Which came first: memos or torture? by Scott Horton

From the Los Angeles Times
Which came first: memos or torture?
John Yoo's legal opinions and questions about culpability and timing.
By Scott Horton

April 21, 2008

John C. Yoo likes the limelight, but it's causing him some grief. Of the half a dozen lawyers who played important roles in a Bush administration decision to legalize the use of highly coercive interrogation techniques, only Yoo has emerged as the public face -- and target -- related to the policy.

In 2002 and 2003, Yoo was second in command at the Justice Department's Office of Legal Counsel and wrote two memos, one for Alberto R. Gonzales and one for the Pentagon, that provided broad legal authority for the use of extreme measures in the questioning of wartime detainees. In one famous phrase, the memo to Gonzales concluded that only techniques "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death," could be considered torture. The 81-page Pentagon memo, declassified April 1, contained similar language and added fuel to the fire over torture and the White House. Through it all, Yoo has defended his position in the media.

Yoo is now a tenured professor at UC Berkeley's Boalt Hall. Recently, the National Lawyers Guild launched a campaign to have him fired because of his role in the torture issue. This move has touched off a controversy, especially among legal academics concerned about tenure and academic freedom. Boalt Hall Dean Christopher Edley Jr. posted a response on the school's website in which he criticized the torture memos but defended Yoo: He was merely a "legal advisor"; real culpability rested with those who directed or implemented the administration's program, not with Yoo. Edley saw no basis on which Yoo could be charged with a crime. He quoted university guidelines under which the "commission of a criminal act which has led to conviction in a court of law" provides the basis for dismissal of a tenured professor.

It's easy to understand the concern that academics have. If Yoo were fired on the strength of a public outcry about his ideas on torture, it could send a chill through academia. America's strengths as a nation include the preservation of an atmosphere in higher education that encourages the free expression of ideas, even radical and highly unpopular ones.

But does academic freedom really sit at the heart of this controversy? It's not Yoo's ideas in an academic setting that give rise to his current problems but his conduct as a government lawyer. Yoo says that he was asked his opinion about technical legal issues related to interrogation and detainee treatment during wartime, and he gave it his best shot. He also argues that he strained to give policymakers and actors the greatest possible latitude in which to manage a difficult conflict. But he only advised and theorized; others took the decision to implement the program.

But Yoo's account of how and why the torture memos were crafted may not hold up. Congress is preparing hearings into the subject, and they have invited Yoo to testify. International law scholar Philippe Sands and other writers have punched holes in Yoo's claims about the facts. It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.

It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution?

In any case, Yoo kept the program running. Even the man who came in to run the Office of Legal Counsel after Yoo's departure, Jack Goldsmith, has written that he understood Yoo's project this way. Goldsmith also rescinded Yoo's memos.

According to Human Rights First, more than 100 people have died in U.S. detention in the war on terrorism. It documented 11 cases where the deaths resulted from coercive interrogation techniques, and others where there was at least some connection. Yoo insists that there is no relationship between the deaths and his advice, because he didn't set policy or carry it out, he merely offered a legal opinion. But had he refused to give the opinion that was sought, the program might have been suspended and some of those detainees might be alive.

Much of the legal work surrounding the torture memos was done in the shadows. It's possible that when all the facts about their preparation and use come out, Yoo will be exonerated. But the criminal law and ethical issues surrounding his work on the memos are very serious.

Is it right to say that lawyers dispensing bad advice in memos face no liability for what happens when people act in reliance on them? At the end of World War II, the U.S. took a different view in one narrow area. When the legal advice had to do with the treatment of detainees in wartime, the U.S. argued, lawyers had to adhere closely to the law or face prosecution. In one case, two German Justice Ministry lawyers were charged and sentenced to 10 years in prison for giving advice that allowed the creation of a special internment system for suspected insurgents. Their advice was close to that dispensed by Yoo.

The Bush administration came to Washington promising a culture of accountability. In this area, as in so many others, it has delivered just the opposite.

New York attorney Scott Horton teaches at Columbia Law School.

Copyright 2008 Los Angeles Times
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