Scholar Stands by Post-9/11 Writings on Torture, Domestic Eavesdropping

Scholar Stands by Post-9/11 Writings on Torture, Domestic Eavesdropping
By Peter Slevin
The Washington Post

Monday 26 December 2005

Former justice official says he was interpreting law, not making policy

John Yoo knows the epithets of the libertarians, the liberals and the lefties. Widely considered the intellectual architect of the most dramatic assertion of White House power since the Nixon era, he has seen constitutional scholars skewer his reasoning and students call for his ouster from the University of California at Berkeley.

Civil liberties advocates were appalled by a memo he helped draft on torture. The State Department's chief legal adviser at the time called his analysis of the Geneva Conventions "seriously flawed." Supreme Court Justice Sandra Day O'Connor wrote, in a critique of administration views espoused by Yoo, "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Yoo has alienated so many influential opponents that he is considered unconfirmable for a judgeship or high office, not unlike a certain conservative jurist rejected by the Senate for the Supreme Court.

"Someone said to me that I was the Robert Bork of my generation," he reported the other day.

Yet Yoo, 38, an engaging and outspoken lifelong conservative who clerked for Supreme Court Justice Clarence Thomas, can be found at seminars and radio microphones, standing up for Bush administration legal arguments that will be studied for decades.

"The worst thing you could do, now that people are critical of your views, is to run and hide. I agree with the work I did. I have an obligation to explain it," Yoo said from his Berkeley office. "I'm one of the few people who is willing to defend decisions I made in government."

Those decisions, made when he was a mid-level Justice Department adviser, have been the most fiercely contested legal positions of the Bush presidency. Framing the battle against terrorism as a wartime emergency, Yoo redefined torture, reinterpreted the Constitution and classified as archaic the long-established humanitarian rules of the battlefield.

Yoo wrote a memo that said the White House was not bound by a federal law prohibiting warrantless eavesdropping on communications that originated or ended in the United States. When news of the program broke, members of both parties called for hearings.

Yoo believes he was correct, even if critics say the U.S. response to the Sept. 11, 2001, attacks "threatens the very idea of America," as one editorial said. "It would be inappropriate for a lawyer to say, 'The law means A, but I'm going to say B because to interpret it as A would violate American values,'" Yoo said. "A lawyer's job is if the law says A, the law says A."

How Yoo, who has never met President Bush or Vice President Cheney, came to be a principal interpreter of laws and the Constitution for the Bush team is a story rooted in his conservative convictions and a network of like-minded thinkers who helped him thrive.

"He has succeeded and won people over and advanced his ideas," said Manus Cooney, who hired Yoo on to the Judiciary Committee staff of Sen. Orrin G. Hatch (R-Utah) in 1995. "As far as conservative academics, I don't think there's anyone in the law whose contacts run deeper in the three branches, or higher."

Yoo traces his convictions in no small part to his parents, and Ronald Reagan. His father and mother are psychiatrists who grew up in Korea during the Japanese occupation and the Korean War. They emigrated in 1967, when Yoo was 3 months old. They sought three things, he said: education, economic opportunity and democracy. They settled in Philadelphia because they admired Eugene Ormandy, then conductor of the Philadelphia Orchestra.

Coming of age in an anti-communist household, Yoo said, he associated strong opposition to communist rule with the Republican Party and was himself "attracted to Reagan's message." What he liked most in conservatism was "the grounding in reason and reasonableness."

Yoo attended Episcopal Academy, a private religious school where he studied history, Latin and Greek. Then came Harvard, where he discovered that many people he encountered "were very different-minded, who thought that conservatives were actually sort of stupid or backward." He studied diplomatic history and worked for the school newspaper, where in 1988 he wrote a presidential endorsement of George H.W. Bush rejected by the editorial board's liberal majority.

"It got even worse at law school," Yoo said, recalling the first meeting he attended at the Federalist Society, a national organization of conservatives and libertarians, which attracted all of nine people. Critical of some fellow students who, he said, considered abortion and affirmative action to be the era's most important questions, he settled on matters of war and peace.

With the help of his Federalist Society contacts, he landed a clerkship with U.S. Appeals Judge Laurence H. Silberman, known for his experience in national security issues. Soon after being hired at Berkeley, which Yoo described as the best school to offer him a tenure-track job, he left for the Supreme Court, where he clerked for Thomas and played squash with Justice Antonin Scalia.

Yoo reached the Judiciary Committee staff after Hatch began a search for bright, conservative up-and-comers. Cooney, the staff director, said Yoo maneuvered well: "His smarts are undeniable, but unlike others of similar or equal wattage, he has an appreciation for the political nature of D.C."

Returning to Berkeley, Yoo - who had interned for the Wall Street Journal - turned to his legal writings and op-eds. He earned tenure in 1999.

Along the way, he became a regular at the conservative American Enterprise Institute in Washington, where he often found himself in sync with international law skeptic John R. Bolton, an ally of Cheney's and now ambassador to the United Nations. Yoo also testified to the GOP-led Florida legislature during the 2000 presidential recount.

Despite his rsum and connections, Yoo required a particular convergence for his views to become as influential as they did. He needed a well-placed position, a national crisis and a receptive audience. He quickly got all three.

Known for his belief in a strong presidency, he joined the Justice Department's Office of Legal Counsel, which advises the attorney general and the White House, in July 2001. Two months later came the terrorist attacks and the rush to respond. Soon, Yoo found his audience in the highest echelons of the White House, where the president and vice president already tended to see the courts, Congress and international conventions as constraints on the conduct of foreign affairs and national security.

"He was the right person in the right place at the right time," said Georgetown University's David Cole, a constitutional scholar and administration critic. "Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, 'You can do what you want.' "

In a series of opinions, Yoo argued that the Constitution grants the president virtually unhindered discretion in wartime. He said the fight against terrorism, with no fixed battlefield or uniformed enemy, was a new kind of war.

Two weeks after Sept. 11, Yoo said in a memo for the White House that the Constitution conferred "plenary," or absolute, authority to use force abroad, "especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States."

In reasoning Bush cited last week in defending his decision to authorize warrantless wiretapping of U.S. citizens, Yoo's Sept. 25, 2001, memo said Congress granted the president great latitude on Sept. 14, 2001, when it supported the use of force in response to the attacks. The resolution specified the Sept. 11 plotters and their supporters.

"Nonetheless," the memo concluded, "the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters."

The majority view among constitutional scholars holds that the Framers purposely imposed checks on the executive branch, even in wartime, not least in reaction to the rule of Britain's King George III. On such issues, Yoo's critics contend, he went too far. "It's largely a misreading of original intent," Cole said. "The Framers, above all, were concerned about a strong executive."

An Aug. 1, 2002, memo on interrogation, written largely by Yoo, drew the most intense criticism. Saying the administration was not bound by federal anti-torture laws, it declared that, to be considered torture, techniques must produce lasting psychological damage or suffering "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Word of the memo sparked an outcry, causing the White House to back away.

"The idea that . . . Congress has no authority to impose limits on torture has little support in constitutional texts or history, or legal precedent," said University of Chicago law professor Cass Sunstein. Yet Sunstein, like many of Yoo's critics, called him "a very interesting and provocative scholar" who "doesn't deserve the demonization to which he has been subject."

Yoo thinks his critics should understand that he offered legal advice, while others made policy.

"I think people don't understand how difficult was the work we did, how difficult the questions, how recent the 9/11 attacks were," he said. "There was no book at the time you could open and say, 'under American law, this is what torture means.' "

"The lawyer's job is to say, 'This is what the law says and this is what you can't do,' " Yoo said. He advised the White House that the Geneva Conventions do not apply to al Qaeda or the terrorism fight, "but the president could say as a matter of policy we're going to apply them anyway."

Elisa Massimino, Washington director of Human Rights First, is among those who say Yoo deserves considerable blame. "The issues which have most disturbed Americans about the conduct of the executive branch in fighting terrorism can ultimately be traced to legal theories that he espoused in memos pushing the administration in that direction," she said.

Yoo draws inspiration from Thomas and Hatch, saying, "I've seen how they've persevered and still stand up for what they believe in and get their point across." It is a style affirmed by Bork, who wrote a glowing blurb for Yoo's new book, "The Powers of War and Peace."

"He's just being vilified. It's the usual conduct of business in this town right now," Bork said. "You argue your position. What else can you do? There's no tactic that can deflect criticism."

--------

Research editor Lucy Shackelford and researcher Julie Tate contributed to this report.