John Yoo and Congress

The latest revelation of an OLC torture memo written by John Yoo (and released just as Jay Bybee left the building to become a federal appeals court judge) has led to a new round of condemnations and discussion. (An early piece by Marty Lederman is on Balkinization; Stuart Benjamin on the Volokh Conspiracy suggests that the Yoo memo offers an opportunity for a hard-right conservative to make a name for himself or herself by defending Yoo's analysis; on Slate, Orin Kerr praises the form---lawyerly---of the memo but criticizes the substance; and so on.)

Here I'll add a different angle. Yoo's work at OLC severely undermined that office's reputation for fair-mindedness and independence; more importantly, the policies which he approved have hurt the nation's reputation globally, and quite likely have therefore been counter-productive even viewed through a narrow, national-security, lens. But Yoo has also left the building, as have Rumsfeld and Gonzales. David Addington---arguably the driver of these policies---remains ensconced as Scooter Libby's successor. And more importantly, as the sell-by date of the Bush-Cheney Administration approaches, the Congress that enacted the Detainee Treatment Act and the Military Commissions Act, remains, well, in Congress (or at least most of them do; some were turned out in the 2006 election).

The DTA and the MCA were enacted after the first of the Yoo memos (signed by Bybee) became public. And together, they make reliance on the Yoo memos (including, presumably, the one just released yesterday), relevant to a defense against a criminal war crime charge. Here's the relevant statutory language, with the "I was relying on the Yoo memos" portion in bold:
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.
So yes, I agree with the critics of the memo that it was shoddy, dangerous work. But Professor Yoo should not be made into a scapegoat whose culpability relieves the Bush Administration more broadly, or Congress, of responsibility for interrogation policy in recent years.

Posted by Mike Dorf