The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.
Read that again. It is the opening paragraph of the lead story in today's Washington Post entitled Memo: Laws Didn't Apply to Interrogators and subtitled "ustice Dept. Official in 2003 Said President's Wartime Authority Trumped Many Statutes." Similar stories appear in other papers. While we may have known about this second memo written by John Yoo, the implications frighten me, because I have just finished reading similar reasoning - from many of my best students. I didn't believe I could still be shocked, but I am.
We have known about the existence of this second Yoo memo for quite some time, although the contents had been classified until the unclassified version was released yesterday at the request of Pat Leahy and Carl Levin. And although the memo had been withdrawn 9 months after it was issued in large part because of protests of military lawyers, it was in effect a the time large numbers of people were taking into military custody from Afghanistan, and as we prepared to invade Iraq, and many argue that it set the preconditions that allowed what we know happened at Abu Ghraib - and what may have happened at other installations in Iraq for which we do not have such graphic evidence. Let me quote from the article the key contents of the memorandum:
Sent to the Pentagon's general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department's Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers.
"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."
Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self-defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations -- that it must "shock the conscience" -- that the Bush administration advocated for years.
"Whether conduct is conscience-shocking turns in part on whether it is without any justification," Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
Originally Donald Rumsfeld had authorized the use of aggressive techniques, but after complaints from military lawyers had, in December 2002, rescinded his previous orders. But then this memorandum was sent to the General Counsel at the Pentagon by John Yoo, from his position in the Office of Legal Counsel in the Justice Department, in early 2003. Let me quote two more sentences, from slightly different parts of he article, to emphasize the importance of the role this memorandum played in what subsequently happened.
The documents are among the Justice Department legal memoranda that undergirded some of the highly coercive interrogation techniques employed by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.
And although Yoo considers what he wrote as largely boilerplate, this memo arrived at a time of serious worry in the Pentagon of the possibility of legla actions against people using aggressive techniques in both domestic and international courts. Thus
Largely because of Yoo's memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics.
yet surprisingly that group did NOT include the top lawyers for each of the military services, who were not informed of the contents of the memo for more than a year.
The article then goes on to quote the reactions of three leading lawyers, two of whom were in key roles in the Pentagon at the time, and they register their strong concerns and objections. But you can read that in the article.
I want to talk about implications, and that is because of yesterday. It is because of what I saw from many of my AP Government students.
Yesterday in class they wrote a free response question. On the AP exam in May, they will have to write 4 of these in 100 minutes. I am training them to write slightly more quickly so they have some margin of error. The issue at hand was six statements that dealt to some degree with the balance of power among the branches. There was a section A, B, and C, each with two statements which represented some check by the other two branches on one branch. It should have been a straightforward question to answer, but it was not in some cases. And that shows me I need to reteach certain concepts. But what shocked me is what I read on about 1/4 of the papers when they were discussing either executive privilege (which many misunderstood) or the fact that Judicial Branch has no enforcement power or especially the President's powers as Commander-in-Chief. Students were parroting the administration's rationale that the President's authority as Commander-in-Chief is basically unlimited, that he can use the military in any way he sees fit, that Congress has no oversight or control on how he does it - and similar misinterpretations.
Now, we in fact HAVE carefully explored these issues. When we have done so, I make sure that students have seen both the arguments in favor of such expansive interpretation of presidential powers and arguments against, especially from things like Robert Jackson's dissent in the Korematsu case, or statements by Republican office holders who have disagreed with such broad interpretation, to ensure that students realize that this is not an issue on which the disagreement is purely partisan. Clearly most of my students "got it." After all, it was only about 1/4 of the answers that showed some degree of misunderstanding, of accepting the administration's rationale.
But I am really worried what that 1/4 represents. They come from all 3 of my classes, so it is not that I did a poor job of covering the material in one period as opposed to the other two. And the number of students who could correctly explain the principles involved was a large majority. And knowing my students as I do, there is no correlation between political beliefs (for example, those who identify themselves as conservatives or as Republicans) and how they responded to this prompt.
I can only interpret the results that I see as meaning that a significant portion of my students have simply accepted such dubious rationale because they heard it so often - on television, or reading it in the paper, and/or because they are influence by the fear the administration and its supporters have peddled to set the context for such egregious abuses of authority.
Most of my students are in 10th grade. I am trying to help them learn to think critically, and I use Socratic method to expand their thinking even if their initial statements are largely correct, to ensure that they can understand the impact of their words and justify their positions. The average person under military authority is trained far differently, and if given an order that has the blessing of lawyers and the high officials in the chain of command is in no position to question.
Thus it is clear that for all the secrecy of the details of this memorandum, and despite the fact that it was withdrawn several years ago, the impact of its reasoning has apparently poisoned the reasoning of many of our citizens, not just those under military authority. And that scares the hell out of me.
At least I can reteach my students, ensure they understand what terms mean, and how MOST people interpret the limitation on the powers of the presidency, even in his role as Commander-In-Chief in a time of war. They merely made a mistake writing in response to a prompt. For them, no harm, no foul.
But for the uniformed military and others who did actions that violated laws and decency? Do we hold them accountable, as we did in Abu Ghraib, but only the low-ranking while those who were field grade officers and above got off, except for Janet Karpinski, the one flag officer to suffer consequences? Does the time this memo was in effect give blanket immunity to those high ranking officials who are responsible for the abuses done ostensibly in our name?
And how many other orders and memoranda are out there, with similar reasoning, leading to similar results of abuse and - yes - torture?
You will excuse me. I have to replan my lessons to ensure my students know what the Constitution really says. I can deal with them. What about the rest of our nation? What do we do to address them?