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The Yoo Torture Memo: The Aftermath

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April 2, 2008

So yesterday’s late-evening release of the Yoo torture memo caught everyone by surprise. Amrit Singh, ACLU staff attorney, and Jameel Jaffer, director of our National Security Project, didn’t know it was coming. It wasn’t until 5:30 p.m. when everyone in the office getting ready to leave for the day, that the proverbial crap hit the fan. Our media relations department sent out a press release at 10:34 p.m., after Jameel and Amrit, our experts on torture issues, read the 81-page memo and were able to comment on its…contents.

While we got some great coverage on this huge news, some outlets neglected to mention the ACLU’s role in the declassification of this memo. We’d like to clarify, Attorney General Mukasey didn’t wake up yesterday morning and think: “Hey, we should send the ACLU that Yoo memo we’ve been keeping so close to the chest for five years.” No, we’ve been fighting for the release of the Yoo memo for years in our Freedom of Information Act (FOIA) request, filed in October of 2003, asking for the release of any and all documents related to the detention and interrogation of prisoners held in U.S. custody overseas. It was the ACLU’s vigorous prosecution of our FOIA lawsuit to enforce this request that ultimately led to the declassification of this memo. We just went to court over it a few weeks ago.

The Washington Post did a great roundup of readers’ reactions to the news. Many called for the impeachment of President Bush; some called for him be charged with war crimes.

Glenn Greenwald neatly summed up the Department of Justice’s transgressions on Salon:

The DOJ is not the law. They are not above the law and they do not make the law. They are merely charged with enforcing it. The fact that they assert that blatantly illegal conduct is legal does not make it so. DOJ officials, like anyone else, can violate the law and have done so not infrequently. High DOJ officials — including Attorneys General — have been convicted of crimes in the past and have gone to prison.

Embracing this twisted notion that the DOJ has the authority to immunize any conduct by high government officials or private actors from the reach of the law is a recipe for inevitable lawlessness. It enables the President to break the law, or authorize lawbreaking, simply by having his political appointees at DOJ — including ideologues like John Yoo — declare that he can do it. As these incidents ought to demonstrate rather vividly, the mere fact that Bush officials at the DOJ declare something to be legal cannot provide license to break the law with impunity.

More excellent analysis on Balkinization, Harper’s, and Slate.