|Scrivener's Error||Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.|
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Between being sick of late and being sickened by the memorandum itself, it has taken me quite some time to both properly work my way through the Yoo Memorandum (PDF image, 5.6mb) and write this in a way that will keep from frying too many semiconductors. In order to do so, I've broken my responses down into small, discrete chunks… primarily so that they don't achieve critical mass. Unfortunately, that makes the rest of this entry a bit disjointed.1
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:
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.
Of course, not all law professors are lawyers, including some of the very best.
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of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.
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