John Yoo
Encyclopedia
John Choon Yoo is an American attorney
, law professor, and author. As a former official in the United States Department of Justice
during the George W. Bush administration, he became known as the author of the Torture Memos
on the use of what the CIA called enhanced interrogation techniques.
and has been a visiting law professor at the Free University of Amsterdam, the University of Chicago
, and Chapman University School of Law
. Since 2003, Yoo has been a visiting scholar at the American Enterprise Institute
, a conservative think tank
. He writes a monthly column, entitled "Closing Arguments", for The Philadelphia Inquirer
and is author of the book Crisis and Command.
Yoo was a law clerk for Judge Laurence H. Silberman
of the United States Court of Appeals for the District of Columbia Circuit
and for Supreme Court Justice
Clarence Thomas
. He also served as general counsel of the Senate Judiciary Committee.
Yoo is best known for his work from 2001 to 2003 in the Department of Justice's Office of Legal Counsel
(OLC) in the George W. Bush Administration
. In the Justice Department, Yoo's expansive view of presidential power led to a close relationship with Vice President Dick Cheney
's office. Yoo played an important role in developing a legal justification for the Bush administration's policy in the war on terrorism
, arguing that prisoner of war
status under the Geneva Conventions
does not apply to "enemy combatant
s" captured during the war in Afghanistan
and held at the Guantánamo Bay detention camp, asserting executive authority to undertake waterboarding
and other "enhanced interrogation techniques
" regarded as torture by the current Justice Department. Yoo also argued that the president was not bound by the War Crimes Act
and provided a legal opinion backing the Bush Administration's warrantless wiretapping program
.
Yoo's legal opinions were not shared by some within the Bush Administration. Secretary of State Colin Powell
strongly opposed what he saw as an invalidation of the Geneva Conventions, while U.S. Navy general counsel Alberto Mora
campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's opinions. In December 2003, Yoo's memo on permissible interrogation techniques, also known as the Bybee memo, was repudiated as legally unsound by the OLC, then under the direction of Jack Goldsmith
. In June 2004, another of Yoo's memos on interrogation techniques was leaked to the press, after which it was repudiated by Goldsmith and the OLC.
Yoo's contribution to these memos has remained a source of controversy after his departure from the Justice Department; he was called to testify before the House Judiciary Committee in 2008 in defense of his role. The Justice Department's Office of Professional Responsibility
(OPR) began investigating Yoo's work in 2004 and in July 2009 completed a report that was sharply critical of his legal justification for waterboarding
and other interrogation techniques. The OPR report cites testimony Yoo gave to Justice Department investigators where he claims that the "president's war-making authority was so broad that he had the constitutional power to order a village to be 'massacred'" The OPR report concluded that Yoo had "committed 'intentional professional misconduct' when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects," although the recommendation that he be referred to his state bar association for possible disciplinary proceedings was overruled by David Margolis, another senior Justice department lawyer. In 2009, Spanish Judge Baltasar Garzón Real launched an investigation of Yoo and five others (known as The Bush Six
) for war crimes.
in 1989 and a J.D. from Yale Law School
in 1992. Yoo was admitted to practice law in Pennsylvania in 1993. From 1995 to 1996, he was general counsel for the Senate Judiciary Committee. Yoo is an active member of the Federalist Society
. He is married to Elsa Arnett, the daughter of Pulitzer Prize-winning journalist Peter Arnett
.
Yoo's academic work also includes his analysis of the history of judicial review
in the U.S. Constitution. Yoo's book, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, was praised in an Op-Ed in The Washington Times
, written by Nicholas J. Xenakis, an assistant editor at The National Interest
. It was quoted by Senator Joe Biden
during the Senate hearings for then-U.S. Supreme Court nominee Samuel Alito
, who "pressed Alito to denounce John Yoo's controversial defense of presidential initiative in taking the nation to war." Yoo is known as a public opponent of the Chemical Weapons Convention
.
Yoo has authored three books:
He has also contributed chapters to other books, including:
obligations narrowly. In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S. Several top military lawyers, including Alberto J. Mora, reported that policies allowing methods equivalent to torture were officially handed down from the highest levels of the administration, and led an effort within the Department of Defense to put a stop to those policies and instead mandate non-coercive interrogation standards.
On December 1, 2005, Yoo appeared in a debate in Chicago with University of Notre Dame
law professor Doug Cassel. During the debate Cassel asked 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?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress — that is what you wrote in the August 2002 memo...", to which Yoo replied "I think it depends on why the President thinks he needs to do that."
On June 26, 2008, Yoo and Vice President Dick Cheney's chief of staff and former counsel David Addington
testified before the House Judiciary Committee in a contentious hearing on detainee treatment, interrogation methods and the extent of executive branch authority. In this hearing, Rep. John Conyers
repeatedly asked Yoo to clarify his remarks on the presidential power to authorize torture:
That interpretation is used to assert that the normal mandatory requirement of a warrant, under the Foreign Intelligence Surveillance Act, could be ignored.
In a 2006 book and a 2007 law review article, Yoo defended President Bush's terrorist surveillance program, arguing that "the TSP represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during wartime." He claimed that critics of the program misunderstand the separation of powers between the President and Congress in wartime because of a failure to properly understand the differences between war and crime, and a difficulty in understanding the new challenges presented by a networked, dynamic enemy such as al Qaeda. "Because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." In a Wall Street Journal opinion piece in July 2009, Yoo found it "absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States."
is protecting US citizens, the President has inherent authority to subordinate independent government agencies, and plenary power to use force abroad. Yoo contends that the Congressional check on Presidential war making power comes from its power of the purse
, and that the President, and not the Congress or courts, has sole authority to interpret international treaties such as the Geneva Conventions "because treaty interpretation is a key feature of the conduct of foreign affairs". His positions on executive power are controversial because the theory can be interpreted as holding that the President's war powers place him above any law.
". For instance, Yoo wrote:
Yet, Yoo has defended both Republican and Democratic Presidents, including President Clinton, in their decisions to use force abroad without congressional authorization. He wrote in The Wall Street Journal on March 15, 1999 that Clinton's decision to attack Serbia was constitutional, and criticized Democrats in Congress for not suing Clinton as they had sued Presidents Bush and Reagan to stop the war:
Yoo further stated, in regard to the Clinton administration's use of executive power:
Yoo declared in 2000, at a conference regarding executive power:
Yoo has been a defender of executive privilege, but only for protecting national security, diplomatic and military secrets. He criticized the Clinton administration for misusing the privilege to protect the personal, rather than official, activities of the President, in the Monica Lewinsky affair:
Yoo also criticized President Clinton for contemplating the defiance of a judicial order. Yoo suggested that Presidents could act in conflict with the Supreme Court, but that such measures were justified only during emergencies, and not to defend against a President's personal sexual affairs:
, Yoo criticized certain views on the separation of powers
doctrine as allegedly being historically inaccurate and problematic for the Global War on Terrorism, stating, for instance:
and
has argued that Yoo could potentially be indicted for crimes against the laws and customs of war
, the crime of torture, and/or crimes against humanity. Criminal proceedings to this end have begun in Spain: in a move that could lead to an extradition request, Judge Baltasar Garzón
in March 2009 referred a case against Yoo to the chief prosecutor.
On November 14, 2006, invoking the principle of command responsibility
, German attorney Wolfgang Kaleck
filed a complaint with the German Federal Attorney General (Generalbundesanwalt) against Yoo, along with 13 others for his alleged complicity in torture and other crimes against humanity at Abu Ghraib
in Iraq and Guantánamo Bay. Wolfgang Kaleck acted on behalf of 11 alleged victims of torture and other human rights abuses, as well as about 30 human rights activists and organizations. The co-plaintiffs to the war crimes prosecution included Adolfo Pérez Esquivel
, Martín Almada
, Theo van Boven
, Sister Dianna Ortiz, and Veterans for Peace
. Responding to the so-called "torture memoranda" Scott Horton pointed out
Legal scholars speculated shortly thereafter that the case has little chance of successfully making it through the German court system.
Jordan Paust of the University of Houston Law Center concurred, responding to Attorney General Mukasey's refusal to investigate and/or prosecute anyone that relied on these legal opinions:
On January 4, 2008, John Yoo was sued in the U.S. District Court, Northern District of California (Case Number 08-cv-00035-JSW) by José Padilla and his mother. The complaint seeks $1 in damages based on the alleged torture of Padilla attributed by the complaint to Yoo's torture memoranda. Judge Jeffrey S. White allowed the suit to proceed, rejecting all but one of Yoo's immunity claims. Padilla's lawyer says White's ruling could have a broad impact for all detainees.
Yoo's torture memoranda had been almost immediately retracted by Jack Goldsmith
upon his October 2003 assumption of the duties of chief of the Office of Legal Counsel in the Department of Justice. The Padilla complaint, on page 20, cites Goldsmith's 2007 book The Terror Presidency in support of its case. Goldsmith's book and his interviews while marketing the book claimed that the legal analysis in Yoo's torture memoranda was incorrect and that there was widespread opposition to the memoranda among some lawyers in the Justice Department, providing the basis for the lawsuit. The claim is that Yoo caused Padilla's damages by authorizing his alleged torture through his memoranda.
Retired Colonel
Lawrence Wilkerson
, General
Colin Powell's former chief of staff
(in both the Persian Gulf War
and while Powell was Secretary of State in the Bush Administration), has stated the following regarding Yoo: "Haynes, Feith, Yoo, Bybee, Gonzales and — at the apex — Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In the future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."
concluded in a 261 page report dated July 29, 2009 that Yoo committed "intentional professional misconduct" when he "knowingly failed to provide a thorough, objective, and candid interpretation of the law" and recommended a referral to the Pennsylvania Bar for disciplinary action. However, career Justice department lawyer David Margolis in a Memorandum dated January 5, 2010 countermanded the recommended referral. While Margolis was careful to avoid "an endorsement of the legal work" which he said was "flawed" and "contained errors more than minor" concluding that Yoo had exercised "poor judgment," still he did not find "professional misconduct" sufficient to authorize OPR "to refer its findings to the state bar disciplinary authorities." Yoo contended that the Office of Professional Responsibility had manifested "rank bias and sheer incompetence," intended to "smear my reputation," and that Margolis "completely rejected its recommendations."
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
, law professor, and author. As a former official in the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
during the George W. Bush administration, he became known as the author of the Torture Memos
Torture Memos
The Torture Memos, sometimes called the Bybee Memo or 8/1/02 Interrogation Opinion, were a set of legal memoranda drafted by Deputy Assistant Attorney General of the United States John Yoo and signed by Assistant Attorney General Jay Bybee...
on the use of what the CIA called enhanced interrogation techniques.
Career
John Yoo has been a professor at the University of California, Berkeley, School of Law since 1993. He wrote two books on presidential power and the war on terrorism, and many articles in scholarly journals and newspapers. He has held the Fulbright Distinguished Chair in Law at the University of TrentoUniversity of Trento
The University of Trento is an Italian university located in the cities of Trento and Rovereto. It has been able to achieve considerable results in didactics, research and international relations, as shown by Censis University Guide and by the Italian Ministry of...
and has been a visiting law professor at the Free University of Amsterdam, the University of Chicago
University of Chicago
The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
, and Chapman University School of Law
Chapman University School of Law
Chapman University School of Law, commonly referred to as Chapman Law or Chapman Law School, is a private, non-profit law school located in Orange, California. The school offers the Juris Doctor degree , combined programs offering a JD/MBA and JD/MFA in Film & Television Producing, and LL.M...
. Since 2003, Yoo has been a visiting scholar at the American Enterprise Institute
American Enterprise Institute
The American Enterprise Institute for Public Policy Research is a conservative think tank founded in 1943. Its stated mission is "to defend the principles and improve the institutions of American freedom and democratic capitalism—limited government, private enterprise, individual liberty and...
, a conservative think tank
Think tank
A think tank is an organization that conducts research and engages in advocacy in areas such as social policy, political strategy, economics, military, and technology issues. Most think tanks are non-profit organizations, which some countries such as the United States and Canada provide with tax...
. He writes a monthly column, entitled "Closing Arguments", for The Philadelphia Inquirer
The Philadelphia Inquirer
The Philadelphia Inquirer is a morning daily newspaper that serves the Philadelphia, Pennsylvania, metropolitan area of the United States. The newspaper was founded by John R. Walker and John Norvell in June 1829 as The Pennsylvania Inquirer and is the third-oldest surviving daily newspaper in the...
and is author of the book Crisis and Command.
Yoo was a law clerk for Judge Laurence H. Silberman
Laurence H. Silberman
Laurence Hirsch Silberman is a senior federal judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed in October 1985 by Ronald Reagan and took senior status on November 1, 2000. He continues to serve on the court...
of the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
and for Supreme Court Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
. He also served as general counsel of the Senate Judiciary Committee.
Yoo is best known for his work from 2001 to 2003 in the Department of Justice's Office of Legal Counsel
Office of Legal Counsel
The Office of Legal Counsel is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.-History:...
(OLC) in the George W. Bush Administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
. In the Justice Department, Yoo's expansive view of presidential power led to a close relationship with Vice President Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
's office. Yoo played an important role in developing a legal justification for the Bush administration's policy in the war on terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
, arguing that prisoner of war
Prisoner of war
A prisoner of war or enemy prisoner of war is a person, whether civilian or combatant, who is held in custody by an enemy power during or immediately after an armed conflict...
status under the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
does not apply to "enemy combatant
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
s" captured during the war in Afghanistan
War in Afghanistan (2001–present)
The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
and held at the Guantánamo Bay detention camp, asserting executive authority to undertake waterboarding
Waterboarding
Waterboarding is a form of torture in which water is poured over the face of an immobilized captive, thus causing the individual to experience the sensation of drowning...
and other "enhanced interrogation techniques
Enhanced interrogation techniques
Enhanced interrogation techniques or alternative set of procedures are terms adopted by the George W. Bush administration in the United States to describe certain severe interrogation methods, often described as torture...
" regarded as torture by the current Justice Department. Yoo also argued that the president was not bound by the War Crimes Act
War Crimes Act of 1996
The War Crimes Act of 1996 was passed with overwhelming majorities by the United States Congress and signed into law by President Bill Clinton....
and provided a legal opinion backing the Bush Administration's warrantless wiretapping program
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
.
Yoo's legal opinions were not shared by some within the Bush Administration. Secretary of State Colin Powell
Colin Powell
Colin Luther Powell is an American statesman and a retired four-star general in the United States Army. He was the 65th United States Secretary of State, serving under President George W. Bush from 2001 to 2005. He was the first African American to serve in that position. During his military...
strongly opposed what he saw as an invalidation of the Geneva Conventions, while U.S. Navy general counsel Alberto Mora
Alberto J. Mora
Alberto J. Mora is a former General Counsel of the Navy. He led an effort within the Defense Department to oppose the legal theories of John Yoo and to try to end coercive interrogation tactics at Guantanamo Bay, which he argued are unlawful....
campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's opinions. In December 2003, Yoo's memo on permissible interrogation techniques, also known as the Bybee memo, was repudiated as legally unsound by the OLC, then under the direction of Jack Goldsmith
Jack Goldsmith
Jack Landman Goldsmith is a Harvard Law School professor who has written a number of texts regarding international law, cyber law, and national security law...
. In June 2004, another of Yoo's memos on interrogation techniques was leaked to the press, after which it was repudiated by Goldsmith and the OLC.
Yoo's contribution to these memos has remained a source of controversy after his departure from the Justice Department; he was called to testify before the House Judiciary Committee in 2008 in defense of his role. The Justice Department's Office of Professional Responsibility
Office of Professional Responsibility
The Office of Professional Responsibility is part of the United States Department of Justice responsible for investigating attorneys employed by the DOJ who have been accused of misconduct or crimes in their professional functions...
(OPR) began investigating Yoo's work in 2004 and in July 2009 completed a report that was sharply critical of his legal justification for waterboarding
Waterboarding
Waterboarding is a form of torture in which water is poured over the face of an immobilized captive, thus causing the individual to experience the sensation of drowning...
and other interrogation techniques. The OPR report cites testimony Yoo gave to Justice Department investigators where he claims that the "president's war-making authority was so broad that he had the constitutional power to order a village to be 'massacred'" The OPR report concluded that Yoo had "committed 'intentional professional misconduct' when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects," although the recommendation that he be referred to his state bar association for possible disciplinary proceedings was overruled by David Margolis, another senior Justice department lawyer. In 2009, Spanish Judge Baltasar Garzón Real launched an investigation of Yoo and five others (known as The Bush Six
The Bush Six
The Bush Six is a term which refers to six former officials of the United States government under the presidency of George W. Bush , following the filing of criminal charges against them in Spain....
) for war crimes.
Biography
Yoo emigrated with his parents from South Korea to the United States as an infant. He grew up in Philadelphia, Pennsylvania, graduating from the Episcopal Academy in 1985. He earned a B.A. degree summa cum laude in American history from Harvard UniversityHarvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
in 1989 and a J.D. from Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
in 1992. Yoo was admitted to practice law in Pennsylvania in 1993. From 1995 to 1996, he was general counsel for the Senate Judiciary Committee. Yoo is an active member of the Federalist Society
Federalist Society
The Federalist Society for Law and Public Policy Studies, most frequently called simply the Federalist Society, is an organization of conservatives seeking reform of the current American legal system in accordance with a textualist and/or originalist interpretation of the U.S. Constitution...
. He is married to Elsa Arnett, the daughter of Pulitzer Prize-winning journalist Peter Arnett
Peter Arnett
Peter Gregg Arnett, ONZM is a New Zealand-American journalist.Arnett worked for National Geographic magazine, and later for various television networks, most notably CNN. He is well known for his coverage of war, including the Vietnam War and the Gulf War...
.
Publications
Yoo's writings and areas of interest fall into three broad areas: American foreign relations; the Constitution's separation of powers and federalism; and international law. In foreign relations, Yoo has argued that the original understanding of the Constitution gives the President the authority to use armed force abroad without congressional authorization, subject to Congress's power of the purse; that treaties do not generally have domestic legal force without implementing legislation; and that courts are functionally ill-suited to intervene in foreign policy disputes between the President and Congress. With the separation of powers, Yoo has argued that each branch of government has the authority to interpret the Constitution for itself, which provides the justification for judicial review by the federal courts. In international law, Yoo has written that the rules governing the use of force must be understood to allow nations to engage in armed intervention to end humanitarian disasters, rebuild failed states, and stop terrorism and the proliferation of weapons of mass destruction.Yoo's academic work also includes his analysis of the history of judicial review
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
in the U.S. Constitution. Yoo's book, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, was praised in an Op-Ed in The Washington Times
The Washington Times
The Washington Times is a daily broadsheet newspaper published in Washington, D.C., the capital of the United States. It was founded in 1982 by Unification Church founder Sun Myung Moon, and until 2010 was owned by News World Communications, an international media conglomerate associated with the...
, written by Nicholas J. Xenakis, an assistant editor at The National Interest
The National Interest
The National Interest is a prominent conservative American bi-monthly international affairs magazine published by the Center for the National Interest. It was founded in 1985 by Irving Kristol and until 2001 was edited by Anglo-Australian Owen Harries...
. It was quoted by Senator Joe Biden
Joe Biden
Joseph Robinette "Joe" Biden, Jr. is the 47th and current Vice President of the United States, serving under President Barack Obama...
during the Senate hearings for then-U.S. Supreme Court nominee Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
, who "pressed Alito to denounce John Yoo's controversial defense of presidential initiative in taking the nation to war." Yoo is known as a public opponent of the Chemical Weapons Convention
Chemical Weapons Convention
The Chemical Weapons Convention is an arms control agreement which outlaws the production, stockpiling and use of chemical weapons. Its full name is the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction...
.
Yoo has authored three books:
He has also contributed chapters to other books, including:
Regarding torture of detainees and children of detainees
After he left the Department of Justice, it was revealed that Yoo had authored memos, including co-authoring the Torture Memo of August 1, 2002, defining torture and American habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
obligations narrowly. In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S. Several top military lawyers, including Alberto J. Mora, reported that policies allowing methods equivalent to torture were officially handed down from the highest levels of the administration, and led an effort within the Department of Defense to put a stop to those policies and instead mandate non-coercive interrogation standards.
On December 1, 2005, Yoo appeared in a debate in Chicago with University of Notre Dame
University of Notre Dame
The University of Notre Dame du Lac is a Catholic research university located in Notre Dame, an unincorporated community north of the city of South Bend, in St. Joseph County, Indiana, United States...
law professor Doug Cassel. During the debate Cassel asked 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?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress — that is what you wrote in the August 2002 memo...", to which Yoo replied "I think it depends on why the President thinks he needs to do that."
On June 26, 2008, Yoo and Vice President Dick Cheney's chief of staff and former counsel David Addington
David Addington
David Spears Addington , was legal counsel and chief of staff to former Vice President Dick Cheney, and is now vice president of domestic and economic policy studies at The Heritage Foundation....
testified before the House Judiciary Committee in a contentious hearing on detainee treatment, interrogation methods and the extent of executive branch authority. In this hearing, Rep. John Conyers
John Conyers
John Conyers, Jr. is the U.S. Representative for , serving since 1965 . He is a member of the Democratic Party...
repeatedly asked Yoo to clarify his remarks on the presidential power to authorize torture:
Regarding the Fourth amendment
Yoo also authored the October 23, 2001 memo asserting that the President had sufficient power to allow the NSA to monitor the communications of US citizens on US soil without a warrant because the fourth amendment does not apply. Or, as another memo says in one of its footnotes, "Our office recently concluded that the Fourth Amendment had no application to domestic military operations."That interpretation is used to assert that the normal mandatory requirement of a warrant, under the Foreign Intelligence Surveillance Act, could be ignored.
In a 2006 book and a 2007 law review article, Yoo defended President Bush's terrorist surveillance program, arguing that "the TSP represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during wartime." He claimed that critics of the program misunderstand the separation of powers between the President and Congress in wartime because of a failure to properly understand the differences between war and crime, and a difficulty in understanding the new challenges presented by a networked, dynamic enemy such as al Qaeda. "Because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." In a Wall Street Journal opinion piece in July 2009, Yoo found it "absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States."
Unitary executive theory
Yoo suggested that since the primary task of the President during a time of warWar on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
is protecting US citizens, the President has inherent authority to subordinate independent government agencies, and plenary power to use force abroad. Yoo contends that the Congressional check on Presidential war making power comes from its power of the purse
Power of the purse
The power of the purse is the ability of one group to manipulate and control the actions of another group by withholding funding, or putting stipulations on the use of funds. The power of the purse can be used to save their money and positively or negatively The power of the purse is the ability...
, and that the President, and not the Congress or courts, has sole authority to interpret international treaties such as the Geneva Conventions "because treaty interpretation is a key feature of the conduct of foreign affairs". His positions on executive power are controversial because the theory can be interpreted as holding that the President's war powers place him above any law.
In the Clinton administration
Yoo was a strong critic of what he viewed as the Clinton administration's use of the powers of what he termed the "Imperial PresidencyImperial Presidency
Imperial Presidency is a term that became popular in the 1960s and that served as the title of a 1973 volume by historian Arthur M. Schlesinger, Jr. to describe the modern presidency of the United States...
". For instance, Yoo wrote:
Yet, Yoo has defended both Republican and Democratic Presidents, including President Clinton, in their decisions to use force abroad without congressional authorization. He wrote in The Wall Street Journal on March 15, 1999 that Clinton's decision to attack Serbia was constitutional, and criticized Democrats in Congress for not suing Clinton as they had sued Presidents Bush and Reagan to stop the war:
Yoo further stated, in regard to the Clinton administration's use of executive power:
Yoo declared in 2000, at a conference regarding executive power:
Yoo has been a defender of executive privilege, but only for protecting national security, diplomatic and military secrets. He criticized the Clinton administration for misusing the privilege to protect the personal, rather than official, activities of the President, in the Monica Lewinsky affair:
Yoo also criticized President Clinton for contemplating the defiance of a judicial order. Yoo suggested that Presidents could act in conflict with the Supreme Court, but that such measures were justified only during emergencies, and not to defend against a President's personal sexual affairs:
In the George W. Bush administration
Following his tenure as an appointee of the George W. Bush AdministrationGeorge W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
, Yoo criticized certain views on the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
doctrine as allegedly being historically inaccurate and problematic for the Global War on Terrorism, stating, for instance:
and
War crimes accusations
Glenn GreenwaldGlenn Greenwald
Glenn Greenwald is an American lawyer, columnist, blogger, and author. Greenwald worked as a constitutional and civil rights litigator before becoming a contributor to Salon.com, where he focuses on political and legal topics...
has argued that Yoo could potentially be indicted for crimes against the laws and customs of war
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
, the crime of torture, and/or crimes against humanity. Criminal proceedings to this end have begun in Spain: in a move that could lead to an extradition request, Judge Baltasar Garzón
Baltasar Garzón
Baltasar Garzón Real is a Spanish jurist who served on Spain's central criminal court, the Audiencia Nacional. He was the examining magistrate of the Juzgado Central de Instrucción No...
in March 2009 referred a case against Yoo to the chief prosecutor.
On November 14, 2006, invoking the principle of command responsibility
Command responsibility
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
, German attorney Wolfgang Kaleck
Wolfgang Kaleck
Wolfgang Kaleck is a German civil rights attorney. He is also the General Secretary for the European Center for Constitutional and Human Rights...
filed a complaint with the German Federal Attorney General (Generalbundesanwalt) against Yoo, along with 13 others for his alleged complicity in torture and other crimes against humanity at Abu Ghraib
Abu Ghraib
The city of Abu Ghraib in the Baghdad Governorate of Iraq is located just west of Baghdad's city center, or northwest of Baghdad International Airport. It has a population of 189,000. The old road to Jordan passes through Abu Ghraib...
in Iraq and Guantánamo Bay. Wolfgang Kaleck acted on behalf of 11 alleged victims of torture and other human rights abuses, as well as about 30 human rights activists and organizations. The co-plaintiffs to the war crimes prosecution included Adolfo Pérez Esquivel
Adolfo Pérez Esquivel
Adolfo Pérez Esquivel is an Argentine sculptor, architect and pacifist. He was the recipient of the 1980 Nobel Peace Prize.-Biography:Pérez Esquivel was born in Buenos Aires to a Spanish fisherman who emigrated to Argentina...
, Martín Almada
Martín Almada
Martín Almada is a lawyer, writer and educationalist from Paraguay. A noted dissident and human rights activist, he was a prisoner of the Alfredo Stroessner regime.-Biography:...
, Theo van Boven
Theo van Boven
Theo van Boven is a Dutch jurist and professor emeritus in international law.In 1977 he was appointed director of the United Nations' Division for Human Rights....
, Sister Dianna Ortiz, and Veterans for Peace
Veterans for Peace
Veterans For Peace is a United States organization founded in 1985. Made up of male and female US military veterans of World War II, the Korean War, the Vietnam War, the Gulf War, and other conflicts, as well as peacetime veterans, the group works to promote alternatives to war.-Foundation:The...
. Responding to the so-called "torture memoranda" Scott Horton pointed out
the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. AltstötterJudges' TrialThe Judges' Trial was the third of the 12 trials for war crimes the U.S. authorities held in their occupation zone in Germany in Nuremberg after the end of World War II. These twelve trials were all held before U.S...
, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous "Night and Fog Decree."
Legal scholars speculated shortly thereafter that the case has little chance of successfully making it through the German court system.
Jordan Paust of the University of Houston Law Center concurred, responding to Attorney General Mukasey's refusal to investigate and/or prosecute anyone that relied on these legal opinions:
it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense!
On January 4, 2008, John Yoo was sued in the U.S. District Court, Northern District of California (Case Number 08-cv-00035-JSW) by José Padilla and his mother. The complaint seeks $1 in damages based on the alleged torture of Padilla attributed by the complaint to Yoo's torture memoranda. Judge Jeffrey S. White allowed the suit to proceed, rejecting all but one of Yoo's immunity claims. Padilla's lawyer says White's ruling could have a broad impact for all detainees.
Yoo's torture memoranda had been almost immediately retracted by Jack Goldsmith
Jack Goldsmith
Jack Landman Goldsmith is a Harvard Law School professor who has written a number of texts regarding international law, cyber law, and national security law...
upon his October 2003 assumption of the duties of chief of the Office of Legal Counsel in the Department of Justice. The Padilla complaint, on page 20, cites Goldsmith's 2007 book The Terror Presidency in support of its case. Goldsmith's book and his interviews while marketing the book claimed that the legal analysis in Yoo's torture memoranda was incorrect and that there was widespread opposition to the memoranda among some lawyers in the Justice Department, providing the basis for the lawsuit. The claim is that Yoo caused Padilla's damages by authorizing his alleged torture through his memoranda.
Retired Colonel
Colonel
Colonel , abbreviated Col or COL, is a military rank of a senior commissioned officer. It or a corresponding rank exists in most armies and in many air forces; the naval equivalent rank is generally "Captain". It is also used in some police forces and other paramilitary rank structures...
Lawrence Wilkerson
Lawrence Wilkerson
Lawrence B. "Larry" Wilkerson is a retired United States Army Colonel and former chief of staff to United States Secretary of State Colin Powell...
, General
General
A general officer is an officer of high military rank, usually in the army, and in some nations, the air force. The term is widely used by many nations of the world, and when a country uses a different term, there is an equivalent title given....
Colin Powell's former chief of staff
Chief of Staff
The title, chief of staff, identifies the leader of a complex organization, institution, or body of persons and it also may identify a Principal Staff Officer , who is the coordinator of the supporting staff or a primary aide to an important individual, such as a president.In general, a chief of...
(in both the Persian Gulf War
Gulf War
The Persian Gulf War , commonly referred to as simply the Gulf War, was a war waged by a U.N.-authorized coalition force from 34 nations led by the United States, against Iraq in response to Iraq's invasion and annexation of Kuwait.The war is also known under other names, such as the First Gulf...
and while Powell was Secretary of State in the Bush Administration), has stated the following regarding Yoo: "Haynes, Feith, Yoo, Bybee, Gonzales and — at the apex — Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In the future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."
Office of Professional Responsibility Report
The Department of Justice's Office of Professional ResponsibilityOffice of Professional Responsibility
The Office of Professional Responsibility is part of the United States Department of Justice responsible for investigating attorneys employed by the DOJ who have been accused of misconduct or crimes in their professional functions...
concluded in a 261 page report dated July 29, 2009 that Yoo committed "intentional professional misconduct" when he "knowingly failed to provide a thorough, objective, and candid interpretation of the law" and recommended a referral to the Pennsylvania Bar for disciplinary action. However, career Justice department lawyer David Margolis in a Memorandum dated January 5, 2010 countermanded the recommended referral. While Margolis was careful to avoid "an endorsement of the legal work" which he said was "flawed" and "contained errors more than minor" concluding that Yoo had exercised "poor judgment," still he did not find "professional misconduct" sufficient to authorize OPR "to refer its findings to the state bar disciplinary authorities." Yoo contended that the Office of Professional Responsibility had manifested "rank bias and sheer incompetence," intended to "smear my reputation," and that Margolis "completely rejected its recommendations."
See also
- Extraordinary rendition by the United States
- Jay BybeeJay BybeeJay Scott Bybee is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and taught law school; his primary interests are in constitutional and administrative law....
- The Imperial PresidencyThe Imperial PresidencyThe Imperial Presidency by Arthur M. Schlesinger, Jr. was written in 1973.This book details the history of the Presidency of the United States from its conception by the Constitutional Founders, through the late twentieth century...
- U.S. Army and CIA interrogation manuals
- List of federal political scandals in the United States