April 9, 2008 12:38PM

John Yoo’s Neoconstitution

I've read through most of the John Yoo torture memo released last week (Part 1, Part 2 [.pdfs]). As I'd gathered from the news reports, there's not much new here: the core of the argument has been known since at least 2004, with the release of the infamous August 1, 2002 torture memo, also drafted by Yoo. At the Justice Department's Office of Legal Counsel from 2001 to 2003, Yoo was the key figure in advising the executive branch as to the limits--if any--to its powers. As Georgetown’s David Cole has put it, Yoo "was the right person in the right place at the right time…. Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, 'You can do what you want.'"

In the memo released last week, once again we see a breathtakingly narrow interpretation of what constitutes torture under US law. To rise to the level of torture, the abuse must, Yoo argues, inflict pain equivalent to that associated with "death, organ failure, or serious impairment of body functions." Presumably, the rack qualifies under that definition, but hey, what about the thumbscrew?

Such questions ultimately don't matter much under Yoo's analysis, because, in his view, Congress lacks the constitutional power to prevent the president from ordering torture: "Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." As Yoo sees it, telling the executive branch not to abuse prisoners is like telling the CINC what weapons can be used to take a hill occupied by the enemy: "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield."

One of the problems Tim Lynch and I experienced talking about our 2006 paper on the administration's constitutional theories is that when you describe the implications of those theories in calm, sober tones, people tend to think you're being strident and hysterical. Luckily John Yoo is willing to serve as his own reductio ad absurdum. If you don't have the time for an 81-page memo, try this short, cringe-inducing YouTube clip:

Let's stipulate that neither the rack, the thumbscrew, nor testicle-crushing have been tactics approved of nor employed by the US government in prosecuting the war on terror. The tactics we're talking about--stress positions, sleep deprivation, waterboarding, and the like--are far less dramatic. Under the Yoo theory, though, those tactics and more are available for use even against American citizens accused of terrorist involvement. And reading the latest memo, with its detailed and tendentious discussion of what might be permissible under existing law (assuming existing law exists), it's hard not to be reminded of US citizen Jose Padilla's claim that during his confinement he was subjected to stress positions, forced hypothermia, and mind-altering drugs. Was Padilla making it up? Quite possibly. We'll likely never know. At one stage of the Padilla case, asked by Justice Ginsburg whether the administration's theory would permit torture, then-deputy solicitor general Paul Clement answered:

You have to recognize that in situations where there is a war -- where the government is on a war footing -- that you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that.

John Yoo has written, unironically, of "the president's right to start wars." Coupled with the other elements of the Yoo theory--which is to say, the Bush administration's constitutional theory--the result is a jaw-dropping doctrine of unchecked presidential power. When we're at war, anything goes. And the president gets to say when we're at war.