The "Yoo Memo" (updated)

By Rick Moran

The Justice Department has declassified one of the foundation documents for our legal strategy in the War on Terror.:

The Justice Department late Tuesday released a declassified 2003 memorandum long sought by congressional Democrats and other administration critics that outlines the government's legal justification for harsh interrogation techniques used by the military against captured enemy combatants outside the United States.

The memo, written by John Yoo, then a key architect of legal policy in the wake of 9/11, dismisses several legal impediments to the use of extreme techniques.

Yoo was long a proponent of an aggressive approach in the war against terrorism and a believer in executive branch authority. But the memo was withdrawn as formal government policy less than a year after it was written.

By any definition, Yoo took an extremely expansive view of both executive power and the the justification for torture. He dismisses legal and Constitutional arguments against torture summarily and places their provenance under the all encompassing rubric of the legal authority of the executive in time of war.

I am not a lawyer and perhaps some of you would like to weigh in with a contrary view but I found the memo extremely troubling. In my view, it simply goes too far in granting the executive virtually unlimited power to ignore the parts of the Constitution that would be an impediment to the injuring of a prisoner in cases of torture while ignoring other strictures such as the Geneva Convention based not on sound legal principles but on what appears to me to be a unilateral dismissal of its relevance.

I confess to being uncomfortable with the aggregation of too much power to any one branch of government - and that includes the power grab by the Congress in the wake of Watergate and Viet Nam. I believe some of Dick Cheney's argument that the Administration is trying to redress some of the balance of powers that got out of whack back in the 1970's but judging from this memo, I also believe there was unnecessary overreach.

I would be very interested to hear sound, legal contrary views on this matter because the usual spin of the media could be obscuring something I'm missing.

Update -- Christopher Schweickert writes:

Although they may not resolve all of Mr. Moran's concerns about the issue, the below Federalist Society debates (featuring Yoo and others) may be illuminating. I was at the first one below but haven't listened to the other two yet. One thing I am pretty sure is beyond dispute -- Yoo's knowledge of the relevant caselaw is exceptional.

Is the Military Commissions Act Constitutional? (April 2007)
http://www.fed-soc.org/publications/pubID.291/pub_detail.asp

Balancing Individual Rights and National Security (October 2007)
http://www.fed-soc.org/publications/PubID.424/pub_detail.asp

Executive Power in Wartime (November 2006)
http://www.fed-soc.org/publications/pubID.205/pub_detail.asp