The Yoo Memo–Time to Stop Crying and Get to Work
First in a series
It took me all day yesterday to get through the Yoo memo. [pdf’s] I kept tearing up. My law partner asked me if someone close to me had died. It’s going to take more research and analysis than I can do in a day to demonstrate even a tiny fraction of the misstatements, misapplications of law, and outright lies in this, ahem, document (I’d like to call it something else, but if I let my temper get the better of me, the research and analysis will never get done).
You can expect several posts from me on this topic. You should not take my word for it that it is a written horror, I should demonstrate that for you.
Today, I’m just going to explain some basics about legal writing. Legal writing, like any other scholarly writing, requires the author to support contentions of "fact" with citations to the source of the writer’s information.
There are two kinds of "facts" that require citation. The first is facts as the term is generally used. So, if you are writing a brief, an opinion letter, an internal memo, or a judge’s opinion and you mention a fact, you should include a citation to the testimony, document, or other piece of evidence that supplied that fact. So, for example, if I wrote "John Smith arrived home at 2pm. Deposition testimony of John Smith at page 62." I would be demonstrating that my "fact" about John Smith’s whereabouts at 2 PM came from page 62 of his own testimony.
The other kind of "fact" that requires a citation is the fact of the state of the law. Specifically, if I want to assert that federal grand jury testimony is to be kept secret by the government prior to indictment, I would cite rule 6(e) of the Federal Rules of Criminal Procedure, or I could cite a case that says that, or a learned treatise, or a law review article. (Yes, there are other authoritative sources, this list is not exclusive or exhaustive.)
In a well written brief or opinion, every single assertion of fact or law has a citation to support it. There are very few that actually meet this standard of perfection, but that is more often a function of limited time. At the very least, you MUST MUST MUST support your major points.
The Yoo memo, as you will see in later posts, completely lacks any citation whatsoever for the most sweeping and outrageous claims. Small wonder, since I doubt he could find any law or case that even came close to some of his nuttier propositions.
The second distinction I would like to draw is between different kinds of legal writing. When you are writing a brief, you are SUPPOSED to maximize the points in favor of your side and explain away the arguments in favor of your opponent. Nonetheless, you are not permitted to leave out of your brief ANY major controlling legal precedent, no matter how badly it damages your case.
So, if Yoo had been writing an advocacy brief (which he was not) he is still ethically required to deal with the Youngstown Steel case (which will be discussed in a later post). As Emptywheel already pointed out, the Yoo memo is completely devoid of ANY mention of Youngstown. That completely blew my mind.
When you are writing internal memos within a law firm, or legal opinions as a judge, or advisory opinions as Yoo was for Office of Legal Counsel–you are NOT supposed to advocate for one side or the other. You are supposed to examine the state of the law and describe what the laws and the precedents say. You may in some circumstances do an examination of what possible arguments each side in a controversy might present, you might even maybe offer a conclusion about which side has the obviously greater weight of precedent on their side. For example, I could write "examination of these competing augments reveals that side A has 150 years of consistent legal precedent including 8 Supreme Court opinions in its favor while side B has only a single decision written by a traffic court judge in Peoria in 1962 supporting its argument" or "although the plain language of the statute might suggest that X would result in liability under this statute, research has not revealed a single case to so hold."
What you don’t get to do, is substitute your own opinion for the plain meaning of a statute or section of the Constitution, nor do you get to overrule a court decision, unless you are in fact a court of equal or greater review.
I know that OLC likes to call itself the Mini Supreme Court–but it is not, in fact, the SCOTUS. Yet the Yoo memo repeatedly treated binding existing precedent as if it could be ignored or overruled by OLC.
Last item for this post: citation placement. When you place a footnote at the end of a sentence, the reader is meant to assume that the footnote supports the ENTIRE sentence. If you have two clauses in the sentence (or several examples listed in a sentence) then you are required to place your footnote at the point in the sentence where the clause you are supporting ends. If your footnote only supports the second half of a two clause sentence, the wording of your footnote should make that clear, so the reader will be alerted that the first part of your sentence lacks support.
In the Yoo memo, there are repeated examples of multi clause (or multi item) sentences in which the first part of the sentence contains a statement that is unremarkable and clearly well settled law, but the second half is an outrageous claim, yet the footnote appears at the end of the sentence falsely implying that the entire sentence actually has support.
Here’s an example out of the Yoo memo:
"It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans" footnote 9"
This is what footnote 9 says:
Although Article 17 of the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3517, places restrictions on interrogations of enemy combatants, members of al Qaeda and the Taliban militia are not legally entitiled to the status of prisoners of war under the Convention. See generally memeorandum for Alberto R.Gonzales, Counsel to the President and William J. Hayes, III, General Counsel, Department of Defense, from Jay S. Baybee Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan 22, 2002) ("Treaties and Laws Memorandum")
This is what the entirety of Article 17 of the Geneva Conventions says:
Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.
If he willfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.
Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.
The questioning of prisoners of war shall be carried out in a language which they understand.
So, the legal authority Yoo is citing to support his stunning assertion "that the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans" not only DOESN’T SAY YOU ARE ALLOWED TO ASK FOR THAT INFORMATION, IT SAYS THE EXACT OPPOSITE. Sorry, didn’t mean to shout. What Article 17 says is that you can only ask for name, rank/regiment, birthdate and serial number, period.
Oh yeah, and it also says specifically that you can’t torture.
So, the Prop wonders, what could be the authority in footnote 9 supporting this amazing assertion? Hmmm? Could it be the earlier memo written by none other than…….wait for it….John Yoo?!?? Yoo’s boss, Bybee may have signed off on it, but it is widely believed to have been primarily authored by Yoo. So, Yoo’s authority is ….John Yoo.
Not a statute, not a court opinion, himself.
Smug self-referencing little bastard.