Magoon and Yoo and “lawyers'” opinions
September 9, 2016 § Leave a comment
“By 1899, Magoon was sought out to join the law office of the newly created Division of Customs and Insular Affairs, later renamed the Bureau of Insular Affairs, in the U.S. Department of War under Secretary of War Russell A. Alger.
Legal and political controversy had arisen regarding whether the people of the newly acquired territories were automatically granted the same rights under the United States Constitution as American citizens. Magoon prepared a report to Alger in May 1899 that would have established the official departmental policy as “the Constitution follows the flag.”
Under this view, the moment the treaty transferring the territories to U.S. sovereignty was signed, the residents of Puerto Rico, the Philippines, and other territories became subject to all the rights granted by the Constitution. For the new territories following the Spanish–American War, this would have been from the signing of the Treaty of Paris on December 10, 1898. With the resignation of Secretary Alger, this incomplete report was not released to Congress.
In August 1899, Elihu Root became the new secretary of war, and the unreleased report was scrapped. Magoon drafted a new report which came to precisely the opposite conclusion from the first: the Constitution did not apply in new territories until the United States Congress specifically passed legislation to authorize it. It argued that precedent was set when Congress passed legislation to apply the Constitution to the Northwest Territory and the Louisiana Purchase. This revised report was dated February 12, 1900, and released to Congress as a policy document expressing the Department’s official stance on the issue. This view was largely adopted by the Supreme Court of the United States beginning in 1901 in the so-called “Insular Cases.””
He is best known for his opinions concerning the Geneva Conventions that attempted to legitimize the War on Terror by the United States. He also authored the so-called Torture Memos, which concerned the use of what the Central Intelligence Agency called enhanced interrogation techniques including waterboarding.
In 2009, two days after taking office, President Barack Obama in Executive Order 13491 repudiated and revoked all legal guidance on interrogation authored by Yoo and his successors in the Office of Legal Counsel between September 11, 2001, and January 20, 2009.