John Yoo, the Berkley law professor, is under attack for at least one memo he wrote while deputy assistant attorney general in the US Justice Dept.’s Office of Legal Counsel. That memo argued that US criminal statutes, certain US constitution provisions, international treaty law, and international customary law did not apply to “military interrogations of alien unlawful combatants held outside the United States.” There is a petition calling for his dismissal and Brad DeLong has called for a faculty fact-finding committee to investigate.
The most startling aspect of memo was that the “commander-in-chief” authority trumped any Congressional regulation of interrogations as a separation of powers matter. Prior Supreme Court decisions held that US constitutional protections did not apply to US actions toward foreigners abroad, SC decisions and prior practice held that general criminal laws did not apply to the conduct of war, and prior SC decisions and prior practice held that the president could abrogate treaties and customary law. Since the US did not consider – wrongly, I believe — Taliban and al Qaeda combatants not covered by common article 3 of the Geneva Conventions, the legislation that Congress aimed at the US armed forces – 18 USC 2441 on war crimes – did not apply (so I think it does apply).
Yoo argues that interrogations are an element of the conduct of a war, and that Congress has no constitutional authority to regulate the conduct of the war. This is an on-going matter of dispute among constitutional scholars. Can Congress legislate during a war that the president, as commander-in-chief, must invade coastline x rather than coastline y? Can Congress legislate that US forces must be withdrawn from certain areas once deployed, or that funds can be barred for maintaining deployments in certain areas? I don’t think Congressional authority is as limited as Yoo believes. I believe that Yoo is wrong when he argues that a presidential decision to violate CAT obligations constitutes a denunciation; instead, the president would need to formally denounce the treaty before abrogating it.
Yoo is not complicit in torture. Yoo did not write a policy memo; he wrote a legal memo. What legal restrictions existed for the Dept. of Defense? He never advocates that criminal laws, even if misconstrued, be violated. He argues where and when they apply and do not apply. He goes on to outline what the standards are for torture, cruel and inhumane treatment, assault and other crimes. One can agree with his conclusions and still decide that as a matter of policy it is immoral or impractical to conduct interrogations that involve inflicting physical or mental pain.
This is not really an academic freedom issue, as Henry Farrell has pointed out. Yoo is being attacked not for expressing ideas in general (if he had published this in a law review and was being attacked, it would be) but for his conduct at the Justice Dept. This does not mean, however, that one’s conduct in a government or other non-academic role should be a grounds for sanctions. Yoo has not been charged with, let alone convicted of, a crime. He did not order or implement any violation of US laws. It is unclear what he did wrong, aside from mis-interpreting the constitution. But if that was a violation of legal ethics, every dissenting Supreme Court judge would be disbarred.
