Yoo Defends His Legal Memos
Former Justice Department lawyer John Yoo refuses to back down on his post-9/11 legal opinions that gave President George W. Bush virtually unchecked power, even though many of the memos have since been repudiated for overreaching and inferior scholarship.
In an interview with the Orange County Register, Yoo said he doesn’t “think he would have made the basic decisions differently.” But he acknowledged that he would have polished the memos up a bit and spent more time on legal research had he known the memos would be released publicly.
“These memos I wrote were not for public consumption,” Yoo told the OC Register. “They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently.”
According to several of the secret legal memos released Monday, Yoo argued that Bush could, in effect, waive all meaningful constitutional rights of American citizens, including the First Amendment’s protections on free speech and a free press and the Fourth Amendment ban against unreasonable search and seizure, in the name of fighting terrorism.
"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," Yoo wrote in an Oct. 23, 2001, memo entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” Yoo added, "The current campaign against terrorism may require even broader exercises of federal power domestically."
What was striking to some about Yoo’s reference to the First Amendment was that the paragraph was tossed, almost as an after-thought, into a memo about stripping Americans of their Fourth Amendment rights. While saying Bush could order spying on and military attacks against U.S. domestic targets at his own discretion as Commander in Chief, Yoo added that the President could abrogate the rights of free speech and a free press.
Another Yoo memo, dated June 27, 2002, said Bush also could ignore the right of Americans to public trials. In the memo, Yoo asserted that Bush had the power to declare American citizens “enemy combatants” and detain them indefinitely.
When the memos were issued, Yoo was a deputy assistant attorney general at the Justice Department's powerful Office of Legal Counsel, which advises a President on the limits of his constitutional powers.
In the Orange County Register interview, Yoo complained that the release of the legal memos could inhibit frank advice from lawyers to government leaders.
“I think the job of a lawyer is to give a straight answer to a client,” Yoo said. “One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, ‘What are people going to think of me?’
“Your client the President, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do.”
In an apparent response to criticism of the quality of his legal opinions, which one former colleague described as “sloppily reasoned,” Yoo said:
“The thing I am really struck with is that when you are in the government, you have very little time to make very important decisions. … You don't have the luxury to research every single thing and that's accelerated in war time.
“You really have decisions to make, which you could spend years on. Sometimes what we forget as private citizens, or scholars, or students or journalists for sure [he laughs], is that in hindsight, it's easier to say, ‘Here's what I would have done.’ But when you're in the government, at the time you make the decision, you don't have that kind of luxury.”
Besides the memos released Monday, Yoo drafted one of the most infamous legal opinions in the history of the Justice Department: an August 2002 document widely referred to as the “torture memo,” which gave the Bush administration the legal justification to subject “war on terror” detainees to harsh interrogations, such as the drowning technique known as waterboarding.
Yoo told the OC Register that the “tradeoff” against using brutal interrogation methods means, “we will get less information about the enemy.”
“Someone can say, ‘I think it's more important that other countries have a more favorable opinion of us than any intelligence we gain from interrogation.’ That's a benefit and a cost,” Yoo said.
Yoo, a tenured law professor at the University of California at Berkeley, took a leave of absence in January to teach foreign relations law at Chapman University in Orange, California. While teaching at Berkeley, he was routinely the subject of protests by students and faculty.
Last month, Brad DeLong, a UC Berkeley economics professor, wrote a letter to Robert Birgenau, Berkeley’s Chancellor, urging “out of a concern for justice, a concern for humanity, and a concern for our reputation as a university, to dismiss Professor John Yoo from membership in our university.”
Yoo said he’s not surprised at the reception he received at Berkeley.
“Berkeley is sort of a magnet for hippies, protesters and left-wing activists,” Yoo said. “So I'm not surprised that being one of the few recognizable conservatives on campus that I would generate a lot of heat and friction. It happened well before working in the Bush administration.”
But criticisms of Yoo’s legal opinions have not been limited to “left-wing activists.” Three months before Bush exited the White House, Stephen Bradbury, as acting chief of the OLC, renounced the Oct. 23, 2001, legal opinion.
In an Oct. 6, 2008, memo to the file, Bradbury called Yoo’s opinion about suspending First Amendment protections as “unnecessary” and "overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario."
Bradbury wrote that Yoo’s legal opinion “states several specific propositions that are either incorrect or highly questionable.” But Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
In an op-ed for the Wall Street Journal on Saturday, Yoo complained that his brief comments about waiving the First Amendment were taken out of context by the news media.
"In portraying our answer [regarding Bush's right to ignore the Fourth Amendment], the media has quoted a single out-of-context sentence from our analysis: 'First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.'"
Yoo said his point was simply to highlight a past judicial opinion about the inherent powers of the President at a time of war. However, the First Amendment line in the memo could have become the legal basis for the Bush administration to take action against or interfere with journalists investigating the government's behavior or citizens protesting Bush's war policies.
Dawn Johnsen, who has been tapped by President Barack Obama to head the Office of Legal Counsel, has publicly criticized the work of Yoo and other OLC officials under Bush. In a 2006 Indiana Law Journal article, she said the function of the OLC should be to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”
Johnsen said Yoo conducted his work as an advocate of Bush administration policy.
“The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action,” said Johnsen, who served in the OLC under President Bill Clinton.
A Justice Department watchdog appears to share that view.
An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from Yoo and other OLC lawyers in the Bush administration, according to legal sources familiar with the report’s contents.
OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.
“I wish they weren't doing it, but I understand why they are,” Yoo told the OC Register in response to a question about Jarrett’s probe. “It is something one would expect. You have to make these kinds of decisions in an unprecedented kind of war with legal questions we've never had to think about before.
“We didn't seek out those questions. 9/11 kind of thrust them on us. No matter what you do, there's going to be a lot of people who are upset with your decision. If Bush had done nothing, there would be a lot of people upset with his decision, too.
“I understood that while we were doing it, there were going to be people who were critical. I can't go farther into it, because it's still going on right now. I'm not trying to escape responsibility for my decisions. I have to wait and see what they say.”
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
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