[Post No. 4] The Yoo/Chertoff/Ashcroft Memo? How Did the OLC Opinion Come to Be Issued from DOJ, Anyway?

Marty Lederman

I've now completed reading the March 14th OLC Opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the Commander in Chief can authorize pouring corrosive acid on a detainee -- can authorize cutting out a tongue and poking out an eye -- nothwithstanding a statute that would prohibit that very conduct?

I think what I'll do is to publish a series of numbered posts, each centering on a discrete topic or portion of the memo. My reactions must, of course, be tentative and preliminary: I have not yet had the time to research most of these questions, or to give them the attention (some of them) might deserve. But I hope that by the end of the endeavor, we'll be able to see clearly just how radical and extraordinary this memo was.

Before I start in on the memo itself, however, I'll begin with a handful of posts about process and ramifications, rather than the specific substantive issues raised.

To begin with, two process questions.

First, as Jane Mayer and others have reported, this memo was written in the midst of a bitter battle within the Pentagon about whether the military should -- and could legally -- deviate from its decades-old practice of adhering to the Geneva Conventions and the Army Field Manual. The DOD General Counsel, Jim Haynes, pretermited the debate by informing the JAGs that OLC's view of the law was determinative -- that no matter how much they disagreed, OLC establishes the law for the Executive branch. OLC's view of the law was . . . the Yoo March 14th memo. And DOD's adoption of it had profound ramifications over the following 9-12 months, once the memo was largely incorporated in the Final "Working Group Report" that became the template for abuse in Iraq and Afghanistan.

Haynes was partially right in one sense. An OLC legal conclusion does establish the official views of the Executive branch unless overruled by the President, the Attorney General, or OLC itself (as Jack Goldsmith did in the last week of 2003). Therefore, it's a very solemn function for the Office to have. Actually, by law the function has been assigned to the Attorney General ever since the Judiciary Act of 1789; but in recent decades, the AG has delegated the opinion-rendering function to OLC.

Well, not to OLC, exactly, but to an officer of the United States, the "Assistant Attorney General, Office of Legal Counsel."

On Friday, March 14th, 2003, that officer was Jay Bybee. [UPDATE: Post corrected to reflect fact that Jay Bybee remained AAG on the 13th.] Yet John Yoo issued the Opinion in his own name. John Yoo did not have the legal authority to issue this opinion . . .

. . . unless either Jay Bybee or John Ashcroft delegated Yoo the authority to issue such a momentous opinion without the supervision of the head of the office. So the obvious question is:

Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is "no," then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn't anyone check with [correction: Bybee] and/or Ashcroft? If not, why not?

This was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms -- so that an unconfirmed, rogue deputy in OLC can't just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned. [Something similar appears to have occurred with respect to the landmark September 25, 2001 OLC Opinion on the President's unilateral power to take whatever military steps he thinks necessary to preemptively deter terrorist actions -- the memo that first argued that Congress is powerless to regulate the Commander in Chief. That, too, went out under Yoo's name, rather than under the name of the Acting AAG, who at the time was the much more careful and temperate (and superlative) career attorney, Dan Koffsky. How could that have happened?]

Which leads to the second remarkable process matter. From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four "canons of construction": (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief's prerogatives.

The memo's application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I'll discuss in further posts. And this section is the heart of the Opinion -- the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.

Here's the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."

In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.

The head of the Criminal Division at the time was Michael Chertoff (now Secretary of Homeland Security). Nine days before the memo was issued, President Bush nominated Chertoff, like Bybee, to be a federal judge on a U.S. Court of Appeals.
Posted 4:47 PM by Marty Lederman [link]