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John Yoo, a visiting scholar at the neoconservative American Enterprise Institute (AEI) and the former deputy assistant attorney general under John Ashcroft, is notorious for his controversial legal opinions on various “war on terror” policies, including that if 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. A professor at the University of California-Berkeley's Boalt Hall School of Law, 1 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. 2

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 terror attacks. The New York Times reported on December 23, 2005 that, "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.” 3

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. 4 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." 5

His most well-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 in 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.” 6 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.” 7 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." 8

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. 9 The memo was released publicly in April 2008. In an editorial, the New York Times described the memo as, “Eighty-one spine-crawling pages in a memo that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States,” and 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.” 10

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.” 11

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 argues that constitutional protections against unreasonable search and seizure in the United States did not apply to efforts to combat terrorism. Details of the memo, which the Justice Department has not released, 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.” 12 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." 13

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 that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” adding that in “the current campaign against terrorism may require even broader exercises of federal power domestically.” 14

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.” 15

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 serious questions 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)." 16

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." 17

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).