all, the First Amendment grants rights of general applicability, and, during times of war, should not be construed to limit the more specific Commander-in-Chief clause .

Dilan: Thanks for all the brief / preliminary comments. Very helpful to get more flavor than news paper articles generally provide, and unfortunately, I've not the time or inclination to wade into the substance of the memo itself at the moment.


After all the lamenting of outcome-based jurisprudence, now we are treated to a heaping helping of outcome-based "faithful execution of legislation." Feh.

Well, I certainly understand why these memos were classified. Talk about being too embarrassing to publish! I look forward to this 'reasoning' being torn apart by people who know what they're talking about, which clearly doesn't include Yoo.

I have no regard for Yoo, but he is at Boalt. Are there cryptofascists at Berkeley?

Yeah, Gregor, okay -- but that's polisci. What the hell is rotten in law?

FD: Cal grad. Math, thanks.

I was having lunch a few months ago at Great China (best Chinese restaurant in Berkeley), and guess who was across the room? Yep, Professor Yoo. I'm not sure why he made faculty at UC, but then again, I'm in the sciences.

Correction to post:
You write: "In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo..."

I think it should be "In late 2003..."

Correction: March 13, 2003 was a Thursday. What day was the memo published? I assume it must have been Saturday, March 15, 2003.

Are there cryptofascists at Berkeley?

At Boalt alone there's Yoo and Phil Johnson (the founder of Intelligent Design). I don't know if they're fascist, but "batshit insane" seems pretty accurate.

I hate to post a stupid/ignorant question, but where are the commenters finding the 2nd half of the memo? The first 40 pages were linked in the WP article, and I've seen them hotlinked on various sites, but people here (dilan, for example) are commenting on the 2nd half of the memo and I can't find it anywhere. Feel free to mock my ignorance if anybody can point me in the right direction -- I'm intensely desperate to get the second half of this . . . interesting analytical approach.

thanks in advance for any help.

busboy33: In the last sentence of the first paragraph of this story at the top of the page.

eric: much thanks. Several sites have "part 1 and 2" links that only go to pages 1-20 and 21-40 (, for example), so I presumed the links in the story covered the same pages since they were in the same "two part" format.

Well, I think one needs to pour over this for hours to come up with a thorough and intelligent comment...
But I just have to tell you, I couldn't stop shaking my head in disbelief! At one point I began laughing out was in part two, citing the Israeli supreme court case-frog crouching, etc., he actually said "while the court found it to be cruel and unusual punishment, it was not deemed torture..." oh god, I still can't type that without laughing...

Also of note, apparently the the United States of America will be in a state of war in perpetuity as the president's power is at it "zenith" when he is acting as commander in chief during international conflict. Too bad Hillary Clinton spent all that money on the 3am ads, doesn't matter what time the call comes now... Yoo for Emperor!!!

This comment has been removed by the author.

Further to the numerous expressions of shock and surprise above, may I remind everyone that this administration tried to argue that the Supreme Court's jurisdiction didn't even extend to places like Gitmo? Imagine that, you have soldiers somewhere, and are holding prisoners at that place, but you have no judicial authority there. That doesn't sound like imprisonment at all, but kidnapping.

Thankfully this is one of the things that the partisan hacks of the Supreme Court did not fall for. Instead, exactly one year ago, they refused to rule on the constitutionality of the odious Military Commissions Act which suspends habeas corpus in a manner that is patently unconstitutional. (BBC Story) In practical terms this refusal to consider the case was a de facto judgment in favor of the administration. The prisoners were neither released nor afforded their rights.

Mark Field:

At Boalt alone there's Yoo and Phil Johnson (the founder of Intelligent Design).

Philip Johnson didn't found ID. IF anything, that would have been Davis and Kenyon, or possibly William Dembski and Jonathan Wells.

Philip Johnson is an out-and-out creationist.

I had a nuber of conversations with him in the halls after lecture, but not on his creationism crapola. Mostly about his misunderstanding of science, but some about criminal law. He's under the impression that having been Warren's clerk makes him an authority in everything. T'aint true.


In defence of Boalt, they also had/have Robert Post, Willie Fletcher (one of the most respected authorities on federalism), Jesse Choper, and Rachel Moran.

Franklin Zimring taught one course there too.

But I was told that Boalt tended to have a more conservative faculty to go with its liberal students.


Truth be told, no law of any country can shield anyone from war crime charges. That is the fact of the matter.

Philip Johnson didn't found ID. IF anything, that would have been Davis and Kenyon, or possibly William Dembski and Jonathan Wells.

Wiki gives the "credit" to Johnson. So do other sources.

Philip Johnson is an out-and-out creationist.


He's under the impression that having been Warren's clerk makes him an authority in everything. T'aint true.

He certainly had an ego in distant past when I had him for Crim Pro/Crim Law. I liked his classes though; he was entertaining and lively. Also sane in those days.

Torture? What torture? According to the NY Times and other media reports, the memo is about "harsh interrogation" tactics and they don't even mention the "T" word...

Mark Field:

Wiki gives the "credit" to Johnson. So do other sources.

See my link. Johnson was a "johnny-come-lately" and latched on primarily because creationism was taking a beating and he needed the sub rosa approach of ID (but see the "Wedge document" for the exposure of this subterfuge). Certainly, Dembski was the academic founder of substantial parts of the 'argument', and this was expanded on by Behe. Johnson was, at best, a cheerleader. Maybe the primary cheerleader, but a cheerleader nonetheless.


The really sad thing about people like Yoo, is how fanatically they promote and support policies that they themselves would never wish enacted upon themselves. One of these days, I'd really love to see Yoo "rendered", disappeared from his family and friends, hidden away in some foreign country where, technically, the US can claim they aren't violating any treaties or laws (because the other country is actually "in charge" of the prison and detainee operations), without access to counsel or courts for maybe half a decade without any charges being brought upon him, with his entire detainment based only on a suspicion of some crime (in his case, I'd say conspiracy to commit treason). Beaten and tortured every day, until he begs for his life, screams out anything to stop the abuse, or eventually goes insane from the conflict that arises in our minds when we're forced to say things that aren't true, or about which we really have no knowledge. Then, after Yoo is left a pathetic shell of the man he used to be, we'll release his out the back of a truck in that foreign country, in the middle of nowhere without any money or food, leaving him to find his way home (yes, this too actually happens). Once he gets home, if he does, he'll find his life is gone. His family, presuming he was dead and lost long ago, would have moved on. His children might not remember his face, and his wife likely remarried. His job would be gone, and for the rest of his days on Earth - regardless of the fact that he never committed nor was ever charged with any crime, everyone in his community would effectively shun him, refuse to give him work, avoid associating themselves with him. He'd become one of the world's walking dead. And in my opinion, he'd deserve it. Everything described above, could actually happen to him -- and it would be a result of his own efforts to manipulate the law and justify the diminution of our sacred Constitution. And this story could just as easily happen to any of us. Sorry John... I know you were born in Korea, a country heavily influenced by China and the Meiji-period Japan), but in this country (America, just in case you need a reminder) no one person should ever be permitted any more power or authority than can be controlled by the People. Your cozy bed-fellows, "Bush-and-Company", cannot - under any interpretation of The Constitution - ever grant themselves virtually unlimited war powers, and THEN declare a perpetual war that can never actually end. Terrorists and rogue agents will always exist (which was common knowledge even at our founding), which is why "war" is meant to be waged against nations, and "national defense" (policies and ongoing efforts) help us deal with terrorists, nukes, fanatics and such. My advice to John: After Bush is gone, you should seriously consider retiring quietly to some remote location where Americans won't be bothered any more by your fascist manifestos.

...just following-up on my long-winded rant... I should have said "I wish Yoo would get rendered..", but what will likely happen instead is that he will get a high-paying consultant job with the GOP, appear regularly on Fox, be paid handsomly for appearances and be praised ad nauseum by the neocon conservatives - retiring in luxury and comfort, while the rest of us poor saps spend our days in fear of our own executive, to which Yoo had far too much influence in giving it power.

where can I find john yoo saying it is ok to torture children?
I am in a big debate, and need some ammo,.,.please help,.,.,.

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