Yoo’s legal work during Bush’s first term in office has been roundly criticized by dozens of the nation’s leading legal scholars.
Dawn Johnsen, who has been tapped by President Barack Obama to head the Office of Legal Counsel, has publicly criticized the work of Yoo and other OLC officials under Bush. In a 2006 Indiana Law Journal article, she said the function of OLC should be to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”
Johnsen, who is a staunch supporter of releasing Office of Legal Counsel memos publicly, said Yoo conducted his work as an advocate of Bush administration policy.
In fact, a Justice Department watchdog appears to share that view.
An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from John Yoo and other lawyers in the Office of Legal Counsel during the Bush administration, according to legal sources familiar with the report’s contents.
OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.
“I wish they weren't doing it, but I understand why they are,” Yoo told the OC Register in response to a question about Jarrett’s probe. “It is something one would expect. You have to make these kinds of decisions in an unprecedented kind of war with legal questions we've never had to think about before. We didn't seek out those questions. 9/11 kind of thrust them on us. No matter what you do, there's going to be a lot of people who are upset with your decision. If Bush had done nothing, there would be a lot of people upset with his decision, too. I understood that while we were doing it, there were going to be people who were critical. I can't go farther into it, because it's still going on right now. I'm not trying to escape responsibility for my decisions. I have to wait and see what they say.”
According to sources familiar with the report’s conclusions, Yoo was criticized for using an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.
The report also criticizes Yoo’s legal theories that the President of the United States had the right to suspend Fourth Amendment protections against unreasonable searches and seizures, the sources said. It is believed that Yoo’s legal theories led to a warrantless wiretap program after 9/11.
The OPR report was completed late last year but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office, the sources said.
According to people familiar with the OPR report, Yoo was briefed on the report in January. Yoo is said to have informed officials at the University of California at Berkeley, where he is a tenured law professor, according to two senior law school officials. He took a leave of absence in January to teach foreign relations law at Chapman.
While teaching at Berkeley, he was routinely the subject of protests by students and faculty.
Last month, Brad DeLong, a UC Berkeley economics professor, wrote a letter to Robert Birgenau, Berkeley’s Chancellor, calling for Yoo to be fired.
“Out of a concern for justice, a concern for humanity, and a concern for our reputation as a university, to dismiss Professor John Yoo from membership in our university,” says DeLong's Feb. 16 letter.
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