Constitutional Law

Former DOJ Lawyer Yoo Forming Defense of Torture Memos

Former Justice Department attorney John Yoo claims in an op-ed for the Wall Street Journal that his much-maligned memos intending to provide legal cover to the Bush administration’s use of harsh interrogation techniques – some, many define as torture -- for military detainees in Afghanistan and Iraq were produced in good faith. Andrew Sullivan says the “key issue is whether the cockamamie legal opinions Yoo delivered to his superiors were a sincere and genuine attempt to say what the law was – or obvious attempt to provide pseudo-legal cover for the war crimes the president and vice-president believed were necessary to save America.”

Sullivan notes a piece by Harper’s Scott Horton examining Yoo’s ongoing defense of his legal analysis, widely condemned by lawyers and academics as seriously flawed, underpinning his torture memos. Horton, a Harper’s contributing editor, writes that he believes Yoo is struggling to shield himself from potential criminal liability for his legal work, grasping at the most attractive appearing defense:

It’s very difficult to penetrate Yoo’s claims as to his subjective understandings – one fact that makes the good-faith defense so attractive. But we see in his current column and other recent statements tale-tell signs that suggest this defense is dishonest. The bottom line is this: how could someone who earned a law degree from Yale and became a tenured member of the law faculty at Berkeley, one of the nation’s most prestigious law schools, appear to be so incredibly ignorant?

 

Immediately after reading Yoo’s memos it struck me that they were the product of reverse-engineering. The way they drifted through issues, the bizarre choice of precedent, the curious misreading of the Constitution in which the clause granting to Congress the authority to address questions surrounding detainees simply disappears – and the equally tendentious and absurd readings of international conventions and precedents – could be explained if you imagined that Yoo had been approached and told to craft a memorandum that legalized practices already in place.

Horton’s article is available here. Horton also participated in “Voices Against Torture: Writers and Lawyers on the Way Forward,” an event hosted by ACS and PEN American Center late last year. Audio of the event is available here.

Full post as published by ACS Blog on January 30, 2009 (boomark / email).