After The Fact

New York attorney Scott Horton, who also teaches at Columbia Law School, raises an important and heretofore ignored issue about the John Yoo memos authorizing torture in an op-ed piece published in today's Los Angeles Times. Specifically, Mr. Horton discusses the timing of the memos and the effect that might have on any legal liability on the part of Mr. Yoo, the administration, and those individuals engaged in "intense interrogation techniques," i.e., torture.

But does academic freedom really sit at the heart of this controversy? It's not Yoo's ideas in an academic setting that give rise to his current problems but his conduct as a government lawyer. Yoo says that he was asked his opinion about technical legal issues related to interrogation and detainee treatment during wartime, and he gave it his best shot. He also argues that he strained to give policymakers and actors the greatest possible latitude in which to manage a difficult conflict. But he only advised and theorized; others took the decision to implement the program.

But Yoo's account of how and why the torture memos were crafted may not hold up. Congress is preparing hearings into the subject, and they have invited Yoo to testify. International law scholar Philippe Sands and other writers have punched holes in Yoo's claims about the facts. It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.

It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution? [Emphasis added.]

Mr. Yoo and the administration have used the legal opinion memo as a shield. Mr. Yoo has asserted that he was just doing his job in providing his analysis and opinion to his employer, the government. Government officials, then, had the final decision. The administration have asserted that they were acting in accordance with their lawyer's recommendations on the legality of certain interrogation techniqes and that they were acting in the good faith belief that they were doing nothing wrong. Voila! No legal liability for anybody.

But that assumes that the government went to their lawyer before engaging in any of this conduct. If, as it now appears likely, the government engaged in the conduct, got told by other lawyers in government that the conduct constituted torture and was therefore illegal, and then told Yoo to draft an opinion that would cover everybody's backside, then it's an entirely different story. That "shield" is no longer effective. Committing a crime first, and then asking for cover, still makes the criminal, well, a criminal.

And that's why this investigation is so important.