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April 02, 2008

Yoo's March 14 Memo

By now I'm sure you've heard that the DoD has released the infamous "torture memo" that then-Deputy Assistant Attorney General for the Office of Legal Counsel John Yoo wrote describing the law governing military interrogations of alien unlawful combatants. Various parts of the Left blogosphere and the legacy media are screeching about it and alternating between calls for impeachment and cries of "Abu Ghraib, Abu Ghraib." They look and sound like nothing so much as a pack of overexcited baboons.

I'm not ready to defend it in its entirety (as Stuart Benjamin challenges), but there are parts of it that are indeed "near boilerplate." Moreover, Benjamin and other commentators are conveniently ignoring that the Supreme Court would later agree with key parts of the March 14 Memo--namely the scope of executive power and the limits of Constitutional guarantees for alien unlawful combatants--in cases like Hamdi (2004), Hamdan (2006), and even Rasul (2004), all of which were trumpeted as crushing blows to the Administration. Several decisions in the lower courts also adopted reasoning similar to that of Yoo's memo--without having even seen it, mind you.

So when Benjamin predicts that few lawyers who have expertise in the area of law will defend the March 14 Memo, I think he's expressing what he hopes will happen rather than what any person can actually expect to happen. I'm not certain that I care to spend the next week combing through the memo and responding to Yoo's critics, but I will address some immediate problems with the Lefty commentary.

First, contrary to Marty Lederman's characterization, the Yoo memo does not authorize the abuses at Abu Ghraib. Nor, by any stretch of the imagination, does it provide a "blueprint" for the types of things that went on there that led to seven courts martial, all of which included charges of dereliction of duty. In other words, the abuses that went on there were most certainly not authorized by the March 14 Memo or any other Administration action.

Second, there are several reasons for classifying the memo at the time it was released. Kevin Drum expands on a questino of Lederman, asking:

now that we know what was in the memo, what justification was there for classifying it in the first place? It wouldn't have been moot in 2003, and there was nothing in it that compromised national security either then or now.

Drum is obviously incorrect about this. In March 2003, there was little public information about our interrogation programs or the lengths to which our interrogators were legally allowed to go. Releasing the memo would have revealed to our enemies much about the Administration's intention to interrogate and possibly the severity of such interrogations (it goes into detail about what legally constitutes assault and maiming and discusses the legal ramifications of many interrogation techniques; it's discussion of the Convention Against Torture is particularly telling). The memo also obliquely references several things about the war effort that could have reasonably been seen as requiring secrecy, including various other classified legal inquiries made by the Administration and references to military installations abroad other than Guantanamo Bay where detainees may have been interrogated.

In short, the Left--with the legacy media right behind them--are ready to launch into all kinds of insupportable attacks on the March 14 Memo like linking it with Abu Ghraib or so-called "unlimited war" plans by the Bush Administration. If you are interested in looking at yourself, Part 1 is here (PDF) and Part 2 is here (PDF). Whether I return to the subject will depend on how incompetent the Lefty and other blawg discussion gets.


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posted by Gabriel Malor at 11:44 AM

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