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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Here are John Yoo's prepared remarks for the hearing before the House Judiciary Committee this morning. (I don't believe David Addington is submitting a prepared statement.) CSPAN covering it live here.
I'm out of town and don't have time just now to blog in detail about this statement, except for a handful of very quick reactions:
1. John claims that the 2004 Levin torture memo, which superseded his 2002 OLC opinion, concluded that all interrogation methods OLC had previously approved as legal "were still legal." We now know that that's dead wrong. As Levin testified before this same committee last week, the footnote in question, which Attorney General Gonzales insisted that OLC include, merely indicated that the writers of the 2002 memos -- i.e., John Yoo -- would not have changed their bottom line, even if they had employed Levin's analysis. Levin himself, however, was uncertain about the legality of some of the CIA techniques, and was in the process of reviewing them when he was effectively removed from OLC.
2. John is testifying that his torture memos could have had no bearing on the abuse that took place in Iraq, because "the Geneva Conventions provided the relevant rules for the war in Iraq." There are several problems with this statement.
Most important is that OLC itself, when John was there, had advised the Pentagon that the Fourth Geneva Convention did not protect "unlawful combatants," which includes most if not all of the insurgents in Iraq. (See page 4 of the April 2003 DOD Working Group Report.) As Jack Goldsmith reports in his book, the very first thing he decided when he arrived at OLC in October 2003 was that the Fourth Geneva Convention did protect Iraqi civilians -- a decision that hocked and dismayed the White House. It is fairly clear (as reflected in the Working Group Report) that until that time, the Administration, based presumably on John's own advice, was acting on the assumption that the insurgents in Iraq were not protected by the Geneva Conventions.
This explains why, according to several reports (most importantly those of Sy Hersh and Jane Mayer), the Pentagon and CIA placed Special Forces and CIA operatives in Iraq in 2001 or 2002, whose basic instructions were that there was no law -- certainly not Geneva -- that protected detainees, and that the "gloves were off" and that they could engage in widespread, wanton abuse and cruelty. Which they did. (And as the Fay, Jones and Schlesinger Reports found, and many accounts attest, the conspicuous abuse by CIA and Special Forces in Iraq was an important contributing factor to the breakdown of ordinary norms among the regular military forces, as well.) The Pentagon and CIA would not have given these forces the green light to abuse prisoners if OLC had not previously advised that neither the Geneva Conventions nor any relevant statutes stood in the way of such abuse.
Finally, John's broad Commander-in-Chief override theory, which was a prominent part of the DOD Working Group Report, and which was briefed to General Miller on his way to "GTMOize" Iraq, obviously conveyed the message that the President could ignore any applicable statutes and treaties, even if they would otherwise apply.
John's legal advice, then, was a fairly direct cause -- certainly a necessary cause -- of the abuse in Iraq in 2002 and 2003.
3. John stresses, as he has in the past, that he was without much guidance in interpreting the federal torture statute, since there had not been any prosecutions under it, or any court cases construing it. But the virtually identical definition of "torture" is included in statutes governing removal of aliens and asylum applications, and that definition had received extensive treatment from courts under those statutes (which were also enacted in order to implement the Convention Against Torture). The INS and the State Department, therefore, had very extensive knowledge and expertise on the question. And yet those experts were cut out of the loop -- they were not consulted on the OLC opinion. Indeed, John's testimony states that the NSC ordered OLC not to discuss its work with the State Department! -- something that is in itself fairly scandalous.
4. John states that his 2002 torture opinion was "reviewed, edited and re-written by the assistant attorney general in charge of the office at the time [Jay Bybee], as is the case with all opinions that issue from OLC." John is correct that virtually all written OLC opinions -- certainly those of great importance or dispute -- are at the very least reviewed by the AAG. How, then, does he explain the fact that two of the most momentous OLC opinions has ever issued -- the September 25, 2001 Opinion on the President's war powers and the March 14, 2003 opinion informing DOD (over the vociferous objections of numerous DOD lawyers) that its interrogators had virtual carte blanche to ignore federal statutes -- were signed by John Yoo himself (a mere deputy), rather than by the head of OLC (Dan Koffsky in 2001; Jay Bybee in 2003)? Posted
by Marty Lederman [link]