John Yoo

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See also: Intelligence interrogation, U.S., George W. Bush Administration

John Yoo is a professor of law at the University of California at Berkeley School of Law. He has been on faculty there since 1993, and is currently also a Visiting Scholar at the American Enterprise Institute. Between 2001 and 2003, he was Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, working on issues of separation of powers, presidential authority, intelligence interrogation and extraordinary rendition.

Yoo has been criticized by opponents of the Bush administration policy on interrogating enemy combatants who were held at Guantanamo Bay for his role in drafting the legal memos on the constitutionality of torture, which are sometimes referred to as the "torture memos." Yoo's legal defense of torture has been regarded as unethical and even criminal by many US and international jurists. But a Department of Justice review by Associate Deputy Attorney General David Margolis,[1] a career attorney in the Office of Professional Responsibility, released on 19 February 2010, concluded that Yoo had shown "poor judgment" but that this did not amount to professional misconduct subject to sanctions.[2]

Education and early career

Yoo earned a B.A. degree summa cum laude in American History from Harvard in 1989. In 1992 he earned a J.D. from Yale University Law School. He was a law clerk to Justice Clarence Thomas and to Judge Laurence Silberman. In the past, he was general counsel of the Senate Committee on the Judiciary.

Constitutional theory of national security

See also: Unitary executive theory

Controversial Presidential Advisor

John Yoo wrote the first known legal opinion about the use of extraordinary means in handling terrorists, following the September 14, 2001 Authorization for the Use of Military Force is from September 25, 2001, from John Yoo, in the Office of Legal Counsel of the U.S. Department of Justice, to the Associate Counsel to the President, Timothy Flanigan; [3] The opinion is based on an expansive view of Presidential authority, which he supports with references such as Alexander Hamilton's view, expressed in Federalist Paper 34, that the government should have "an indefinite power of providing for emergencies as they might arise". [4]

Yoo is widely regarded as well-versed in Constitutional law, although many will question or disagree with his conclusions. In his 2005 book, The Powers of War and Peace: the Constitution and Foreign Affairs since 9/11, he argues for a significant reinterpretation of the interactions between the Constitution and U.S. foreign policy,[5] one of his major theories being that the Constitution intended foreign affairs to be more a matter of interaction among the branches of government and less a matter of rigid law. The idea of coalitions runs through modern foreign policy; he cites NATO and partners in the Iraq War.

The preceding book is more a legal analysis, and his 2010 book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush, approaches the topic in more historical terms. [6] Jack Rakove, who respects but often disagrees with Yoo, reviewed it, [7] and warns liberals not to dismiss it.
True to form, Yoo does use his two brief final chapters to defend the George W. Bush legacy and drive progressives nuts with the idea that President Obama has some strangely reactionary ideas struggling to control his brain. But the heart of the book is the highly favorable treatment that Yoo extends to five great presidents -- all of whom should rank high on any liberal's list of admirable leaders: Washington, Jefferson, Jackson, Lincoln and Franklin Roosevelt -- followed by a broad survey of the Cold War presidents from Truman through Reagan.

Rakove wrote that Yoo did not fully resolve two issues, but brought valuable attention to the advantage enjoyed by the Executive. First, he asserts that Yoo did not adequately treat the "founding-era debates, which Yoo does not treat with the seriousness needed to capture that generation's persistent uncertainty about the safety of executive power. Establishing the presidency was the framers' most creative act, but it left them profoundly uneasy, because a vigorous executive was so hard to square with underlying republican ideas. The models of executive power in the 18th century were either monarchical or ministerial. There was no real precedent for the institution the framers conceived."

Second, Rakove claims Yoo did not resolve the tension between "underlying republican values and the virtues of presidencies that he champions." Yoo bases this on "John Locke's famous chapter on prerogative from his "Second Treatise" (1690), the revolutionary work that justified the right of a people to overthrow tyranny and establish a new government. The people, Locke suggested, would rightly trust the executive to use prerogative wisely, and if they agreed with his purpose, they would cut him slack on the constitutional side, understanding why the benefits sometimes outweighed the costs. But the question of whether the prerogative was broad or narrow remained, Locke thought, a matter of legislative supervision, always subject to a review that Yoo, with his deep distrust of Congress, finds alarming."

War authority

One of the constant challenges in U.S. constitutional law, as it pertains to war and peace, is the balance between the Article I provision that gives Congress authority to "declare war", and the President's Article II authority to command the forces. Harold Koh, generally considered a liberal with respect to matters of Constitutional authority, whom Koh acknowledges as his first teacher in constitutional law, "argues that Congress must authorize policy and the President simply implements it." [8]

Yoo disagrees, citing Justice Antonin Scalia's interpretation of the Article II, Section 1 language, "[t]he executive power shall be vested in a President of the United States." Scalia wrote "this does not mean some of the executive power, but all of the executive power." Yoo continues to assert that Article I, Section I, gives to Congress only those legislative powers "herein granted", which he interprets to restrict Congressional authority to the powers enumerated in Article I, Section 8. [9]

Yoo writes that interpretation follows British precedent. As an example, he quotes James Madison at the Virginia ratifying convention, "The sword is in the hands of the British king; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist."[10]

Treaties and the separation of powers

Yoo also makes a strong distinction between Presidential authority in terms of purely domestic decisionmaking between the Executive and Legislative branches, and in the exercise of Presidential authority with respect to treaties. "If the Constitution requires that the Senate be present for the birth of a treaty, it does not speak directly to its role during the course of the treaty's life and death. The latter issue, that of treaty termination, has long been the subject of interbranch dispute, but Yoo claims, appears to have been settled in favor of unilateral presidential authority.[11] The issue of continuing Congressional authority, once it has authorized some action or condition in the Executive, is a long-standing one, and certainly not limited to treaties. Central to the impeachment of President Andrew Johnson was his alleged violation of the Tenure of Office Act of 1867, later reversed by the Supreme Court, which claimed that Senate consent was necessary to remove an official whose appointment required Senate approval. This issue is critical in the "declare" vs. "conduct" war issue.

Warmaking since WWII

Warmaking has changed, he agrees, in the post-WWII and post-Cold War worlds, when it stopped following the Constitutional design. Observing that Congress never declared war in Korea or Vietnam, he wote that Congress "had every opportunity to control those conflicts through its funding powers. That it did not was reflection of a lack of political will than a defect in the Constitutional design.[12]

The War Powers Resolution

After Vietnam, Congress passed the War Powers Resolution, but has not enforced its provisions. The most important example, he writes, when President Bill Clinton exceeded the sixty-day authority of the Resolution when he joined in NATO operations in Kosovo without authorization by both Houses. While the Senate passed a concurrent resolution to "conduct military air operations and missile strikes in cooperation with our NATO allies against the Federal Republic of Yugoslavia (Serbia and Montenegro)," [13] the House refused to authorize action. After Clinton's public announcement of the commencement of operations, the House declared it supported the troops despite the "deep reservations" of some Members.[14] Yoo wrote that Clinton followed the examples of Presidents Reagan and George H. W. Bush, and made it clear that while he appreciated the support, he did not need its authority. He said he was acing "consistent with" rather than "pursuant to" the War Powers Resolution.

On April 28, the House rejected a joint resolution declaring war on Yugoslavia, defeated (on a tie) a Senate resolution authorizing the use of force, and then defeated a resolution that would have ordered the President to remove U.S. troops from Yugoslavia.

Nevertheless, on May 20, Congress doubled the Administration's emergency funding request but still did not authorize the war.
Congress has never authorized the insertion of American troops, who remain in Kosovo to this day. Congress, however, agreed to provide supplementary appropriations for a long-term military presence in Kosovo, and in the years since has continued to appropriate funds for a long-term military presence in Kosovo...Congress could have stopped the war, if it possessed the political will, merely by refusing to appropriate the funds to keep the military operations going.



One might respond that it is unreasonable to expect Congress to use its appropriations to cut off troops in the field. (John Ely and Harold Koh)...claim that requiring congressmen to cut off funds is unrealistic given the pressure to show support for troops in the field...We should not, however, mistake a failure of political will for a violation of the Constitution. .[15]

Presidential authority

Newsweek cited the Office of Professional Responsibility (OPR) report, to be released in 2010 but not widely available, quoted Yoo as saying that the president's war-making authority was so broad that he had the constitutional power to order a village to be "massacred." It said his opinions were strongly supported by David Addington, counsel to Vice President of the United States Dick Cheney. The article said, "The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings....another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and "unambiguous" standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only "poor judgment." The Newsweek article said that the original OPR report contained the partial transcript,

What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally—"
""Yeah," Yoo replied... "Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."
"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.
"Sure," said Yoo.

The torture memoranda

In 2002, Yoo authored a number of memoranda on the use of enhanced interrogation techniques, including the "Bybee Memo", co-authored with Jay Bybee, assistant Attorney General in the Office of Legal Counsel. [16] The memoranda have collectively become known as the "torture memos." Although these secret memos submitted to Attorney General Alberto Gonzales did not advocate torture, Yoo's presentation of arguments, as a staff lawyer in the Office of Legal Counsel, defending the notion that torture was not necessarily unconstitutional was considered unethical and possibly criminal by those who viewed torture unconstitutional. In a draft report by a Justice Department ethics board, the Office of Professional Responsibility (OPR), Yoo and his colleague Jay Bybee were found guilty of professional misconduct and recommended for sanction by state disciplinary authorities. However, the report was rejected by Bush administration Attorney General Michael Mukasey, and in January 2010 Associate Deputy Attorney General David Margolis, a career attorney, also rejected the findings of the OPR report. A separate memorandum by Margolis to Attorney General Eric Holder, released on February 19, 2010, concluded that Yoo and Bybee had shown "poor judgment."[1] In particular, Margolis wrote that they overstated the legal case in support of the presidential authority to order the torture of enemy combatants and failed to provide adequate nuance and counterarguments to their theory. Margolis said,

I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power.

However, Margolis also concluded that despite significant flaws in the memos, he could not accept OPR's conclusion of professional misconduct because it was "based on a standard that was neither known nor unambiguous" and also relied on "circumstantial evidence much of which is contradicted." He therefore informed the Attorney General that he would not authorize release of the OPR report for referral to the state bar associations for ethics investigations against Yoo and Bybee. Nevertheless, he also proposed the public release of the OPR report which would allow the state bar associations to institute such investigations of their own accord.

The statute of limitations on any alleged misconduct by Yoo has since expired.[17]

Publicly Confident

Yoo remains publicly confident of the legality of his approach to governance and security. In a Wall Street Journal op-ed in February 2010, he wrote
Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe...Part of Mr. Obama's plan included hounding those who developed, approved or carried out Bush policies, despite the enormous pressures of time and circumstance in the months immediately after the September 11 attacks. Although career prosecutors had previously reviewed the evidence and determined that no charges are warranted, last year Attorney General Eric Holder appointed a new prosecutor to re-investigate the CIA's detention and interrogation of al Qaeda leaders....



In my case, he let loose the ethics investigators of the Justice Department's Office of Professional Responsibility (OPR) to smear my reputation and that of Jay Bybee, who now sits as a federal judge on the court of appeals in San Francisco. Our crime? While serving in the Justice Department's Office of Legal Counsel in the weeks and months after 9/11, we answered in the form of memoranda extremely difficult questions from the leaders of the CIA, the National Security Council and the White House on when interrogation methods crossed the line into prohibited acts of torture.

Rank bias and sheer incompetence infused OPR's investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR's preferred outcome...

OPR's investigation was so biased, so flawed, and so beneath the Justice Department's own standards that last week the department's ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.[18]

In the same op-ed, Yoo said "OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president's commander-in-chief power." This is consistent with the view that Yoo has always been an advocate of maximum presidential power, willing to question Congressional Consitutional authority, and to challenge Congressional political will.

Nevertheless, his description of OPR's that Congress had "full" authority is not necessarily quite what they said in released documents, and the entire issue of Presidential v. Congressional authority is a continuing debate among legal analysts. Yoo has contributed to analysis, for example, of the War Powers Resolution, on which multiple Presidents and Congresses have disagreed. The Obama Administration did continue some previous positions, such as the State Secrets Privilege argument in Mohamed et al. v. Jeppesen Dataplan, Inc., but the current Administration is still reviewing its policy there.

Yoo does not always distinguish between Presidential decisions that may consciously take risks, and risk-averse presidencies. In the op-ed, he cites, without detail, a tactical incident where an American unit released civilians, and then suffered a defeat. The data in the article does not thoroughly identify the incident or all the factors in the orders of the entire chain of command, but Yoo assumes a direct relationship between releasing civilians and the severity of the attack, when he concluded,
Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department's ethics witch hunt not only brought an unjust persecution to an end, but it protects the president's constitutional ability to fight the enemies that threaten our nation today.

Recent activities

Legal action against Yoo has come both from within and outside of the United States. Jose Padilla and his mother have sued Yoo in federal court for his involvement in shaping policy that caused Padilla to be tortured in the Navy brig at Charleston, SC. This case is currently (February 2010) still pending on appeal.[19] Spanish prosecutors also considered prosecuting Yoo for mistreating prisoners of war in violation of the Geneva Conventions, using Spain's interpretation of universal jurisdiction, but decided against this because Yoo and the other defendants were not present during the alleged torture.[20]

At the University of California at Berkeley, he teaches a course on the California Constitution. Law school officials decided, after a number of attempts by protesters to disrupt his classroom, to keep its location confidential. While the decision was unprecedented for the public university, it was editorially supported by the student newspaper, the Daily Californian
Protesters certainly have a right to express their views about Yoo as they wish, but by disrupting classes, they're hurting the students more than the professor. It's not unreasonable for them to have to wait until class is out to picket and make their views known. Academic freedom is at stake in this case, but at this university, the cause of educating those who attend, rather than appeasing those on the outside, should be the primary concern. In the end, it's the students that really matter and it's the students who are paying to take Yoo's class.[21]

References

  1. 1.0 1.1 David Margolis, Associate Deputy Attorney General, Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility's Report of Investigation into the Office of Legal Counsel Memoranda Concerning Issue Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists, U.S. Department of Justice
  2. Michael Isikoff (19 February 2010), "Report: Bush Lawyer Said President Could Order Civilians to Be 'Massacred'", Newsweek
  3. John Yoo, Office of Legal Counsel, U.S. Department of Justice (September 25, 2001), Memorandum Opinion for the Deputy Counsel to the President: The President's Constitutional Authority to Conduct Military Operations against Terrorists and the Nations Supporting them
  4. The Federalist No. 34, at 175 (Alexander Hamilton) cited in 9-25-2001 memo
  5. John Yoo (2005), The Powers of War and Peace: the Constitution and Foreign Affairs since 9/11, University of Chicago, ISBN 0226960315, pp. xviii-ix
  6. John Yoo (2010), Crisis and Command: A History of Executive Power from George Washington to George W. Bush, Kaplan, ISBN 978-1607145554
  7. "Book review of John Yoo's 'Crisis and Command'", Washington Post, 10 January 2010
  8. Harold Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair (1990), note 14 at pp.67-78, quoted by Yoo, Powers, p. 18
  9. Morrison v. Olson, 487 U.S. 654, 605 (1988), dissent by Scalia, quoted by Yoo, Powers, p. 19
  10. 10 The Documentary History of the Ratification of the Constitution 1282, John P. Kaminski and Gaspare J. Saldano, eds., "Madison speech of June 14, 1788", cited by Woo, Powers, p. 89
  11. Yoo, Powers, p. 14
  12. Yoo, Powers, pp. 143-144
  13. Senate Concurrent Resolution 21, 106th Congress, 1999
  14. H.R. Resolution 130, 106th Congress, 1999
  15. Yoo, Powers, pp. 157-159
  16. Jay Bybee, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice (signer); drafted by John Yoo (August 1, 2002), Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency: Interrogation of al Qaeda Operative
  17. Johnson, Carrie. No sanctions for Bush lawyers who approved waterboarding, report will say, The Washington Post, January 31, 2010. Retrieved on February 7, 2010.
  18. John Yoo (24 February 2010), "My Gift to the Obama Presidency: Though the White House won't want to admit it, Bush lawyers were protecting the executive's power to fight a vigorous war on terror", Wall Street Journal
  19. John Schwartz. Judge Allows Civil Lawsuit Over Claims of Torture, The New York Times, 2009-06-14. Retrieved on 2010-02-07.
  20. USA Today. No Spanish torture probe of U.S. officials, USA TODAY, April 16, 2009. Retrieved on February 6, 2010.
  21. Senior Editorial Board Contributing Writer (19 January 2010), Yoo Can Hide, The Daily Californian Online