The Office of Legal Counsel from the Vietnam War to the War in Iraq...or, The Authoritarian Presidency

I’ve been responding to various posts in the legal blogosphere (e.g., Balkinization, Concurring Opinions, Dorf on Law, Legal Ethics Forum, MoneyLaw) discussing “Yoo, Boalt, and Academic Freedom” (Marty Lederman), or what Stephen Griffin at Balkinization succinctly labeled “Boalt’s Yoo Problem,” Boalt Hall of course being shorthand for the Law School at UC Berkeley. Dean Christopher Edley, Jr. wrote a spirited defense of Yoo’s academic standing, which I largely agree with, as do more qualified authorities on the subject. In any case, I thought I’d simply post here my comments in toto, which go beyond the topic of Yoo and academic freedom in endeavoring to raise other, and dare I say larger and more important (yet no less related) questions. Nothing I have to say is original with me, as you’ll learn below, but I thought it important to bring to everyone’s attention (well, at least those are kind enough to read this blog). I trust you’ll forgive me if you’ve already read these comments at several of the aforementioned blogs. And I think they can more or less stand on their own without recapitulating the specific posts from which they originated as comments.

Read the rest of this post . . . .As an outsider looking in, I'm enjoying this thoughtful discussion. FWIW, I agree that formal academic sanctions against Yoo are unwarranted (and would probably backfire in some manner down the road) and thus the "marginalization" of Yoo by fellow legal academics is an appropriate response as a shaming mechanism that serves to enforce professional and ethical norms while reiterating the minimal conditions for a constitutionally sound legal argument qua legal argument.

I think Marty Lederman is right to argue that the lack of consensus in the legal academy on Yoo's legal competency (in this context at least) "demonstrates that there are, indeed, some very smart people out there who have no sense of moral and professional outrage and incredulity about what happened here--who apparently think of this as 'business as usual,' what we should or must expect from our government in times of crisis; that it makes no sense at all to critique the work of government lawyers." Analogous if not similar "breeches in our constitutional culture" have occurred throughout our history as Marty noted in one of his Balkinization posts: "In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization." I think an intimate familiarity with this history helps in placing the Torture Memos in perspective.

At the risk of sounding pedantic or patronizing (and I'm in no position to be either): A formal legal argument may of course be egregiously unprincipled and unethical, apart from its constitutional implausibility, but the legal profession might also seek to demonstrate (and to some degree already has) whether or not Yoo evidenced basic competency in the "grammar of legal argument" as such which, after Dennis Patterson (and Philip Bobbitt; please see Dennis's paper, 'Interpretation in Law,' http://ssrn.com/abstract=702921), consists of the following forms: textual, doctrinal, historical, prudential, structural, and ethical. In Patterson's words, "the forms of argument are the (immanent) grammar of legal justification. Understanding in law is law best explained as disposition on the part of individuals to employ *the forms of argument in appropriate ways as context requires."* Dennis provides us with the minimal desiderata for assessing legal competence, namely, a demonstrated familiarity with the forms (the grammar) of legal argument, employed "in appropriate ways as context requires."

Legal interpretation is therefore a second order or parasitic practice dependent on prior understanding evidenced in the ability to employ the standard forms of legal argument. It seems the Torture Memos present us with a case in which this understanding has in some measure broken down or, better, forms of legal argument are in conflict, such cases exemplifying the need for "legal interpretation." Patterson argues that we need not leap to adjudication by "legal theories" in such cases but can rely on such normative principles of interpretive criteria as "minimal mutilation," "coherence," and "generality."

In short, here is where I think those who find fatal fault with Yoo's legal argument should focus their attention. In other words, rather than conducting an analysis and critique at the rather abstract, philosophical and radically pluralist level of legal theory, Yoo's legal argument should be assessed according to these fundamental criteria, keeping in mind the importance of "context" noted above.

I'm confident (perhaps mistakenly) that Yoo's legal argument does not meet these minimal criteria as part of a greater inability to demonstrate sufficient familiarity with the proper forms of legal argument that one should have relied upon in this case. In other words, there is only one "community of [legal] understanding" (i.e., those well-versed in the grammar of legal argument) and the assessment of legal competence can find some independent or objective ground by resorting to the three aforementioned interpretive criteria suggested by Patterson. Put differently, empirically speaking, judgments of competence may often in fact be partial or even partisan, but they *need* (and should) not be. Indeed, I think the academic integrity of the legal profession rests on the assumption that we can make more or less objective determinations of legal competence. In support of the argument for the possibility of objectively assessing legal competence I might note (by way of Balkinization) this post by Stephen Gillers in The Nation: as well as Benjamin Davis’s piece for JURIST

Now to the history lesson, in which several legal lessons are firmly embedded (For ‘three essential lessons about the rule of law,’ please see Brian Tamanaha’s ‘Thank Yoo and Judge (Mostly Getting a Free Pass) Bybee’):

In reading afresh Stanley Karnow's Vietnam: A History (2nd ed., 1991) I came across this nugget, which bears comparison to John Yoo's legal work for the Bush administration, although in this instance, the constitutional blessing was after the fact:

“...[I]t was doubtful if Nixon had the authority to broaden the war [into Laos and Cambodia] without congressional endorsement--just as it was doubtful that he had the power to begin, in secrecy, the bombing of Cambodia the year before [1969]. Almost as an afterthought, he assigned the task of preparing a legal justification to William Rehnquist, an assistant attorney general, who came up with the argument that the law mandated presidents to deploy troops 'in conflict with foreign powers at their own initiative.’”

It's clear that Rehnquist's career did not suffer from providing obsequious legal dissimulation on behalf of conspicuous war crimes. Seen in this dark light, and whatever the odious ethical and legal nature of Yoo's infamous Torture Memo, it pales into comparison to crafting legal sanction for the bombing and invasion of Cambodia. (Cf. Richard Falk, ed., The Vietnam War and International Law, 3 Vols., 1968-76)

Doing a bit of research I discovered that Bruce Shapiro wrote something a few years ago about the remarkable historical connection between Rehnquist's white paper, "The President and the War Power," in his capacity as head of the Office of Legal Counsel, and Assistant Attorney General Jay Bybee's Torture Memo:

‘What do Nixon and Cambodia have to do with the beatings and rapes at Abu Ghraib? Ask Bybee, because it is his memo that makes the comparison with Cambodia and Rehnquist, a comparison that lays open the deeper motivations, goals and implications of the Bush Administration's interrogation policy.

The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed and technical a reading of antibrutality laws that all manner of "cruel, inhuman or degrading" interrogation techniques--including beatings and sexual violations like those in Abu Ghraib--simply get reclassified as Not Torture. The memo's language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President's commitment to humane treatment of prisoners.

Yet even while putting up a smokescreen of concern for humanitarian treatment of prisoners, the Administration made no attempt to distance itself from Bybee's most crucial theme: unreviewable presidential war powers. Anti-torture laws, the memo argues, simply do not apply to "detentions and interrogations of enemy combatants pursuant to [Bush's] Commander-in-Chief authority." All the documents released by the White House reflect this same obsession with presidential war powers-and in many cases, incorporate Bybee's precise language.

It is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration's 2002 and 2003 memorandums. Just as Bybee finds that torture isn't torture, Rehnquist argued that the invasion of Cambodia wasn't really an invasion: "By crossing the Cambodian border to attack sanctuaries used by the enemy, the United States has in no sense gone to war with Cambodia." The Bybee memo offers officials accused of torture the "necessity" defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was "necessary to assure [American troops'] safety in the field."

In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief's authority at its most expansive and unreviewable: The President's war power, he wrote acerbically, must amount to "something greater than a seat of honor in the reviewing stand." Cambodia--where the devastation of the war and the Nixon Administration's carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust--amounted to "the sort of tactical decision traditionally confided to the commander in chief."

For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today's Patriot Act.

The authority of Nixon and his successors was soon curtailed--at least on paper--by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

This is what is really at stake in the torture scandal. The circle of history has come around: The Bush Administration's theory of unconstrained war powers connects straight back to its Nixonian origins.

[....] The Bush Administration's memos not only facilitate torture as public policy. Like the Nixon Administration in 1970, they articulate a philosophy of the presidency best described as authoritarian. That is the hidden message of Abu Ghraib.'