A guest post from Jonathan Hafetz

Slate's blog on legal issues.
April 7 2008 9:31 AM

A guest post from Jonathan Hafetz

Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at NYU Law School. His thoughts on the torture memo and Guantanamo, below:

John Yoo’s recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo’s memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo’s ideas through the Military Commissions Act of 2006.


The prisoners condemned to legal limbo as "enemy combatants" are the first casualties of Yoo’s War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions’ legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo’s earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.

Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo’s discredited assertion that the Bill of Rights does not apply to the president’s conduct of the "war on terror" inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as "enemy combatants" even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt.

Criticisms of Yoo often overlook his unthinking conflation of terrorism with war. Yoo is right that a state of war gives the president broad powers, even if he is wrong that those powers are unlimited and beyond regulation by Congress. But Yoo never critically examines the legal consequences of extending his too-robust vision of the executive’s war powers to terrorism. It is this leap that makes many of Yoo’s bolder assertions so terrifying. For example, Yoo’s assertion that the Fourth Amendment has "no application to domestic military operations" uses the rhetorical trope of the "war on terror" to mask the creation of a police state that can seize, interrogate, and indefinitely detain individuals on mere suspicion. It effectively sanctions a permanent state of emergency in which executive say-so swallows the traditional protections of criminal law upon which the Constitution’s guarantees of individual liberty were founded.

Restoring justice in America requires more than exposing and repudiating John Yoo’s legal thinking. It requires restoring the system that Yoo’s discredited ideas have helped to undermine and destroy.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.



Meet the New Bosses

How the Republicans would run the Senate.

The Government Is Giving Millions of Dollars in Electric-Car Subsidies to the Wrong Drivers

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Cheez-Its. Ritz. Triscuits.

Why all cracker names sound alike.

Friends Was the Last Purely Pleasurable Sitcom

The Eye

This Whimsical Driverless Car Imagines Transportation in 2059

Medical Examiner

Did America Get Fat by Drinking Diet Soda?  

A high-profile study points the finger at artificial sweeteners.

The Afghan Town With a Legitimately Good Tourism Pitch

A Futurama Writer on How the Vietnam War Shaped the Series

  News & Politics
Sept. 21 2014 11:34 PM People’s Climate March in Photos Hundreds of thousands of marchers took to the streets of NYC in the largest climate rally in history.
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Tv Club
Sept. 21 2014 1:15 PM The Slate Doctor Who Podcast: Episode 5  A spoiler-filled discussion of "Time Heist."
Sept. 21 2014 9:00 PM Attractive People Being Funny While Doing Amusing and Sometimes Romantic Things Don’t dismiss it. Friends was a truly great show.
Future Tense
Sept. 22 2014 7:47 AM Predicting the Future for the U.S. Government The strange but satisfying work of creating the National Intelligence Council’s Global Trends report.
  Health & Science
Bad Astronomy
Sept. 22 2014 5:30 AM MAVEN Arrives at Mars
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.