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John Yoo and the Problem of Constitutional Evil

By Jack M. Balkin

Having just excerpted the Yoo memo for Gillman, Graber, and Whittington, AMERICAN CONSTITUTIONALISM (forthcoming, 2010), let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials. I found myself disagreeing with most of this, taking offense at various points. Nevertheless, the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review. I was no more impressed by the Roberts opinion in Parents Involved (the Seattle school district case) then the Yoo memo.

The notion that Yoo ought to be disciplined for his involvement in a criminal conspiracy also strikes me as a bit strange. I confess to thinking that both that Yoo probably knew he was facilitating torture, but that there was no conspiracy in the non-legal sense of the word. We normally think of conspiracies as secret plots. If Yoo and company had been secretly plotting to murder liberal opponents of the war, that?s a conspiracy. President Bush and the Republican Party, however, repeatedly and publicly declared that their philosophy during the war on terrorism was "whatever it takes." Of course, there were occasional denials that torture was going on, but I suspect they were not believed or even intended to be believed. Campaigning on a platform of "whatever it takes," Republicans won two elections and lost one. The reason they lost the last election had little to do with torture and a good deal to do with the failure of the Iraq policy in general. If torture had helped pacify Iraq, I suspect the results in the 2006 election would have been quite different. Significantly, Democrats did not make opposition to torture a central plank in any of these elections. The main public difference seems to be over how much torture, rather than whether torture is legitimate.

Several conclusions can be drawn from this. First, many Americans support torture as a policy during the war against terrorism, particularly if there seems to be some visible evidence that torture is working. If there is a conspiracy, we probably should arrest about 60% of the country. Second, Yoo and company were largely engaged in providing legal justifications for policies that were largely well known and publicly defended. Moreover, to the extent that many Democrats seemed willing to sanction some torture, the Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States. Again, as a legal matter, you could still confine conspiracy to Yoo and a few others, but there would be an awful lot of unindicted co-conspirators. Third, a great deal of what goes on in the war against terrorism violates both international law and international human rights. I suspect attorneys in the Obama, Clinton, or McCain Administrations will champion policies that many internationally believe violate international law and human rights.

The Yoo memo is reprehensible because it supports torture when plausible constitutional arguments against torture exist. Alas, the constitutional support for Yoo?s position is gaining strength. In a period of time when Congress passively defers to the president and few Americans take any substantial interest in government policies that violate fundamental human rights, one should hardly be surprised that the weight of precedent increasingly is found on the side of the Yoo memo. Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

Full post as published by Balkinization on April 17, 2008 (boomark / email).