Reagan's DOJ Prosecuted Texas Sheriff for Waterboarding Prisoners

"So why are none of these precedents mentioned? Obviously because each of them contradicts the memo's conclusions and would have to be distinguished away. Professional rules would have required that these precedents be cited, failing to do so reflects incompetent analysis."

In fact, the Justice Department's Office of Professional Responsibility (OPR) investigated whether the three lawyers purposely twisted their legal advice to satisfy the White House and knowingly avoided citing existing case law in order to reach conclusions the White House wanted. It's unknown what OPR has concluded about that point in its report, which is now being revised.

Beyond ignoring the case law on torture, Yoo, as a deputy assistant attorney general, pushed the theory that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force at a time of war.

"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said Yoo in another memo dated August 1, 2002, and entitled "Standards of Conduct for Interrogation."

In that opinion, Yoo failed to cite the key precedent relating to a president's war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman's order to seize steel mills that had been shut down in a labor dispute during the Korean War.

Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.

But the Supreme Court overturned Truman's order, saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Since Congress hadn't delegated such authority to Truman, the Supreme Court ruled that Truman's actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.

Yoo's Explanation

In his 2006 book, "War by Other Means," Yoo offered up a defense of his failure to cite Youngstown. "We didn't cite Jackson's individual views in Youngstown because earlier [Office of Legal Counsel] opinions, reaching across several administrations, had concluded that it had no application to the President's conduct of foreign affairs and national security."

Yoo added, "Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war....

"Detention and interrogation policy are at the heart of the President's Commander-in-Chief power to wage war, and long constitutional history supports the President's leading role on such matters."

But Horton disagrees. "The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield," Horton told me via email.

"Justice Jackson's opinion is the most persuasive of the opinions justifying the decision," Horton said. "If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.

"It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.

"But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did."

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