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January 06, 2009

Yoo and Bybee war memos revealed

Marisa Taylor of McClatchy's D.C. bureau reports:

Former Justice Department attorneys John Yoo and Jay Bybee are known for their memos on torture, but little was known about their role in the lead-up to war with Iraq. Until now.

A string of previously secret memos recently released to the Senate Judiciary Committee by the Justice Department reveals Yoo's and Bybee's part in crafting the controversial legal justification for going to war.

In a memo dated Oct. 23, 2002, Bybee argues that President Bush "possesses constitutional authority for ordering the use of force against Iraq to protect our national itnerests." In fact, he says, the president never lost the power to declare war on Iraq because Congress gave it to the president's father in 1991. 

Yoo supplements those arguments in two other memos dated November 8, 2002 and December 7, 2002. He concluded that the could argue that Iraq committed a “material breach” of a United Nations Security Council Resolution, an assertion that would become one of the administration’s main justifications for going to war. In one lengthy section, Yoo expounds on the meaning of the word “and” and concludes that it should not be construed as a conjunction.

Scott Silliman, a former Air Force judge advocate who has been critical of the administration’s sweeping assertion of executive powers, said the memos appear “designed to give the president the answer he wants.” 

“What they did was construct an argument to support the answer,” he said.

 See memo here and another memo here.

Yet another memo, written by former Office of Legal Counsel head Jack Goldsmith, it asserts that prisoners in Iraq can be transferred outside the country for interrogations. The memo was used by the CIA to justify the practice known as rendition, in which the CIA moved prisoners to secret prisonis. Many international law experts have since criticized the practice as violating the Geneva Conventions.



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"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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