What if they disclosed a torture memo and nobody cared? This week, an 81-page memo, authored by John C. Yoo, who was a deputy in the Office of Legal Counsel at the Department of Justice at the time of its creation, was declassified and made public. The memo, which, among other things, was used as the rationale for authorizing the torture of government detainees, has long been held to be a savage reimagining of the structure of the Executive Branch and its authority, hostile to the traditional checks and balances that circumscribe the President's authority. And that's stating the matter diplomatically. A less kind observer might conclude that the memo was a legal abomination which tortures the accepted body of Constitutional law along the way to glibly authorizing a Grand Guignol of authoritarian power that our nation's founders would find abhorrent. With these high stakes as the prologue, you'd have to imagine that the disclosure of the memo would be of pre-eminent importance to the media.
You'd be wrong. The extent to which this story, the questions it raises, and the impact it has on our lives failed to resonate in the sphere of the traditional media is distressing and disturbing. Non-traditional media did much better, but the fact that this matter did not acquire a portion of the mass-media megaphone makes one worry that by this time next week the matter will be forgotten. But in many quarters of the Fourth Estate, the waters of Lethe are already being poured.
On cable news, mentions of the memo's declassifications were few, brief, and undetailed. CNN's Headline News noted that the story was "one of the most popular stories at cnn.com," but apparently, that's not enough to warrant a lengthier report. MSNBC featured a brief mention on Morning Joe, and a near-noontime mention that was three sentences long and followed by a lengthy report on the hospitalization of an American Idol performer.
Only Fox News took the matter to the level of discussion, but even then, the report was largely short-sighted and full of equivocations and unsubstantiated claims. The major takeaway was that the memo noted that "constitutional protections do not apply to foreign prisoners being held outside the United States" and that interrogation "becomes torture when severe pain and suffering cause permanent or irreversible damage...death, organ failure, or the permanent impairment of a significant bodily function." (As you'll see below, the full ramifications of the memo were far more vast.)
Later in the day, Fox added, "Numerous presidents have ordered the capture and questioning of enemy combatants during virtually every major conflict in the nation's history. Recognizing this authority, congress has never attempted to restrain or interfere with the president's authority on this score." This sort of implies that if an action was taken in the past, it imbues a "rightness."
Along the way, Fox salted the coverage with equivocations. "A number of major Republicans and Democrats said this is a terrible mistake." None were named, and the wisdom of their position was unexplored. "Some constitutional scholars say the 81-page legal opinion must be placed in historical context...[it should be viewed as] a period piece." That's a classic "some say" assertion that again suggests that "history" trumps a moral foundation or factual evidence that indicates torture is ineffective. Finally, Fox lets Kit Bond have the last word, and it's a stupefyingly inane one: "Some are more interested in recycling old news and scoring political points with the ACLU."
Print coverage was more detailed but, at times, equally frustrating. The Associated Press led with a bland, but detailed story that stressed the memo's rationalizations on "harsh tactics." But while a later AP story on the declassification includes the ACLU opinion ("The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power.") but frustratingly limited its focus to warrantless surveillance, not torture.
The Washington Post gave the declassification A1 treatment, and featured quotes from several critics, but does very little to advance the critical argument: there's no lengthy analysis of the legal underpinnings of the anti-Yoo side of the matter, just strenuous objection. On the other hand, Yoo is allowed to contend, with no scrutiny, "Far from inventing some novel interpretation of the Constitution...our legal advice to the President, in fact, was near boilerplate."
For solid pushback, WaPo customers needed to seek out Dan Froomkin, who devoted the bulk of his White House Watch column to the matter, and provided plenty of legal analysis from critics. And Froomkin absolutely got it right:
Yoo's memo is a historic document. It is the ultimate expression of Cheney's belief that anything the president or his designates do -- no matter how illegal, barbaric or un-American -- is justifiable in the name of national self-defense.
It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.
Outside of Froomkin, the best pushback from WaPo came from a participant in Dana Milbank's chat:
The (sadly) funny part of the Yoo memo is that it purports to uncover an exception to anti-torture treaties if you are torturing the prisoner in order to extract information about pending attacks. That is actually the exact reason for these agreements. It is like arguing that speed limits do not apply if you are in a hurry.
Two days after the release of the document, this represents the sum total of WaPo talent deployed to opine on this matter. Compared to the New York Times however, the Post has contributed volumes. Mark Mazzetti's April 2nd piece is more or less the equivalent of the Post's aforementioned A1 piece, and it was followed up today with a well-written, probing article. But the topic hasn't seemed to capture the imagination of any of the Times' editorial columnists (this is perhaps for the best, as Wednesday was Maureen Dowd's day and I hardly think anyone really wants to see her wheedle and deedle her way through the topic). Perhaps more gallingly, the Times website actually has a topic page related to Yoo that does not include today's article on the subject.
By contrast, the blogosphere treated the matter with the concern that was warranted, and provided much more substantive analysis. As you might expect, Glenn Greenwald at Salon gives the matter lengthy attention and arrives at some important conclusions:
John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes...
This incident provides yet more proof of how rancid and corrupt is the premise that as long as political appointees at the DOJ approve of certain conduct, then that conduct must be shielded from criminal prosecution. That's the premise that is being applied over and over to remove government lawbreaking from the reach of the law.
Remember how simple and glib the takeaway on Fox News was? Where the memo was said to limit the lifting on Constitutional protections to "foreign prisoners" and stressed a facile definition of what constituted torture? Contrast that with the fuller conclusion reached by Kevin Drum:
Basically, the president can authorize any action at all as commander-in-chief in wartime. Congress can't bind him, treaties can't bind him, and the courts can't bind him. The scope of power the memos suggest is, almost literally, absolute. And since this is a war without end, the grant of power is also without end.
Marty Lederman, at Balkinization, hints that the disclosure of the Yoo memo may only be the tip of the iceberg - a fact that the traditional media missed:
The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis....Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.
See also: 1115.org, Emily Bazelon at Slate, Marcy Wheeler at Firedoglake, Yglesias at The Atlantic. Additionally, take note of this item, posted last night on Unfogged: "I ignore news I'd rather just go away as well, but it's still funny that there's not a single mention of John Yoo either on Insty, or Powerline, or Hewitt." Funny, but not surprising.
It should be noted that there are print organs treating this matter with the attention it deserves. I'd point out Esquire, which provides Yoo a forum to respond to this week's news, and Harper's Scott Horton, who asserts, "these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it."
But if you want a sense of the very real urgency the disclosure of these memos warrant - how this affects our day-to-day lives, we return to Greenwald:
While Yoo's specific Torture Memos were ultimately rescinded by subsequent DOJ officials -- primarily Jack Goldsmith -- the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws -- from our nation's spying and surveillance statutes to countless Congressional oversight requirements -- and to detain even U.S. citizens, detained on American soil, as "enemy combatants." So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection.
This is a terribly critical point to note. The rationale put forth by Yoo, which the Bush administration cleaved to with full-force, is an ongoing rationale. This story is well on its way to fading from the sight of the traditional media, but its larger ramifications will continue to loom and continue to affect our lives. Just as the media has abandoned a larger inquiry into the faulty strategic underpinnings that sent us into the Iraq War, a blind eye is steadily being turned to the lack of moral underpinnings that form the Bush administration's vision of executive power. We cannot let this happen. Attention must be paid.