Editor’s Pick
APRIL 22, 2009 10:20AM

The Trial of John Yoo

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John Yoo 

I attended a debate on presidential power at Chapman University Law School yesterday.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled "Presidential Power and Success in Times of Crisis," and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S., and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush -- and, by clear implication, Yoo himself -- should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration's policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At the debate, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

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Am I supposed to feel empathy for this miscreant? Excuse me, alleged miscreant. Attorney Yoo, clearly didn't have to participate in the process when he was part of Bush's adminstration.

As an officer of the court, as an attorney, he knows by training what the consequences are. Now his defense is, "I was blinded by my patriotism?" Please the hubris that attorneys are taught in law school is that they are smarter than the law. It's a lot of hydrogen sulfide.
Excellent post, Mr Fox!
I'm looking forward to his trial.
Yoo is deeply complicit. I remember reading his own writings on this and related subjects about a year ago and being appalled at his logic and ethics. What gets me about both the "I lost my head" defense and the "It worked" defense is that neither recognizes the illegality of the acts. As convenient as it has been for liberals to point to the old "Torture doesn't work b/c it makes people give up any information just to get out of the pain" argument, whether it works or doesn't work is irrelevant: It's illegal under the Geneva Conventions. What on earth does it mean to sign an international treaty if we can just defy it at will?

Thanks for the post. I haven't followed all the links but will find the time to do so today.
During 2003 I attended a moderated discussion of the Patriot Act held at a neighborhood theatre. The panel consisted of 5 - 6 people sitting on folding chairs, each getting a turn to speak, then taking a few questions from the audience. One of the panelists was John Yoo, who had left the Bush Admin by this time. At that point he was an unknown. What Yoo quickly established was that he fully backed the extreme unitary executive position. He didn't go over well with the mostly liberal audience. When Yoo's name first surfaced as an author of the torture memos a few years back, I wasn't surprised.
Yoo and Bradbury (when they find him) are toast. Bybee may be a more difficult nut to crack. Regarding Yoo, I'll never understand what got into UC Berkeley to make him/rehire him/keep him on as a professor. Unlike most academic resumes (but perhaps befitting a weasel-wording slider), Yoo's official resume is very sparse, full of gaps, can't quite nail down what he was doing when, for whom, to whom.

Good post. Got to keep the heat turned on. Today's NYT article about the non-CIA torture memos leading up to Rumsfeld gives one hope that it won't be just small fry and operatives whose feet will be kept to the fire.
"I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel."

What? Are you suggesting that Bush hired complete and utter moron lawyers for important roles in hisAdministration? Someone get Alberto Gonzales on the phone! No? Harriet Meyers?
Yoo argued that President Bush -- and, by clear implication, Yoo himself -- should not be legally or morally judged in Obama era hindsight.

It's a bit late for that. I passed judgment on Yoo's morality back in 2006:

In Yoo's debate with Doug Cassel, the Notre Dame law professor asked: "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"

John Yoo: "No treaty."

Doug Cassel: "Also no law by Congress—that is what you wrote in the August 2002 memo [while Yoo was a Justice Department attorney]."

John Yoo: "I think it depends on why the President thinks he needs to do that."

I'd have thought that a question about the whether the President might order children to be tortured would be pretty much a softball. Guess not.
Yoo is the kind of man who needs to be disappeared and identified via dental records years from now.
Thanks, Rob, for the report on the Notre Dame debate.

The more we learn about the Bush torture policy and the people who conceived and justified it and carried it out, the more grateful I am that Barack Obama is president.
So good and clear, as always. You used the word moral. I'm impressed..
Good piece, Michael. Most of these torturers cut a pathetic figure (a la Eichmann) when finally in the dock. Would love to see these guys there.

Smithbarney, as to Yoo at Berkeley, CVillarreal, a member of the National Lawyers Guild Bay Area Chapter, had a post in December about asking the University to investigate and take action. There's been no follow-up post that I can find, nor have I seen anything in the press.

WOOF
CCC: In his opening comments, Yoo said that he was happy to be "behind the Orange Curtain" rather than in "the People's Republic of Berkeley."

I'm not sure he felt quite the same way after his presentation was interrupted numerous times by protesters.

My guess is that he'll up at Pepperdine.

Unless (or maybe even if) he's disbarred.
It is tricky to me in one sense about Yoo; is he just an attorney, giving perhaps incorrect advice, which is not criminal, or is he part of a command structure with an affirmative duty, as in the case of Yee, although if you see him speak, he is a pacifist, which makes hime a weird fit in the military from the beginning, although a good man as far as I can tell. But to give advice, what is the crime, or rather the standard for the crime. Still thinking on that one.
" . . . necessary to prevent a repeat of a 9-11 terrorist attack against the U.S."

I have never heard an explanation of what there was about 9/11 that made it different in kind from other attacks and other wars. E.g., after Pearl Harbor we didn't start torturing captured Japanese naval officers. We didn't torture captured German soldiers after the Battle of the Bulge. The British didn't torture captured German airmen even as their own country was being attacked from the air every day. In that context what was it about 9/11 that was thought to justify these techniques that previously would have been held to be war crimes?
Beyond the morality of this shlub is the question of efficacy, which remains their argument: there are no tigers in the room. Today's NYT has a number of articles about the recent revelations. I read the dead tree version, but they should be easy to find on the web. Must reading.
Thanks for the update Michael. The next year or so as this unwinds will say a great deal about the direction we as a society will go.
I read an interview with Yoo not long ago, just after he started at Chapman (I think it was in the OC Weekly) in which he made some sneering remarks about the hippies and leftists up at Berkeley. He strikes me as someone who will tar his opponents with broadstroke insults rather than debate them on the merits of an argument. Which explains why he fit in so well in the Bush administration.

If his defense is going to be "the panic made me do it," he might as well just resign from the bar now and save others the work of kicking him out.
Relatedly:
___

Mr. Attorney General Holder;

By his own hand in the 08-01-2002 OLC torture memo, in considerable damning detail, Mr. Bybee appears explicitly complicit in subornation of war crimes. You don't get to parse away and define torture down. This is not even a close call. We imprisoned and even executed people for participation in the very same types of acts. The history could not be more clear.

The fact that Mr. Bybee now sits comfortably on the federal bench owes ENTIRELY to the suppression of this torture memo during the time of his judicial confirmation hearing. Had it come publicly to light, he would never have been confirmed. He should not have been confirmed. He, and his fellow torture conspirators should be fully and openly investigated for having put this odious moral stain on our nation. They have put the nation and its defenders at significantly greater risk while sullying our reputation in the world.

The Israeli High Court once had to slap down its own intel service over torture -- and, you cannot accuse the Israelis of being "soft, liberal, terrorist coddlers" either. Their conclusion:
___

"This is the destiny of a democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties."
___

See "Educing Information," the 372 page report issued by our own National Defense Intelligence College. That's where I found the quote.

Do the right thing. Minimally, appoint a neutral and respectable independent prosecutor to investigate these matters. There must be accountability. Absent that, we are really no better than our enemies, for the incentive and opportunities to behave as do they will remain.

Thank you.

Robert E. Gladd
John Yoo said within two weeks of the trade center tragedy that no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response" (quoted by Scott Shane - NY Times). Long before torture memos, this was the elastic clause to beat all and his culpability goes way beyond fall guy. Thanks for your eyes and ears.
Michael;

I doubt anyone ever thought Yoo was anything but Bybee's tool. Question is, will the real "decider" behind all of this, Dick Cheney ever get called to justice?

Best Regards,

David
John Yoo reminds me of Alberto Gonzales. You don't know whether to hate them for their evil deviousness or pity them for their hapless/helpless idiocy.
Dubbya wanted to be re-elected and was riding the crest of "Patriotism" after 9-11. His popularity was at it's highest during that time period. It still did not justify the illegality of it all and violating the Geneva Convention.
So what is the cost of a "let's torture anyone we want to for any reason DOJ memo"? Answer: A Federal Judgeship.
That's a real nice payoff. Good post.
Rated & Cheers!
I was wondering just now whether Yoo has ever read the Code of the U.S. Fighting Force:

"Your obligations as a U.S. citizen and a member of the armed forces result from the traditional values that underlie the American experience as a nation. These values are best expressed in the U.S. Constitution and Bill of Rights, which you have sworn to uphold and defend. You would have these obligations—our country, your service and unit and your fellow Americans—even if the Code of Conduct had never been formulated as a high standard of general behavior."

http://www.army.mil/usapa/epubs/pdf/p360_512.pdf
Micael, the first time I started seeing John Yoo on television was when the News-Hour had him on a few times as a panelist discussing Bush v. Gore. As we know, Yoo sided with Bush and here's an example of his pro-Bush position in the court losing some legitimacy in the name of Bush being able to move ahead with the infamous December 12th deadline. Just think back of the eight years of disaster we ended up because of the Court. Yoo mentions "heal(ing) national divisions" and we had just the opposite happen:

JOHN YOO: "I actually think it's a little different. I think what the court has recognized is that probably are going to take a short term hit in terms of legitimacy. But I think they balanced that against whether they think it's in the best interest of the country to be able to end this tomorrow. I think they probably will issue a decision tomorrow, because if they issue one tomorrow, they still allow one of the candidates to meet the December 12 deadline, and I think they've made that cost-benefit analysis. And I think you've seen that in other cases, for example, the Casey abortion case and other cases like that. They've made similar cost benefit analyses and weighed that in favor of trying to heal national divisions instead of worrying about their short-term legitimacy."
(Sorry, I meant to spell your name Michael.)
Yoo using the 9/11 defense?
Even a dog has the integrity to lift his own wounded paw when he's in trouble. Yoo lifts ours.
I'm not surprised he's a dumbass.
Thank you for this post. I think it is clear that fall-guy or not, John Yoo is a disgrace to American jurisprudence. Whether he is smart enough to understand why is his own psychological challenge to face. He actually argued that it was possible to commit the brazenly illegal act of torturing individuals detained without charge or access to any process whatsoever, based on the (out of the blue) assumption that the president has the authority to ignore certain laws or that in some geographical locations, there is no law governing the behavior of the US government.

We have heard time and again that this is an issue of philosophical differences, that some people believe in checks and balances and some don't, some prefer habeas corpus and some just want to be "effective". But Yoo's approach to this issue, however pathetic his being trapped into the position he now finds himself in, is a direct and bald-faced rejection of the entire American Constitutional system of government.

His legal argument amounts to scrapping the Constitution completely, and permamently, with no justification beyond serving the whims of legally ant-brained individuals like George W. Bush, Dick Cheney and Donald Rumsfeld. Yoo's immersion in this is due more than anything else to his obviously deep-seated willingness to cast aside all human decency and impose a rigid ideological formula to a system that actually requires that laws govern.

I appreciate Lainey's response as well, but I would say that the "I lost my head" and the "it was effective" defenses BOTH implicitly recognize the illegality of the actions committed. If they did not recognize the illegality of the acts, there would be no defense aside from "it was legal".

All these protestations and hysterical rantings in defense of torture are just that: hysterical attempts to defend the indefensible, and that is why Yoo and Cheney and all those who speak on their behalf are boxed into crafting such logically incoherent defenses: they know they broke the law.
J.E. Robertson: Well said!
No doubt he will soon find himself where slimy goo like him always seems to end up: on the Washington Post Op-Ed page...
@Norwonk:
No doubt he will soon find himself where slimy goo like him always seems to end up: on the Washington Post Op-Ed page...

But, but, but the Post is that seething cauldron of Liberalism!!!!!!!!!!!!
Misima asks: "In that context what was it about 9/11 that was thought to justify these techniques that previously would have been held to be war crimes?"

The difference is terrorists don't play by the rules. 9/11 targeted innocent civilians, not a military base (Pearl Harbor.)

Aside from the question as to whether or not "Geneva conventions" even apply when the enemy is not abiding by them, the administration still did not violate the Geneva conventions according to Obama's own Secretary of Defense (Gates), who has said over and over that waterboarding, even though it's something we would not like to have done to us, does not meet the legal definition, according to the Geneva convention, of torture.

So you can keep repeating again and again your politically motivated opinion that it was torture but it wasn't -- unless you don’t believe legal definitions mean anything.

In addition, members of congress were fully informed of what was going on and signed off on the use of this technique of interrogation in fighting an enemy that plays by no rules and wears no military uniform.

The refusal of people on the left to recognize that the Bush administration was acting in time of war in a way to save American lives is not only divisive, but unnecessarily costly. You want to have people you don’t like, like John Yoo, rack up millions of dollars in legal fees just because of your hatred of the Bush administration.

Was that the “coming together” Obama was selling us during the campaign?
Michael Fox says: "...such as Lincoln’s attempt to suspend habeas corpus during the civil war."

Lincoln didn't attempt to suspend it he did suspend it.

"On April 27, 1861, habeas corpus was suspended by President Abraham Lincoln in Maryland and parts of midwestern states."

http://en.wikipedia.org/wiki/Habeas_corpus
phm: On Lincoln's attempt to suspend habeas corpus, please read Ex parte Merryman, 17 F. Cas. 144 (1861), reaffirmed in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

"The only power, therefore, which the president possesses, where the 'life, liberty or property' of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires 'that he shall take care that the laws shall be faithfully executed.' He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm; but in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments."

"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. "

"He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defense in times of tumult and danger."

"The government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the amendments to the constitution, in express terms, provides that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.'"
"Bush and Lincoln both Suspended Habeas Corpus"

"On Oct. 17, 2006, President Bush signed a law suspending the right of habeas corpus to persons "determined by the United States" to be an "enemy combatant" in the Global War on Terror.

... But it was not the first time... In fact, the Military Commissions Act of 2006 was not the first time in the history of the U.S. Constitution that its guaranteed right to writs of habeas corpus has been suspended by an action of the President of the United States. In the early days of the U.S. Civil War President Abraham Lincoln suspended writs of habeas corpus. Both presidents based their action on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution."

http://usgovinfo.about.com/od/rightsandfreedoms/a/habeuscorpus.htm
phm:

Your reference to Lincoln is instructive, but it teaches the opposite lesson than you intend.

Lincoln attempted to suspended habeas corpus in the same sense that Truman attempted to seize the steel mills. In both cases, the president's attempt to take unilateral action as commander in chief was rejected by the courts as unconstitutional.

Early in the civil war, Lincoln declared that habeas corpus was suspended in military zones in Maryland. The courts (both then and now) found this unilateral action by the president to be unconstitutional -- even under the president's broad powers as commander in chief, in the midst of what would be the bloodiest war in our history, and when the nation's capitol itself was under immediate threat of being captured by the enemy.
The implication in your article when you say "Yoo’s self-defense consisted of ... strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war)" was that the Bush administration was trying to do something unreasonable. Suspension of habeas corpus is clearly not unreasonable if it was an action taken by president Lincoln during the Civil War.

If anything, the idea of classifying US Citizens seceding from the Union as "enemy combatants" is a bigger stretch than classifying non US citizens (terrorists) who, in addition to not being citizens, are not even being held on US soil.

So it is hardly a "strained" defense made by John Yoo but a completely reasonable one.
One last time: Lincoln's suspension of habeas corpus was unconstitutional.
phm:

"Was that the “coming together” Obama was selling us during the campaign?"

As usual, your comments here are all half truths and mis-information. You are a true History Channel scholar! Michael Fox has already schooled you on your misunderstanding of Lincoln and habeaus corpus, so I won't continue to beat that horse.

But the idea that this is being driven by Obama is absurd. I know they won't tell you this on Fox News, or Rush Limbaugh, or wherever else you pick up your misinformation, but Obama has been dragging his heels on this.

This is what real populism looks like. Not the phony teabagging nonsense yout right wing nitwits put on. Polls are showing as many as 68% in favor of prosecutions for torture. But you are absolutely correct about one thing. I certainly do hate the Bush Administration enough that I want to see the dirtbags that ran it spend millions of dollars in legal bills. If that's the worst that happens to them, they're getting off easy.
Nice job Michael. Thanks for writing this and all of your instructive comments.

phm: if you read the Geneva Conventions, instead of getting it second hand through whatever rightwing outlet you listen to, you will see that non-signatories to it are still bound to be treated humanely by signatories.
Thank you to everyone who read, commented and rated.

And thanks to the editor for the pick!
M. Fox says "Lincoln's suspension of habeas corpus was unconstitutional."

Lincoln’s suspension of habeas corpus (not his “attempted” suspension, as stated in your article) was ruled unconstitutional in Ex parte Merryman because “Congress alone may suspend the writ.”[1] It’s important to not that even in the face of this decision, “Lincoln and the military ignored [the] ruling.” [2]

President Bush’s suspension of habeas corpus was part of the Military Commissions Act of 2006, approved by both the House and the Senate. Thus it clearly was at the very least less controversial than Lincoln’s use of it. So for you to contend that John Yoo used “strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war)” is not only inaccurate but misleading.

Seamus55: Obama may well be “dragging his heels,” but it still doesn’t reflect the campaign he ran on. Neither does the leaking of justice department memos while ignoring an internal one from his own advisor, Dennis Blair, who wrote: “High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa'ida organization that was attacking this country."[3] .

Regarding Dennis Loo’s comment that “non-signatories to it [the Geneva convention] are still bound to be treated humanely by signatories,” terrorists fighting for the Taliban are certainly not signatories to the Geneva convention, but to what extent Geneva conventions apply to them is the issue. On that subject I will again point to Obama’s own Secretary of Defense Robert Gates, who “said the U.S. knows more about al Qaeda now than it did in the years before and after the Sept. 11, 2001 attacks. He [Gates] said he believes that the need for interrogation tactics that go beyond those allowed in the Army Field Manual is now "dramatically less." [4]

As I think we would both agree that by “interrogation tactics” he doesn’t mean the equivalent of a friendly interview, the question is if such tactics meet a definition of “torture.” The memos leaked by Obama’s administration [5] clearly show the justice department’s legal opinion on this and that such tactics did not meet that definition. Additionally, President Obama himself has said “officials have to consider what's gained from ‘more severe interrogation measures’ against the impact on the nation's values.” [4]

Judgements that you may not personally agree with that are not only not illegal but are made with the intention of protecting U.S. citizens from harm and aiding military personnel in conducting a war are not sufficient grounds to force someone to incur millions of dollars in legal fees or further divide our country along party lines. This clearly goes against Obama’s stated goals during his campaign.

While you accuse me of not formulating my own thoughts or having not read certain documents, I encourage you to actually read the memos the Obama administration released even though their doing so was clearly a politically motivated and divisive act that went against the advice given to them by the C.I.A. which considered them classified and did not want them released. If you actually read the memos you will have a better understanding of the “interrogation tactics” used that many in the press have already misrepresented.



1. http://en.wikipedia.org/wiki/Ex_parte_Merryman
2. http://usgovinfo.about.com/od/rightsandfreedoms/a/habeuscorpus.htm
http://www.foxnews.com/politics/first100days/2009/04/22/raw-data-blair-memo-employees-interrogations/
http://cbs5.com/national/robert.gates.defense.2.915298.html
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_08012002_bybee.pdf
M. Fox says "Lincoln's suspension of habeas corpus was unconstitutional."

Lincoln’s suspension of habeas corpus (not his “attempted” suspension, as stated in your article) was ruled unconstitutional in Ex parte Merryman because “Congress alone may suspend the writ.”[1] It’s important to not that even in the face of this decision, “Lincoln and the military ignored [the] ruling.” [2]

President Bush’s suspension of habeas corpus was part of the Military Commissions Act of 2006, approved by both the House and the Senate. Thus it clearly was at the very least less controversial than Lincoln’s use of it. So for you to contend that John Yoo used “strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war)” is not only inaccurate but misleading.

Seamus55: Obama may well be “dragging his heels,” but it still doesn’t reflect the campaign he ran on. Neither does the leaking of justice department memos while ignoring an internal one from his own advisor, Dennis Blair, who wrote: “High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa'ida organization that was attacking this country."[3] .

Regarding Dennis Loo’s comment that “non-signatories to it [the Geneva convention] are still bound to be treated humanely by signatories,” terrorists fighting for the Taliban are certainly not signatories to the Geneva convention, but to what extent Geneva conventions apply to them is the issue. On that subject I will again point to Obama’s own Secretary of Defense Robert Gates, who “said the U.S. knows more about al Qaeda now than it did in the years before and after the Sept. 11, 2001 attacks. He [Gates] said he believes that the need for interrogation tactics that go beyond those allowed in the Army Field Manual is now "dramatically less." [4]

As I think we would both agree that by “interrogation tactics” he doesn’t mean the equivalent of a friendly interview, the question is if such tactics meet a definition of “torture.” The memos leaked by Obama’s administration [5] clearly show the justice department’s legal opinion on this and that such tactics did not meet that definition. Additionally, President Obama himself has said “officials have to consider what's gained from ‘more severe interrogation measures’ against the impact on the nation's values.” [4]

Judgements that you may not personally agree with that are not only not illegal but are made with the intention of protecting U.S. citizens from harm and aiding military personnel in conducting a war are not sufficient grounds to force someone to incur millions of dollars in legal fees or further divide our country along party lines. This clearly goes against Obama’s stated goals during his campaign.

While you accuse me of not formulating my own thoughts or having not read certain documents, I encourage you to actually read the memos the Obama administration released even though their doing so was clearly a politically motivated and divisive act that went against the advice given to them by the C.I.A. which considered them classified and did not want them released. If you actually read the memos you will have a better understanding of the “interrogation tactics” used that many in the press have already misrepresented.



1. http://en.wikipedia.org/wiki/Ex_parte_Merryman
2. http://usgovinfo.about.com/od/rightsandfreedoms/a/habeuscorpus.htm
http://www.foxnews.com/politics/first100days/2009/04/22/raw-data-blair-memo-employees-interrogations/
http://cbs5.com/national/robert.gates.defense.2.915298.html
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_08012002_bybee.pdf
Isn't everyone judged in hindsight? After they did it? Unless they got swept up by this crew.
After seeing Taxi to the Dark Side, I felt like kidnapping Yoo and subjecting him to a taste of his own medicine. If I had that feeling I can't imagine that I am alone. If I were Yoo I would watch my back.
In the immortal words of the two guys who punked him at Stanford - I'd laugh but my balls would get buzzed.
Michael, I have a non-rhetorical question related to what Charles Rachlis just said. From what you could tell, does Yoo have some form of protection (not the type his mother should have used - I mean a bodyguard) 24/7 ? Maybe attending a debate didn't give you insight on this question. Considering the number of people who have had their lives altered beyond repair by this monster, how is it that he moves about seemingly without concern? I'm not personally going to go hunt the guy down, since I feel fatherhood for my six year year might be problematic behind bars. Were I diagnosed with a terminal disease down the road, I reserve the right to re-examine this issue though.
the crimes of the usa government are, for the most part, well-documented. they continue on, generation after generation, with no great outcry from the people so long as their own lives are not impacted.

but the beltway barons will persist in expanding their depredations on the well-known principle that 'more is better,' and suddenly america is outraged: my job is gone! my mortgage is unsupportable!, strange-looking men are trying to kill us! and most amusingly, the world is sneering at our enhanced interrogation techniques!

america is an oligarchy. it is owned, body and soul, by the rich. it is a brutal and corrupt empire. if you express outrage arising from it's habitual and characteristic behavior at this late date, you convict yourself of ignorance or hypocrisy.

john yoo is not a 'miscreant.' he is a lawyer who worked for the president of the usa. you may not like his character, or that of his employer, but you allowed both to work in secret in exercising the great power of the nation. you are complicit in what they did with the freedom you gave them.

america could be a democracy. the business of the nation could be done in public in full knowledge of the electorate, and the world. but that is not the nation you have inherited from the slave masters who wrote the constitution, and you have not the intelligence, or character, to change things. you deserve john yoo, and worse.
And so Yoo admitted that he was a fearful wimpy little cunt ????

And who spread the fear and used it to manipulate the masses ???

You don't want "retaliation" ???? Then don't meddle in the affairs of other countries ....
Re:
"... if you express outrage arising from it's habitual and characteristic behavior at this late date..." (Al Loomis)
and
"His popularity was at it's highest..." (Texas Bubba)

In the interests of proper punctuation, when "its" is a possessive pronoun (the change of seasons has its appeal; this house has its charms, etc.) there is no apostrophe between the "t" and the "s." When "it's" is a contraction of "it is" or "it has" (it's Thursday; it's time to go; it's met its burden of proof) the apostrophe is correct.

And John Yoo is a legal hack! No wonder he defends himself so poorly. His defensive posturing has its "appeal," but it's time to resist its allure and put him on trial as the war criminal he is, right next to Mr. Cheney. It's really a no-brainer.
I've long thought Yoo an intellectual lightweight. His arguments tend to fail at the point where logical rigor and a thorough reading of history would allow suppler minds to keep going. Instead, Yoo falls back on a puerile Hobbesian sympathy for the executive that is truly alien to American politics.

I saw Kathleen Sullivan utterly outclass him on an episode of "Uncommon Knowledge" regarding the legacy of William Rehnquist.

http://www.youtube.com/watch?v=7uags7igHKM

It was, frankly, a little bit embarrassing.

Ironically, I think it's the very fact that Yoo is under the gun for his torture memos that has allowed him to keep his sinecure in academia. Judged solely on the merits of his scholarship, Boalt Hall would have probably canned him a long time ago.
Do you really think anyone from the Bush administration will go to trial for giving legal advice, however faulty, that "enhanced interrogation" was sanctioned by law? I don't.
Correction: Abraham Lincoln, under powers granted to the executive in Article IX of the Constitution, did suspend habeas corpus during the Civil War. There was no "attempted" to it. Other than that, a good post.
Boalt Hall, where Yoo teaches law, has a tradition of keeping a conservative constitutional scholar, I had Martin Shapiro at UCSD for a constitutional law course, it was fun even though he used to rant against fdr et.al., I'm a Marine veteran of Vietnam War, battle field interrogations could be brutal when attacks were imminent, which is the ticking bomb analogy. Private investigator most of adult life, familiar with interrogation techniques, enhanced, brutal methods don't elicit accurate information. Yoo is an embarrassment to the legal profession, an affront to Constitutional government, and about as anti-American as I can imagine. Maybe this stuff he authorized in his memo flies in Israel, but it has no place in American Law or Jurisprudence, it is a sordid, ugly reaction to fear, and nothing else. It is mob rule at its most basic, with every protection civilized people erect against these atrocities ignored to legalize reprehensible behavior. I guess if you live long enough you see everything, I never dreamed I would live to see Americans legitimize torture of anyone. What happened to us?
Intersting article. John Yoo is stupid, says the author, who seems to be either a renaissance genius no one has ever heard of or someone who hasn't yet "found his niche"( i.e., who has failed at everything so far).
John Stewart, who has eviscerated a great many people, and who trained stephen Colbert, who just recently eviscerated Harold Ford, ran into a stone wall when he went after Yoo. And yet this genius from Moving Target theater that no one ever heard of tells us that 2 law professors who teach at a 2nd tier law school did what Stewart couldn't?
If those 2 could do what Stewart can't they would be downtown at a mega-McKenzie Brackman doing instead of teaching, and making $2M a year.
The purpose of this article is simply to gin up hatred toward Yoo and other Conservatives and criminalize what they did. If that's what this and the rest of you geniuses want then you may get it next year, and "in spades" (in this context I am sure you idiots know the term is not racist--but some will say it is because you can only smear, not debate) in 2013.
While you guys are trying to criminalize your political opposition's conduct why don't you do away with the filibuster as well. Make 2013 nice and clean for us.
@Ron Roth

Jon Stewart has a good mind, but he still has to work the comedy into all his interviews and please an audience not composed mainly of law students. He is not a lawyer so he is not skilled in cross examination of a reluctant witness. Yoo merely had to wait him out with non-answers that were only lightly challenged until Jon had to move on to his real task, selling books.
John Yoo is as smart as all of his cohorts, which saddly is lacking smarts as a subgroup. David Addington, Cheney, Rummie, the ex Attorney General that is so toady that he cannot get a real job that would befit a person that held his past position, all as a group have some missing genes.
If we were to accept the "I lost my head" defense, there wouldn't be much left to do for the justice system. Most murderers would be exhonerated.

When Yoo was interviewed by Jon Stewart, it struck me that he was getting off easy because Stewart tried to talk him down with moral arguments. A lawyer can easily slip through that net. But when you start picking apart his legal reasoning, his defense quickly collapses.

I suspect Yoo is not the only one who is pleading his case in order to stave off legal consequences. When Dick Cheney crawls out of his bunker to give frequent speeches and interviews, it's a sign that he feels the need to protect himself from prosecution. Sadly, he seems to be very successful.

The US has a lot of cleaning up to do.
He should be waterboarded, cattleprodded, put on the rack, hung from his ankles, have current sent through electrodes attached to his privates, and hung from his wrists. None of those are torture, according to Yoo, since they do not equal the pain of being tortured to death.

Let them a-rabs know, they weren't tortured because Bush & Cheney said they weren't. Simply extreme interrogation. What proves Bush & Cheney were liars and criminals is that they did not bring in experts on interrogation to help them craft a regime. Instead they hired two psychologists with no experience outside the SEAR program.

Ten years ago I would never have believed half my citizens would support that regime. I am ashamed of my nation. It's soul was sold FOR NOTHING.

And what proved Bush is a nutjob was when he said, "Even if the entire nation is against me, and only my dog Barney is on my side, I will stick to my decidering." Even though every expert was against him, every PhD, every skilled diplomat, Bush's GUT was talking to him and knew best. That is the definition of an insane person.
which trial is this?

barack "look forward" obama has shown no interest in prosecution. do you suppose some subordinate will oppose his complacency? who, and when?

will some citizen initiate action? how? no citizen initiative in 'representative democracy', as the american plutocracy is commonly disguised.

yoo may be somewhat crestfallen at being out of power, but have you noticed that he is not working for some community college in wyoming? this guy has connections, and protection.
Yeah. As I recall, they prosecuted those attorneys who first argued that abortion was legal. I mean, what were those lawyers thinking when they concluded that it would be okay to kill unborn babies. Not the sort of legal advice one should be able to give without a consequence.

You folks are simply crazy. You don't get prosecuted for giving legal advice. And you shouldn't. And that is the end of the matter.
Mr. Fox your description of Mr. Eastman as dangerous because of his political views while making no gratuitous statement about Darmer and Rosenthal being dangerous or not makes your opinion of little or no value. If you want preach to the choir your free to do so but please leave any analysis to fair minded people. I believe that even if "enhanced interrogation" were proven to have saved thousands of American lives the histrionics on the left would continue unabated. The hatred of George Bush trumps all else. Some limited individuals were dealt with very harshly (anyone killed or permanently injured?) but those choices were made for what reason, profit, demented pleasure, expansion of Pres. powers, or a sense of revenge? The armchair debate taking place in liberal circles ofter leaves out the crucial question "what would you have done?" If left to the debaters the answer is nothing since almost all live in a world of thoughts and words and NEVER actually DO anything. Americans, rightly or wrongly, rely on their ELECTED officials to make the hard choices. While you and the rest chew over this old bone the rest of the country has moved on. Glad we did not suffer another 9/11. Try debating Roosevelt's imprisonment and illegal seizure of property of American citizens during WW II . A little trial of him and his "advisors" might enlighten us about MASS violations of civil rights rather then the possible use of torture on a small group of actual terrorists. Will Obama be subject to murder charges when he has some American citizen working with the enemy killed by a drone attack?
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Good grief. I'm getting further behind every day, darn it.
Daily news makes me wonder if old magicians drank brew.
The con-trick in the 1400's was to go upstairs and stargaze.
They'd talk about Majesty, Celestial Bodies, Harmony, Lies,
Magistrates,
Supernatural,
Prognosticating,
Good Soothsayers,
Bad Spirited powers,
and if their was a person who seemed debauched, and full of HUBRIS... Astrologers,

Those (we call coo-coo today) Potent Star Gazer Magas`romantics got the unsuspecting Why? Yoo? to be lured upstairs in the Palace by hatching a Scheme. The Star Gazers would heave-ho someone like Yoo... etc.,
from the Sacred Palace's Royal Chambers.
Guards would toss out Yoo through a window.
I don't know how I got here. I was at UT/GG's.
The Majesty ...
I no can behave?
I go brush my tooth.
i Maybe go pee too.
I got that feeling too from the SMU Law School panel discussion I saw him in on C-SPAN...

http://wwww.c-spanvideo.org/program/Presidentsandthe

Maybe if we waterboarded him, he could bring us Bybee, Cheney, and Bush.
jhon yoo is a integral man...give him a opportunity...
It sounds like Yoo is in corner and acting irrationally. Maybe under normal circumstances, he is a better thinker. Maybe he would be better off working in a restaurant . I am interested in how this case will go.
Excellent post. Yoo 's continuing defense of torture is a disgrace.
Yoo's a typical right-wing whiner. Defensive to the max, as he knows full and well what a traitor he's been to the Constitution. That such a shucker and jiver should be granted tenure at a major university -- my god, at my own University of California -- is a tribute to how gutless the academy has become, how unwilling to call a torture advocate just that. You want to cut public workers' pay? Start with Yoo, someone who earned his own opprobrium.
This article had 1.5 brief paragraph containing a bit of Yoo's argument. One sentence rebutting.
Otherwise, just ad homimem. E.g.:
"meandering" "inarticulate" "simplistic" "condescending" "tepid" "dim" "pathetic figure, intellectually out-classed"
And a double-layered ad hominem(!) by linking Yoo to Clarence Thomas.
The other side:"clearly far smarter and more savvy".
Come on! a little substance, please?
torture torture torture
I remember listening to John Yoo on cable channels during the Bush years and finding him just reprehensible and amoral then. So glad his actions are finally catching up with him.
I read this item with interest. I, however, do not believe that Mr. Yoo broke the law. I do believe that he gave some truly atrocious advice, which in and of itself not illegal. Personally i wouldn't hire him. I read some of his briefs that were reprinted in various forums and news sites. This guy really can't write, which is odd for an attorney, and if the above item is anywhere close to his ability to argue, what is he doing in the legal profession.
Reading this, I understand in wholly concrete terms why, no matter how much we are a nation of laws rather than men, legal and procedural structure can never wholly protect us from dolts and scoundrels. The flexibility to which Yoo refers, things like the legal wiggle room to authorize torture if required to save the nation, are essential escape routes if indeed doing the thing in question is essential to save the nation, but nothing can prevent their erroneous invocation when the political climate is ripe for doing so. The last bulwark, so to speak, is the integrity of those in charge, and from that perspective we have often been lucky; in Bush, Bybee and Yoo our luck ran out.
This sounds very much like a repeat of John Yoo's panel presentation at St. Thomas entitled: "Presidential Powers: Prudence or Perversion?" Yoo gave the exact same stump speech using the Abraham Lincoln example---he claimed that Lincoln was pressed and signed an order to execute Confederate soldiers. The only difference was that no former federal prosecutors debated Yoo. Instead St. Thomas had Yoo's OLC co-author Robert Delahunty (now a professor at St. Thomas--Delahunty co-authored the Jan 2002 memo that held the Geneva Conventions did not bind Bush in actions on "non-state actors in the "war on terror". Delahunty's mentor Michael Stokes Paulsen, also a firm believer in Presidential War Powers and another of Yoo's old professors at Yale were the other panelists. There were two outside professors but they spoke at separate times and did not "debate" Yoo. See http://www.huffingtonpost.com/coleen-rowley/presidential-powers-prude_1_b_749168.html and http://www.huffingtonpost.com/coleen-rowley/presidential-powers-prude_1_b_749168.html