Slim Legal Grounds for Torture Memos
Most Scholars Reject Broad View of Executive's Power
By R. Jeffrey Smith
Washington Post Staff Writer
Sunday, July 4, 2004; Page A12
Academic seminars including University of California law professor John Yoo are no longer apt to be dry discourses on the primacy of executive branch power. At an American Enterprise Institute session here last week, a heckler shouted that Yoo should apologize for drafting Bush administration memos that, in the critic's words, condoned torture.
The questioner was ruled out of order, so Yoo had no opportunity to say again that he feels the claim is a distortion of his legal views. But there is little question that Yoo and his former colleagues in the government -- a group of conservative legal scholars who maintain that President Bush has broad power to pursue the war on terrorism -- are caught in a discomforting spotlight.
The latest in a series of setbacks was the Supreme Court's rejection on Monday of the claim that Bush can detain enemy combatants without independent review. The court spurned the administration's request that it defer to the president's discretion and insisted on what it depicted as a more careful balancing of national security needs and individual rights, a test it said is relevant even in wartime.
Some legal scholars argue that the courts' decisions -- in combination with the administration's repudiation last week of an internal memo arguing that the president has the power to sanction torture -- amount to a permanent rebuke of the expansive view of presidential power that has underpinned numerous Bush administration policies, including an executive order establishing military tribunals that are not subject to judicial review.
Georgetown University law professor David Cole, a longtime critic of the administration, called the court opinions in particular a rejection of "this claim of unchecked presidential authority which has been advocated in so many areas since September 11" and said, "This is really quite remarkable." Neal K. Katyal, a counsel to some of the military lawyers defending detainees at Guantanamo Bay, Cuba, said he believes recent events mean "the administration's legal war on terror is utterly repudiated."
But Viet Dinh, a colleague at Georgetown and former assistant attorney general who played a key role in drafting the administration's USA Patriot Act, said a more narrow legal shift was possible.
"I would not say [the Supreme Court decisions were] . . . a victory for the executive branch," Dinh said to laughter at a Georgetown symposium last week. But he and Yoo have expressed optimism that some powers asserted by the administration -- such as the right of the president to decide which individuals are enemy combatants based on evidence that might not be admissible in court -- may be preserved in new hearings on individual detainees.
Their legal philosophy about presidential powers, however, is supported at present by only a minority of legal scholars, a circumstance that became clear from the storm of criticism that erupted after the disclosure this month of two memos produced by Yoo and others in the Justice Department's Office of Legal Counsel.
An August 2002 memo, provoked by a CIA request for interrogation guidance, suggested that the president's commander-in-chief authorities meant that those acting at his direction would be immune from prosecution for torture. That memo drew on a January 2002 memo that suggested, over the opposition of the State Department's legal adviser, that the president could suspend the application of international protections for detainees.
Taken together, the memos presented a legal groundwork for aggressive questioning of foreign detainees. On June 22, White House counsel Alberto R. Gonzales publicly discredited the memo, an extremely rare event for such opinions.
Gonzales called it "irrelevant and unnecessary to support any action taken by the president." At the same time, however, he said the legal analysis "underpinning the president's decisions" on detainees is not being reevaluated, making it clear that the White House is sticking with its expansive views of Bush's authority.
Yoo, a former law clerk to Supreme Court Justice Clarence Thomas and principal author of the August memo, is a well-known advocate of strong presidential powers. He was deputy head of the Office of Legal Counsel from 2001 to 2003. But others who worked on the memos, including Jay S. Bybee, who headed the office during roughly the same period and who is now a federal appellate judge, shared Yoo's views on presidential authority, as did Gonzales.
Yoo, who declined to comment on how the memos were drafted, said they do not represent "majority views among international law academics." He said their depiction of presidential authority instead was "squarely within the practices of the government" and past decisions by the Supreme Court -- a view his critics contest.
The legal ideas supporting the August memo are part of a broad philosophy holding that international laws such as the Geneva Conventions and the Convention Against Torture are rules that states need not apply in absolute terms. Advocates claim that treaties are more like contracts subject to "situational" adherence than norms of conduct binding on every state, said David B. Rivkin Jr., a White House lawyer in the Reagan administration who now works at Baker and Hostetler in Washington.
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