John Yoo and the Torture Memos


I followed James Fallows's advice and read the OPR report on John Yoo. I agree with what I think is Jim's main point--that parts of the document force the reader to confront the disgusting reality of "enhanced interrogation", which is a salutary experience. But I can't say the report persuaded me that, as it asserts, Yoo knowingly misled the government about the law. I can't say the report even tries to support that charge.

Yoo's view that methods like waterboarding and prolonged sleep deprivation are not "torture" so far as the law is concerned may be incorrect, as many experts say, but it is nonetheless legally defensible, and the report admits as much. Yoo seems to me consistent and sincere in his belief. His view that under the circumstances pertaining after 9/11, the law imposed no significant restraints on presidential power is even harder to defend--but again, this appears to be his considered, conscientious view.

Jim Fallows advises readers also to look at the memo by David Margolis, a respected career lawyer in the Justice Department, who overruled the OPR findings. If you do read the OPR report you should indeed read Margolis as well. The OPR report comes in for some serious criticism. (See also these letters on an earlier draft from Michael Mukasey and Mark Filip, and Ronald Rotunda.) It is not an exemplary piece of work. The good faith of its authors, it seems to me, is called into question.

Margolis faults Yoo for poor judgment, saying he "consistently took an expansive view of executive authority and narrowly construed the torture statute while often failing to expose (much less refute) countervailing arguments and overstating the certainty of [his] conclusions". At the same time, Margolis says, "But as all that glitters is not gold, all flaws do not constitute professional misconduct." He quotes Jack Goldsmith, whose fine book on the Office of Legal Counsel and the war on terror I have previously recommended.

All of these men wanted to push the law as far as it would allow. But none, I believe, thought he was violating the law. John Yoo certainly didn't.

Goldsmith complains that the Bush administration worried too much about what was legal and not enough about what was moral or wise. I think that is correct, and it is why I question Jim's assessment that Bush's early policies on interrogation were, among other things, "lawless". They were morally wrong and counter-productive, in my opinion. They were based on poor legal advice too, according to the scholarly consensus. They were not lawless.

The law itself was and is at fault. It is still not as clear as it should be, and Congress has let that state of affairs persist. The legal opinions and the policies have been changed, which is good, but this important lesson has yet to be learned.

Being unwise or evil does not make an act illegal. The OLC's job is to advise on the law, not say what is wise or moral. Sometimes, the law is an ass. That is why you cannot leave policy-making to lawyers.

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