Posted on March 20, 2009, Printed on March 20, 2009
John Yoo doesn't have any regrets about the controversial legal opinions he wrote for the White House--many of which were later withdrawn and repudiated--that gave former President George W. Bush unfettered and unchecked power in the aftermath of 9/11.
In a little known interview with the Orange County Register, published March 3, Yoo said he doesn't "think he would have made the basic decisions differently."
However, he said he 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 the Department of Justice (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 DOJ: an August 2002 legal opinion widely referred to as the "torture memo," which 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.
But Yoo told the OC Register that the "tradeoff" against using brutal interrogation methods means "we will get less information about the enemy."
"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 March 2, the DOJ released a handful of legal memos Yoo wrote as the deputy assistant attorney general in the DOJ's Office of Legal Counsel (OLC), 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, California, 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 October 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 October 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 October 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 October 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.
The Register did not question Yoo about those memos, presumably because the interview took place prior to the DOJ's release of the legal opinions.
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 OLC, 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 the 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 OLC memos publicly, said Yoo conducted his work as an advocate of Bush administration policy.
"The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the president's constitutional obligation to ensure the legality of executive action," said Johnsen, who served in the OLC under President Bill Clinton.
In fact, a DOJ watchdog appears to share that view.
An investigation by H. Marshall Jarrett, head of the Justice Department's Office of Professional Responsibility (OPR), reached "damning" conclusions about numerous cases of "misconduct" in the advice from John Yoo and other lawyers in the OLC during the Bush administration, according to legal sources familiar with the report's contents.
"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."
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 February 16 letter.
Yoo said he's not surprised at the reception he received at Berkeley.
"Berkeley is sort of a magnet for hippies, protesters and left-wing activists," Yoo said. "So I'm not surprised that being one of the few recognizable conservatives on campus that I would generate a lot of heat and friction. It happened well before working in the Bush administration."
Jason Leopold is the former Los Angeles bureau chief of Dow Jones Newswires where he spent two years covering the energy crisis and the Enron bankruptcy. He just finished writing a book about the crisis, due out in December through Rowman & Littlefield.
© 2009 TruthOut.org All rights reserved.
View this story online at: http://www.alternet.org/story/132148/