Tortured Logic

An infamous memo gets a public vetting -- five years too late.

SOMETIMES IT'S best to let an author's words speak for themselves. The following is from a March 2003 Justice Department memorandum on the legal standards governing military interrogations of terrorism suspects: "As we have made clear in other opinions involving the war against al Qaeda, the Nation's right to self-defense has been triggered by the events of September 11. 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. 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. This national and international version of the right to self-defense could supplement and bolster the government defendant's individual right."

Translation: A U.S. interrogator could claim "national self-defense" if he was charged with the torture of a detainee, never mind the U.S. law against torture or international treaties prohibiting cruel, degrading or inhuman treatment of prisoners. The memo argues that interrogators acting under the president's authority could not be held accountable for mistreatment of detainees because the president is essentially above the law. Quoting from a 1937 Supreme Court decision, the memo claims that "applying general laws" against interrogators who use rough tactics on terrorism suspects would be as absurd as "the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm." And almost as an afterthought, the memo declares in Footnote 10 that the Fourth Amendment's prohibition against unreasonable searches and seizures "had no application to domestic military operations."

These and other legal distortions were written by John C. Yoo, a former deputy in the Justice Department's Office of Legal Counsel. The existence of the memo has long been known, and it was rescinded in December 2003. But it is nonetheless shocking to read what is an amalgamation of legal extremism and sloppy reasoning clearly meant to provide the president with justification to violate domestic and international prohibitions against torture.

The department has privately shared some memos deemed too sensitive for public consumption, including this one, with key lawmakers; there are ongoing discussions about whether other memos may also be made available in their entirety to those on Capitol Hill. This is a positive development, but it must yield results. Best of all would be the public release, whenever possible, of such memos, allowing members of the public to scrutinize them and freeing members of the administration and lawmakers to openly debate their merits. There can be no more excuses for the perpetuation of abominable legal doctrines that twist the law, tarnish the country's reputation and put at risk U.S. personnel, who may now be more vulnerable to torture because their government once claimed to find a way legally to excuse it.