Stuck on Yoo

Stuck on Yoo

Stuck on Yoo

Slate's blog on legal issues.
April 3 2008 9:18 AM

Stuck on Yoo

Of all the passages in this latest memo worthy of dissection, I still can't get past the following:

Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Memo , p.4 (emphasis added).

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No citation to authority. No offer of any logical or factual support for the claim. No reference to administration policy documents, security analyses, military or intelligence risk assessments, or any particularly evident basis for the statements of any kind. Just Yoo.

Hard to say what bothers me most here. One possibility is just the painful internal contradiction. John Yoo (among others) has devoted so much time to trumpeting the importance of judicial deference to executive expertise. Too bad it turns out that the only "executive" expertise evident here is Yoo's own take on what might be effective in preventing future attacks. Can't particularly think of anything other than torturing captured detainees. So that must be the only way.                          

Maybe it's that the passage appears not in some foreign policy article or popular op-ed, in which citation to any supporting basis for such assertions wouldn't be expected but rather in a legal memo, as part of a legal analysis of the president's powers as commander in chief to which any first-year law firm associate would respond by just hitting the Alt-F8 macro demanding the author "state the basis" of the claim. Or maybe it's the entirely illusory nature of the proposition. We "may be" all about to explode. Or not. Just wanted to throw that out there as a possibility as the reader contemplates whether to buy into the otherwise, uh, unusual, legal analysis that follows.

Or maybe it's just how painfully ill-informed it sounds in the face of the actually voluminous body of pre- and post-9/11 security policy assessments ( 9/11 Commission Report included) listing the hundreds of ways other than custodial interrogation one might go about preventing the next attack. Or in the face of the recognition of the U.S. Intelligence Science Board that "knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collection ... [with] current populations of interest." That is, it is entirely unclear based on present knowledge how to secure the revelation of accurate information from an individual.

At a minimum, there's no way this paragraph should do any legal work. Yet this paragraph is in no small part how Yoo gets around to defending the legality of torture. And it's part of how he gets around to saying torture should be up to the executive branch alone. So maybe what scares me most is that counterterrorism is indeed serious business and I would really, really like to think someone other than John Yoo was minding the store.