John Yoo is a former deputy assistant attorney general under John Ashcroft who is known for his controversial legal opinions on various "war on terror" policies. A law professor at the University of California-Berkley and visiting scholar at the American Enterprise Institute (AEI), Yoo has argued that if physical pain caused during interrogations doesn't reach levels of organ failure or death, then it's not torture; that some combatants can be denied their rights under the Geneva Conventions; and that the president has sweeping wartime powers. Yoo's record also includes having served as a clerk for both U.S. Appeals Court Judge Laurence Silberman and Supreme Court Justice Clarence Thomas. His work has been supported by a number of rightist organizations, including the Olin Foundation, which gave him a fellowship to work on treaties and constitutional law, and the Federalist Society, which awarded him the Bator Award for excellence in legal scholarship and teaching.
Yoo defends the Bush administration's more controversial policies. In March 2013, on the tenth anniversary of the U.S. invasion of Iraq, Yoo wrote that he "continue[s] to think that invading Iraq was the best option in light of the information we had then," and encouraged readers to think of the costs of war as "a legal question." He then argued: "Courts award damages based on the harm to the victim and the harm to society. Suppose you thought that the Iraq war was a mistake. If so, isn't the proper remedy to restore Saddam Hussein's family and the Baath Party to power in Iraq? If you are unwilling to consider that remedy, aren't you conceding that on balance, the benefits of the war outweigh the costs?"
Yoo went on to suggest that the United States had generously shared the "benefits" of the war with Iraqis. "We allow one harm to occur in society because there is a greater good achieved—but then the legal system can intervene afterward to require sharing of the benefits between the plaintiff and defendant," he wrote. "And isn't that what we did in Iraq? We spent billions of dollars in Iraq as damages. We did so not because the war was wrong, but because it was right—and we shared the benefits of the war with the Iraqi people by transferring some of it in the form of reconstruction funds."
Commented Zack Beauchamp of Think Progress: "Yoo fails to note that much of the damage done to Iraqis was a consequence of the Bush administration's approach to said reconstruction, which Iraq War veteran Jason Fritz calls 'a tidal wave of arrogance and stupidity.'"
Yoo has also emerged as a defender of the Obama administration's targeted assassination program, including the targeting of U.S. citizens. In a March 2013 Federalist Society conference call following Sen. Rand Paul's (R-KY) filibuster over targeted assassinations, Yoo said, "I admire libertarians, but I think Rand Paul's filibuster in many ways is very much what libertarians do—they make these very symbolic gestures, standing for some extreme position. … If an American joins an enemy with which we are at war, he is or she is a valid target as an enemy combatant. That's been the rule throughout our history."
Emergence as Key Bush Figure
Yoo joined the George W. Bush administration as legal counsel to the Justice Department in July 2001. Shortly after the 9/11 terrorist attacks, he rose to prominence in part because of his legal opinions justifying policies pushed by the Bush administration in the aftermath of the attacks. Reported the New York Times in December 2005, "While a mere deputy assistant attorney general in the legal counsel office, Mr. Yoo was a primary author of a series of legal opinions on the fight against terrorism, including one that said the Geneva Conventions did not apply, and at least two others that countenanced the use of highly coercive interrogation techniques on terror suspects."
According to observers, the hallmarks of Yoo's legal work for the administration were his disregard of international law (especially as it applied to the war on terror) and his advocacy of expansive presidential powers in times of war, a position also promoted by David Addington, Vice President Dick Cheney's chief of staff with whom Yoo developed a close working relationship while in government.
Because of his scholarly work on presidential powers and foreign policy, Yoo quickly became the Justice Department's "go-to guy on foreign affairs and military power issues" after 9/11, according to one of his former colleagues. He was thus in a prime position to provide legal justification for everything from the invasion of Iraq to the treatment of terror suspects. In one memo dated shortly after the 9/11 attacks, Yoo argued that congressional resolutions regarding the president's authority to sanction the use of force against terrorists and countries that support them could not "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."
Commenting on this view, Curtis A. Bradley, a law professor at Duke University sympathetic to Yoo's skeptical views of international law, said, "One concern that people have raised is that John had a lot of these views going into the government and was perhaps overeager to write them. In terms of war powers, you won't find a tremendous number of scholars who will go as far as he does."
Yoo's best known legal opinions for the Bush administration covered the treatment of prisoners, including the use of interrogation methods that amount to torture. In a series of memos during 2002-2003, Yoo consistently argued that the Geneva Conventions did not apply to the war in Afghanistan or the treatment of terrorist suspects in the war on terror. In an August 1, 2002 memo (coauthored with Jay Bybee, head of the legal counsel office) that was later disavowed by the Bush administration, Yoo and Bybee argued that the president is not barred by the Constitution from ordering torture during times of war, and that U.S. law prohibited only interrogation techniques that would cause "lasting psychological harm" or pain "akin to that which accompanies serious physical injury such as death or organ failure."
Discussing the memo, David Cole, a professor at Georgetown University, said, "Yoo reasoned that because the Constitution makes the president the 'Commander-in-Chief,' no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished."
Kenneth Roth, director of Human Rights Watch, said, "The U.S. government cannot choose to wage war in Afghanistan with guns, bombs, and soldiers and then assert the laws of war do not apply. To say that the Geneva Conventions do not apply to a war on terrorism is particularly dangerous, as it is all too easy to imagine this 'exception' coming back to haunt U.S. forces in future conflicts."
Several months later, on March 14, 2003, Yoo drafted another memo that sought to provide legal cover for people who authorized or carried out controversial interrogation techniques, arguing that in times of war the president had the authority to circumvent federal laws and international treaties in determining how prisoners should be treated. The memo was released publicly in April 2008.
In an editorial, the New York Times described the memo as "Eighty-one spine-crawling pages … that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States." The newspaper called them "must reading for anyone who still doubts whether the abuse of prisoners were rogue acts rather than calculated policy."
Shortly after the release of this memo, many observers, including the New York Times, connected its contents to the Abu Ghraib prison scandal, details of which became public in the months after it was produced. Wrote the Times, "When the abuses at Abu Ghraib became public, we were told these were the depraved actions of a few soldiers. The Yoo memo makes it chillingly apparent that senior officials authorized unspeakable acts and went to great lengths to shield themselves from prosecution."
Harper's contributor Scott Horton pointed to the circumstances that led to the drafting of the memo, as well as the policies promoted in them, to argue that legal action against Yoo and others involved in pushing the policies should be taken. According to Horton, Yoo wrote the memo after William Haynes, council to then Defense Secretary Donald Rumsfeld and a close friend of Yoo's boss Jay Bybee, asked the Justice Department to help allay military leaders' concerns about the controversial interrogation techniques Pentagon officials (including Stephen Cambone and William Boykin) wanted to use on detainees in the war on terror. Horton argued that Congress should question relevant military officials in the field to ascertain the role played by Rumsfeld, Cambone, and Boykin "in the introduction of the torture system."Yoo, says Horton, should be disbarred. "So far bar organizations have denounced the torture memoranda and issued learned reports and articles," he wrote. "If the bar were serious about this, it should have used its disciplinary tools to deal with it. This is not a case of an eccentric academic mouthing some cock-eyed theories. It is about a government official using the power of a government office to induce people to commit serious crimes."
The War on Terror at Home
Yoo also wrote legal arguments for controversial domestic policies after 9/11, including "Authority for Use of Military Force to Combat Terrorist Activities Within the United States," a 2001 memo that argued that constitutional protections against unreasonable search and seizure in the United States did not apply to efforts to combat terrorism. Details of the memo came to light after the Pentagon released the full text of Yoo's March 14, 2003 memo in April 2008.
In reviewing that memo, reporters Pamela Hess and Lara Jakes Jordan of the Associated Press (AP) discovered a footnote that cites the 2001 memo by name. The footnote says in part, "Our office recently concluded that the Fourth Amendment [on search and seizure] had no application to domestic military operations." According to the AP reporters, although the footnote does not explain what is meant by "domestic military operations," other declassified documents mention the memo in relation to the National Security Agency's Terrorist Surveillance Program, the controversial wiretapping program that bypassed normal legal requirements for eavesdropping on U.S. soil.
Commenting on the known information about the 2001 memo, the American Civil Liberties Union's Jameel Jaffer told the AP, "The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power. The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law."
In March 2009, the Barack Obama administration's Justice Department released a series of memos that shed further light on Yoo's ideas on what the president could do to wage the war on terror on U.S. soil. An October 23, 2001 memo coauthored by Yoo and special counsel Robert J. Delahunty argued that to combat terrorists in the United States the president could disregard Constitutional safeguards against unreasonable search and seizure and that the Posse Comitatus Act, which bars the military from being used in domestic law enforcement, did not apply to using the military to fight terrorists in the country. The memo also argued "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," adding that "the current campaign against terrorism may require even broader exercises of federal power domestically."
Since his resignation from the Justice Department in 2003, a decision Yoo took after Ashcroft blocked his promotion to assistant attorney general, Yoo has continued to support many of the administration's controversial policies in his writings and public appearances, including his remarkable position that the president is in effect above the law when it comes to waging war. Writing for the Wall Street Journal in 2005, journalist Paul M. Barrett summarized Yoo's beliefs as follows: "His claim is that American law permits the president to go to almost any lengths in the name of fighting terrorism. The Yoo Doctrine, as it might be called, fits with the broader Bush-administration view that pursuing American interests is best for the country and the rest of the world. Before 9/11, Mr. Yoo helped lay legal groundwork for some of the president's high-visibility withdrawals from treaties, including the antiballistic missile pact with Russia and the agreement underpinning the International Criminal Court in the Netherlands, established in 1998 to deal with the gravest international crimes."
During a December 2005 debate with noted human rights lawyer Doug Cassel at the Chicago Council on Foreign Relations, Yoo stood by his controversial views on torture. In an apparent recording of the event, which initially seems to have been disseminated on the web by the "Revolution" blog of the Revolutionary Communist Party of the United States, Cassel asks Yoo: "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?" Yoo responds saying there was "no treaty" that could stop the president, adding: "I think it depends on why the president thinks he needs to do that." Efforts by some bloggers, including Simianbrain, to verify the recording, however, raised concerns about its validity. Both Cassel and a program officer at the Chicago Council on Foreign Relations said that they had been unaware of any recording of the debate. When Simianbrain queried Cassel whether the recording was accurate, Cassel responded: "That is my recollection of an exchange during my debate with Yoo before the Chicago Council on Foreign Relations on Dec. 1, 2005. The Council made no tape or transcript. In fairness, Yoo also said that the U.S. government does not and should not do that; he was making only a point of law (with which I disagree)."
Yoo has written a number of articles on his views about presidential war-making powers and the right to undertake preemptive attacks. "Radical change in the system for making war might appease critics of presidential power," Yoo wrote in 2007. "But it could also seriously threaten American national security. In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility. It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which may not even lead to smarter decisions, will come at the price of speed and secrecy."
After the death of Osama bin Laden, Yoo joined a chorus of torture enthusiasts who argued that without the use of torture, the al Qaeda chief would "remain on the loose today." In an op-ed for the Wall Street Journal three days after bin Laden's death, Yoo gave credit to the Bush administration for having "constructed the interrogation and warrantless surveillance programs that produced this week's actionable intelligence." In his paean to torture, he argued that the Obama administration sent a deliberately small force to kill bin Laden, instead of capturing him, because "capturing him alive would have required the administration to hold and interrogate bin Laden at Guantanamo Bay, something that has given this president allergic reactions bordering on a seizure."
In an USA Today letter to the editor, Yoo claimed that critics of torture—and implicitly the Obama administration, which reversed Bush-era interrogation policies—care more about "America's standing in the world" than keeping the United States safe.
He further argued in the National Review's blog The Corner that Obama's detainee policies heralded a "return to the Carter mindset" and that halting torture may result in another massive terrorist attack, writing "not only do the prosecutions threaten to undermine our ability to gather the intelligence to carry out operations like bin Laden's killing, they may cause us to miss intelligence threats yet unknown."
Yoo's books include The Powers of War And Peace: The Constitution and Foreign Affairs After 9/11 (2005) and War by Other Means: An Insider's Account of the War on Terror (2006).