Vermeule and Posner Defend the Torture Memo

JB

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.
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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.

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.

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?

UPDATE: Michael Froomkin has more.