The ‘Yoo’nitary Theory of the Executive
(extended version)
In the orgy of leaks and recriminations that dogged the Bush administration adoption of what were, by definition, reactionary policies in the wake the attacks of September 11, 2001, a controversial figure has emerged as the legal devil in the details of US conduct in the war on terror. Rather than the bit player in the minutia of governance he expected to be, John Yoo’s work regarding the scope of the Commander-in-Chief power has cast him forever in the blogosphere as having crafted Bush’s “imperial presidency” from whole cloth.
As a ‘jailhouse’ lawyer who follows debates over the course of law and policy in this nation, it was impossible not to notice the cavalcade of criticism that attended the release of memos authored by Yoo, most notably in April of last year. Their author’s conclusory conviction in absentia of everything from academic malfeasance to war crimes lead me to worry that the soft underbelly of wishful thinking in the Bush administration would be exposed as a rash of sophomoric legal gerrymandering.
An abiding suspicion of government power coupled with a respect for scholars and commentators on the right who expressed opposition, from Richard Epstein to Bob Barr, served as some validation that the campaign to discredit Yoo was not strictly a project of the vast left-wing conspiracy residing at the Daily Kos. Yoo appeared at a forum at Brown University last Thursday, and this history would suggest that I would have taken a place amongst the many tendentious questioners who took the opportunity to vent their cyber-spleens in public.
But a funny thing happened on the way to that forum. I read the memos, and have come to see myself as a devil’s advocate on Yoo’s behalf. I do not find his reasoning unimpeachable, I simply can’t find anyone who has really done so.
Analogous to the preclusive tone of argument over climate change, most commentators presuppose that the legal discussion of Yoo’s memos is over. But tracing these expressions of presumptive outrage to their organic fonts has repeatedly turned up a problem of circular logic. Serious legal analysis usually turns out to amount to an assertion that Yoo’s arguments aren’t worthy of serious legal analysis.
But perhaps the most striking shortcoming of the work of Yoo’s critics is their failure to apply the very rules of dispassionate rigorous widely-informed analysis they insist are necessary to fair inquiry and just outcomes. They have allowed slippery slope arguments, essentially prudential considerations, to outweigh the admission of any legal equities whatsoever that attend Yoo’s work. The sense of their arguments is that even discussing what kind of aggressive and degrading treatment may be short of torture leads inevitably to the implicit sanction of evermore obscene and grotesque treatment thought to have been forsworn by the civilized society. That the debate, replete with hyperbolic hypotheticals, see, generally, n. 3 supra, will itself shock the conscience, gives rise to the emotionally satisfying if logically exclusive proposition that the result of that debate must do the same. The argument, thus constrained, is lost on res ipsa locatur grounds before it is even commenced. To have debate on torture is torturous.
In this environment of ideological partisanship, Congress took on John Yoo in hearings that seemed all but meant to expose his and David Addington’s work for the administration as part of that secret Federalist Society plot for monarchy, the Unitary Executive. This is a misnomer that sticks to Yoo’s war powers arguments. While Congress seldom publicly displays a subtly informed understanding of legal theory, it is possible to trace their confusion in this case. To the extent that literal expressions of unitarianism by the executive are reportedly unprecedented prior to the Bush administration , and that Addington stressed the importance of the unitary character of presidential power to the role of Commander in Chief, it is unsurprising that the two ideas have been conflated.
But the portion of Yoo’s governmental and scholarly work at issue is principally concerned with how constitutional structure defines and, depending on circumstances, may redefine limits of executive power as exercised by the Commander in Chief. The actually unitary conception is about intrabranch power, not interbranch. Unitary Theory has, as its root, the truism that the Constitution vests the entire executive power in the President. This can be readily contrasted with models in the states (and elsewhere) in which various executive officers are elected separately and retain independent and sometimes competing codecils of the executive portfolio, e.g., notably, in most states, the attorney general, secretaries of state, treasurers–not to mention partial parliamentary character in which portions of the executive function reside with legislative officials.
Because such an arrangement tends to guarantee (4th branch considerations aside) that the executive branch speaks with one voice at the pleasure of a single elected official, it presupposes to minimize internecine struggles within the executive branch. Thus unitarianism certainly has some inherent pragmatic bearing on the relative power of the executive to the other branches. But it does not conceive of a different allocation of powers amongst the branches, rather it may strengthen the hand of the executive in actually wielding power. Arguably, unitary theory does contribute overtly to interbranch checks by accentuating the constitutional incompatibility of devices that siphon executive power to other branches, e.g., the ‘legislative veto’, or attempts to statutorily usurp the removal power over the President’s subordinates under various rubrics of government organization.
Even recognizing those interbranch effects, Unitary Theory has very little to do with recognizing or embellishing the unique role of the Commander in Chief. No one seriously argues that the President doesn’t have removal power over his military subordinates, or that his relevant cabinet appointments, e.g., Defense, Homeland Security, National Security should act independently of his judgment as Commander in Chief. Historically speaking, this was nowhere better exemplified than in Lincoln’s presidency which became so identified with his conduct of war. The tradition, of course, is not for ideological or strategic mimicry by subordinates. Robust differences are expected by the public to be expressed amongst the President’s councilors, but these officials are equally expected to implement the President’s decided approach – or remove themselves .
Regardless of whether Unitary Theory is a proper epithet in the formalist sense, another functional criticism has been widely applied to Yoo’s approach to the Commander-in-Chief debate, i.e., unprecedented. But the ‘high water mark’ reading of sovereignty for the Commander in Chief, as somewhat contrasted with the executive in enforcing the law, far from being a rash departure from foundational understandings of the separation of powers, has been ever present in the longstanding debate over the President’s role. Recent influential work has been Yoo’s, but the better part of his effort has been to demonstrate that this is nothing new.
Thus, in navigating the tension between a certain Burkian homage to Yoo’s mustering of arguments for first principles that have attended presidencies since the founding with an innate libertarian cynicism regarding unchecked executive overreach–and for the more worthwhile prosaic device of distinguishing this work from Unitary Theory–I have dubbed his arguments as the 'Yoo'nitary Theory of the Executive.
Yoo’s detractors trace his purported weaving of emperor’s new clothes to a California Law Review article he authored in 1996 . Robert J. Spitzer, writing recently in the Presidential Studies Quarterly characterized Yoo’s 1996 arguments as “startling”. His reading of the article found Yoo suggesting that:
. . . the constitutional war powers [having been] designed to “encourage presidential initiative in war,” meaning that presidents were to have the leading role in initiating war; that Congress's role in war making was not based on its power to declare war but instead on its funding and impeachment powers; and that “[t]he courts were to have no role at all” .
Despite Spitzer’s apparent surprise, these arguments aren’t particularly controversial unless you’ve been living under a rock since the Vietnam War. You may not agree that they are persuasive, but they aren’t particularly novel or outlier in character. Presidents have bridled at the War Powers Act since it’s passage, although arguably it was Clinton and not Bush who all but consigned it to dead letter status. There was no equivalent of the Authorization for the Use of Military Force that Bush obtained from Congress in the multi-year military deployments attending our intervention in the Balkans.
But what of Congress’s intervention in micro-martial policy, what of decisions regarding the interrogation of those captured on the battlefield? Yoo does make strong but qualified claims for executive exclusivity in the first so-called ‘torture memos’, e.g., “. . . the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign.”, Memorandum for Alberto R. Gonzales Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, Office of Legal Counsel, Aug. 1, 2002 (emphasis added)(“Bybee memo” but in combination “Yoo memos”); and more boldly in the second “Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States, Office of Legal Counsel, March 14, 2003. While these are anything but faint echoes of the strong Commander in Chief, taken in the context of the 60 odd pages of statutory analysis that attended each reference, they arguably amount to dicta or sine hoc quod (without this that) reasoning. This is especially so given that the extent of the memos’ specific treatment of the definition of torture under the Convention Against Torture (CAT) treaty and the associated Torture Statute (18 USC 2340 et seq) that acknowledges these standards have significant bearing on the conduct of the administration.
It is impossible to read the memos as the “get out of jail free” cards that some have suggested they are intended to be, to the extent that the lever against the jailhouse door is conceived to be the references to the Commander-in-Chief power. If the Commander in Chief and subordinates at his direction may do as they like, there is no need to engage in scores of pages of discussion of the definition of torture are unnecessary. It seems unlikely in context that any actor could wholly ignore the definitional limits claiming that they are wholly extraordinary. It is conceivable that a case could be constructed on highly specific facts engaging a defense of actions taking pursuant to a direct presidential order in dealing with “high value” individuals, e.g., Al-Zarqawi, Al-Zawahri, Bin Laden, Mullah Omar, etc., that the Commander-in-Chief power could be invoked, but it is far from clear that even in that case the memo provides immunity, never mind in the realm of far more attenuated chain of command that represented decisions taken under its authority.
Indeed, critics of the memos divide their time between outrage over the definition of torture and attacking sweeping claims of executive power. Of course, if the Commander-in-Chief power could be properly invoked as the basis for lawlessness, debating the content of the law is irrelevant. Yoo makes no such sweeping assertions of the President’s unilateral power with regard to constitutional standards limiting the president’s power, e.g. 4th, 5th and 8th amendments, or treaty obligations. Of course this is the reason that the debate extends to the applicability of the Geneva Convention and constitutional availability of Habeas or other constitutional protections to detained individuals.
Of course it remains an important theoretical question, if not really the driving force behind the torture memos, to ask whether the Commander-in-Chief role operates exclusive of the presidential duty of “taking care that the laws be faithfully executed” in a literal sense. Here, Yoo’s vociferous critics have included those on the right, for instance Professor Richard Epstein told the New Yorker magazine:
“The President doesn’t have the power of a king, or even that of state governors. He’s subject to the laws of Congress! The Administration’s lawyers are nuts on this issue. . . . their talk of the inherent power of the Presidency seems to be saying that the courts can’t stop them, and neither can Congress.”
Despite my affinity for Epstein’s body of work, it seems most likely that the actual extent of the Commander-in-Chief power is likely to turn on context analyses determining in which role the President was functioning, or to what degree he was undertaking concurrent responsibilities, than categorical assertions in either extreme.
But does this world of extremes really exist, is Yoo’s Commander in Chief unchecked? Varying institutional controls prevail in this arena, such that statutory limits cannot be conceived as the sole cabin. As previously mentioned, observance of constitutional and treaty standards were never forsworn , not to mention, for Congress in particular, the funding and impeachment power. Additionally, the military maintains its own code of conduct and rules of engagement such that individual members are not at liberty to interpret the larger questions, or take the President’s license as their own. Finally, the Bush Administration, despite much naysaying to the contrary, was anything but uninfluenced by public sentiment.
Still, Epstein’s logic seems unassailable as a matter of constitutional structure with regard to absolutist claims of a sovereign Commander in Chief. But, there are additional or corollary understandings of American constitutional governance that perhaps place limits on Congressional power in this arena. Thus it may boil down to a semantical debate of whether the American tradition provides for a stronger President as Commander in Chief or a weaker Congress.
There is, after all, a de facto understanding that Congress could not pass a statute telling the President when and where to attack, despite a technically conceivable argument that this is simply exercise of Congress’s power to regulate the military under Article II of the Constitution. Yoo’s critics regard claims that the President can ignore the Torture Statute under a claim of military necessity as equally absurd in the opposite dimension. But neither extremity seems persuasive as a controlling rule in all conceivable cases. As useful and desirable as brightline law is, the Court’s frequent resort to ad hoc totality of circumstances analysis appears the only likely outcome for questions of degree posed by the Yoo view.
Looking quickly to common sense, one could imagine an inquiry into: how close the asserted exercise of power is to a military strategy or tactic; how close the exercise of power is, in distance and/or influence, to a theater of battle; how directly the Commander in Chief has exercised the power in the chain of command; the extent to which the exercise of power supplants the traditional law enforcement paradigm; the extent to which other intrabranch institutional safeguards rules, procedures, precedents (including, for instance, earlier OLC opinions in the subject area) are relevant or serve as alternative cabin, etc.
Perhaps Yoo’s critics do not so much disagree with such a pragmatic approach, but they certainly contend that, from a scholarly point of view, the nature of Yoo’s claims for the Commander in Chief are unprecedented, and thus, in a legal architecture sustained by precedent, they are bad law.
Yoo’s citation to a 1984 OLC memo regarding the assertion of executive privilege is instructive: “The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege.” Assuredly such assertions go to the root of the rule of law and suggest an overlap with unitary theory. What the 1984 opinion supports is the claim that the unitary executive cannot impeach itself. Is executive privilege really a context in which the separation of powers concerns are heightened but the Commander-in-Chief power is not? For those who have cloaked themselves in high moral dudgeon, the subject area, i.e. torture and our international standing, transcend argumentation in this area. But the debate is not so much whether there will be unilateral claims of privilege by the executive, but whether and to what extent they are proper.
The memo’s more developed argument regarding the prevalence of the Commander in Chief power on issues of waging war arguably might serve to insulate those carrying out orders of the President as Commander in Chief from the operation of generally applicable statutes, as distinguished from treaties, unless Congress has expressed specific intent to reach such actors. This claim is owned not by Yoo, but by Walter Dellinger who wrote for Clinton’s OLC:
In the absence of a clear statement of [the] intent [to apply the statute to military personnel acting under the President as Commander in Chief], we do not believe that a statutory provision of this generality should be interpreted so to restrict the President's constitutional powers.
The statute at issue when Dellinger penned this OLC memo was not identical in substantive or jurisdictional generality, but the concept Yoo expressed is by no means without precedent. It is notable that his detractors do not take up the distinction between the argument for complete sovereignty in military tactical maters and the lesser claim requiring statutes intended to regulate the military to clearly state that intent. This “canon of construction” is an extension of the premise that to apply laws on murder or assault to actions in war against an enemy is absurd on its face.
Some see this as a slippery slope in the case of statutes they think ought to apply to the military but are not specific in this regard, cf., the Torture Statute, 18 USC 2340A (“a person acting under the color of law”) and the War Crimes Statute, 18 USC 2441(b) (“the person committing such war crime . . . is a member of the Armed Forces of the United States . . .”(emphasis added)). Nonetheless, Yoo’s claim in this area is noteworthy not for its unique quality, but for being virtually identical to claims of the Clinton presidency.
If this part of the Clinton legacy has been overlooked, or deliberately ignored, by partisans on the left, they have managed to go back in time to the Clinton administration in attempting to rhetorically impeach Yoo’s intellectual integrity. But their attempts do not bear particularly ripe fruit. With Clinton in office, this was a time when a perceptually loyal conservative like Yoo should have been more suspicious of executive power, especially if his purposes were partisan. Further, he had two high profile clerkships under conservative judges and had worked most recently as counsel to the Republican majority on the Senate Judiciary Committee, so he was not short on influences or interests that could have been served by seeing a weaker executive. Yet, it was in 1996, with Republicans in control of Congress and Clinton in the Whitehouse that Yoo published what is considered to be the organic document of his ‘Yoo’nitary theory of the powerful Commander in Chief.
Certainly, charges of hypocrisy ought to be taken seriously and critics point to his criticism of Clinton policy in The Imperial President Abroad, a chapter in the CATO book The Rule of Law in the Wake of Clinton. Of course it is convenient to blog snippets of that chapter as if Yoo’s perspective changed daily like underwear, but those raising this point ignore explicit contextual evidence that Yoo stuck to the strong executive view even while criticizing the Clinton administration. Reading the full chapter, one finds that Yoo expresses fidelity to the view of the strong executive but asks why critics of the imperial presidency have gone silent with regard to Clinton. And he argues with the Clinton administration approach on policy grounds, that Clinton looked to justifications in international relations for taking strong executive actions thus seeming to premise the power on international norms or consensus–effectively the view that, if the French like it, it’s OK. Thus Clinton and Bush claimed similar executive prerogative, but wielded it differently.
A final note is due on where the ‘Yoo’nitary theory of the executive stands as a result of subsequent maneuvering within the Bush administration, the recent influx of the Obama administration, as well as Supreme Court decisions arising from the war on terror. The blogosphere has been alight for years with the notion that Jack Goldsmith’s withdrawal of the Yoo memos amounted to discrediting their reasoning. Indeed, while defending Yoo’s integrity and intellect, Goldsmith has called the memos “poor quality” , and this has been taken to impugn these undertakings as a matter of law.
But Goldsmith’s principal objections appear to have been the extent to which Yoo’s conception of the stronger Commander in Chief has the effect of diminishing the President’s use of the power to persuade. Thus, even with ascendant power as Commander in Chief, the check of public opinion, sometimes ultimately transmitted through the other branches, amounted to a weaker rather than stronger presidency.
That the key differences were prudential is made fairly clear by the “Levin memo” that replaced Yoo’s work. The claims of Commander in Chief power are not refuted in the latter document, but, in legalistic parlance, they are not reached:
“Because the discussion in that [Yoo] memorandum concerning the President's Commander-in-Chief power and the potential defenses to liability was--and remains--unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture.”
Notice the memo does not deny the existence of an extraordinary Commander in Chief power, or refute such assertions as spurious, without foundation or ultra vires. Rather it takes a prudential approach to the claim, that inherently maintains the very notion that a measure of such power exists, by finding that the President has expressly waived it with regard to the subject matter of the memorandum.
This analysis is born out by a good deal of reporting on internal administration debates, and debates within the conservative camp at large, regarding the negative consequences of acting ahead of persuading the public and the other branches, especially the Congress. Yoo himself references the difference between the administration’s making that case for its controversial surveillance programs, but essentially remaining close mouthed and aloof throughout the debate on interrogation of unlawful combatants. Given this environment, there seems very little reason to believe that the Bush Administration significantly changed its view of the law, but rather that the Bush Administration thought it unwise to make expansive assertions of power if unnecessary to justify the policies it actually pursued.
In terms of substance, there were no major shifts in actual standards of treatment for detainees. This is unsurprising as the findings of the “Levin memo” were strikingly similar to Yoo’s on the definition of torture, with three narrow but notable exceptions: 1. Whether the incontrovertible understanding that the CAT was meant to reach only extreme behavior, as an inducement to encourage the widest range of countries to adopt its tenets, correctly illuminated its “severe pain” threshold as corresponding to “excruciating and agonizing”, an argument stemming not from some legal legerdemain on Yoo’s part, but a longstanding interpretive conundrum traceable to the 1980s ratification of the CAT; 2. Whether the prohibition on “severe physical pain or suffering” is a disjunctive reference leading to two different standards or a conjunctive reference that would literally be interpreted as pain and suffering in a common standard; and 3. Whether the definition of “severe pain” is appropriately indexed to that “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
On the first question, Levin does appear to allow the Congress to claim a bit of influence in his resolution of the question. He credits Congress’s failure, during the CAT ratification debate, to adopt a proposed express understanding that the treaty was meant to “reach only conduct involving ‘excruciating and agonizing’ pain or suffering” as somewhat dispositive of the matter.
It bears mentioning that courts define themselves as “chary” to recognize expressions of legislative intent in Congress’s very failure to adopt certain proposed measures, albeit doing so while undertaking the very behavior their opinion forswears. Perhaps, however, in this separation of powers debate, where the executive is seeking to stake out its own understanding of the balance of powers more so than solely predicting what a 3rd [Branch] party might say about the matter, such expressions of deference are not inappropriate references.
As it happens, though perhaps not by coincidence, the construction at issue here turns not on the validity of a statutory enactment, but on the process of negotiating and ratifying a treaty. To the extent that the administration intends to abide by the treaty and sees the discourse of § 2340 as evidence of the meaning of that treaty’s terms, this discussion does not imply that the administration sees the statute itself as applicable to the military or those acting at the direction of the President as Commander in Chief. So neither Yoo’s nor Levin’s contemplation of the standard seriously impacts the waived arguments on the Commander in Chief’s sovereignty in this area.
Ironically, the “Levin” memo itself continues to speak about degrees of agony as defining torture in the totality of circumstances. Thus, the memo certainly represents some degree of agony as outside the realm of torture and reveals the debate in this area to be largely a semantical one that does not offer new brightline illumination to the adjudication of the lawfulness of specific interrogation methods.
The second distinction between the Yoo and Levin approaches is potentially the most relevant to public understanding of real behavioral thresholds commanded by our moral commitments together with legal obligations not to engage in torture. The subtext to this disagreement goes to such techniques as waterboarding that are relatively short in duration and not associated so directly with pain, but clearly imbued with a significant measure of suffering. But even here, it is by no means clear that the “Levin memo” actually results in a different standard.
After generally viva la difference accolades for the “Levin memo”, Marty Lederman admits in an October 28, 2006 post that Levin’s imputation of a temporal requirement to inform the definition of “severe physical suffering” might make it more similar to Yoo’s than Lederman first thought. He of course proceeds to criticize Levin with the same emotional vitriol and unevidenced imputation of motive once reserved for Yoo: “It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.”
The third difference on standards, distinctions between the Levin and Yoo approach to the definition of “severe pain”, seems to have real effect but in a potentially illusory way. While questioning the utility of Yoo’s resort to a statute defining “severe pain” for the purposes of provisions of emergency medical services, Levin himself looks to the medical literature for the proposition that there are no objective standards for defining pain in footnote 18 of the “Levin memo”.
Yoo no doubt thought his own construction slightly more brightline and within a reasonable interpretive framework, but even he said pain “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” (emphasis added). This finding was much maligned, not for its reliance on a more medical context, but because it seemed to countenance the administration of painful bodily injury short of that likely to cause organ failure, limb loss, permanent sensory depravation or death.
But given the lack of an objective scale for pain, it seems unlikely that the two standards are particularly different. The logical nonstarter is obvious when you consider that someone who experiences serious pain is often likely to suggest in earnest that ‘it felt like my arm was getting ripped off’, which is to say that a much larger universe of pain is likely contemplated by even Yoo’s standard and it seems likely that interrogation efforts were unaltered by contention over this point, whereas the failure of Yoo’s attempt at specificity may indeed militate for ad hoc standards.
Lacking judicial precedent with regard to the definition of torture § 2340, both Yoo and Levin resort to judicial interpretations of the Torture Victims Protection Act that has a nearly identical definition. Yoo recognizes that torture is most likely to be inferred by the court from the totality of circumstances. See, Re: Interrogation of Alien Unlawful Combatants Held Outside the United States, March 14, 2003, p. 47 (“courts appear to look at the entire course of conduct rather than any one act”). Levin does not use the totality language but quotes extensively from decisions that seem to make that the de facto rule. Thus it reduces again to a semantic, perhaps prudentially important but substantively indistinguishable when the two memos are taken in their own complete contexts, to say, as Levin does that:
This opinion concludes that “severe” pain under the statute is not limited to “excruciating or agonizing” pain or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.”
In minor ways, Yoo and Levin also disagree over the meaning of “specific intent” and “prolonged mental harm”. But focus on the areas of disagreement simply papers over the extent to which these two attorneys reached largely similar outcomes. Even Yoo critic Lederman concedes, in begging for different tone, style and procedure at OLC than he imagines attended the preparation of the “Yoo memos”, that this approach is necessary to provide “fair and candid assessment of the many close and difficult questions associated with the various federal laws bearing on the issue” (emphasis added). That two lawyers analyzing close questions come to modestly different conclusions doesn’t tend to indicate professional misconduct, yet that is the gravamen of the complaints that Lederman continues to toss in Yoo’s direction.
Asking for Lederman to simmer down and use his standing as a public intellectual to affect these close calls is the central purpose of my devil’s advocacy on this issue. In the rare instance that he gets down off the ‘anti-Yoo’ pedestal, in which role he can be conceived as a shadow OLC tilting like Don Quixote at the windmills of any remotely objectionable detainee treatment, the merits of his contributions become more clear. In on unusually specific undertaking he reaches what is arguably the nub of a very real dispute over the high (or perhaps low) water mark for American tactics, waterboarding.
In an extensive Balkinization post that is more thoughtful in some ways than its res ipsa locatur title: Yes, It's a No-Brainer: Waterboarding Is Torture the oft absent technique of recognizing the administrations substantive legal arguments leads to useful discourse:
. . . perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering. (Let's put to the side here the rather problematic point that severe long-term mental suffering is foreseeable in many cases.)
OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist.
This is one of few places that Lederman acknowledges possible administration arguments, arguments that clearly countenance a measure of aggressive tactics, but disagrees that one can accept waterboarding as one of them. Here he points particularly to a possible distinction between the Yoo and Levin outcomes although we do not yet know the actual impact on US conduct of the distinction. Lederman continues with various arguments on the history of the technique and one must take this as a serious and less hyperbolic criticism of thresholds adopted, especially by comparison to the bulk of his tendencious undertakings. It is unfortunate that Lederman, as a respected public intellectual and scholar, did not spend more of his rhetorical capital on such specific discussions.
As to the question of whether the 3rd branch has discredited Yoo’s approach, the courts have principally responded by avoiding it. Yoo acknowledged in various settings that the administration has lost ground in the courts, but not, for the most part, through direct attack on his theories of the executive–with the possible exception of portions of rulings on military commissions.
The courts can avoid the separation of powers questions that many political observers see implicit in the detention cases by several methods, including the obvious and overt declination to rule on a political question, but also by constructing a constitutional argument outside the separation of powers battle, i.e., holding that constitutional rights afford grounds to challenge executive detentions independent of statutory causes of action.
In such context, libertarian rather than liberal principles prevail and the battle is between the ascendancy of individual rights and executive power, rather than a classic separation of powers battle. Or perhaps one could characterize such cases as pitting the strong Commander in Chief against the judicial branch in a way that implicates the separation of powers, but it tends to defuse the sense of the administration at odds with Congress, or to encourage the administration to seek Congressional sanction for its actions as a potential implicit prophylaxis in court challenges.
There is also the peripheral question, to the extent that the court has not really considered the claims of inherent power of the Commander in Chief with regard to the other two branches, that the well publicized nature of these claims might have had some indirect impact on the cases. Although the issue itself is not ‘teed’ up, the court could feel compelled, given public perception of the matter, to clip the wings of the executive. This is surely possible, but, such a highly complicated regime of institutional interests and public sentiment is reflected in the outcome of cases regarding the war on terror, that it would be impossible to say what impact the direction pursued under the “Yoo memos” has had on the results. It seems likely to have been more than none and less than all.
The failure of Congress, other administration actors, or the courts, to explicitly refute Yoo’s ideas does not indicate some collapse of the separation of powers. Indeed, it probably represents deference to the concept, and some degree of not wanting to know the answer. The ultimate, if less subtle checks remain for Congress, the power of the purse and of impeachment.
The progressive view is that certain conveniences, short of the politically sensitive defunding of the troops or the precipitous notion of impeaching the President, ought to be available. But the Constitution was not necessarily written to make Congress’s job easy. The reasonable and popular policy determination by Congress to institute a line item veto to address the widely recognized problem of log rolling had no weight as to the constitutionality of accomplishing that gambit by enactment of statute law.
The whole argument over to whom the Torture Statute applies and the legal standard for defining torture could be readily joined by Congress’s rewriting the statute. They could make it clear that the law is written to apply to the military and to all acting at the direction of the President. They could enact a definition of waterboarding or other relatively specific threshold techniques as torture, or prohibit them outright. Then, the battle picked by Yoo would truly be joined.
While Obama has made necessary bromides to public sentiment in narrowly fulfilling campaign promises in this area, notably by setting a timetable to close the detainment facility at Guantanamo, other actions of his administration support strong executive claims. Nor does the closure itself concede any particular power, and the administration has yet to opine exactly how it might deal with extraordinary rendition, military detention or trial for detainees it wishes not to release.
Ironically, with a President Obama, Democratic opponents of executive power may well be quiescent for the foreseeable future. This could be defended as matter of their trust in the probity of the exercise of executive power they believe will attend the Obama administration. But political theory tells that now, with progressive majorities in Congress and the White House in their hands, would be the time for anti-‘imperial president’ advocates to pass such statutes and attempt to use public perception of the Bush administration to aid Obama’s presumably passive Solictor General in obtaining the endorsement of the courts.
Then we would surely see if the progressives in Congress really wish our interrogation of detainees limited to their name, rank and lack of serial number. And we can wait for the lawsuits that will bring flat screens streaming Al Jazeera to Guantanamo–maybe Obama wants to close the detention center there because the government can’t afford the likely cable bill.
But does this cynicism over the Yoo affair reflect the complete dimming of the libertarian light for an analyst who gained his charter legal instincts from the likes of Richard Epstein. Well of course it reflects some movement on my kneejerk understanding of these issues and where I would unswervingly seek counsel. But I began this research expecting from the conclusory rhetoric on the left and right, that Yoo would prove to be an embarrassment to the administration and to the conservative legal establishment. I think anything but that now. It is certainly possible to come out differently on these questions than Yoo does, but I don’t think you can present the totality of his arguments as remotely out of bounds.
Obviously, the key caution that I must employ given that Yoo’s disarming but resolute defense of his work has a siren quality–especially by comparison to much shrill and unavailing criticism–is to recall and renew my suspicion of government efficiency and effectiveness. The real impeachments of the interrogation process in the Bush administration has been a refusal to better screen detainees, not so much their individual treatment. This is not as particularly easy or obvious a process as it is made out to be, and recent reports indicate that released detainees have taken or retaken a place in the irregular army of terrorists with whom we contend.
It certainly would be inconsistent for me to believe that government can’t run a one car funeral, but imagine that it would be perfectly civil and effective at setting up concentration camps–effective in the sense that it detains persons who objectively merit detention and that it consistently obtains reliable information on enemy activities from these detainees without abuse
The occasional horror story such as that of the interrogations in Afghanistan that reportedly lead to the death of a detainee seem even more shocking because of the rumored likelihood that the fellow was nothing more than a cab driver who was in the wrong place at the wrong time, although our understanding of these incidents is limited to the popular press sources that have not been fully illuminating as to the theoretical debate surrounding these policies. Behavior of interrogators reportedly bordered on abusive, but, that is the whole point of a coercive environment. And despite its callous nature, that is the whole point of engaging in defining the threshold for treatment, that the those prosecuting the President’s policy will come up to that line but not cross it. Our behavior hardly borders on kidnapping people and cutting their heads off, yet we may still be accused of not setting a standard appropriate to that demanded by our political compact or prudential membership in the international community.
That the vast majority of detainees do not appear to have suffered torture is perhaps because such a great deal of attention has been focused on their treatment and thus there is no meaning to impugn the contributions and motives of would be protectors of the detainees, whether my outlook would coincide with theirs on any particular question.
I would make no bald or sweeping assertion that the government has acted wisely or properly in exercising such awesome authority, but it may be readily recalled from Kelo v. New London, that the awesome nature of a government power does not, in and of itself, impeach the power even in illiberal imposition. Despite very good prudential and constitutional argument to the contrary, we have consigned to government the power of eminent domain, literally dubbed the awesome power, essentially without regulation. The point is however, for all of the arguably improper executions of this power, there are proper ones. It is not the power itself that is illegitimate.
I have no hope whatsoever that the eminent domain power will be reliably exercised with wisdom and propriety, although public pressure has obviously been more effective than the courts in reining in government exercise of this power. It will remain the duty of the public to see the government operated in the manner it wishes balancing important concern for human rights with the defense of the compact that secures those rights to Americans.
I, for one, am glad that John Yoo will be amongst those public intellectuals helping us strike this balance. To his credit, he remains outspoken, explaining his actions while serving the executive branch rather thank shrinking from attempts to foreclose this important discourse with presumptive allegations that his conduct was indensible. In that light, he distinguished himself at Brown University on Thursday, Feb. 19th debating Larry Cox, the director of Amnesty International on the question of the universality of human rights with both parties drawing heavily on recent experience with the US war on terror and the ideological ripples of that conflict throughout the world. It is a credit to Brown to present such figures and important public policy perspectives that have been ignored for some time in the atrophied environment of political correctness that has crippled the important work of the academy.
The Ocean State Policy Research Institute (OSPRI) has chartered an inquiry into the application of foundational principles of the United States and Rhode Island Constitutions to public policy. The scholarship and opinions are those of the authors. OSPRI’s effort to facilitate publishing, presentation and critique of constitutional analysis is meant to encourage and celebrate such undertakings, but these legal policy papers do not necessarily represent positions of OSPRI or its board of directors.
A note is due here, admittedly for the purpose of turning the intellectual dagger. When first I expressed skepticism at both the Volokh and Balkinzation blogs regarding actual rebuttal of the substance of the “Yoo memos”, I was informed that one Marty Lederman, a Georgetown University Law Center professor and frequent contributor to the Balkinization blog, had made mincemeat of them. In the kind of ironic turnaround that attends our civil transfers of power following elections of the opposite party, Lederman, one of Yoo’s most vocal critics, is now slated to handle Yoo’s portfolio at the Office of Legal Counsel (OLC). Lederman is certainly well respected in his own right, and many who did not necessarily agree that his shrill tone and conclusive statements regarding the “Yoo memos” reflected the actual quality of his scholarship, nonetheless have approved of his qualifications to fill Yoo’s shoes.
Following the declassification and release of Yoo’s second memo, Military Interrogation of Alien Unlawful combatants Held Outside the United States, on April Fools’ day last year (somebody’s still got a sense of humor), Lederman began a series of numbered posts at his Balkinization address that were, in sum, to constitute his analysis of the Memo. By post No. 4 on April 2nd he still hadn’t gotten to the substance of the memo but was promising: “what I'll do is to publish a series of numbered posts, each centering on a discrete topic or portion of the memo.” Lederman continued for several days keeping those of us honestly interested in his specific legal arguments waiting, e.g., in an unnumbered post on April 3rd, “While you're all anxiously awaiting my march through the Torture Memo”; in No. 5 on April 11th, “Sorry I've been slow in getting around to the posts about the Yoo torture-and-maiming memo. I'll try to begin catching up over the next few days.” But, by the time Lederman got to No. 6 about 3 hours later, he was no longer focused on analyzing the content of the memo, instead joining the debate over whether Yoo’s tenure as a professor could be challenged as a result of his work for OLC. From there the numbered posts end altogether and Lederman can be found engaged in debates on Balkinization and elsewhere, e.g., Slate’s Convictions blog, opining on Yoo’s culpability for war crimes and various other debates that presupposed the memos themselves having already been substantively impeached.
Of course many embark on voluntary intellectual crusades that peter [or marty] out, given that avocational interests most often give way to vocational and or other personal responsibilities. But this trait does tend to epitomize shadow government, i.e., policy in exile, for structural reasons. Shadow actors don’t implement policy that must withstand scrutiny. So, they really have little incentive for zero sum reasoning, i.e., to organically reproduce the entire analytical process the result of which they disagree with. Rather, they have the reactionary privilege of disputing the policy choices of the sitting administration, and no standards of evidence or scholarship are applied to their work. Thus, the ringing rhetoric that Yoo’s work was so grossly lacking in rigor as to represent professional misconduct amounts to little more than the emotional fusillade of those who disagree with the outcome. Lederman is the purported champion of Yoo rebuttal, yet, at least in the venues in which he promised such content, he never delivered.
Of the dozens of Lederman’s posts reviewed for this instant effort, there is one reasonably global address of his disputes over process and substance with the earlier of Yoo’s memos on Jan. 7, 2005. This post is essentially cribbed (meaning to say logically lifted but not implying improper license) from a comparison of the 2002 “Bybee memo” (signed by Bybee but attributed to Yoo and incorporated with the 2003 “Yoo memo” herein as the “Yoo memos”) and the 2004 “Levin memo”. But certain shortcomings cited by Lederman in the “Bybee memo”, the lack of comparable endorsement of the Criminal Division of the Department of Justice and a more thorough discussion of court precedents regarding the definition of torture are present in some measure in the 2003 “Yoo memo”. Thus Lederman seems to rest his substantive compliaints of Yoo’s shortcomings more or less coterminously with the Bush administration process that rewrote the memo. This is a theme that infects the blogosphere, See, n. 3, infra, but see, discussion of the marginality of differences in the “Yoo memos” and the “Levin memo” that supplanted them in regards to 18 USC § 2340 et seq, infra pps. 10-13.
When asked for pointers to the intellectual work that constitutes an actual rebuttal of Yoo, partisans of the blogosphere have pointed to Jack Goldsmith’s withdrawal of the memos as if that were dispositive of the matter. There is a certain res ipsa locator quality to this argument, i.e., that a fellow conservative and friend of John Yoo’s who respects his intellect should inherently rebut him by the perceptual revocation of his work forecloses defense of its merits. But these actions are far from a clear statement on the legal scholarship of these memos.
Indeed, where Goldsmith, as well as the shrill critics from the left, have repeatedly insisted that the damage to our reputation in the world community and to the President in the eyes of his own citizens frustrates our security efforts far more than they are enhanced by any legal convenience that could be argued to sneak just under the threshold of our commitments to human dignity, one cannot possibly infer a legal disagreement as the lever for Goldsmith’s actions; but see n. 12 infra, for 3rd party report that Goldsmith saw legal flaws.
To the extent that Goldsmith took serious legal issue with Yoo, these disagreements were not illuminated in the terse statement of withdrawal or in news stories claiming their existence, nor have they been forthcoming in public discourse since. The substance of Goldsmith’s legal arguments are left to the imagination of the observer. And observers have pretty vivid imaginations. Doug Cassell asked Yoo at a forum in Chicago: “If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?” (A barely audible but apparently accurate recording shows that Yoo had actually just observed that, “the international framework of human rights” entitled detainees to humane treatment and that they could not be tortured. He suggested that his argument with Cassel was over the thresholds that these duties imposed. Further, Yoo had just posed a hypothetical himself in suggesting that the President could not just have people randomly executed, which would represent an environment without rules. Yoo clearly sees the memos in the entirety of their discussion in which the supremacy of the Commander-in-Chief power reflects the competency of the Commander in Chief to determine those rules and the advisability of pure observance of specific treaty commitments in a framework that is conceived nonetheless to resist extreme cases that would constitute lawlessness. Certainly there is a logical tension that Cassel was trying to illuminate and Yoo, ever the anti-categorical utilitarian, famously replied to Cassel’s implausible scenario: “I think it depends on why the President thinks he needs to do that.”)
Marty Lederman has also sensationally characterized the memos, their meaning, and the context of their various claims, but has never argued persuasively for these licentious readings, e.g., Defending the Indefensible, Slate Convictions Blog, May 1st, 2008:
The Yoo memo is an opinion that unselfconsciously spends several pages explaining why Congress should not be presumed to have prohibited the military, in wartime, from throwing corrosive acid on detainees, from plucking out their eyes—and then adds, to boot, several untenable arguments about why the president’s uncheckable authority to authorize such things would, in any event, preclude Congress from legislating to the contrary even in the most specific of terms.
This is the kind of cheap shot analysis of convenience that Lederman accuses Yoo of conducting. It excerpts a claim, actually premised on a Clinton administration precedent, regarding statutes of general applicability. Since this canon of construction would hold that the federal maiming statute, as written, does not apply to the military, this is the ‘evidence’ to which Lederman refers in implying the grotesque list he reels off is within the practical arsenal of strategic detainee treatment.
OLC opinions regarding specific interrogation techniques remain classified, but given the extent of public discourse over reported treatment, there is no evidence whatsoever that these hypotheticals describe actions that the administration considers within the rules, although Lederman could construct a contextless theoretical case that his remarks are ‘accurate’ or at least not untruthful. But by failing to recognize the bulk of Yoo’s work, or the fact that the substantive approach to interrogation remains largely unchanged by the “Levin memo” that supplanted the “Yoo memos”, he makes it hard to take his criticisms seriously.
There is an ambiguous footnote (No. 8) in the “Levin memo” that suggests all actual treatment of detainees approved under the standard of the earlier “Yoo memos” falls within the standard of the “Levin memo”. Based on later congressional testimony by Levin, Lederman argues to the contrary that this note only means that Levin’s predecessors at OLC would have approved the same treatment under either the ‘Yoo’ or ‘Levin’ standard. During his testimony, Levin apologized for the confusion as his drafting error. But circumstances make it highly ambiguous whether the ambiguity itself can be attributed to an oversight–nor is there any announced basis for Levin to know how officials no longer in the Office of Legal Counsel would apply a subsequent standard. To the extent that such a finding tracks from the content of still classified earlier memos, and that Levin actually had broad substantive concerns with the impact of his global reconsideration of standards under 18 USC 2340 on the derivative findings in those classified memos, which were reviewed in support of the footnote, the footnote certainly appears to be diplomatic obfuscation, at best, if it actually meant what Levin later testified. See discussion infra, pps. 9-13 on effects of OLC’s withdrawal of “Yoo memos” and reanalysis of standards for detainee treatment under § 2340.
See, e.g., Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency, Kelley, Christopher, 63rd annual meeting of the Midwest Political Science Association, 2005 at 2, “. . . the Bush administration is the first to make explicit reference to the [unitary executive] theory.”
See, .e.g., The Unitary Executive in the Modern Era, 1945–2004, Yoo, Christopher et al, Iowa Law Rev., Vol 90, 601, at 607:
“the three devices generally viewed as necessary to any theory of the unitary executive: the president’s power to remove subordinate policy-making officials at will, the president’s power to direct the manner in which subordinate officials exercise discretionary executive power, and the president’s power to veto or nullify such officials’ exercises of discretionary executive power.”
but cf., Kelley, supra at 6, for the proposition that these devices are effectively the means to an end, specifically that “The unitary executive rests upon the independent power of the president to resist encroachments upon the prerogatives of his office and to control the executive branch.” (emphasis supplied). To the extent that this is an elevated quality of the unitary executive over the disunitary executive, the structure could certainly be intended to have interbranch effects, but a disunitary executive would not be without the power to resist encroachments, but simply of diminished or more disparate capacity. Thus the fact that some historic assertions of unitary structure have been in resistance to encroachment really follows from “coordinate construction”, Madison’s concept in Federalist 49 that “none of [the branches], it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”, not from the unitary structure itself. After all, Congress and the Courts are de facto disunitary and yet they are able to contend in various ways over the boundaries of power.
An oft cited example that, at least as legend, supports a less unitary concept, is the visit of Andrew Card and Alberto Gonzales to John Ashcroft’s hospital bedside in an attempt to renew the terrorist surveillance program. In this story, Ashcroft, who during his confirmation was made out to be an advocate of the Klu Klux Klan vision of southern society for having the temerity to be interviewed by the perceptually tendencious but actually rather academic journal Southern Partisan, is nonetheless the hero, along with Jack Goldsmith who rallied to his side. One wonders how Ashcroft could have been so quickly rehabilitated in liberal quarters. The old saw that the enemy of my enemy is my friend may be antique, but it is not outdated.
More to the point of the discussion is the question of why the President could have been so dependent upon Ashcroft’s action if the executive was unitary. But, just because the executive is unitary, does not mean it has no internal structure or rules to be observed. It would be wise that these rules would not be so cumbersome that the unitary executive were tripping over himself. But here the organization of government departments by Congress and the traditional executive approach had given the duty to Ashcroft (or Jack Goldsmith argued to Deputy Attorney General James Comey who was acting attorney general at the time). This does not mean that the ultimate decision was not the President’s.
While executive branch appointees are normally expected to follow the dictates of the executive, they are not rendered bereft of conscience and will. Such a war of wills, if this intellectual belligerence had continued, and if Card and Gonzalez were actually missives of the President’s unswerving determination, might have precipitated the decision to demand Ashcroft’s resignation. In the end, Congress approved a surveillance plan largely similar to that the administration was conducting and the dispute was diffused.
Ashcroft became a champion for standing up for his beliefs in this incident, but Yoo’s standing up for his own beliefs is widely viewed as a renegade action. Yoo cannot be seen as analogously courageous because other key players apparently agreed with him, and he generally did not find it necessary to resist apparent direct requests from the President. But, it is hard to conceive of criticism more withering than Yoo has personally sustained in the course of these events, in the face of which he good naturedly, and disregarding the personal venom of the attacks, defends his tenure in the Bush administration.
There is some dispute on the extent to whether such “robust disagreements” on standards for detainee interrogation and the appeal to the Commander-in-Chief power were well aired pursuant to Yoo’s preparation of the two particularly controversial memos that have been released. But there is a more fundamental difference over whether this disputatious formation of presidential resolve is actually meant to characterize OLC undertakings. There is a significant tension between the notion that such a process hones desired policy and cautions that the OLC process can be improperly influenced by desired policy. The perception of ambivalence over the OLC process certainly attends the Bush OLC withdrawal of the “Yoo memos”, but is equally on display in a “white paper” signed by a coalition of attorneys who resided in the OLC during the Clinton administration, see, Principles to Guide the Office of Legal Counsel, Dec. 21, 2004 (housed at but not apparently published by The American Constitution Society). On the one hand this work forswears advocacy for Presidents’ “desired polices”, while on the other it insists that the OLC maintain an iterative relationship with the departments that will be affected by the opinion.
Only a detached, 4th branch perspective, i.e., the sense that the professional core of technocrats that serve various partisans hold independent competence to objectively express the institutional interests of their posting, could distinguish taking into account these departmental views from taking into account the President’s “desired policies” (there may be some theoretical difference in this approach depending upon the extent to which those queried for departmental views are outside the civil service and more directly accountable to the President). It is difficult to imagine why the OLC process should take more cognizance of what are effectively, the “desired policies” of executive branch agents (e.g., in the present context, the oft alleged notion that military personnel and lawyers were concerned by ambiguity or policy slippage represented by detainee treatment in comparison with military rules, historic practice and international conventions) than those of the President. On the other hand, if these interests are useful to informing the President’s view, but ultimately the decision is the President’s, this must temper the character of independence proposed for OLC. See, generally, further discussion of the “white paper”, infra n. 20, which arguably itself poses the question of whether the executive branch policies it urges, essentially on prudential grounds, may be adopted as de facto legal discipline of the process, an act of the law being made from the whole if storied cloth of tradition by executives.
The Continuation of Politics by Other Means: The Original Understanding of War Powers, California Law Review 84, no. 2 (1996)
Spitzer, Robert J., Saving the Presidency from Lawyers, Presidential Studies Quarterly, Vol. 38, No. 2
Mayer, Jane, The Hidden Power: The legal mind behind the White House’s war on terror, The New Yorker, July 3, 2006
Insofar as the Treaty power, it seems beyond the scope of the instant investigation and of the “Yoo memos” themselves to engage the question of whether the President can unilaterally abrogate US treaty commitments. It does seem that such action was taken by the executive in recent history with regard to the ABM treaty, albeit under subsequently negotiated but ungratified provisions for notice of withdrawal. But the “Yoo memos” seem to operate wholly within the context of these specific international instruments, as contrasted with international common law or customary international law. Thus, much as the “Levin” memo forswears the use of torture, regardless of any countervailing authority the executive could exert, and thus embraces both the CAT standard for torture and the § 2340 definition, the “Yoo memos” embrace the CAT framework, using § 2340 as informative if not dispositive of the precise standard required.
Indeed, the alleged renegade quality of aggressive officials in the Bush administration is deliberately contrasted by critics with the impression that the military establishment was opposed to aggressive interrogation altogether. There is a logical fallacy then in the notion that the purported allowances of the “Yoo memos” can be traced to abusive treatment at Abu Gharib. If, indeed, the military had such abiding disregard for these tactics, there is simply no reason to imagine how they would be grafted as rules of conduct for more generalized military detentions. This is not to say that one can rule out all possible pathologies by which the emergent paradigm of detainee treatment could have contributed to Abu Gharib, but to say that there is nothing whatsoever in the memos that relieves the military process of its own chain of command or longstanding internal checks.
Re: Applicability of 47 U.S.C: § 502 to Certain Broadcast Activities, OLC, Oct 15, 1993
It is possible that the differing world of perpetrators assumed under 2340 is an artifact of the purpose of Congress in enacting this statute, namely to accomplish obligations under the CAT, a ratified treaty. But, the fact that 2340A applies only outside the United States demonstrates that this statute could not be conceived of as wholly fulfilling these obligations such that one cannot precisely equate the language of this bill and the extent of the CAT. Thus, the failure to specify the military and the lack of drafting history or precedent to support this term of art as a reference to the military is worthy of note, albeit these jurisdictional arguments were effectively waived pro tem by the “Levin memo” that replaced the earlier ‘torture memos’ prepared by Yoo. But the Levin approach is not based on a legal finding to the contrary, but rather a policy determination presupposed by “the President's unequivocal directive that United States personnel not engage in torture”, Legal Standards Applicable Under 18 U.S.C.§2340–2340A, OLC, Dec. 30. 2004.
Rosen, Jeffrey, Conscience of a Conservative, New York Times, Sept. 9, 2007
See, id, in which Rosen summarizes Goldsmith’s view of the ‘torture memos’ as “tendentious, overly broad and legally flawed”. But there is little substantive discussion in Rosen’s piece of what constituted the extent of Goldsmith’s legal concerns, while there is copious discussion of his prudential cautions that would support the characterizations as tendentious and overly broad.
Goldsmith did not take part in drafting the Levin memo, having resigned as a mechanism for protecting his decision to withdraw the Yoo memos, so it cannot be said to represent Goldsmith’s analysis for his withdrawal or the alternative that Goldsmith himself would have substituted.
See, e.g., Gellman, Barton and Becker, Jo, Pushing the Envelope on Presidential Power, Washington Post, June 25, 2007 (quoting Reagan Administration associate deputy attorney general Bruce Fein, “The irony with the Cheney crowd pushing the envelope on presidential power is that the president has now ended up with lesser powers than he would have had if they had made less extravagant, monarchical claims.); and Rose, Jeffrey, Conscience of a Conservative, supra, (“Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, ‘go-it-alone’ view of executive power. As Goldsmith sees it, this strategy has backfired. ‘They embraced this vision,’ he says, ‘because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect.’ ”
See, Yoo, John, War by other Means: An Insider’s Account of the War on Terror., Atlantic Monthly Press, Sept. 8, 2006
“[The Bush Administration] has often failed to explain clearly to the public the difficult decisions al Qaeda has forced upon us. . . . It allowed itself to be done in by leaks, and neglected to defend the hard choices it had to make. It allowed the most partisan and acrimonious critics to frame public understanding of terrorism policies. . . . On the surveillance issue, the Bush administration had learned, to its credit, a few lessons from the torture controversy. It came out with a full legal justification of its actions. Here is has so far prevailed.
See, e.g., U.S. v. Riverside Bayview Homes ,474 US 121 (1985), at 137:
Although we are chary of attributing significance to Congress' failure to act, a refusal by Congress to overrule an agency's construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress' attention through legislation specifically designed to supplant it.
This seemingly logical observation fails to communicate the enormous political theory counterweight to such convenience. The court imagines that a later Congress largely validates an administrative reading of an earlier statute without any evidence that this later Congress would even have adopted the extant law. Thus it privileges administrative interpretation requires only a shred of plausible explanation to receive the courts’s endorsement over a proposed Congressional countermand that actually passed the house, but was defeated in the Senate and not adopted in conference. Should it have actually passed it would additionally have been subject to presidential veto.
This bizarre progressive gerrymander of elevating highly arbitrary administrative interpretations, that are nowhere even contemplated as a constitutional mechanism for the adoption of law, to effective superiority to the highly constrained process of bicameralism and presentment represents a departure from constitutional structure that arguably frustrates the separation of powers in greater magnitude than debates over the role of the Commander in Chief. Nonetheless, to the extent that Yoo is presented as seeking analogous convenience for executive action, which is to say using the more nimble footing of the executive’s ability to adopt constitutional interpretations under “coordinate construction”, there is little evidence that the courts will grant such executive approaches in this arena the vast deference they afford in the administrative context. See discussion infra p. ??? of the Article III approach to the war on terror.
See, Legal Standards Applicable Under 18 U.S.C. § 2340-2340A, OLC, Dec. .30, 2004 (“The more intense, lasting, or heinous the agony, the more likely it is to be torture”).
While Lederman has not directly called for Yoo to be denied tenure, disbarred, or detained for war crimes trials, his rhetoric is the spiritual and intellectual font of this kind of talk. He gives comfort to such proposals with observations such as this one on April 11, 2008 in response to the assault on Yoo’s tenure: “The claim here is that the morally reprehensible views, and the shoddy work, in this case were [p]ut to use in official state conduct that facilitated and immunized horrific crimes.” While phrasing it thusly is not prima facie evidence that Lederman agrees with that view, he apparently wishes to tread as close to that line as he may while maintaining plausible deniability.
Despite having fallen well short of demonstrating that Yoo’s legal reasoning was without foundation and objectively wrong as a matter of law, Lederman made progress and coalition on what largely amount to protocol concerns which go to the heart of the purpose of the Office of Legal Counsel and the extent to which it’s opinions should report countervailing arguments to the selected best view. Lederman cosigned with lead signatory Walter Dellinger and numerous other previous occupants of the OLC a “white paper”, Principles to Guide the Office of Legal Counsel, Dec. 21, 2004,making a Burkian paean for preservation of the traditions of independence and rigor in the office.
Ironically, when one actual charge lodged against Yoo amounts to professional misconduct and his detractors have filed various complaints seeking to have him disbarred on this basis, these “Principles” are not an appeal to, but a rejection of, the generally accepted advocacy model thought to define the professional relationship of attorney and client. Instead, this coalition attempts to make the case that attorneys for the OLC do not serve an advocacy function for the President despite the fact that he is their ultimate client. This certainly goes to the primacy of unitary executive theory in tension with the well regarded prudential model that OLC is meant to be independent of the political fray.
Nonetheless, as with court appointments, the idea that OLC would be detached from the political process seems hopelessly utopian. There seems little question that Yoo was selected to handle the national security portfolio at OLC in part because of his belief in executive power–which is bound up with his general expertise in this area. It is notable that Yoo was hired before the events that gave rise to the controversial opinions and that he maintains, esp. with regard to the ‘macro’ opinions that set general boundaries rather than responding to proposals for specific behavior by interrogators, that he operated without direction or pressure from the President or those within the administration thought to be partisans of the strong executive and to favor loose thresholds for interrogations of unlawful combatants. Varying hearsay accounts from within the administration and the OLC suggest this characterization is implausible. It is beyond the scope of this undertaking to arbitrate the accuracy of those various accounts, but differing representations should be recognized.
That this gang of 20 is composed entirely of attorneys who served during the Clinton administration is unsurprising, and perhaps the implicit charges they make against the Bush administration prevented them from gaining a single signature of Republican hires to the office for what are certainly a rational and not unprecedented propositions regarding the role of the OLC. It seems likely the ‘gang’ also thought that Yoo violated various other if not all of their 9 principles to some extent, esp. numbers 8 and 9 which refer to the seeking of opinions from and maintaining good relations with other executive departments. In context of the interrogation/torture dispute, they refer to military lawyers concerned about the standard apparently being observed in the war on terror, as well as the State Department. Of course, the policy differences of the State Department and National Security apparatus are legion. The “principles” read to their logical conclusion, might amount to a careerist veto, or just plain gridlock.
But, on balance, the principles are not without some foundation in the traditions at OLC. They are a useful starting point for discussion, and indeed reasoned discussion might demonstrate that they do not, prima facie, constitute the wholesale indictment of Yoo they are popularly conceived to. However, their appearance over signatories that included Yoo’s most passionate critics has, at least primarily, consigned them to the realm of partisan argument. Now that some of the signatories may again occupy the OLC, and thus the shoe is on the other foot to the extent that the administration they serve could conceivably be constrained by any prudential fealty to the “principles”, it is possible that less charged discourse in this area could be profitably undertaken. Or, ironically, calls for codification or recognition of these “principles” in some bipartisan fashion may take a back seat to the prerogatives of an executive they believe to be more inherently self-constrained–and whose priorities could be indirectly frustrated by essentially inviting criticism or even articulate de facto process constraints.
The recession of detainee treatment as both a policy on which the new administration is supposed to tow a less controversial line and in which a pro tem moderated battlefield has not made detainment a growth industry, cannot lead to ignoring the economic recession as an area of questionable executive assertions. The Bush administration has already set controversial precedent for executive action, but the very point is that Bush acting the strong executive has been thought prima facie evidence of where constitutional angels ought fear to tread. Nonetheless, the Obama administration does has not appeared to act seriously constrained by the sense that such unilateral actions would necessarily be constitutional fools rushing in.
This economic portfolio at OLC is a likely flash point in the argument over institution of detached principles for self-discipline at OLC that seek to directly forswear advocacy for the President’s policies, and to reduce any perception of it through greater openness and devil’s advocacy. It must be imagined that the OLC is currently reviewing the President’s authority to effectively nationalize banks under various scenarios, and there appears no doubt that a measure of prudence is called for in deciding whether the swift exposure of such ruminations would actually benefit the public.
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