Day By Day

Wednesday, April 02, 2008

John Yoo

One of the Left's favorite whipping boys in the Bush administration is John Yoo, formerly Deputy Assistant Attorney General, who in 2003 issued a memo on interrogation techniques that war opponents have called the "torture memo". This memo was recently declassified [here] and the left -wing blogosphere has responded with righteous denunciations of it and its author. [For an example see here].

Yoo, now a law professor at Berkeley, was recently interviewed by Harry Kreisler on the excellent UCTV show, "Conversations with History". Listen to the interview here, and get a sense of the man and his thought processes. He's hardly the monster the bloggers make him out to be.


Lawyers on the lefty blogs and clueless MSM reporters are trying to build a case that Yoo's memo represents a radical break with American legal traditions. Captain Ed, over at Hot Air thinks otherwise.

First, the 2003 memo didn’t authorize the start of coercive techniques. As early as September 2002, Congressional leadership of both parties got briefed on interrogations of three al-Qaeda operatives. The CIA gave members of both parties dozens of classified briefings which detailed such techniques as waterboarding, stress positions, and other controversial methods that Congress later acted to ban. This obviously predates the Yoo memo.

Yoo also didn’t occupy any position that could have authorized any interrogative techniques. He provided a legal analysis when asked, but the responsibility for relying on the analysis falls to the CIA, Pentagon, and White House. Congress certainly appeared to agree in that same time frame; the reporting on the briefings notes that none of the Congressional delegation raised any objections during the briefings. One specifically asked whether the interrogations should be made tougher.

Also, to be accurate, Yoo didn’t suggest that laws and treaties don’t apply to the President. What he gave was an interpretation as to how they apply, and he made a clear point about the limits of Congress to intrude on the executive branch in its exercise of duties as Commander in Chief. Yoo argued that the laws relating to the US certainly applied to the executive related to its domestic duties — ie, the President could not torture civilians on US soil as part of a criminal investigation because of the laws passed by Congress.

However, Yoo notes that the CinC would still be bound by CAT and the Constitution in interrogating alien combatants held abroad. The reliance on standards held in the Fifth, Eighth, and Fourteenth Amendments show that Yoo did not envision “nearly unfettered presidential power”, but power bounded by treaties and the Constitution. The question then falls to what these standards mean, and whether they exclude such techniques as waterboarding, stress positions, and the like.

Read Morrissey's analysis here.