How To Write An Effective Torture Memo

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Yoo's March 14, 2003 "torture" memo-more formally known as In Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States-was made public late Tuesday after years of wrangling. The 81-page document was one of the legal bedrocks upon which the United States justified the torture of terror suspects. In effect for nearly nine crucial months at the start of the War in Iraq, Yoo's work helped begat one of the great public relations disasters in American diplomatic history-the intensely chronicled prisoner abuse at Abu Ghraib.

The brilliance of the document-and of Yoo's authorship of it-is that it enabled the Administration to hold a duck in its hand and sell it to the rest of the government (at least temporarily) as a swan. The old saw goes: when an attorney has bad facts, he argues the law; when he has bad law, he argues the facts. Yoo had bad law but two really "good" facts to offer: 1) the United States had been attacked by terrorists on September 11, 2001; 2) the attack had made the nation's legal and political establishment willing (as it always is in times of war) to bend over backward in deference to a sitting president.

Yoo's patrons demanded a legal justification for using "aggressive" or "enhanced" interrogation techniques (as they are even now euphemistically described) on terror suspects. The White House, and no doubt Yoo himself, knew that few pointed questions would be asked about his analysis and conclusions. Still, for the sake of history, something had to be put down on paper; something that would satisfy, at least temporarily, a straight-face credibility test. First, in 2002, Jay Bybee wrote a torture memo. Then, less than one year later, Yoo wrote his. The man and the moment and the dirty job had met.

The settled law-and not just the nooks and crannies of it-- was very much against allowing the sorts of "enhanced" interrogation practices that Yoo was proposing. He knew that. And he knew ultimately that other bright lawyers and judges would know that, too. So Yoo, methodically and with a great sense of the power of legalese, disassembled the definition of torture and then reassembled it to suit his goals. The memo is a legal Wonderland; analytical brick by brick Yoo created a rationale for expanding U.S. policy beyond where it had been before until black was white, up was down, and the laws against torture didn't outlaw torture.

Reading the memo makes you think of the story of the frog which slowly boils to death in the pan as the water temperature slowly is raised. It reads like every other memo ever written by a loyal and zealous lawyer who was told by his client which course of conduct the client wanted to justify. Here is what I want to do, the client says to the lawyer, no go ahead and give me some legal support that helps me do it. The law doesn't exactly allow it? That's okay. Make the best arguments you can and we'll take our chances in court.

Yoo's starts us all on this ill-fated journey with a series of vital-but cleverly hedged-conclusions on Page 4 of the memo. "Because of the asymmetric nature of terrorist operations," he wrote, information is perhaps the most critical weapon for defeating al Qaeda….. obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States… Interrogation of captured al Qaeda operatives could provide that information… it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks…." (Note: Author's emphasis).

This speculation morphed, on page 18 of the memo, into the following declaration: "… the conduct at issue here- interrogations- is a core element of the military's ability to prosecute a war." Then, having declared that the President possessed "complete authority over the conduct of war," Yoo's succeeded in vitiating Congress' role in the affair. "… In the absence of a clear statement from Congress otherwise," Yoo wrote, "we will not read a criminal statute as infringing on the President's ultimate authority in these areas."

Through this passage, Yoo was conveniently concluding that the federal law banning torture did not apply to the White House unless the White House decided that it would. Nice work if you can get it, right? To be able to unilaterally determine which laws apply to you and which don't? This is a theme throughout the memo. So is Yoo's penchant for citing prior internal executive branch memos to help him support his own arguments. This may be standard practice within the corridors of power but it is akin to a lawyer citing his own brief as controlling precedent in a case that is before the court.

But it was on the substance of the torture statute that Yoo really shone. First, he made the case for why only the most extreme forms of torture were banned-a conclusion which probably would have shocked most of the legislators who decades ago voted for the law. Then he offered his client a virtual "how to" guide to torture, and to the administration of "mind-altering substances," explaining in detail how a potential "defendant" (i.e. the person committing the interrogation) could avoid prosecution by establishing "good faith" in advance of the torture session.

Only rarely did Yoo show any measure of doubt about the great legal leap he knew he was taking in justifying extreme interrogation methods. These people, remember, will not be known to history for their penchant for self-criticism or reflection.

And in the end, of course, the policy behind Yoo's masterwork was as flawed as his implementation of it was deft. The mechanics were there. The soul and the conscience were not.

For these reasons, and others, Yoo should never again play any role in government. But his memo has otherwise convinced me of his skills of persuasion. He can be my attorney any day and I promise to call him if I ever want to challenge a parking ticket in court.