Federal Judiciary

U.S. challenges use of “Yoo memo”

By Akin Gump Supreme Court Practice Group

The Bush Administration on Friday urged the Fourth Circuit Court in Richmond, VA, to ignore the contents of a 2003 internal Justice Department legal memo — the now-celebrated “Yoo memo” — that spelled out the military’s authority to use harsh interrogation methods on detained terrorism suspects.  “That memo has no bearing,” the government contended, on the pending case of Al-Marri v. Pucciarrelli (Circuit docket 06-7427).  The Fourth Circuit is currently weighing, en banc, whether the government had the legal authority to capture and then hold indefinitely an individual who has been designated an “enemy combatant.” Lawyers for Al Saleh Kahlah Al-Marri, a Qatari national arrested in Peoria, Ill, where he was attending college, have asked the Circuit Court to consider the “Yoo memo” as support for their argument that his detention “lacks legal basis.”  (The memo was signed by John Yoo, at the time a top legal counselor in the Justice Department.)

In a brief letter responding to the filing of the memo (the letter is available here), the Administration contended that officials — including President Bush — did not rely on the Yoo memo in deciding to designate Al-Marri as an “enemy combatant.”  This designation, it said, was the result of a “multi-layered process” that included consideration of a Justice Department legal opinion, but that opinion only dealt with enemy combatant designations.

In addition, the government said that the memo only deals with interrogation that occurred outside the U.S., while Al-Marri’s case involves an individual who is being held inside the U.S.  Because of the place of his detention, it added, he can claim procedural rights under the Fifth Amendment that detainees captured and held abroad cannot, the letter said.  (Various news accounts discussing the contents of the Yoo memo have noted that the document also discusses constitutional issues and presidential wartime powers as they apply within the U.S.)

The letter further said that the Al-Marri case does not involve any issues “concerning the treatment of Mr. Al-Marri while he has been detained.” It said that is an issue in a separate court case that Al-Marri’s counsel are pursuing.  Al-Marri’s counsel have contended in court that he was being detained for interrogation, and that is not a valid basis for detention.  What went on during his detention, his lawyers have said, bears upon whether he was being held legally.

Full post as published by SCOTUSBLOG on April 11, 2008 (boomark / email).