About that Memo

The memo authored by former Deputy Assistant Attorney General John Yoo and law professor Robert Delahunty has been the subject of an enormous amount of misinformation, spread by people who haven’t read it. On Wednesday Yoo will appear at two debates in Minneapolis, sponsored by the Federalist Society.

On November 4, a Minneapolis Star Tribune columnist wrote a column attacking Yoo and his memo; today, our friends Kim Crockett and Peter Swanson wrote an excellent rejoinder. Their article benefits from the fact that they’ve actually read the Yoo/Delahunty memo:

The memorandum at issue does not authorize or condone torture. Instead, Yoo and Delahunty’s memorandum presents exhaustive research on the legal status of Al-Qaida and Taliban detainees from Afghanistan. They conclude that the War Crimes Act (WCA), which incorporates several provisions of the Geneva Conventions and other international treaties into the federal criminal code, do not apply to Al-Qaida or the Taliban.

The memorandum provides many reasons why the protections of the WCA and Geneva Conventions do not apply to Al-Qaida fighters. For example, they do not represent a nation state; they refuse to wear uniforms or distinctive insignia; and they do not observe the Geneva Conventions themselves in conducting their missions. The Taliban presents a much closer case, but Yoo and Delahunty’s memorandum presents the legal reasoning for why Taliban militia fighters are not entitled to the protections of the WCA or Geneva. The memorandum also mentions several times that the president may decide, as a matter of policy, to apply Geneva and other standards of conduct to the treatment of detainees.

Concluding that the Geneva Conventions do not apply to particular detainees does not mean that torture is either condoned or authorized. For example, drug traffickers from other countries who are intercepted by the U.S. Coast Guard are not covered by the Geneva Conventions, but we still treat them humanely.

There was a genuine and serious debate within the administration about the application of the international law to the war on terror. *** On Feb. 7, 2002, President Bush determined as a matter of policy that Geneva applied to the conflict with Taliban fighters in Afghanistan, but not to Al-Qaida. Taliban fighters are deemed unlawful combatants rather than prisoners of war. [Ed.: Bush’s memo also directed that all detainees be treated humanely.]

There are important consequences of a prisoner of war designation that have nothing to do with the humane treatment that all detainees receive. For example, the Geneva Prisoner of War Convention provides legal immunity for precapture warlike acts. This means that there could be no future prosecution of terrorists who are deemed to be prisoners of war.

Kim and Peter concluded their piece by urging readers to attend one of the Minneapolis debates. I hope lots of people do; but, realistically, the number of citizens who will take the time to inform themselves on this type of issue is infinitesimal compared to the number who see nothing but inaccurate newspaper headlines.

SCOTT adds: Two August 1, 2002 memos in which Professor Yoo had a hand following the Yoo/Delahunty memo addressed by Peter and Kim in the linked column are also relevant to the discussion. The left has especially used these memos to attempt to place Professor Yoo’s Wednesday appearance in the Twin Cities beyond the bounds of civilized discourse.

The August 1, 2002 memos (here and here) from Jay Bybee (now a federal appellate judge) and Professor Yoo to Alberto Gonzales specifically address the Convention Against Torture and the accompanying legal provisions enacted by Congress to prohibit torture. These August 1, 2002 memos have been superseded by a memo dated December 30, 2004 by Acting Assistant Attorney General Daniel Levin to Assistant Attorney General James Comey.


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