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Full Employment Memo for Bloggers (and Prosecutors?)

By Jack M. Balkin

I won't have a chance until later this evening or tomorrow to start going through the numerous newsworthy substantive aspects of the Yoo memo. (Dilan and other commentors are identifying lots of nuggets in the comments section of my previous post.) For now, just a few themes to stress:

1. The classification of this memo was entirely unjustifiable. And it's fairly outrageous that Congress didn't release it when they received it. The classification and oversight systems are hopelessly broken.

2. The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.

3. Did the AG, DAG, head of OLC (Ed Whelan) and just-resigned head of OLC (Jay Bybee) even know of the existence of this 81-page memo that was causing such heartache at the Pentagon? Or was John Yoo, a Deputy AAG, somehow authorized to speak for the Justice Department without any oversight or supervision? If so, how did anyone come to think that that was ok?

4. Did Yoo consult with other DOJ components and other agencies with expertise on these matters? (A rhetorical question, to be sure.)

5. When will Congress insist upon hearings at which Geoffrey Miller, Jim Haynes, Donald Rumsfeld, and other DOD officials, explain why they kept the Yoo memo and the Working Group Report secret -- undisclosed even to the Working Group itself -- and why they briefed Miller on Yoo's multiple theories of legal absolution on his way out to Iraq? It's no longer very hard to figure out just why, all of a sudden, as soon as Miller arrived in Iraq, everyone there just suddenly and magically came to think the Geneva Conventions, UCMJ, federal assault and torture statutes, etc., simply no longer applied -- that Iraq was a law-free zone and that the gloves had come off. If you were Miller and you had been briefed on the Yoo theories, wouldn't you feel awfully confident that you could get away with, well, murder and everything short of it, in interrogation operations in Iraq? This memo is the source of the Nile for the abuse that occurred in Iraq in 2003.

Full post as published by Balkinization on April 02, 2008 (boomark / email).