A 'Torture' Memo And its Tortuous Critics
Eric Posner and Adrian Vermeule. Wall Street Journal. (Eastern edition). New York, N.Y.: Jul 6, 2004. pg. A.22
Recent weeks have seen a public furor over a Justice Department memorandum that attempted to define the legal term "torture," as used in federal statutes and treaties, and that pointed to constitutional questions that would arise if statutory prohibitions on torture conflict with the president's powers as commander in chief. An article in the New York Times quoted legal academics who criticized the memorandum's authors for professional incompetence, and for violating longstanding norms of professional practice and integrity in the Justice Department's Office of Legal Counsel (OLC). Neither charge is justified.
The academic critics have puffed up an intramural methodological disagreement among constitutional lawyers into a test of professional competence. Although we disagree with some of the memo's conclusions, its arguments fall squarely within the OLC's longstanding jurisprudence, stretching across many administrations of different parties, which emphasizes an expansive reading of presidential power.
The academic critics say that the memorandum counsels an unduly narrow interpretation of "torture" in federal law, and that it urges an overly sweeping conception of the commander-in-chief power; the critics even complain of the memorandum's failure to cite or emphasize specific precedents -- notably the Youngstown decision of 1953, in which the Supreme Court rejected Truman's attempt to seize domestic steel mills for the Korean war effort.
But the memorandum's arguments are standard lawyerly fare, routine stuff. The definition of torture is narrow simply because, the memorandum claims, the relevant statutory texts and their drafting histories themselves build in a series of narrowing limitations, including a requirement of "specific intent." The academic critics disagree, but there is no foul play here.
As for the constitutional arguments, the memo explicitly limits their context to the interrogation (1) outside the U.S. (2) of identified enemy combatants (3) concerning the enemy's plans of attack. The logic of the arguments might be stretched further, but need not be, and it is routine for executive-branch lawyers to proceed one step at a time, just as courts do. Everyone, including even the most strident of the academic critics, agrees that Congress may not, by statute, abrogate the president's commander-in-chief power, any more than it could prohibit the president from issuing pardons. The only dispute is whether the choice of interrogation methods should be deemed within the president's power, as the memo concludes. That conclusion may be right or wrong -- and we, too, would have preferred more analysis of this point -- but it falls well within the bounds of professionally respectable argument.
The Justice Department memorandum came out of the OLC, whose jurisprudence has traditionally been highly pro-executive. The office has, for example, a notoriously expansive view of the president's right to unilaterally send military forces to other countries in order to protect American citizens and property, without a declaration of war by Congress. OLC opinions that justify Bill Clinton's intervention in Kosovo and George H.W. Bush's intervention in Somalia are no less one-sided than the recent memo on interrogation. A Clinton-era opinion argued that a bill limiting the president's ability to place military forces under U.N. control would violate the president's commander-in- chief power.
Not everyone likes OLC's traditional jurisprudence, or its awkward role as both defender and adviser of the executive branch; but former officials who claim that the OLC's function is solely to supply "disinterested" advice, or that it serves as a "conscience" for the government, are providing a sentimental, distorted and self-serving picture of a complex reality.
There is an important intellectual context behind the academic critics' complaints. An older generation of legal academics developed something like a consensus in favor of enhanced congressional power over foreign affairs; support for the War Powers Act; and a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars who emphasize constitutional text, structure and history rather than precedent, and who argue for an expansive conception of presidential power over foreign affairs, relative to Congress.
Among this rising generation are legal scholars who have recently held office in the Justice Department, including John Yoo at Berkeley. The memorandum thus focuses not on restrictive Supreme Court precedents, but on the constitutional text, the structure of foreign affairs powers and the history of presidential power in wartime. From this perspective, the academic critics' complaints have a distinct methodological valence, one with intellectually partisan overtones.
The critics also argue that the Justice Department lawyers behaved immorally by justifying torture. Although it is true that they did not, in their memorandum, tell their political superiors that torture was immoral or foolish or politically unwise, they were not asked for moral or political advice; they were asked about the legal limits on interrogation. They provided reasonable legal advice and no more, trusting that their political superiors would make the right call. Legal ethics classes will debate for years to come whether Justice's lawyers had a moral duty to provide moral advice (which would surely have been ignored) or to resign in protest.
For our part, we find it hard to understand why people think that the legal technicians in the Justice Department are likely to have more insight into the morality of torture than their political superiors or even the man on the street. But whatever one's views on the use of torture on the battlefield, the memorandum is not "incompetent" or "abominable" or any more "one-sided" than anything else that the Justice Department has produced for its political masters.
Messrs. Posner and Vermeule are professors at the University of Chicago Law School.