Yoo Talkin' to Me?
Plausible deniability, and other reasons why warfare by midlevel legal memoranda is a really bad idea.
Pop quiz for the law junkies:
1) Name the lawyer in the Bush administration who was sanctioned, sacked, or prosecuted for anything related to the firing of nine U.S. attorneys last spring.
2) How about the attorney fired for allowing the destruction of thousands of White House e-mails or the CIA torture tapes?
3) The guy dismissed after advocating for warrantless wiretapping in violation of the FISA law?
4) Disciplined for gross civil rights violations through the misuse of National Security Letters?
Can't think of anyone? Me neither. Someday, when we look back at the Bush administration's "war on terror," we'll be unable to point to the "bad guys" because they will turn out to be a bunch of attorneys in starched white button-downs, using plausible-sounding legal analysis to beat precedent and statute and treatise from ploughshares into swords. And not one of them will be held to account.
From torture to warrantless spying to the creation of a lawless prison at Guantanamo Bay, this has been a "war" waged by a thousand memos. And with the release last night of the long-awaited John Yoo "torture memo"—81 pages of half-supported Bush administration wish fulfillment—we have an official poster boy for the lawyerly claim of someone who was "just doing his job."
This morning, my inbox runneth over with e-mails from folks wondering what will happen to the memo's author, a man who so blithely argued that, in effect, if the president authorizes it, it isn't illegal. What's going to happen to John Yoo is pretty much what has happened to every other lawyer who ever offered a plausible-sounding legal opinion about how to break the laws in pursuing the war on terror. Nothing. He was just doing his job. The worst thing that will happen to Yoo may be that he has to teach the dreaded 8:30 a.m. Friday class at Berkeley next year.
It's the lawyers who wrote the "no" memos who lost their jobs.
In his book The Terror Presidency, my friend Jack Goldsmith—who prescribes some fixes for the legal war on terror elsewhere in Slatetoday—depicts the paralyzing effect of something called "lawfare." Lawfare was described by Air Force Brig. Gen. Charles Dunlap as "the strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective." Ordinary acts of foreign policy become bogged down in a maze of after-the-fact legal consequences. Donald Rumsfeld saw this form of warfare as a limit on American military authority. He was determined to find a solution to what he called "the judicialization of international politics."
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of John Yoo by Mandel Ngan/AFP/Getty Images.