More Than a Fig Leaf

Emily , while it’s quite nice to watch Doug Feith and John Yoo take potshots at each other, I don’t know that I’m reassured by Feith’s comments in Vanity Fair that all this fancy lawyerin’ was just a “fig leaf” for the administration’s policies. I think that lets the lawyers and the decision-makers off too lightly.

All of these legal memoranda were more than a fig leaf. They were part of a deliberate strategy to unshackle American national security policy from the legal constraints that, in the opinion of senior administration officials, prevented America from effectively fighting the war on terror. This legal strategy was firmly rooted in a view of American power that disdained multilateralism and international institutions, including such things as international law (including the Convention Against Torture). And it was rooted in a fear of ” lawfare the notion that law could be used as a weapon by our enemies and thus needed to be neutralized somehow. I think it’s important to place Yoo’s legal memoranda in this context as part of a much larger administration effort to sever the relationship between America’s war on terror and the rule of law.

On a more micro level, I think Yoo’s memos did more than just provide a fig leaf. As Jack Goldsmith writes in his book , government officials felt an overwhelming desire to do everything in their power to prevent another 9/11 and to exact some measure of revenge, too. This overwhelming pressure transformed the decision calculus for government officials. Instead of asking questions like, “What’s the best or most effective policy?” they asked questions like “Are we doing everything possible?” or “Are we being tough enough?” Before the torture memos, certain policy choices had simply been off the table.  With Yoo’s memos on file, though, many of those policies (like extraordinary rendition, waterboarding, sleep deprivation, and isolation) became fair game. In this operational environment, with everyone jockeying to be tougher than the next guy, Yoo’s