Yesterday, the Bush administration declassified and released the controversial memo by John Yoo that had argued that criminal law did not restrict the war-time powers of the presidency. The 2003 analysis sought to resolve a conflict between statutory law and the Constitutional authority granted to the executive as Commander-in-Chief when dealing with “alien enemy combatants held abroad”. The US also had a duty to uphold the UN Convention Against Torture (CAT) but only to the extent that interrogations refrained from activities that qualified as “cruel and unusual” under the Eighth Amendment or “shocks the conscience” under the Fifth and Fourteenth Amendments.

Needless to say, this got quite a bit of attention after years of speculation on the memo’s actual contents — as well as some misreporting, as in this effort by Dan Eggen and Josh White at the Washington Post:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” …

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

First, the 2003 memo didn’t authorize the start of coercive techniques. As early as September 2002, Congressional leadership of both parties got briefed on interrogations of three al-Qaeda operatives. The CIA gave members of both parties dozens of classified briefings which detailed such techniques as waterboarding, stress positions, and other controversial methods that Congress later acted to ban. This obviously predates the Yoo memo.

Yoo also didn’t occupy any position that could have authorized any interrogative techniques. He provided a legal analysis when asked, but the responsibility for relying on the analysis falls to the CIA, Pentagon, and White House. Congress certainly appeared to agree in that same time frame; the reporting on the briefings notes that none of the Congressional delegation raised any objections during the briefings. One specifically asked whether the interrogations should be made tougher.

Also, to be accurate, Yoo didn’t suggest that laws and treaties don’t apply to the President. What he gave was an interpretation as to how they apply, and he made a clear point about the limits of Congress to intrude on the executive branch in its exercise of duties as Commander in Chief. Yoo argued that the laws relating to the US certainly applied to the executive related to its domestic duties — ie, the President could not torture civilians on US soil as part of a criminal investigation because of the laws passed by Congress.

However, Yoo notes that the CinC would still be bound by CAT and the Constitution in interrogating alien combatants held abroad. The reliance on standards held in the Fifth, Eighth, and Fourteenth Amendments show that Yoo did not envision “nearly unfettered presidential power”, but power bounded by treaties and the Constitution. The question then falls to what these standards mean, and whether they exclude such techniques as waterboarding, stress positions, and the like.

I’m not necessarily in agreement with the memo, especially Part IV, which lays out a self-defense argument for potential violations of the limits Yoo notes.  This gets to the “ticking time bomb” scenarios that John McCain mentioned in the debate over his 2006 bill as an exception for national defense.  If we have restrictions on techniques with the force of law, then the law itself had better allow for those exceptions.   Otherwise, it essentially means that a President will have to guess whether he or she will face prosecution for torture, especially when the results succeed in stopping an attack.  Critics will later claim that the danger wasn’t significant enough for the exception.  We write laws precisely to identify the legality and illegality of acts so that we don’t have that kind of ambiguity and risk.

I think Congress should have the ability to set boundaries on war practices without going to the option of a Constitutional amendment to put them in place, and in that sense, Yoo’s analysis seems faulty — but it’s also not indefensible. It didn’t argue for an unrestricted exercise of power, and it was written in a period of time when Congress appeared to have decided that the techniques in question were within the limits of treaties and the Constitutional limits Yoo presents.

Perhaps this is too subtle for the American media to grasp, but this is a much more interesting and nuanced issue than their reporting has thus far revealed.