In a little known interview with the Orange County Register published Tuesday, Yoo said he doesn’t “think he would have made the basic decisions differently.”
However, he said had would have polished the memos up a bit and spent more time on legal research had he known the memos would be released publicly.
“These memos I wrote were not for public consumption,” Yoo told the OC Register. “They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently.
“I think the job of a lawyer is to give a straight answer to a client. One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, "What are people going to think of me?" Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do.”
Perhaps recognizing that his legal work wasn’t up to DOJ professional standards, Yoo offered the OC Register an explanation to excuse what one former colleague described as “sloppily reasoned” legal arguments.
“The thing I am really struck with is that when you are in the government, you have very little time to make very important decisions.” Yoo told the Register. “You don't have the luxury to research every single thing and that's accelerated in war time. You really have decisions to make, which you could spend years on. Sometimes what we forget as private citizens, or scholars, or students or journalists for sure (he laughs), is that in hindsight, it's easier to say, "Here's what I would have done." But when you're in the government, at the time you make the decision, you don't have that kind of luxury.”
Yoo is the author of one of the most infamous legal memos to ever come out of the Justice Department: an August 2002 legal opinion widely referred to as the “torture memo” that gave the Bush administration the legal justification to subject terrorist detainees to harsh interrogations, such as the drowning technique known as waterboarding, in violation of the Geneva Conventions and international and domestic laws against torture. (Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
“Someone can say, ‘I think it's more important that other countries have a more favorable opinion of us than any intelligence we gain from interrogation.’ That's a benefit and a cost...” Yoo said.
On Monday, the Department of Justice released a handful of legal memos Yoo wrote as Deputy Assistant Attorney General in the DOJ’s Office of Legal Counsel, a powerful agency that advises the President on the extent of his powers under the Constitution.
Yoo, who is a visiting law professor at Chapman University in Orange, Calif., asserted that the President had unlimited powers to prosecute the “war on terror” on American soil and could ignore constitutional rights, including First Amendment freedoms of speech and the press and Fourth Amendment requirements for search warrants.
In perhaps the most controversial of the memos, dated Oct. 23, 2001, and entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” Yoo said Bush’s war powers allowed him to put restrictions on freedom of the press and freedom of speech.
"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," Yoo wrote. "The current campaign against terrorism may require even broader exercises of federal power domestically."
Just three months before Bush exited the White House, Stephen Bradbury, as acting chief of the OLC, renounced the Oct. 23, 2001, legal opinion in a “memorandum for the files” that called Yoo’s opinion about suspending First Amendment protections as “unnecessary” and "overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario."
In an Oct. 6, 2008, memo, Bradbury wrote that Yoo’s legal opinion “states several specific propositions that are either incorrect or highly questionable.” But Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
The Oct. 23, 2001, “memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law,” Bradbury wrote.
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