The All-Powerful Commander in Chief

Jacob Sullum | April 3, 2008

In a recently declassified March 2003 memo to the Pentagon's top lawyer, former Deputy Assistant Attorney General John Yoo lays out "the legal standards governing military interrogations of alien unlawful combatants held outside the United States." Yoo reiterates his notoriously demanding definition of torture, which requires suffering "equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result." But this generous understanding of how far the Pentagon can go without violating the statutory prohibition of torture is not really necessary, since Yoo asserts that Congress has no authority under the Constitution to ban the torture of military prisoners in the first place:

In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy....One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy....The President enjoys complete discretion in the exercise of his Commander-in-Chief authority in conducting operations against hostile forces....Congress cannot interfere with the President's exercise of his authority as Commander in Chief to control the conduct of operations during a war....Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority....Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.

According to Yoo, then, no statutory restriction on the Pentagon's treatment of its prisoners, presumably including "enemy combatants" unilaterally identified by the president and arrested on U.S. soil, could be legally binding, because it would unconstitutionally impinge on the president's powers as commander in chief. Never mind that the Constitution gives Congress the authority not only to declare war but "to make rules concerning captures on land and water," "to make rules for the government and regulation of the land and naval forces," and to suspend the habeas corpus privilege "in cases of rebellion or invasion," all of which seem to imply that the legislative branch has some say regarding the handling of military prisoners.

In Yoo's view, the president's constitutional powers are so broad that the Constitution itself cannot restrain them. As the ACLU notes, a footnote on page 8 of the memo refers to a still-classified October 2001 document in which the Justice Department's Office of Legal Counsel "concluded that the Fourth Amendment had no application to domestic military operations." That position provides a legal rationale not just for the National Security Agency's warrantless surveillance of international communications involving people in the U.S. but for monitoring of purely domestic phone calls and email as well. Indeed, it justifies warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.

The Justice Department has repudiated both Yoo's March 2003 memo and his August 2002 memo addressing torture. But it's not clear to what extent it still concurs with Yoo's sweeping view of executive power. During his confirmation hearings, Attorney General Michael Mukasey conceded that the president is bound to obey statutes regulating the treatment of military prisoners. But he dodged the question of whether Congress has the authority to regulate domestic surveillance conducted in the name of national security. No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise. Now we know better.

The full text of the March 2003 memo is available from the ACLU here.

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|4.3.08 @ 1:58PM|#

Yoo is a complete idiot. The entire Office of Legal Counsel was made up of political hacks and morons who had no clue about international law or the law of war. The fact is that the US has been fighting wars lawfully for 200+ years. International law, if properly read, is not that restrictive. The President has plenty of power to fight and win the nations wars. Yoo and his ilk were complete fucking amateurs.

TallDave|4.3.08 @ 2:01PM|#

No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise

Wasn't Aldrich Ames was deemed unprotected by the Fourth Amendment, as an agent of a hostile foreign power? I don't remember much uproar over it at the time.

Elemenope|4.3.08 @ 2:04PM|#

...the president's constitutional powers are so broad that the Constitution itself cannot restrain them.

And you thought the French guy's balls were big. Damn.

|4.3.08 @ 2:12PM|#

All of this sounds vaguely familiar.

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

I don't wonder why.

TallDave|4.3.08 @ 2:13PM|#

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."
...
In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus." The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court.

Physical, not phone, searches that aren't even expected to actually produce any proof of wrongdoing.

Where was the ACLU? Still basking in the glow of Ginsburg's appointment, I'm guessing.

Michael Ejercito|4.3.08 @ 2:21PM|#

Wasn't Aldrich Ames was deemed unprotected by the Fourth Amendment, as an agent of a hostile foreign power? I don't remember much uproar over it at the time.

Yes, he was.

Consider this. Every day, American citizens entering the country are subjected to warrantless searches.

Episiarch|4.3.08 @ 2:22PM|#

Nobody got upset about Ames because he was...a fucking traitor that got a lot of people killed. I can see why even the ACLU didn't want to touch that one.

TallDave|4.3.08 @ 2:25PM|#

Every day, American citizens entering the country are subjected to warrantless searches.

No kidding. And how many laws are there requiring warrantless searches of your urine for gov't employees?

The War on Terror didn't do the 4th any favors, but the War on Drugs has fucking eviscerated it.

Abdul|4.3.08 @ 2:36PM|#

Every day, American citizens entering the country are subjected to warrantless searches.

And how many laws are there requiring warrantless searches of your urine for gov't employees?

The Fourth Amendment does not require a warrant for all searches. It merely requires that searches be reasonable and that warrants be issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

|4.3.08 @ 2:41PM|#

I AM THE LAW!

|4.3.08 @ 2:44PM|#

I am not a constitutional scholar; however, when did the title of commander-in-chief stop being a description that emphasizes civilian control of the military and become to mean sovereign autarch whose word is law?

Mad Max|4.3.08 @ 2:49PM|#

(Apologies to AC/DC)

Part of the war machine
Doesn't wanna fight clean
He's the slickest government lawyer that I've ever seen
Imagine my surprise
That he could analyze
The Constitution to grant what it denies
Claiming more than his share
Of Presidential pow-air
I thought he was dumb, but he wasn't scared

'Cause the Bill of Rights was shaking
The prisoners were quaking
Their balls were aching
They're torturing people thanks to Yoo -

CHORUS:
Tortures all night long
Yeah Yoo tortures all night long
etc.

Hat Pines|4.3.08 @ 2:51PM|#

This is unconstitutional, just as warrantless wiretaps of international phone calls are unconstitutional.

|4.3.08 @ 2:51PM|#

Yoo'll be sorry!

|4.3.08 @ 2:52PM|#

In wartime, it is for the President alone to decide...

Well then, everything he's doing now is unauthorized, since the congress hasn't declared war.

-jcr

|4.3.08 @ 2:54PM|#

|4.3.08 @ 2:55PM|#

Physical, not phone, searches that aren't even expected to actually produce any proof of wrongdoing.

Where was the ACLU? Still basking in the glow of Ginsburg's appointment, I'm guessing.

Or maybe they didn't like it, but understood that at the time FISA hadn't been amended to cover physical searches like that. Just a thought. :p

|4.3.08 @ 2:56PM|#

Impeach the bastard.

Just to demonstrate that he has been acting in violation of the Constitution, and keep his behavior from setting dangerous precedents.

John Rhoads|4.3.08 @ 2:58PM|#

The Fourth Amendment does not require a warrant for all searches. It merely requires that searches be reasonable and that warrants be issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Except that this reading of the first clause makes the second clause irrelevant. If all reasonable searches are legal without a warrant, then what purpose does a warrant serve at all? The only way this makes sense is if warrants are issued for the sole purpose of "unreasonable searches." I'm not sure why anyone would advocate the existence of unreasonable searches.

confused pedant|4.3.08 @ 3:08PM|#

John | April 3, 2008, 1:58pm
Yoo is a complete idiot.

John, I think that should be "You are a complete idiot."

|4.3.08 @ 3:08PM|#

Slugger, you don't need to be a scholar. These jackasses ignore even a plain reading:

Section 8 of the Constitution gives the power to Congress:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and ALL other Powers vested by this Constitution in the Government of the United States, or in ANY Department or Officer thereof.

thoreau|4.3.08 @ 3:10PM|#

TallDave,

What do you think about the idea of a Democrat sitting in the White House and wielding all of the powers that you don't mind Bush having?

Fluffy|4.3.08 @ 3:11PM|#

Although I am a pretty extreme civil libertarian, I would agree that in wartime the President has the authority to order warrantless searches AND warrantless eavesdropping for foreign intelligence gathering purposes.

As long as information gathered from those searches is not allowed to be produced as evidence in any criminal case or any civil case involving the US as a litigant.

And the Congress would have the power to limit that Presidential authority under the articles listed by Jacob.

|4.3.08 @ 3:18PM|#

Oh come on, stick a fork in the Fourth, it's done. Hasn't existed in any meaningful form for decades.

|4.3.08 @ 3:29PM|#

I'm trying to decide whether John McCain was tortured. I wonder if Yoo could help me out:

"serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result"

Sen. McCain can't raise his arms above his head anymore, but is that really "significant?" I just can't decide.

(Damn. I was going to keep this up for another paragraph or two, but I threw up into my mouth a little and I can't finish. Yoo is so wrong it should be criminal. Can he be sued for malpractice?)

TallDave|4.3.08 @ 3:31PM|#

What do you think about the idea of a Democrat sitting in the White House and wielding all of the powers that you don't mind Bush having?

Meh. Seemed to be fine when Clinton had them. Not too worried about President Obama either.

I'm really not that enthusiastic about the GOP. I'm pro-gay marriage, pro-abortion rights, pro-minimum wage hikes, pro-immigration, anti-drug-war. I just see them as the lesser of two evils at the moment.

Anyways, we're a long way from the days when FDR and Nixon used state apparatus to bug and burglarize their political opponents. Except for the drug war, I'd say we're evolving toward more free and transparent governance from both parties.

|4.3.08 @ 3:38PM|#

The great irony here is that the people arguing for this royalist understanding of executive power are almost all members of the Republican Party.

I think this country could use a dose of anti-monarchist sentiment. It was a staple of our discourse for the first 180 or so years, and then Poof! World War 2 comes along and nobody's interesting in denouncing royalism anymore.

Now, your IRISH Republicans - they knew how to treat royalty.

|4.3.08 @ 3:40PM|#

Part of this I think to is the danger of making the law of war too legal intensive. That sounds counter intuitive I know. Traditionally the law of war has been written and practiced by war fighters. People who had a practical understanding of war and the morality associated with its waging. What we got was a common sense system that was driven by events. This calumniated in the post World War II Geneva Conventions. Over the last 50 years, however, the law of war has been taken over by lawyers. For the most part, these lawyers have had an anti-war agenda and have made war harder and harder to wage. The problem is that you are never going to outlaw war. What they have effectively done instead of outlaw war is make waging war a matter of law and technicality. That sounds great when you are reading the Conventions to make war harder to wage and harass governments that make war. The problem is that two can play at that game. If one side can have NGO human rights attorney arguing that the US is committing war crimes because a JDAM missed it's target, the other side can have the likes of John Yoo arguing torture really is legal. Since we have taken out the elements of common sense, practicality and morality and made the law of a war a technical legal question, you can get a very lawyerly defense of a ridiculous position and people who should no better listen to it.

hamilton|4.3.08 @ 3:42PM|#

Um... as far as you know, TallDave. No one gets to see who's being bugged any more and the people doing the bugging are considerably more able than the guys Tricky Dick used.

"more free and transparent governance"... I don't even know where to start on that.

Abdul|4.3.08 @ 3:46PM|#

John Rhoads,

Courts have long acknowledged that warrants are pretty much only required for places to be searched or for seizing persons or things. And there's exceptions for the warrant requriement even in those situations. Thus, a person travelling though a border crossing can be searched.

|4.3.08 @ 3:47PM|#

Yoo's definition of torture excludes: bamboo shoots under the fingernails, beating the soles of the feet with a rubber hose, the use of the rack short of breaking, and the use of the lash short of causing life-threatening blood loss.

That is to say, methods of torture that have been so common throughout history as to literally become cliches that people use as a synonymn for torture don't meet his definition of torture.

a still-classified October 2001 document in which the Justice Department's Office of Legal Counsel "concluded that the Fourth Amendment had no application to domestic military operations."

That sounds like they were laying the groundwork for martial law. Just in case.

|4.3.08 @ 3:53PM|#

"That sounds like they were laying the groundwork for martial law. Just in case."

See Ex Parte Mulligan. It was the Supreme Court Case dealing with Lincoln's suspension of habias. It said

"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

Abdul|4.3.08 @ 4:08PM|#

Yoo's definition of torture excludes: bamboo shoots under the fingernails, beating the soles of the feet with a rubber hose, the use of the rack short of breaking, and the use of the lash short of causing life-threatening blood loss

That's simply not true. Yoo acknowledges that the US international law obligations would ban "cruel and unusual" treatment, as well as actions that "shock the conscience." As those terms have been interpreted by courts, bamboo shoots, racks, etc. would be illegal.

I encourage people to read the whole memo. It's more enlightening than people realize, especially since much of what is considered allowable is based on how US prisons treat their prisoners.

|4.3.08 @ 4:14PM|#

As those terms have been interpreted by courts, bamboo shoots, racks, etc. would be illegal.

They would not, however, be torture, under his definition. Just "cruel and unusual" techniques which fall short of torture.

|4.3.08 @ 4:15PM|#

...what is considered allowable is based on how US prisons treat their prisoners.

That doesn't make it any better to me. We treat our prisoners like shit most of the time.

The rest of the world|4.3.08 @ 4:17PM|#

Wouldn't this be grounds to have the UN invade us or something...?

|4.3.08 @ 4:22PM|#

I think there is one other factor at work here. So many countries ignore these provisions and have so blatantly ignored them with US prisoners that I think a lot of Americans don't have a problem with the US doing the same thing because the figure that the same thing will happen to our people if captured and no one will care. The ICRC has lost a lot of credibility with the American public because the only thing you ever hear about them doing is complaining about the US. I don't think that is true. I think the ICRC is a good organization. But the fact is that when an American is captured and abused by a foreign country, the media never emphasizes ICRC objections to it or demands to bring the people responsible for it to justice. Vietnam tortured and abused 100s of US prisoners during the Vietnam war and suffered no international condemnation for it. Serbia captured two American Soldiers during the Kosovo war and paraded them on TV in direct violation of the Conventions and no one seemed to care. Saddam captured US pilots during the first Gulf War and abused them in any number of ways but never paid a price for it. All of that combines to give the public the sense that the Conventions are for chumps and there is no benefit to following them because our enemies are going to torture our soldiers anyway and no one is going to care.

John Rhoads|4.3.08 @ 4:24PM|#

Abdul,

I don't dispute that courts have interpreted the fourth amendment that way; I only dispute that it is a reasonable reading of the fourth amendment.

The supreme court ruled that involuntary military service does not constitute "involuntary servitude" also, but it doesn't make their reading consistent with the English language.

Abdul|4.3.08 @ 4:37PM|#

They would not, however, be torture, under his definition

Yoo's definition, or torture as defined under the Torture Victims Prevention Act? or under 18 USC 2340? Yoo goes through some trouble to compare and contrast various statutory and international definitions of torture. Just about all of them outlaw severe pain or suffering.

Abdul|4.3.08 @ 4:38PM|#

Doh! Italics tag, you torment me!

|4.3.08 @ 5:11PM|#

"""That's simply not true. Yoo acknowledges that the US international law obligations would ban "cruel and unusual" treatment, as well as actions that "shock the conscience." As those terms have been interpreted by courts, bamboo shoots, racks, etc. would be illegal."""

Didn't Yoo claim that the Presidents wartime authority was above international law or treaties?

Hat Pines|4.3.08 @ 5:30PM|#

Just to demonstrate that he has been acting in violation of the Constitution, and keep his behavior from setting dangerous precedents.

Any more dangerous than the internment of Japanese-Americans in the 1940's?

GILMORE|4.3.08 @ 5:52PM|#

Has any of Yoo's rationale here ever been tested in front of the Supreme Court, or is it expected that it ever will?

I'm just curious if history will prove this to be so riddled with errors, or whether it will fade away and pop up again when we have someone else who thinks they're President Jack Bauer

GILMORE|4.3.08 @ 5:56PM|#

TallDave | April 3, 2008, 3:31pm | #

I'm pro-gay marriage, pro-abortion rights, pro-minimum wage hikes....

*mimum wage hikes*??

I almost feel like calling out Raimondo's, "YOU SIR ARE NOT A LIBERTARIAN - WE CAST THEE OUT!!" brigades on you, just for fun.

Kidding, really. Never met anyone here who thought there should even BE a minimum wage.

I forget what my particular libertarian Heresy is, but I'm pretty sure I have one.

Maybe it was ferret ownership or something.

highnumber|4.3.08 @ 7:24PM|#

Doh! Italics tag, you torment me!

or did you mean to say "you torture me"?

Abdul|4.3.08 @ 9:19PM|#

Has any of Yoo's rationale here ever been tested in front of the Supreme Court, or is it expected that it ever will?

The Justice Department backed away from implementing the most extreme measures, so it never went up to the supreme court.

But, again, reading the memo, it's based on Supreme Court precedent where that precedent is available. A lot of War on Terror situations (like detainees in a US base in a foreign country) just hasn't been anticipated in our history.

The scariest thing about the memo is not that it's irrational, or bad analysis, but that it's plausibly grounded becuase there's little law coverring this situation. Now that the memo's public, Nancy Pelosi should put up a few bills against inhumane treatment and force people to take a stand before election day.

Abdul|4.3.08 @ 9:21PM|#

did you mean to say "you torture me"?

On advice from legal counsel, I was informed that italics tags do not rise to the level of severe pain or suffering such that they could be considered "torture."

Kolohe|4.3.08 @ 9:56PM|#

Part of this I think to is the danger of making the l aw of war too legal intensive. That sounds counter intuitive I know. ... Over the last 50 years, however, the law of war has been taken over by lawyers. For the most part, these lawyers have had an anti-war agenda and have made war harder and harder to wage.

This I feel is an unfair slur on the various services JAG corps, and one that is oft repeated by armchair generals - esp during the clinton admin, but you see it every so often even in this decades conflicts. (I'm not, BTW, including you, John, in this group of 'nuttering nabobs' - heck I thought you were a JAG.)

First, many of the senior JAG officers, esp ones on Fleet/Division command staffs giving direct advice to Admirals/Generals were themselves once upon a time warfighters who latteral transfered into the lawyer communities.

Second, even in - especially in - the modern age Clauswitz is still correct in the 'war = politics' dictum. Because of the existence of nuclear weapons, we have reached a theorectical limit on 'total war' Thus every war over the last half century, and hopefully every future one, has been and will be necessarily 'limited' in scope. Hence, the legal ramifications of any engagement are important, as part of an ongoing project of coalition building and maintaining options for where future national interests may lie.

Last, the structure still keeps the responsiiblty for military execution with the Line Officer commander, not the JAG. The JAG is only an advisor, all success and failure in an operation falls to the operational commander. And further up, the strategic questions are in the hands of politcal leaders, as it should be.

So your first instincts were the correct ones, Yoo and his ilk are harebrained political hacks. But blame them, not the structure. The structure is sound, as we will see come Nov.

|4.3.08 @ 10:21PM|#

Bush raised his right hand and swore on a bible that he would defend the Constitution. I guess he thought they were referring to the original document.

|4.3.08 @ 10:22PM|#

He probably hides it under his bed.

|4.7.08 @ 2:48AM|#

Actually, a lot of the problems have shown up because when the Founders put together the Constitution there was a whole lot of "unspoken law" that was taken for granted--notwithstanding the whole Protestant/Catholic catfight that went on for 200 years until Europe got exhausted with religious wars, I still think that at that point people still did have a belief that "God's law" > Human law. So-called "human rights" got expanded beyond all recognition later, but way back when, there was no question but that "Natural Law" was considered to supercede everything else...including any laws made by man.

The problem is, we've cut off the first two top parts of the pyramid that used to exist: "Natural Law", and "God's law", and then wonder why idiots like Yoo come up with the stuff they have. The man has no knowledge of the historical foundations of the Western legal tradition and should be bounced out of Berkeley on his ass. "Obsequious Administrative bootlicker" would be a good description as well.

|4.7.08 @ 4:14PM|#

Yoo is a war criminal. If there is any justice, we'll see him, Bush, Cheney & Rummy in the Hague someday.

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