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Yoo Talkin' to Me?Plausible deniability, and other reasons why warfare by midlevel legal memoranda is a really bad idea.

By Dahlia Lithwick
Posted Wednesday, April 2, 2008, at 5:58 PM ET

(Continued from page 1)

Goldsmith argues that when government actors are hemmed in on all sides by domestic and international laws, they become immobilized and fearful. As he notes, "It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for his wartime decisions designed to maintain flexibility against a new and deadly foe." It was the accumulation of all these new laws and courts and lawyers that contributed to an inability for anyone in the Bush administration to act quickly and forcefully to prevent the next attack after 9/11. According to Goldsmith, the war had been "lawyered to death," and hoards of executive-branch officials were afraid to act aggressively in fighting the next terror attack because they were terrified of the legal consequences of doing so. Thus, high-ranked government officials milled around on the sidelines waiting to be green-lighted by some attorney, in much the same way onlookers at a car crash are afraid to move the body.

It sounds awful, and it's almost possible to see John Yoo as the brave individual willing to green-light aggressive interrogation amid all that paralysis. But in hindsight, Yoo has proven himself to be a one-man argument for the wisdom of "lawfare." Those same forces that constrain the executive from acting boldly in a crisis may also keep it from behaving in ways that later shock the conscience. If it's a choice between sober legal reflection and unhinged prisoner abuse, sober reflection also has its advantages.

But that choice also assumes lawyers engaged in sober reflection, and that may be assuming too much. Indeed, if anything, Goldsmith and others may have understated the dangers of "lawfare"—if the lawyers tasked with working around the web of international laws begin from the premise that laws are just obstacles. As we are beginning to learn, the growing tendency to conduct wars in the courtroom hasn't actually constrained anyone at all over the past seven years. The expanded role of all these laws and lawyers in the war on terror has had the opposite effect: The Bush administration has proven time and again that the Rule of Law is only as definitive as its most inventive lawyers.

In short, the Bush solution to the paralysis of lawfare seems to be to hire lawyers who don't believe in the law.

And the newly revealed Yoo memo highlights several reasons why warfare by midlevel legal memoranda is a terrible mistake:

1) The dangerous presumption that there are two legitimate sides to every question, including settled ones: This is a peculiar hallmark of Bush administration's existentialist thinking. Witness Michael Mukasey, whose ability to turn settled legal questions ("water-boarding = torture") into exercises in 1st Officer Spockian Deep Thought ("water-boarding might be torture. Or it might not. Fascinating problem. Hmmm"). The Yoo memo is what Orin Kerr rightly characterizes as "lawyerly." It looks like a memo. Notes Kerr, "It cites tons of authority, hedges arguments, discusses counterarguments, and generally reads like a careful lawyer's work." That's because in law school, they teach you to take out the bits that say, "Stick 'em in the eye with the shrimp fork!" But as Kerr also concedes, you can be lawyerly and also poorly reasoned. There are good arguments to be made for many stupid legal ideas, but that doesn't make them legal. We need to stop revering open-mindedness when it comes to settled law. It suggests that contrarian, dangerous, bad ideas have equal weight to settled, prudent, careful ideas, so long as there are citations and footnotes to support them.

2) The diffusion of legal responsibility and plausible deniability: Marty Lederman asks important questions about how a midlevel lawyer managed to cook up some law in his constitutional Easy-Bake Oven that somehow became America's interrogation policy and a how-to for interrogators at Abu Ghraib. Part of that answer lies in the difference between what lawyers do—suggest permissible legal pathways—and what advisers do—suggest the wisest pathways. This is the difference, as Philip Zelikow, executive director of the 9/11 Commission has put it, between deciding "what we can do" and "what we should do." Whether Yoo really should be held responsible for writing a shockingly bad memo about what we can do during interrogations is not even the interesting question. How that memo then morphed into what we should do is the important half. With Yoo's legal "analysis" in hand, and the accountability for it diffused among many government officials, the system of legal memos promises to give cover to everyone at the top. As Rosa Brooks so wonderfully put it in the Los Angeles Times, it takes a village to adopt a torture policy. But accountability should not evaporate just because a lawyer wrote a memo at the start of the chain.

3) Lawyers cannot predict the future: The problem with letting lawyers set policy is that they cannot always anticipate real-world consequences. To be fair, Yoo couldn't have known that his legal worldview would become the blueprint for torture. But legal decisions have real-world consequences; they aren't just value-neutral thought experiments. And as a stunning new piece in Vanity Fair by Philippe Sands on the evolution of the Bush torture policy reminds us, when the White House—in the persons of Alberto Gonzales and Jim Haynes—tried to distance themselves from the 2002 Bybee-Yoo memo, they did so by characterizing it as so much harmless legal spitballing, merely exploring "the limits of the legal landscape." Opponents of lawfare worry that snap decisions made by politicians in a crisis will be judged by lawyers in the unforgiving light of hindsight. But the Yoo memo drives home the dangers of the opposite phenomenon: Unsupportable decisions by reckless lawyers can be disavowed by politicians claiming that, hey, it was just an abstract legal memo.

A lot of folks are inclined to write off the news of the torture memo today because: (i) we already knew this; (ii) it's no longer the law; and (iii) David Addington won't be allowed to listen in on their phone calls in seven months. I respectfully dissent. We should be thinking long and hard about how this memo came to be our interrogation policy, even for a few months. Now is the time to question the wisdom of trusting the policing of the boundaries in the war on terror to a swarm of anonymous midlevel lawyers whose minds may just be too open for our own good. We need to get away from the wrongheaded notion that a war on terror is the same thing as a war against the law.

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Dahlia Lithwick is a Slate senior editor.
Photograph of John Yoo by Mandel Ngan/AFP/Getty Images.
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