"To what purpose are powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803

Thursday, June 26, 2008

According to Marty Lederman, John Yoo is apparently contradicting himself.

I’m out of town and don’t have time just now to blog in detail about this statement, except for a handful of very quick reactions:

1. John claims that the 2004 Levin torture memo, which superseded his 2002 OLC opinion, concluded that all interrogation methods OLC had previously approved as legal “were still legal.” We now know that that’s dead wrong. As Levin testified before this same committee last week, the footnote in question, which Attorney General Gonzales insisted that OLC include, merely indicated that the writers of the 2002 memos—i.e., John Yoo—would not have changed their bottom line, even if they had employed Levin’s analysis. Levin himself, however, was uncertain about the legality of some of the CIA techniques, and was in the process of reviewing them when he was effectively removed from OLC.

2. John is testifying that his torture memos could have had no bearing on the abuse that took place in Iraq, because “the Geneva Conventions provided the relevant rules for the war in Iraq.” There are several problems with this statement.

Most important is that OLC itself, when John was there, had advised the Pentagon that the Fourth Geneva Convention did not protect “unlawful combatants,” which includes most if not all of the insurgents in Iraq. (See page 4 of the April 2003 DOD Working Group Report.) As Jack Goldsmith reports in his book, the very first thing he decided when he arrived at OLC in October 2003 was that the Fourth Geneva Convention did protect Iraqi civilians—a decision that hocked and dismayed the White House. It is fairly clear (as reflected in the Working Group Report) that until that time, the Administration, based presumably on John’s own advice, was acting on the assumption that the insurgents in Iraq were not protected by the Geneva Conventions.

This explains why, according to several reports (most importantly those of Sy Hersh and Jane Mayer), the Pentagon and CIA placed Special Forces and CIA operatives in Iraq in 2001 or 2002, whose basic instructions were that there was no law—certainly not Geneva—that protected detainees, and that the “gloves were off” and that they could engage in widespread, wanton abuse and cruelty. Which they did. (And as the Fay, Jones and Schlesinger Reports found, and many accounts attest, the conspicuous abuse by CIA and Special Forces in Iraq was an important contributing factor to the breakdown of ordinary norms among the regular military forces, as well.) The Pentagon and CIA would not have given these forces the green light to abuse prisoners if OLC had not previously advised that neither the Geneva Conventions nor any relevant statutes stood in the way of such abuse.

Finally, John’s broad Commander-in-Chief override theory, which was a prominent part of the DOD Working Group Report, and which was briefed to General Miller on his way to “GTMOize” Iraq, obviously conveyed the message that the President could ignore any applicable statutes and treaties, even if they would otherwise apply.

John’s legal advice, then, was a fairly direct cause—certainly a necessary cause—of the abuse in Iraq in 2002 and 2003.

These people turned making excuses into an art form.