by Barry Goldman
At the time of this writing, Thanksgiving week 2025, the Trump administration has launched 21 strikes on boats in the Caribbean and eastern Pacific and killed 83 civilians. According to the administration, the US military has legal authority to conduct these strikes. That authority is outlined in a memo from the Office of Legal Counsel, the OLC. But the memo has not been released to the public. It is a secret memo.
We have seen this movie before. Twenty-some years ago, there were secret memos from the OLC that authorized the CIA to torture prisoners at Abu Ghraib and Guantanamo. Those became known as the “torture memos.” These OLC documents are likely to become known as the “murder memos.” The process that generated them is the same.
As Sen. Chris Van Hollen (D., Md.) said:
[T]he decision was made, and someone was told to come up with a justification for the decision. It is a lot of legal mumbo jumbo.
No one should be surprised.
They told us a story about this process when I was in law school. It seems once upon a time many years ago a lawyer told J. P. Morgan there was no legal way he could do something he wanted to do. Morgan said, “I don’t know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do.” The lesson was clear. Morgan was one of the richest men in the world. He could hire any lawyer he wanted, and he could pay more than anyone else. If this lawyer didn’t want to do the job, Morgan would find someone else who did. Law is no different from any other field. The Golden Rule applies: Whoever has the gold makes the rules.
Suppose you’re young lawyer in the Office of Legal Counsel shortly after 9/11. Your boss calls you in and says, “These are extraordinary times, and they call for extraordinary measures. We have captured some prisoners, and we believe they may have intelligence about future attacks. We need to be able to extract that information, and the prisoners are not being cooperative. We may be compelled to use methods that we would not use under ordinary circumstances. We’re calling these methods “enhanced interrogation techniques.” We need to be able to use these techniques on these prisoners, and we need a letter providing legal authority to do it. I think you’re the man for the job. Can I count on you?”
You understand the assignment. Are you going to do it or not?
The result was the “torture memos,” and the person most closely associated with them is John Yoo. The memos argue, as lawyers say, in the alternative. They also told us a story about arguing in the alternative when I was in law school. The story has to do with a man accused of borrowing a kettle and returning it broken. His defenses were:
(a) I never borrowed it,
(b) It was broken when I borrowed it, and
(c) It wasn’t broken when I returned it.
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that:
[N]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
That left the OLC drafters with only two options: either enhanced interrogation techniques are not torture, or if they are torture the Convention does not apply. Pleading in the alternative, the torture memos made both arguments.
Enhanced interrogation techniques aren’t really torture, they said, because torture must inflict severe pain of the level associated with death and organ failure.
This standard is “literally meaningless,” says David Cole, the leading scholar on the subject, “as neither death nor organ failure is associated with any particular level of pain.”
In any case, the memos say, none of these techniques are sufficiently painful. The only techniques that qualify require proof of harm lasting “months or years.”
Quoting Cole:
With respect to waterboarding, for example, the OLC memo stated “[the CIA has] informed us that this procedure does not inflict actual physical harm,” and on that basis the memo concluded that waterboarding “inflicts no pain or actual harm whatsoever.” And waterboarding cannot cause any long-term suffering, the OLC determined, because, according to the CIA, it “is simply a controlled acute episode.”
Even if they are torture, the memos go on to say, enhanced interrogation techniques are legal because the Geneva Convention and the Convention Against Torture don’t apply:
On February 7th, 2002 President Bush signed an internal executive branch memorandum declaring that the Geneva Convention protecting the treatment of prisoners of war did not protect al Qaida or Taliban detainees because they were not “regular armed forces” of a nation state. The memorandum instead classified them as “enemy combatants” who were not entitled to the Geneva Convention’s minimum standards for humane treatment of prisoners.
In fact, the torture memos continue, enhanced interrogation techniques are not even “cruel, inhuman, or degrading treatment. This is because they do not “shock the conscience.” And they do not shock the conscience because, the government sought to “minimize the risk of injury or any suffering that does not further the Government’s interest in obtaining actionable intelligence.” It’s not as though the Government was inflicting this pain arbitrarily. It is only torture if it is “specifically intended” and “unjustifiable by any government interest.”
Further, even if they do constitute cruel, inhuman, or degrading treatment, even if they are torture, they are permitted if they are undertaken because of “necessity” or as a matter of “self-defense.”
Cole calls these arguments, “unprecedented and virtually unrecognizable versions of these defenses.” He wrote:
[I]nstead of requiring the CIA to conform its conduct to the law, the OLC lawyers contorted the law to authorize precisely what it was designed to forbid. They concluded that keeping suspects awake for 11 days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal.
* * *
When considered as a whole, the memos reveal a sustained effort by the OLC lawyers to rationalize a predetermined and illegal result.
That was then. This is now. And now the administration doesn’t want to torture people, it wants to kill them. Quoting from the Washington Post:
In the summer, the Justice Department’s Office of Legal Counsel (OLC) produced a classified opinion that asserted a legal foundation for the strikes. The memo, which runs several dozen pages, is said to argue that the US is in an armed conflict with “narcoterrorists,” and that using lethal force against them advances an important national interest while not rising to a level of war that constitutionally would require congressional authorization.
This is very slippery ground. One might even muster a small amount of sympathy for the lawyer who had to draft these arguments. He needs the situation to be serious enough to justify blowing up civilians without warning but not so serious that it amounts to war. The victims can’t be mere criminals, like ordinary drug smugglers. They have to be terrorists, in “armed conflict” with the U.S. But it has to be a “noninternational armed conflict,” and the people we’re blowing up have to be “combatants.” The people on those boats can’t be smuggling cocaine to make money. They must be smuggling cocaine for the purpose of killing Americans. But we can’t be engaged in “hostilities.” If hostilities are involved, military action would require congressional approval.
Luckily for the person drafting the memo, the president has “determined” that this is precisely so. As a result, incinerating these people is not murder. It’s fine. And if you participate in those killings you aren’t committing murder. The president says so. And it’s all carefully explained in a memo. But you can’t see the memo because it’s secret.
What purpose is this secrecy serving? I understand the lawyer/client privilege. Lawyers have to be able to give honest, candid advice. And I understand the protection of attorney work product. And I understand the reason to protect “sources and methods.” But what legitimate purpose is served by the refusal to release this memo?
The Declaration of Independence comes to mind. It opens with this paragraph:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
It seems to me this provides a more appropriate model. When in the course of human events, it becomes necessary for one country to kill the civilian citizens of another, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to do it. What possible argument can there be to the contrary?
We don’t have access to the language of the murder memos, but we do know there has been significant resistance to them. There is reporting that the administration had to burn through a number of lawyers before they found one who would take the assignment. The head of the U.S. Southern Command, Adm. Alvin Holsey, the man responsible for all operations in Central and South America, is suddenly retiring after less than a year in the job. We know retirement under these circumstances is unprecedented. And we know there has been opposition to the murder memos from no less an authority than John Yoo himself. He wrote:
The Trump administration’s recent attacks on drug running boats in South American waters risk crossing the line between crime-fighting and war. By default, drug cartels begin on the crime side of the line. Their brutality is real, and their toll is staggering. But their purpose is greed, not politics. To confuse them with wartime enemies is to misuse the tools of war, erode constitutional limits, and endanger liberty at home.
Mr. Yoo understands this danger perhaps better than anyone else alive. If only someone would listen to him.
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