What takes my breath away about the Yoo memos , now that we can finally read them, is their air of uttery certainty. One after another, complex questions of constitutional law are dispatched as if there’s no cause for any debate. The president has all the war-making power. Congress has none. The president’s commander in chief powers extend to interrogations (no matter how far from the battlefield in space and time they take place). Guantanamo Bay detainees and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include “Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.” In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support. And yet he brooks no doubt. It’s as if he’s writing as a Supreme Court justice, not a government lawyer. Which is understandable in one sense, since the Office of Legal Counsel functions like the government’s internal Supreme Court—but also exhibits the terrifying results of dishonest, glib analysis by lawyers drunk on that very power.
More tripping lightly over what should be boulders: “We conclude that the War Crimes Act does not apply to the interrogation of al Qaeda and Taliban detainees because, as illegal belligerents, they do not qualify for the legal protections under the Geneva or Hague Conventions.” Also blithely concluded, the prohibition against torture “does not apply to interrogations conducted within the territorial United States or on permanent military bases outside the territory of the United States.” And again, Common Article 3 of the Geneva Convention—the backstop shielding enemy detainees—does not cover “an international conflict with a non-governmental terrorist organization.” As David Luban has taken pains to explain , that’s a tendentious and discredited view of Common Article 3. Yet there’s no hint of all the debate and argument roiling just beneath the surface.The effect is entirely unsober and lawyerly.
On Page 47 of the Yoo memo, if I’m not mistaken, there’s the amazing assertion that the Convention Against Torture doesn’t apply whenever the president says it doesn’t. “Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.” Doesn’t this mean that whether or not a treaty has been ratified, with or without express reservations, Yoo is saying that the president can implicitly and on his own authority withdraw the United States from the treaty simply by not abiding by it? Is there precedent for such a claim? In my quick scan so far of the tortured (sorry) reasoning here, I can’t find anything other than ipso facto —because I say so, the president says so.