No Comment — April 3, 2008, 7:15 am

Yoo Two

Yesterday another of the long-withheld torture memoranda was released. In early 2003, beginning after the Ashcroft Justice Department dispensed advice to the Central Intelligence Agency authorizing the introduction of torture techniques, Rumsfeld’s lawyer, William J. (“Jim”) Haynes II–now the general counsel of Chevron–was prodding OLC for a memorandum to help him in a battle with lawyers at the Pentagon. On March 14, 2003, John Yoo issued an 81-page memorandum of law to Haynes (I’ll call it “Yoo Two”). In most respects, it follows the previously published August 1, 2002 memorandum (though it does have some bombshells, including an announcement that the fourth amendment evidently expired–at least in part–some time after 9/11) signed by Yoo’s boss, Jay Bybee, and sent to then-White House counsel Alberto Gonzales to help him in cramming down a recalcitrant CIA but actually crafted by Yoo (“Yoo Prime”). Lawyers at the CIA had told the administration’s prime advocate of torture, Vice President Dick Cheney, that the agency’s policies then in place went “as far as the law allowed,” and Cheney was therefore eager to teach them a few lessons about how the White House understood “the law.”

This memo is, as Marty Lederman says, “the source of the Nile for the abuses that occurred in Iraq.” The links are clear and linear. But there are no major surprises in the memo’s legal reasoning. It’s a typical display of Mr. Yoo’s dubious talents for giving an outward appearance of legal reasoning to radical political diatribe. However, the circumstances around the memo tell us quite a bit. In this post I want to look not at the contents of the memo, but at the contextual questions. Why was it sought, and how was it used.

Why Yoo Two?
According to the official narrative, the Bush Administration turned to the Justice Department for legal guidance on what could be done to give interrogators the latitude they were demanding in dealing with prisoners taken in the war on terror. However, not a single element of the official narrative is entirely true. The interrogators were not “pushing for broader authority.” Indeed, the pushing was all coming out of the White House (from Vice President Cheney, to be specific), and the intelligence professionals were actually pushing back. Moreover, torture was being used almost from the start of the “war on terror.” Special operations units operating under the authority of Dr. Stephen Cambone, the Under Secretary of Defense for Intelligence, had been authorized to use torture techniques from the opening of the war, and they used them with gusto. At Guantánamo and at Bagram Air Base in Afghanistan, numerous instances of “highly coercive techniques” had been documented; indeed, the stories out of Bagram are among the most gruesome to be documented. In the documentary “Taxi to the Dark Side,” for instance (for which I consulted and in which I appear), we find footage of a senior U.S. officer in Afghanistan talking about the authority for torture, which was issued, and which military personnel were instructed to lie about or deny to keep covered up.

So why the need for Yoo Two? Jane Mayer pieced that together for us in “The Memo.” Navy officers had gotten a gander at what was up at Gitmo, and it had gotten back to Alberto Mora, the Navy general counsel in the Pentagon. He had also learned about a Rumsfeld order issued on December 2, 2002, authorizing a series of brutal techniques, including waterboarding. Other senior military lawyers quickly also learned about this. An uproar followed in the Pentagon and Haynes found himself isolated and under pressure from all sides. He folded and asked Rumsfeld to rescind the order.

The traditional military forces in the Pentagon felt they had scored a victory, but of course Haynes was determined to proceed with all the torture practices he had advised Rumsfeld to approve. He was intent on outmaneuvering the generals, admirals and figures like Mora. And while he lacked many allies in the Pentagon—other than the Neocon dead-enders like Doug Feith and Stephen Cambone—he knew he could count on the OLC to come through for him.


So the OLC memo was solicited as a trump card to override objections within the military, and to silence objections based on law. Indeed, the memo was subsequently used in the aborted Pentagon Working Group Report, whose members were told they were bound to accept the reasoning and opinions expressed in it. In fact, most of the Working Group found the memo so facially implausible and foolish in its reasoning that they refused.

Dynamics of the Pentagon-OLC Relationship
In his just-published article, Philippe Sands probes more deeply into the curious relationship between Jim Haynes and the OLC. I have written on this point several times before, on prompts from individuals both at the Pentagon and the Justice Department. They call the relationship “fundamentally corrupt and dishonest.” I agree. Sands writes:

Haynes was a close friend of Bybee’s. “Jim was tied at the hip with Jay Bybee,” Thomas Romig, the army’s former judge advocate general, told me. “He would quote him the whole time.”

Haynes never developed a reputation for deep legal reasoning. Participants at his Monday meetings with service line general counsel and JAG Corps chiefs describe his style as low-key, non-confrontational. When challenged on any point, he would become very quiet and would seek to avoid the issue at future gatherings. This was particularly the case when the legal chiefs expressed concern about detention policy, which occurred quite often in 2002-03. Haynes’s posture was described as “classic passive-aggressive hostility.”

When he wasn’t able to confront the objections with persuasive, or even colorable legal reasoning, Haynes usually took the back way out: he went to have his friends at OLC back him up. He would seek the advice, secure the memo and use it as he liked.

Here we see a stunning example of this practice, in connection with Yoo Two. In “Jim Haynes’s Long Twilight Struggle,” I discussed his use of OLC to block awarding a third star to the Judge Advocates General of each service branch as mandated by Congress.

Another suspicious demonstration of Haynes’s pique can be tracked in the case of Air Force General Terry Schwalier, who was a ground commander in Saudi Arabia at the time of the Khobar Towers bombing. He was stripped of a star as a disciplinary measure, but then a review board, examining the facts and circumstances of the case, gave him the star back. Haynes, however, decided that only the Secretary of Defense could do this, so he refused to respect or implement the review board’s decision – an unprecedented and probably illegal act. It seems unlikely that Haynes cared one way or the other about Schwalier or his star. For Haynes, this was an opportunity to demonstrate the absolute power and authority of the Unitary Executive. Indeed, acting in an arbitrary and capricious manner only made the demonstration of Executive prerogative more vivid. (Further discussion of the Schwalier case in two articles by Erik Holmes, “Long Wait for Justice,” Air Force Times, Jan. 21, 2008; “Second Star Back in Limbo,” Air Force Times, Mar. 21, 2008).

The OLC was not being asked in a detached way to render its best professional judgment about a question. It was being used as a power redoubt controlled by the Neocon clique to reinforce legally indefensible positions which fellow Neocons (Haynes, Feith and Cambone) had locked themselves into. It was a pure powerplay. And it is fundamentally corrupt, in particular a crude debasing of the role of OLC.

I’ve Got a Secret
Yoo Two also furnishes us a lesson in how the Bush Administration wields “secret” classifications. The idea that a legal memorandum by OLC could be classified as “secret” and withheld on that basis is astonishing. When this point was raised previously, it produced speculation that the memo must as written be tied to specific facts which are highly classified and cannot be disclosed. Perhaps Yoo had included a detailed technical discussion of the actual torture techniques to be used? Of course, we know that precisely those concerns had led draftsmen of other documents to segregate out discussion of techniques to an appendix which could be separately classified, leaving the pure discussion of legal issues as a stand-alone document. But not so.

When Yoo Two was declassified and released, we see that not a single word of the document was blacked out or excised. And indeed, there was no basis whatsoever for the classification to start with, not even a figleaf.

So why has a legal policy statement been classified and withheld for five years? The answer to that question is now clear. The memorandum would have produced reactions of ridicule and outrage from throughout the professional community—as indeed it has. The author and the classifier knew that. They used classification as a political tool to keep something which is a quintessentially public document out of the reach of the public. Moreover, this classification reflects a regular pattern of abuse by the Bush Administration, a fact to be kept in mind when considering Attorney General Mukasey’s harsh and factually unfounded criticisms of pending legislation designed to reign in the use of state secrecy claims to cloak corruption and criminal conduct by state actors.

It’s also noteworthy that this memo was declassified and released by Jim Haynes’s successor-in-office, and it was done almost immediately following Haynes’s departure. A coincidence?

The abusive use of classifications is a matter that cries for Congressional oversight and action. At the close of World War I, Franz Kafka wrote the parable “Before the Law” (“Vor dem Gesetz”) later incorporated into the novel The Trial. This parable operates at several levels, but one of them, signaled by the choice of the word Gesetz, is quite literally anxiety about secret laws. Kafka was concern about a tendency that Max Weber had just warned against, namely that an increasingly authoritarian and secretive state would begin to make even the law itself a secret. The practices of the Bush Administration are increasingly a realization of this nightmare.

The Torture Memo Family
We now know that there are at least six memoranda crafted by OLC that discuss the torture issue; we do not know the details on the more recent of them. But for analytical purposes it is important to group them together and to view the undisclosed subsequent memoranda as the progeny of Yoo Prime and Yoo Two. Attorney General Mukasey insists that those who received these memoranda were entitled to rely on them, and they cannot be prosecuted. In other words, Mukasey is saying that the OLC can legitimately be used as a printing press to issue get-out-of-jail free cards to be distributed at will.

The more we learn about the factual circumstances in which these memoranda were crafted, the purposes for which they were sought, and the way they were used, the more outrageous that contention sounds. Here are some of the arguments which those seeking to rely on these memoranda can expect to face. By “these memoranda,” I mean not just Yoo Prime and Yoo Two, but also the subsequently classified and withheld memoranda by Steven Bradbury, who purports to continue to head OLC notwithstanding the Senate’s decision not to confirm him in that position:

  • The interrogation techniques had already been authorized and used at the time the memos were sought. Therefore, OLC was not asked to give its free and fair advice, it was instructed to issue an opinion finding the techniques used were lawful. Consequently, the independence and objectivity claimed for the OLC memoranda is a fallacy.
  • Real lawyers (unlike the political hacks who crafted the OLC memoranda) had actually examined the techniques, found them unlawful, and dispensed their advice. The made-to-order OLC memoranda cannot overcome professionally competent, independent and objective advice already dispensed.
  • The reasoning presented in Yoo Prime, Yoo Two and most likely also in the Bradbury memoranda is untenable from the perspective of legal doctrine. In particular, all of these memoranda rest on an unconstitutional doctrine of Executive supremacy.
  • Absence of actual authority–John Yoo had no authority to issue an opinion binding OLC, so Yoo Two was invalid from the moment it was issued. Similarly, Bradbury is not in fact the head of the office of OLC, and is not authorized to prepare or deliver opinions with the authority of the attorney general. His opinions are the opinions of a lawyer named Steven Bradbury, they are not the opinions of the Attorney General which have special force under the Judiciary Act of 1789.

  • The circumstances under which the memoranda were prepared and issued constitute a joint criminal enterprise involving individual actors; the memos were issued as part of an actual plan to induce individuals to commit criminal acts by ensuring that their crimes would never be investigated or prosecuted. Under the standards of United States v. Altstoetter it was reasonably foreseeable that the issuance of these memoranda would result in serious harm, including assault, torture and death, to protected persons in the custody of the United States. Accordingly, each of the actors, including the memoranda writers, is criminally liable. As a product of a joint criminal enterprise, none of the legal memoranda has any force or effect as a legal opinion. It is particularly noteworthy that the major focus of Yoo Two is the criminal liability of the actors.

Next Steps
In view of the depravity and contempt for Congressional authority demonstrated by the torture memoranda, the great mystery is Congress’s inaction. I agree with Marty Lederman that these documents require decisive action by Congress.

Congress should act immediately to require the full disclosure of all remaining torture memoranda. Yoo Two reveals a number of other documents upon which many of its conclusions rest. Of particular importance, it notes that Yoo conferred with the Criminal Division (then headed by Michael Chertoff, assisted by the current head, Alice Fisher), with respect to the application of statutes prohibiting torture against military actors. In testimony before Congress, Chertoff repeatedly denied involvement in the preparation of the torture memoranda, notwithstanding mounting evidence to the contrary. The candor of his testimony, and that of his successor Alice Fisher, has repeatedly been challenged by others who were involved at the time. Yoo Two puts Chertoff and Fisher right in the middle of the process of formulating torture policy, and more particularly, of giving non-prosecution assurances for purposes of inducing the application of torture practices.

Congress should insist that Steven Bradbury vacate OLC.

Until the torture documents have been publicly produced, Congress should refrain on action on all Justice Department nominees.

Congress should call Jim Haynes, under subpoena if necessary, to testify about his involvement in this matter from the outset, as well as the evidence provided by JAG officers that he orchestrated the plea bargain for David Hicks and the currently pending Guantánamo proceedings as political show trials.

Congress should recall Major General Geoffrey Miller and review in detail his conduct in connection with the introduction of torture in Iraq and his supervision of the torture regime at Guantánamo, particularly to ascertain his communications and dealings with Donald Rumsfeld, Stephen Cambone and William Boykin and their role in the introduction of the torture system.

It’s also time for the organized bar to act decisively. So far bar organizations have denounced the torture memoranda and issued learned reports and articles. But I’m still haunted by a question a student put to me following a presentation I made at Columbia University on Tuesday evening. “If the bar is so serious about this,” the student said, “then explain to me how it’s possible that John Yoo and his confederates haven’t been disbarred.” I started to answer about the complexity of the disbarrment process, but I stopped. The student was right. If the bar were serious about this, it should have used its disciplinary tools to deal with it. This is not a case of an eccentric academic mouthing some cock-eyed theories. It is about a government official using the power of a government office to induce people to commit serious crimes.

On the other hand, I was amazed speaking with colleagues today who expressed their “torture exhaustion.” “But we already knew all this,” one said to me. “But how can you know about it, know that the nightmare still hasn’t stopped, and not be infuriated?” I answered. “Have you abandoned all sense of ownership, or at least of participation, in the American idea?”

In the end, this whole affair is about political hack lawyers behaving badly and doing so with impunity: the arrival of a culture of alcoholic frat boys chortling as they turn coathangers into branding irons, come now to middle age. When the scandal erupted, Rumsfeld and his crew turned to a standard “soldiers are cannon fodder” response–let’s scapegoat some grunts, and then it’ll all die out, they reasoned. And some two dozen low-level soldiers were court-martialed. Serious officers, and more to the point, the political hacks who crafted the torture system and hammered it through faced no accountability in any form. They depart with a big party and go off to take in six-figure salaries as oil company executives, it seems. The heroic figures in uniform who stood against the criminality are intimidated, hounded, denied promotions, forced out of the service. It’s all like some dark parallel universe–not the America I thought I grew up in.

Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has–oversight and the budget–to force changes. Say “no” to torture; it’s an easy first step on the road back to decency.

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