We have known for some time the general contents of the 81-page memo offering a legal rationale for extreme interrogation techniques that John Yoo of the Justice Department wrote and sent to the Pentagon’s top lawyer on March 13, 2003. We’ve known that it proclaimed the President of the United States to be almost entirely above the law when it comes to protecting the nation’s security in a time of war. And we’ve known that the memo’s impact on the interrogation methods used by American soldiers, intelligences officers and contractors survived well past the nine months it took before the Justice Department quietly disowned it.
Now, finally, the Yoo memo has been declassified and released. And even though we knew so much about it, it is diffcult to read it and not be shocked by Yoo’s argument and how matter-of-factly he makes it. There are many breathtaking passages, but there is a short section, as described in the Washington Post, that stands out:
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.
By this incredibly dangerous and misguided reasoning, any interrogator who tortured or cruelly mistreated a prisoner could not be held responsible so long as he wasn’t inspired by malice or sadism — as long as, in other words, he was just following orders. As long as he administered it dispassionately almost any kind of physical or mental torture would be condoned, by Yoo’s reasoning. Moreover, virtually anything an interrogator did to a prisoner could be justified so long as the President deemed it necessary as matter of national self-defense. Again, from the Post:
“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.”
The ends justify the means. Yoo, now a law professor at Berkeley, defends the memo, saying it was standard-issue “boilerplate” aimed at protecting Presidential power. What a relief.
NOTE: In a new piece in Vanity Fair, Phillippe Sands lays the blame for abuses on the lawyers, and their bosses.