john-yoo.thumbnail.jpgOn November 15, 2001, John Yoo and Robert Delahunty wrote a memo, addressed to John Bellinger [pdf] (Senior Associate Counsel to the President and Legal Adviser to the NSC) which had this as its stated purpose:

This is to provide you with our views on the question whether the President has the constitutional authority to suspend certain articles of the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, US-USSR, 23 UST 3435 (the "ABM Treaty") insofar as it is necessary to allow the development and testing of missile defenses. You have asked us to consider two cases: first, suspension of the relevant articles by mutual consent of both the United States and the Russian Federation; second, unilateral suspension by the United States. We conclude that the President has the constitutional authority to suspend the articles in either case.

Less than one month later, Bush announced that he was giving Russia six month’s notice of his intention to withdraw from the treaty completely, per the provisions of the treaty itself.

The OLC memo is a nice tidy case study and homage to Addington’s beloved Unitary Executive theory. Toward the end of the memo, the discussion takes an interesting turn, however, from looking at "Can a president suspend a treaty on his own?" to "Can a president withdraw from a treaty on his own?"

Isn’t that a nice pivot? "This reminds me of a question I wish you’d have asked . . ."

Yoo and Delahunty note that amending requires the Senate to act, but claim that suspending is different and can be done unilaterally. As I summarized their logic in Marcy’s first thread on these memos, "What’s the difference between amending and suspending? Amending a treaty means changing the words of the document; suspending it means ignoring them. (p. 19) The memo has Yoo’s signature but it also has David Addington’s fingerprints."

After reading the last section of the memo, it sounds to me like Addington was having a fight with folks at the NSC who doubted you could even suspend articles of the treaty — folks like Bellinger. Addington, remember, was no fan of Bellinger:

Addington and the hard-liners had particular disregard for Bellinger, who was considered a softie–mocked by Addington because he had lunch once a month or so with a pillar of the liberal-leaning legal establishment, the late Lloyd Cutler. When Addington and Flanigan produced a document–signed by Bush–that gave the president near-total authority over the prosecution of suspected terrorists, Bellinger burst into Gonzales’s office, clearly upset, according to a source familiar with the episode. But it was too late.

Addington was just getting started. Minimizing dissent by going behind the backs of bureaucratic rivals was how he played the game.

Here’s my WAG: Addington baits Bellinger into putting the question to the OLC (shades of David Kris?), and then got Yoo to write a memo that went beyond suspension to address the question of withdrawing from treaties completely – a question Bellinger did not apparently ask. When the withdraw language gets back to the WH, Addington then says "Gosh, you were worried about suspending parts of the treaty, but OLC says we can just withdraw from the treaty entirely, all on Bush’s say-so, and not involve the Senate? Great — let’s do it."

But one other big question occurred to me as I was reading this ABM treaty memo. In November 2001, the ABM treaty was not the only treaty under a microscope at the Bush White House. As Sourcewatch notes, "Legal arguments for avoiding the jurisdiction of the Geneva Conventions commenced prior to November 13, 2001, when President George W. Bush issued the Presidential Military Order Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism," in which Sourcewatch notes no reference is made either directly or indirectly to the Geneva Conventions.

If you read the discussion in the OLC’s ABM treaty memo, and substitute "Geneva" in your head whenever the text says "ABM," you realize that the memo is a powerful buttress to the notion that the President can use pixie dust not just on troublesome executive orders but on international treaties as well. It almost makes me wonder if the ABM discussion was cover for asking OLC to approve going around Geneva without mentioning Geneva by name.

Or maybe my tinfoil hat is just a wee bit too tight. Whether it was cover or not, the twisted "logic" employed by Yoo and Delahunty certainly could be used to bolster anyone who wanted to dispense with an "obsolete" and "quaint" document like the Geneva Conventions.

And it probably was. Those are the memos that I’d like to see next.

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For more on the OLC memos, see:

DOJ Releases OLC Memos: Why Hide Bradbury’s Legal Smackdown?

OLC Restores 4th Amendment after Hounding from Congress

Rule of Law vs. Just Gut FISA: Newly Released OLC Opinions Reveal Possible Early Tension within Bush DOJ

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Related posts:

  1. Whose Legacy is Being Tidied Here?
  2. Addington’s Direct Involvement in the Torture Memos
  3. Memo to OK Domestic Use of Military Also Authorized Surveillance
  4. Holder Overturns Justice Jackson and Nuremberg
  5. Cheney’s and Gonzales’ CYA Libraries