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Yoo Memos Gave Retroactive Cover

By Jason Leopold
February 23, 2009

A Justice Department inquiry has found that the Bush administration’s legal opinions justifying the torture of “war on terror” detainees were hastily drafted after one prisoner was already subjected to waterboarding, a practice that creates the sensation of drowning, according to several sources familiar with the still-classified report.

The implication of the finding is that John Yoo and other lawyers for the Justice Department’s Office of Legal Counsel violated ethical standards by collaborating with senior White House officials to create legal cover for violating anti-torture and other federal statutes after the fact, rather than providing objective advice for future actions.

The finding also undercuts President George W. Bush’s chief legal defense for authorizing abusive treatment of detainees, that he and other administration officials were following what they regarded as independent legal opinions from the OLC, the office that advises the White House on the limits of its constitutional authority.

As more becomes known about the genesis of those OLC opinions, the evidence increasingly points to a different reality, that Bush and his top aides essentially worked with Yoo and the OLC to fix the legal opinions around their desired policy, even to justify actions that had already occurred.

The criticism of Yoo and his OLC colleagues is contained in a draft report by the Justice Department’s watchdog agency, the Office of Professional Responsibility. The sources say the OPR report was completed late last year but was kept under wraps by Bush’s last Attorney General Michael Mukasey, supposedly to give Yoo and two other former OLC officials time to respond.

The report is now being reviewed by Barack Obama’s Attorney General Eric Holder, who may not accept some of the report’s conclusions or may change the “tone” of the draft, the sources said. Newsweek’s correspondent Michael Isikoff also has reported on the contents of the draft report.

A key finding of the OPR report is that Yoo and his former OLC boss, Jay Bybee, failed to cite legal precedent and existing case law when they prepared opinions for the White House on a wide range of policy issues, including torture and domestic surveillance, the sources said.

The report found that Yoo was wrong to conclude that he could simply ignore existing legal precedent in drafting opinions giving Bush unprecedented powers in executing the “war on terror.”  

Yoo’s key Aug. 1, 2002, memo, which was prepared for then-White House counsel Alberto Gonzales, stated that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force.

"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said the 50-page memo entitled “Standards of Conduct for Interrogation.

Truman Precedent

But OPR investigators believed Yoo should have cited Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman’s order to seize steel mills that had been shut down in a labor dispute during the Korean War. Truman believed the strike threatened national defense and thus he could act under his Article II powers in the Constitution.

But the Supreme Court overturned Truman’s order, saying, “the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Since Congress hadn’t delegated such authority to Truman, the Supreme Court ruled that Truman’s actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.

Though Yoo has rebuffed repeated requests for comment, he did offer up a defense of his failure to cite Youngstown in his 2006 book, War by Other Means. Yoo wrote, “we didn’t cite Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President’s conduct of foreign affairs and national security.”

Yoo added, “Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war. …

“Detention and interrogation policy are at the heart of the President’s Commander-in-Chief power to wage war, and long constitutional history supports the President’s leading role on such matters.”

But Scott Horton, a human rights attorney and constitutional expert, disagrees with Yoo’s legal reasoning. “The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield,” Horton told me via e-mail.

“Justice Jackson's opinion is the most persuasive of the opinions justifying the decision,” Horton said. “If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.

“It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.  

“But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did.”

The legal sources indicated that the OPR report agrees with Horton’s assessment and concludes that Yoo’s OLC opinions were crafted after complaints from U.S. military and intelligence witnesses to the use of brutality in the interrogation of at least one suspected terrorist before August 2002.

Military Protests

The sources said people interviewed by OPR investigators and documents obtained for the inquiry revealed there was at first a widespread belief among CIA and high-ranking administration officials that harsh methods used against at least one detainee in July 2002 were legal because President Bush had signed an Feb. 7, 2002, order denying alleged terrorists protections under the Geneva Conventions.

It is believed that the detainee in question was Abu Zubaydah, a suspected al-Qaeda lieutenant captured in March 2002. Zubaydah’s waterboarding interrogation was videotaped and the tape later destroyed, which is the focus of another Justice Department investigation.

When military lawyers protested that the brutal interrogation methods may have violated anti-torture laws, White House meetings were hastily arranged involving then-White House Counsel Gonzales, Vice President Dick Cheney, his chief counsel David Addington, National Security Adviser Condoleezza Rice, and other officials from the State Department and the Pentagon.

The discussions focused on the drafting of a legal memo for CIA interrogators describing what methods could be used against detainees, the sources said.  Yoo then crafted a memo, which was signed by Bybee, providing the Bush administration with the legal justification to authorize interrogators to subject suspected terrorists to techniques, such as waterboarding.

The legal sources said the OPR report criticizes Yoo and Bybee for not citing relevant legal precedent that would undercut their arguments, meaning that the White House was not given proper legal advice. This alleged failure could lead the Justice Department to refer the matter to state bar associations for disciplinary actions, including possible debarment.

 The OPR report also criticizes another OLC lawyer, Steven Bradbury, whose later legal opinions gave additional cover to the Bush administration’s interrogation policies, the sources said.

Yoo did not respond to numerous messages left at his office at Chapman University School of Law, where he is now a visiting professor, nor did he reply to e-mails about the report’s findings. Messages left for Bybee at the 9th Circuit Court of Appeals in San Francisco – where he sits as a federal judge – were not returned.

Jason Leopold has launched his own Web site, The Public Record, at

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