Defending Yoo's "Distinct Methodological Valence," But Not the Merits

Defending Yoo's "Distinct Methodological Valence," But Not the Merits

Defending Yoo's "Distinct Methodological Valence," But Not the Merits

Slate's blog on legal issues.
April 6 2008 1:23 PM

Defending Yoo's "Distinct Methodological Valence," But Not the Merits

Eric suggests that he and Adrien Vermeule never actually meant to defend the merits of the John Yoo torture memos.  Well, I suppose I should simply be grateful that there finally appears to be something verging on a consensus that the memos are indefensible.  But it is worth recalling that when the first of these memos appeared, Eric and Adrien did not do anything to criticize the merits or to express their outrage or disdain.  Instead, they saved their fire for the critics of the memo, writing:

There is an important intellectual context behind the academic critics' complaints. An older generation of legal academics developed something like a consensus in favor of enhanced congressional power over foreign affairs; support for the War Powers Act; and a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars who emphasize constitutional text, structure and history rather than precedent, and who argue for an expansive conception of presidential power over foreign affairs, relative to Congress.

Among this rising generation are legal scholars who have recently held office in the Justice Department, including John Yoo at Berkeley. The memorandum thus focuses not on restrictive Supreme Court precedents, but on the constitutional text, the structure of foreign affairs powers and the history of presidential power in wartime. From this perspective, the academic critics' complaints have a distinct methodological valence, one with intellectually partisan overtones.

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Now, to be sure, Eric and Adrien never quite say here that they approve of John's use of text, structure and history. The evident point of their op-ed, however, was to defend John and the "dynamic generation" of which he is said to be a part—to legitimize the "distinct methodological valence" that John was said to bring to the table—and to call into question the sincerity and arguments of we "intellectually partisan" critics. If, in fact, they agree(d) with us critics on the merits that John's "dynamism" regularly (and especially in the torture memos) consists of sloppy, disingenuous, incomplete, and tendentious readings of the text, structure and history, one wonders why they did not simply say so. (By the way, John's memos do not disdain Supreme Court precedents at all. He cites them repeatedly, distorting some to pretend that they support his conclusions, and feebly attempting to distinguish others when he knows that they undermine his entire edifice. If John had written, as Eric and Adrien suggest, that "the President is constrained under the governing precedents, but frankly, we reject the Court's methodological valence," it would have been candid and refreshing, if audacious. But the memos don't read that way, not in the slightest. For good reason:  If the memos were written in such a candid manner, the CIA, NSA and DOD would never have felt free to rely on them to justify disregard of statutes and treaties.)

And as for the claim that the torture memos "fell into OLC's tradition of pro-executive lawyering"—well, I just don't quite know how to respond to such a claim, which sounds a bit like John's recent statement that the March 2003 memo was OLC "boilerplate."  Is OLC sometimes too "pro-executive"?  Yes, it is (although not always, and I am troubled by the assumption that the office should not be expected to express a fair and balanced view of the law). I am on record (see pages 1080-1097 ) as being quite skeptical of several OLC opinions published since 1984, including some in the Clinton Administration when I worked at OLC. But with the possible exception of the 1986 "Timely Notification" opinion—which in its very first footnote conceded that it was neither balanced nor objective—there is nothing remotely close to the torture memos in OLC history. Boilerplate? Well, suffice it to say that it was not every day at OLC that I was asked to draft opinions explaining the 17 different legal arguments for why the president could authorize the military to gouge out the eyes of our detainees.

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel 2009–10 and an attorney advisor in OLC 1994–2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.