The infamous 2003 Yoo torture memo -- which provided the "legal" basis for the Pentagon's use of torture in interrogations -- was finally declassified today. (Marty Lederman has posted them online over at Balkinization.) I'll leave the substantive analysis (such as it is) to the constitutional law experts. But I want to highlight the following quote from Yoo in the Washington Post story, because I think it's very telling:
Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail yesterday, saying the Justice Department altered its legal opinions "for appearances' sake." He said his successors "ignored the Department's long tradition in defending the President's authority in wartime."It seems to me that Yoo viewed himself more as the President's lawyer ("defending the President's authority in wartime") than as a legal authority. In other words, when presented with the question about the legality of torture (probably presented to him like, "Rumsfeld wants to use torture in interrogations; is that legal?"), Yoo believed his job was to find a non-frivolous legal argument that supports the use of torture, not to render dispationate legal advice on the use of torture. That's an important distinction, and I think it goes a long way toward explaining Yoo's torture memos. The question in Yoo's mind was not, "Is this legal analysis correct?", but rather "Is it possible that a court could agree with this legal analysis?" We've known for a while that Yoo's legal analysis was laughably weak; but was it so outrageous that no court could possibly agree with it? Probably not. (But again, I'll leave that for the constitutional law experts to decide.) I'm not an expert of the Office of Legal Counsel, but I'm reasonably certain that lawyers in the OLC are not "the President's lawyers" -- that's the role of the White House Counsel's Office.