an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
John Yoo's explanation of the purpose of the Torture Memos, and their actual purpose
Here is John Yoo on the Jon Stewart show, explaining what the White House asked him to do in writing the Torture Memos:
Yoo: Well, first thing, let me say, there were no legal precedents or practices ever before this. The question had never come up before.
Stewart: That's not true. . . . We signed a treaty banning torture, so the question had come up, and we had answered it by saying, "Yeah, we're not gonna do that." . . .
So, you're saying that, as a country, we had never addressed the question of whether or not we were allowed to torture enemy combatants.
Yoo: No, no, let me be clear: it was the question of what is and isn't torture. We had not ever come up with that, up against that question, as a government.
Stewart: It sounds like, though, what you are saying is, we had never come up with an answer that was sufficient for the Bush Administration.
Yoo: No, no, no, no, not at all.
Stewart: You're suggesting that we had never addressed what torture was.
Yoo: We had not addressed, what is interrogation methods that are short of torture.
Stewart: We prosecuted people for torture during war.
Yoo: I am saying that we had not faced the question of, what interrogation methods do not constitute torture, but go beyond the regular law enforcement methods that we have used in the past.
Stewart: Well, how did we, then, conduct trials for people that had tortured Americans?
Yoo: Because all those cases were ones where what those other governments had done to our soldiers were well beyond the line of what anyone would think were torture. I mean, everyone would agree that things that happened in those other cases in the past, violate the treaty or the statute. The question is a little different, which is, you don't want to violate the ban, but you don't want to say to the #3 guy in Al Qaeda, "You get a lawyer, and you have your Miranda rights, and you have the right to remain silent."
Stewart: Were those the choices, though? Were those the only two choices we had? We had "Miranda rights" or "waterboarding"? We had not allowed any —
Yoo: What's in between, is the question. Now, to me, in my mind, the question is —
Stewart: You're saying that we as a country had not addressed that very issue until they asked you, a year out of 9/11, to figure out what constituted torture?
Yoo: What lies in that area between —
Stewart: How much can we torture?
Yoo: No, no, I'm saying, how much can we interrogate people and not violate the ban on torture?
Now here is a report from Newsweek describing the Justice Department's investigation into John Yoo's professional conduct, describing what Yoo was actually asked to do:
Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.
That is, the torture memos were written not to define "torture" with respect to new situations where the statute was unclear; rather they were written to allow the CIA to get around the legal ban on torture, even to the point of arguing that the torture statute would be unconstitutional if applied to persons acting under the direction of the President as commander-in-chief. The torture memos were not a hypothetical lawyer's exercise to guide future conduct. They were written in order to ensure that members of the CIA would never be prosecuted for torture.