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Wednesday, April 2, 2008

"When the president does it, that means that it is not illegal."

- Richard Nixon

John Yoo certainly subscribes to Nixon’s view of the power of the presidency. If you thought that Yoo had expended his shock value with claims that torture isn’t torture unless it causes organ failure or death, you should peruse yesterday’s declassified memo, which marks a surprising new low for the Bush administration’s Justice Department. His vehement defense of limitless executive power is a startling reminder of the role that the Office of Legal Counsel (OLC) has played in the Bush administration.

On March 14, 2003, Deputy Assistant Attorney General John Yoo dismantled domestic and international law in only 81 pages, issuing a secret OLC opinion that concludes that the president can authorize torture—and Congress can’t do anything about it. In his examination of "the legal standards governing military interrogations of alien unlawful combatants held outside the United States," Yoo finds that there are none.

First, he dismisses domestic criminal laws against torture, saying that they cannot apply to "the interrogation of enemy combatants undertaken by military personnel" because that would "conflict with the President’s Commander-in-Chief power" to defend the nation. Then he dismisses the Convention Against Torture (CAT), saying that even though the treaty was ratified by the Senate, "[a]ny presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." After deciding that the president can unilaterally and secretly terminate the U.S.’s participation in any treaty by simply ordering its violation, Yoo goes on to assert that even if criminal laws prohibiting torture did apply, "necessity or self-defense could provide justifications for any criminal liability." This marks a vast and unprincipled expansion of standard justifications that exist in ordinary criminal law – a body of law Yoo pages earlier said could not restrain the president or military interrogations. In a strikingly broad declaration invoking "the Nation’s right to self-defense," he proclaims:

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions."

Yoo goes on to argue that constitutional limitations on interrogation methods amounting to cruel, inhuman, and degrading treatment that would "shock the conscience" don’t apply if the interrogator "acted in good faith rather than maliciously and sadistically for the very purpose of causing harm."

Bush has routinely used the OLC to twist the law rather than to uphold it, and this document further underscores that pattern. But of all the stunning aspects of the newly declassified memo, the most dangerous is its tone. Rather than providing an independent and fair assessment of the law’s application, Yoo’s work offers a one-sided and outcome-driven interpretation of domestic and international law. As was stated bluntly in another secret OLC opinion recently declassified at the request of Senator Whitehouse (D-RI), "The Department of Justice is bound by the President’s legal determinations." The president’s lawyers are bound by his interpretation of the law, rather than vice-versa. So according to John Yoo and the Bush Justice Department, President Nixon was right all along.

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