What’s Yoo been up to?
Writing a book apparently. Enjoy some of his signature legal thinking in this multi-part, book-pushing Daily Show interview. Perhaps the most interesting detail: Yoo has never actually met W.: Part 1, Part2, and Part 3. Here’s an excerpt:
Stewart: In the brief, everything that you came up with went in the direction of us being able to do more things, the president having more power. And it strikes me as odd, because the lawyers that I’ve traditionally dealt with try and give you arguments for and against, and it strikes me as, maybe not unique to the Bush administration, but all the arguments for them come as justifications for what they want to do…
Yoo: Well first thing, let me say there were just no legal precedents, or practices ever before. This question had never come up before…
Stewart: That’s not true.
Yoo: I couldn’t go and say, look here are the things that had been decided by courts before about this question…
Stewart: Wait, wait, wait, let me step in very quickly. We signed a treaty banning torture. So the question had come up, and we had answered it by saying, yeah we’re not going to do that.
Yoo: No, the question is what does the treaty mean. Right, so it wasn’t that…
Stewart: You’re saying that when we signed the treaty, it had not come up what it meant. We just signed it.
Yoo: Right, we had signed it and passed a statute.
…
Stewart: You’re suggesting that we had never addressed what torture was.
Yoo: No, we had not addressed what is interrogation…
Stewart: We prosecuted people for torture in war, yeah?
Yoo: I’m saying we had not faced the question of what interrogation methods do not constitute torture, but go beyond the regular law enforcement methods that we’ve used in the past.
Stewart: Well, how did we then conduct trials for people that had tortured Americans?
Yoo: Because all those cases were ones where what those other governments had done to our soldiers were well beyond the line of what anyone would think are torture…
Want something a little more to the point? Try this recent interview on NPR where Yoo refutes critical logic by ‘sharing concerns.’ A telling (and compressed) exerpt (emphasis added):
John Yoo: We need a powerful president because we have periods of emergency, crisis and even war where we need part of the government that can act quickly in response, that the powerful president isn’t necessary all the time. It’s someone who we need to come forward and address unforeseen events and circumstances.
Madeleine Brand: You argue in the book that the greatest presidents come forward during times of crisis to do that, to seize power when they can, and to expand the role of the executive.
Yoo: That’s right… They embraced their power. They used their powers vigorously to attack the challenges of their day and often – or sometimes in direct conflict with the Congress and the Supreme Court.
Brand: But when we were looking at what is commonly called the war on terrorism, it’s often seen as an unending war. And so, how do these powers get put back in the bottle if you have an unending war?
Yoo: I share your concerns. And the hard thing is how do we figure out when the war against al-Qaida… is going to be over… How do we know when the war is over? I think that’s a very fair and difficult question because it’s that point when the president’s powers will recede.
meet the new boss
When the Bush administration asterisked the bill of rights with claims of executive privilege and state secrets they woke many a citizen to the frailty of our system. The so-called city on a hill was ready to sacrifice its constitution for the safety offered up by an unchecked executive branch.
Yes our concept of checks and balances, co-equal branches of government, and the rule of law were nice ideas, but when faced with the hard reality of guys with box cutters it was those in the choir of American exceptionalism (ironically many of the same voices who use American ideals as justification for all sorts of expansionist policies) who were among the first to advocate sacrificing liberty for a little security.
Now it appears the Obama administration is ready to pick up where these self-styled pragmatists left off. If you haven’t been tracking these issues read on and weigh in:
Wiretapping, FISA, and privacy: Obama vs. Courts, Obama Channels Cheney
Extraordinary rendition: Obama preserves renditions as counter-terrorism tool.
Obama on Surveillance of Citizens: Obama Goes to Bat for Secrecy.
Telecom Immunity: Obama Administration Supports Telco Spy Immunity , Obama loses state secrets argument setting up possible judicial showdown
remember yoo
On December 1, 2006 John Yoo debated Doug Cassel, the director of Notre Dame Law School’s Center for Civil and Human Rights.
Cassel: “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: “No treaty.”
Cassel:“Also no law by Congress—that is what you wrote in the August 2002 memo [while Yoo was an attorney for the Justice Department].”
Yoo: “I think it depends on why the president thinks he needs to do that.”
In other words, it’s not law that limits the president’s actions –it’s the reason he gives for his actions that determines whether the law applies to him. This logic effectively holds the president above the law so long as he claims to be acting in the interest of national security.
So where exactly is the Eighth Amendment to the Constitution of the United States in all this? If I had to guess I’d say probably buried somewhere near Geneva… Article 3.
Audio of this exchange can be found here.
who loves yoo?
Mr. Yoo’s 2001 legal opinion was revealed last week thanks to a 2003 Freedom of Information Act lawsuit by the ACLU. The full memo, to which this is literally a footnote, is 81 pages in length and provides information on the detention and interrogation of prisoners in U.S. custody overseas. This footnote references a separate and still secret memo entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” Read more about this little gem over at TPM and the Washington Post.
Interestingly, John Yoo is now teaching law at UC Berkeley. If one were interested in contacting the Dean, any of the Associate Deans, or Mr. Yoo’s colleagues for any reason, their email addresses are listed here.
[UPDATE] April 10, 2008: Today’s Senate Appropriations Committee hearing featured an interesting exchange between Mukasey and Senator Feinstein regarding this very memo. The Attorney General had obvious dificulty answering a very pointed yes or no question: “Is the October 2001 OLC opinion still considered binding by the Department of Justice?”
[UPDATE] April 11, 2008: From The National Lawyer’s Guild “John Yoo should be disbarred and he should not be retained as a professor of law at one of the country’s premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.”
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