John Yoo's Torture Memo Is Going To Court

Lawyers for Ali Saleh Kahlah al-Marri have requested the Fourth Circuit consider the Yoo memorandum in its deliberations on al-Marri's pending appeal. Specifically the lawyers argue that al-Marri was designated an illegal enemy combatant based on the erroneous legal advice contained in the Yoo memorandum and that if the Circuit Court upholds his detention it will be doing so on the basis of advice that even the Department of Justice has rejected.

This developnent is discussed in this Washington Post article and in Scotusblog.com.

The March 14, 2003 Yoo Memorandum has been the subject of much discussion, including this post by Valtin where he publicizes the move by the National Lawyers Guild to have Yoo disbarred. One of the problems that many of us who have reviewed the memorandum have in writing about it that it is such a terrible piece of legal work that it is hard to know where to start.

The memorandum has four parts, but all hinge on the first two parts which are summarized as follows:

In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. In Part II, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President.

This can be further summarized more succinctly. According to Yoo, The Commander in Chief can take any action he wishes regardless of whether that action would violate any provision of the Constitution or any Statute passed by Congress.

There is only one problem with his conclusion. There is no Supreme Court decision supporting that conclusion. Yoo cites the very few Supreme Court decisions on the subject and none of them say that. There are opinions discussing the breath of the President's powers in waging war, but those cases do not involve direct violations of Constitutional or statutory provisions. They involve questions regarding the President's ability to take an action in the absence of express statutory authority. And even here Yoo's opinion is on shaky ground because of YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952), where the Supreme Court struck down President Truman's attempt to seize steel mills during the Korean war in the absence of Congressional authorization.

Furthermore Yoo knows that his opinion is built on a house of cards. In a clever footnote he states,

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

We're not saying the Constitution doesn't apply during war time, because the Court has held otherwise. We're just saying that it doesn't apply to the President's actions while he is conducting a war. Nice try John, but no cigar.

In any event, the filing in the al-Marri case is good news because we just might get an early glimpse of an Appeals Court's opinion on Mr. Yoo's handiwork. As reported by the Post,

"The memo makes plain as day that al-Marri was declared an enemy combatant based on discredited legal opinions and for the illegal purpose of abusive interrogations," Jonathan Hafetz, an attorney with the Brennan Center for Justice who represents Marri, said yesterday. Defense attorneys contend that Marri, who is being held at a Navy brig in South Carolina, has been subjected to such interrogation methods as sleep deprivation and being forced to stand in uncomfortable positions for long periods.

Legal "experts" have different views on the issue. Again, as reported by the Post,

"I'm not sure the Yoo memo is of direct assistance to Mr. Marri," said Douglas W. Kmiec, a Pepperdine University law professor who headed the Justice Department's Office of Legal Counsel in the Reagan and first Bush administrations. "The memo primarily concerns aggressive forms of interrogation, not primarily the president's authority to designate individuals as enemy combatants."

But David H. Remes, who represents 16 detainees at Guantanamo Bay, Cuba, said it was "perfectly legitimate for al-Marri's counsel to bring this to the court's attention."

He said: "The detention and treatment of al-Marri rest on the premise that as an enemy combatant he enjoys no constitutional protections. If the administration has repudiated the memo supporting that premise, then the government's justification for holding al-Marri as an enemy combatant crumbles."

I would love to see a court react directly to the Yoo memorandum, or even just give it the back of their hand in some footnote or dicta somewhere. I suspect this will probably not be that case, but hope springs eternal.