First, and perhaps most important, there's the question of whether the memo means a damned thing. The DOJ's Office of Legal Counsel has no authority over uniformed personnel. It is not in the chain of command. Thus, the memo should be treated as — at most — advocacy of a position to those persons who are in the chain of command. Legally, no officer would be entitled to rely upon it.
Second, there's the raging question of whether Yoo should be fired from his position as a tenured faculty member at the University of California on the basis of the memo. On the one hand, there would be a certain schadenfreude in such a result; it wouldn't last long, though. As both Brian Leiter and the Perfesser have commented, this really is an "academic freedom" issue, particularly as the memo was written and issued during a time that Yoo was not actively on the faculty.2
Third, there's the question of why the memorandum was classified in the first place. Classification is for national security only, and "secret" is for information "the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe."3 Adding the "noforn" (no access to foreign nationals or governments, even under exchange-of-information programs) designator is just, well, bizarre for a policy recommendation that does not contain any actually classified information. That conundrum, though, is for another time; misclassification — especially overclassification — of documents whose only possible means of damaging national security involve embarassment of those in power may not be legal, but it sure as hell is common.
Fourth, there's the content. In no particular order:
- We weren't in a time of war. The Authorization for Use of Military Force did not constitute a declaration of war; neither does a right to "use of force in self-defense." In turn, that means that the argument of "practical necessity" may have some "practical" value... but no legal value whatsoever. Further, even reaching the issue requires assuming that the War Powers Act is somehow an unconstitutional restraint on the executive's power. Finally, Yoo's memo simply never grapples with the distinction between operations in defense and war vel non; that the Constitution distinguishes between the two is pretty clear.
- Footnotes 6 and 7 — to pick just two examples — are paradigms of one of the shoddiest practices common to results-oriented research. These notes purport to list authority that supports the proposition that the President, as Commander in Chief, has virtually limitless authority to conduct war. Unfortunately for Yoo, when one actually goes back and reads the cases cited in full — and, in particular, prior opinions in those matters — they simply do not stand for the propositions he so glibly states in his parentheticals. Even if they did, they do not add up to the conclusion he wishes to reach.
- Yoo's analysis of cruelty, which is fairly carefully spread across several different sections to diffuse its impact, fails to note one critical assumption: That detention of a given interrogee is authorized by both fact and law as known to the detaining authority at the time of interrogation. Further, all of his other analysis comes from cases that presume prior due process of law... and that's simply not something that happens on/near the battlefield; due process does not issue from the muzzle of an M-14.
- Finally for now, Yoo's analysis of purported defenses against charges of torture — particularly the "necessity" and "self-defense" varieties he advocates at the end of the memo — is at best a two-edged sword. In particular, neither can apply at GITMO, because both "necessity" and "self-defense" are personal defenses that cannot be asserted via an organizational construct. Again, Yoo completely neglects the nature of the defenses in question in his analysis.
The content of this memorandum fails for a more fundamental reason: Any newly-minted butter-bar could refute it with controlling authority. Let's assume that — somehow — we can get around the Uniform Code of Military Justice, particularly articles 93 (codified at 10 U.S.C. § 893), 128 (codified at 10 U.S.C. § 928), 133 (codified at 10 U.S.C. § 933), and/or 134 (codified at 10 U.S.C. § 934). Let's further assume that orders authorizing otherwise unlawful interrogation techniques got issued by persons in the chain of command above the actual interrogator. Would that "justify" or "immunize" the interrogator? Absolutely not. Cf., e.g., United States v. Calley, 46 C.M.R. 1131 (Army C.M.R. 1973), aff'd, 22 U.S.C.M.A. 534 (1973). This marks another line of cases not even acknowledged in the Yoo memo. This isn't even a close question, nor a particularly unlikely one: Dealing with the conflict between the tension of immediate orders and the underlying Rule of Law regime is part of the mandatory instruction for all candidates for a military commission, line or otherwise. Finally, and perhaps most importantly, Yoo's analysis of the "bindingness" (or, in his opinion, nonbindingness) of customary international law and the Geneva and Hague Conventions utterly fails to consider that the US armed forces have incorporated that material by both reference and direct inclusion into US domestic military law for nearly a century.
Thus, one need not delve into the admittedly abstruse questions of the applicability of customary international law, of the Geneva and Hague Conventions outside of declared war, or any of the other myriad "infringements" upon sovereignty that the Yoo memo attempts to twist its way around, over, and/or by any other path that manages to evade their consequences. There was authority that would be binding upon the persons to whom the Yoo memo is purportedly directed that directly contradicts his desired conclusion, and he never cites it at all. That sounds like "dereliction of duty" to me. See 10 U.S.C. § 892.
The bottom line is fairly simple: If this had been a late-1970s episode of Saturday Night Live — and I wish that's all it was — Dan Ayckroyd would have turned to Yoo and uttered the title of this post.
- It is also emphatically my reaction. I have not examined specific responses by other commentators, including those I respect like Professor Arend. As shall become apparent shortly, the Yoo memo is so shoddy in its very conception that engaging with it in too much detail actually reinforces what little credibility it has.
- Whether, on the basis of the shoddy reasoning, unprofessionally incomplete research, and failure to cite controlling adverse authority, Yoo should be allowed to retain his license to practice law is another question entirely. One place that I strongly differ with the Perfesser's perception is simple, and perhaps tinged by my own time writing memos in the DOD. The Yoo Memo is not just another example of "what lawyers do"; it is a perversion of the legal process, not to mention the oath of loyalty taken by all officers of the United States (uniformed and otherwise) to support and defend the Constitution — not any particular policy set, interest group, or whatever. Perhaps my standards are too high, but the Yoo Memo calls his fitness to practice law into question. Cf. Cal. R. Prof. Cond. 3-110
Of course, not all law professors are lawyers, including some of the very best.
- DOD Directive 5200.1-R, paragraph 2-304(b) (Jan. 1997).