John Yoo Interrogation Memo

The New Republic, April 8, 2008

The disclosure of the former Bush administration lawyer John Yoo’s “torture memo” this week was, in most senses, an exercise less in news than in archaeology. The public has long known the memo existed. And it has also known, in broad strokes, what it says: that military interrogators aren’t constrained by domestic or international law and that the president has the power to sweep statutory constraints aside anyway. The Bush administration has long since repudiated the memo. Congress some years ago passed the McCain Amendment, clarifying that military interrogators are bound by the Army’s Field Manual on interrogations. The military has cleaned up its interrogation act. America has actually made a lot of progress in this area. So for all the convulsive media attention it has received, the memo–81 pages of The World According To Yoo, circa 2003–describes a world in which we no longer live.

Yet there are at least two reasons why the memo is not merely of historical interest but seems to speak so directly to current American debates and political battles. The first is that we have yet to figure out what to do with the people the military and the CIA interrogated brutally in 2002 and 2003. The second is that while the military has made enormous strides, we have yet to decide as a society how the CIA should handle such people in the future. While almost everyone now agrees that the answer doesn’t lie in the Yoonitary vision of an entirely unimpeded executive, we have yet to forge a consensus as to either what the rules should be or who should make them. While we don’t live in Yoo’s world any more, in other words, it still casts a long shadow over us and will continue to do so until we figure out the rules we want instead.

The question about previous detainees
is hard to answer. Both the military and the CIA–under the authority of memos from the Office of Legal Counsel, where Yoo operated as a kind of éminence gris–engaged in aggressively coercive interrogations for intelligence purposes in the years that followed September 11. Whether you regard these tactics as unforgivable torture or necessary toughness, fruitful or counter-productive, they have left us with a puzzle without a good solution: A group of hard-core Al Qaeda activists in custody, including the 9/11 plotters, who will be profoundly difficult to bring to trial yet whom America can never release and whose acquittal is, to put it bluntly, unthinkable.

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