I’m going to go with long-term classification because they knew the legal reasoning was horribly results-oriented and unable to stand up to outside legal analysis, and they wanted to put off the humiliation for as long as possible. You?
As I’m reading through the Yoo memorandum, I have to keep pausing to clear my head or get up and walk for a while. It’s going to be a long day with a pot of tea, and I’ve already got a pounding headache from my first skim through. Thus far, I’m reading it as "might makes right." Oy.
Has anyone found a reference to the Youngstown case yet? Because I haven’t. I know Marcy and crew were looking at this yesterday, and she’s still not finding any reference as of this morning. Anyone at all — any reference to it?
There is no way that he went through basic law school and didn’t know about the Youngstown case — it’s Con Law 101. And, since that’s what he teaches, there is NO way he didn’t know about it.
Sometimes, as a lawyer, you are asked by a client to give them a results-oriented memorandum justifying a particular course of action they would like to take. Usually it’s in a business client context, and you have to find some way to rationalize what you are being asked to do with the letter of the law and, when they don’t match up, you and your client have a long talk about liability and exposure and your ethical limitations in what you are willing to write — or not write.
In this context, though, his "clients" would have to have been Cheney and Addington and their neocon ilk for such a results-oriented argument to be drafted this way. Never mind that his opinion applied itself to the whole of the American public, and we’ll all be paying the consequences of its results for generations to come. And never mind that a good lawyer covers all the bases and doesn’t just give his clients home runs whether or not they’ve earned them.
Either way, this memo went through scrutiny at DOD and with Addington, at a bare minimum, and no one managed to say boo about Youngstown being left out? Who else reviewed this at the OLC? At DOJ? Why the weird Saturday release, unless they were trying to avoid scrutiny from people who would have asked solid questions about the reasoning and conclusions. What’s wrong with this picture? What am I missing here — if they felt Youngstown wasn’t controlling in any way, wouldn’t putting that argument in the memo have been a way to strengthen their hand on this to attempt to quell or undercut criticisms on that score with their well-documented legal argument on the case?
Unless, of course, they didn’t have one.
I’ll be very interested in Marty’s take on the OLC obligations on this, and how far afield this memo takes them. It’s bad enough to ignore a controlling precedent altogether as a regular old lawyer, but to do so representing the government on an issue with such broad foreign policy and human rights implications as torture seems to me to be a whole other level of deliberately blind reasoning. Marty’s started with some great questions about this mess — and I’m certain there will be many more to follow.
If you’ve missed Jane Mayer’s brilliant reporting on the internal dynamics of the Cheney/Addington pull on national security policy toward the ugly side of the tracks, now is a good time to catch up. This on the Mora memo about torture and this on David Addington is a good start. There is also this background from Frontline’s piece on Redefining Torture — the whole thing is worth perusal.
Anyone else having an odd need to have a t-shirt printed up with the word "Youngstown" on it in large letters, getting a plane ticket to Berkeley and walking around campus? This whole thing reeks of David Addington’s spidery little handiwork with a big, fat unilateral executive thumb weighing on the scales of justice. Clearly, I need more tea…it’s gonna be a long day.