Which came first: memos or torture?

But does academic freedom really sit at the heart of this controversy? It's not Yoo's ideas in an academic setting that give rise to his current problems but his conduct as a government lawyer. Yoo says that he was asked his opinion about technical legal issues related to interrogation and detainee treatment during wartime, and he gave it his best shot. He also argues that he strained to give policymakers and actors the greatest possible latitude in which to manage a difficult conflict. But he only advised and theorized; others took the decision to implement the program.

But Yoo's account of how and why the torture memos were crafted may not hold up. Congress is preparing hearings into the subject, and they have invited Yoo to testify. International law scholar Philippe Sands and other writers have punched holes in Yoo's claims about the facts. It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.

It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution?

In any case, Yoo kept the program running. Even the man who came in to run the Office of Legal Counsel after Yoo's departure, Jack Goldsmith, has written that he understood Yoo's project this way. Goldsmith also rescinded Yoo's memos.

According to Human Rights First, more than 100 people have died in U.S. detention in the war on terrorism. It documented 11 cases where the deaths resulted from coercive interrogation techniques, and others where there was at least some connection. Yoo insists that there is no relationship between the deaths and his advice, because he didn't set policy or carry it out, he merely offered a legal opinion. But had he refused to give the opinion that was sought, the program might have been suspended and some of those detainees might be alive.