John Yoo

  • December 10, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Following release of the redacted Senate Intelligence Committee's majority report on torture, critics are insisting that the report overlooks the value of waterboarding, sleep deprivation and other interrogation methods better suited to the Spanish Inquisition than a constitutional republic. Those who defend torture tend to emphasize its supposed efficacy in extracting intelligence that prevents terrorist attacks.  In fact, those who insist torture saves lives have never identified evidence that proves their case.

    More importantly, however, arguing about the efficacy of torture point obscures two essential points: (1) torture, by definition, is illegal and (2) the argument in defense of torture is a rejection of the rule of law.

    Defenders of the Bush administration’s tactics have helped make these points clear. For example, on yesterday's “Morning Joe,” former Bush communications chief Nicolle Wallace declared that she “pray[s] to god that until the end of time, we do whatever we have to do to find out what’s happening [in terms of planned terrorist attacks].” She suggested that we must trust the government to do whatever it believes is necessary to protect the nation -- in her words, “I don’t care what [the government] did” after 9/11 to prevent another terrorist attack -- as long as it works.                                         

    Wallace is an effective and powerful speaker, and I thought her bombastic approach caught her sparring partner, Howard Dean, off guard and made for good TV. But it's worth taking more time than cable TV allows in considering the implications of what she said.

    Wallace's argument is a case for handing over power to the executive branch, assigning it complete power to defend the nation, unrestrained by law. That is, of course, not what the framers of the U.S. Constitution had in mind when they created a system of checks and balances designed to give government enough power to carry out is responsibilities but also to set definable limits on that power. It is, however, precisely how government officials who authorized torture justified their actions. In once-secret memos written on August 1, 2002, former Justice Department lawyers John Yoo and Jay Bybee concluded that waterboarding, sleep deprivation and other methods CIA interrogators wanted to use on suspected al Qaeda leader Abu Zubaydah could not be defined as torture. Their view depended on the preposterous notion that severe physical pain necessary to constitute torture under U.S. criminal law could be defined by reference to health care statutes. But it is the backup argument that Yoo and Bybee relied on that is most chilling: they concluded that President George W. Bush could authorize any interrogation methods he deemed necessary, even if such methods violated U.S. criminal law. The president, they said, could not be constrained by Congress in this area.  

    That is the language of an executive branch above the law, the same language Wallace uses when she says that she doesn't care what the government did to prevent terrorist attacks after 9/11, that it must do whatever is necessary. Bush administration lawyers agreed, concluding that the executive branch is not constrained by law.

  • December 2, 2013
    Emergency Presidential Power
    From the Drafting of the Constitution to the War on Terror
    Chris Edelson

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

    In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship.  That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.”  Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003.  Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.

    The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.  According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security.  This is an enormous power: critics charge that it effectively places the president above the law.  Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.

  • May 20, 2011

    Originalism, a wobbly method of constitutional interpretation promoted by jurists, such as Justice Antonin Scalia, has gained a stronger foothold among conservatives, especially in academia, but continues to be derided by historians, writes Saul Cornell in a piece for Dissent Magazine.

    “When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda – what historians derisively call ‘law office history,’” Cornell writes.

    Cornell, history professor at Fordham University and a senior research scholar at Yale Law School, details a rocky path for originalism, from its development during the Reagan years as a tool to reign in so-called activists judges to today’s “new originalists,” who have prospered thanks to “right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics.”

    The “goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives,” Cornell continues.

    But despite their claim to be devoted to understanding the original meaning of the Constitution’s framers, the new originalists are actually either ignorant or dismissive of history. As Cornell points out, the framers were not monolithic in their views about the Constitution or constitutional interpretation.

    Cornell writes:

    John Yoo, a prominent new originalist legal scholar who helped to frame the Bush administration’s novel views on torture, goes even further in circumventing historical understandings of the Constitution. (The Founders, it is worth recalling, were strong supporters of the principle of international law and took a dim view of torture.) For Yoo, the actual history of the Founding era poses few constraints on the modern lawyer or judge. Yoo accomplishes this sleight of hand by ignoring the conflicts and disagreements among the Founders. If one ignores those conflicts, one can cherry-pick evidence to construct whatever theory one likes. Most historians would point out that the Founding era was not only characterized by conflicts within the elite, such as the argument between Jefferson and Hamilton, but also an even more basic conflict between elites and ordinary Americans. Yoo and other new originalists not only ignore the tensions within the elite, they assume that common people in the Founding era lacked the knowledge necessary to understand the Constitution and played no role in the constitutional history of the period. (Yoo clearly did not bother to look at the Pennsylvania Constitution, newspapers from the period, or any text written by ordinary Americans.)

    For more on constitutional interpretation see Keeping Faith With the Constitution, by Pamela S. Karlan, Goodwin Liu and Christopher H. Schroeder.

  • November 17, 2010
    Top officials of the George W. Bush administration, including Bush himself, have loudly, and often, proclaimed their approval of interrogation methods of military detainees that under international and domestic law amount to torture, and their actions undermine the nation's supposed commitment to the rule of law, writes University of Maryland law school professor Sherrilyn Ifill.

    In an article for The Root, Ifill notes that during recent promotion of his book, Decision Points, Bush says he had no problem approving the waterboarding of Khalid Sheik Mohammed, accused of plotting the Sept. 11 attacks. Bush writes that when asked by the CIA whether it could use waterboarding in its interrogations of Mohammed, he replied "Damn right."

    President Obama, Attorney General Eric Holder and international legal experts, The Washington Post reports, have all condemned waterboarding as torture. But, Ifill writes, Bush and many of other officials from his administration have continued to proclaim their support of waterboarding, and attack the Obama administration on its national security policies.

    But more troubling than the political consequences surrounding the matter is that too many Americans apparently don't see a problem. Ifill notes that "no one in the upper command structure or cabinet of the Bush administration has been criminally or civilly punished ...," Ifill writes. "This is what impunity looks like," she adds.

    Ifill continues:

    The line on torture, on detainee treatment, on disclosures to Congress and the public, has never been reset. As Bush and Yoo [John Yoo, former attorney in the Bush administration, who wrote memoranda, which have been widely criticized for offering shoddy legal analysis, supporting the use of torture in interrogations] chat with Oprah and appear on talk shows touting their books, and waterboarding becomes the stuff of late-night jokes, Americans may no longer even know or care what constitutes illegal conduct during war.

    Jon Stewart condemns those who call Bush a war criminal as equivalent to those who compare Obama to Hitler, without recognizing the critical difference between the two. Responsible and experienced lawyers believe - based on fact and standards set out in the Geneva Conventions, the Convention Against Torture and our own domestic anti-torture statute - that former President Bush may in fact be a war criminal. Likening President Obama to Hitler, on the other hand, is ugly, irresponsible name-calling.

    Ifill also notes an opinion from the U.S. Court of Appeals for the Ninth Circuit, Al-Kidd v. Ashcroft, which allowed a legal action accusing former Attorney General John Ashcroft of implementing a policy of mass incarceration after the Sept. 11 attacks of American Muslims that resulted in an illegal arrest and detention to proceed. "There's little disagreement among court watchers," Ifill writes, "that the Supreme Court took this case for the same reason it hears most of the other petitions from the 9th Circuit: to reverse the decisions of that more moderate appeals court. Once again, illegal conduct has taken place, and yet those who gave the order may avoid responsibility."

    [image via Marion Doss

  • March 12, 2010

    "His silent presence on the bench has evolved into a weirdly compelling example of performance art," writes ACS board member Linda Greenhouse of Justice Clarence Thomas' persistent silence during oral argument. The fourth anniversary of Thomas' silence from the bench passed quietly last month, but not without being noticed.

    Writing in The National Law Journal, Tony Mauro recently gave new life to a Florida Law Review article entitled "Why Justice Thomas Should Speak at Oral Argument." There, freshly minted law school graduate David A. Karp argued that Thomas' silence permits him to shield anachronistic or even bizarre legal perspectives from criticism. Rather than debuting his opinions during oral argument, the piece notes, where they could be challenged by counsel and his colleagues on the bench, Thomas saves his outlook from public scrutiny until it is proferred in an official opinion.

    One such opinion, released last month, went overlooked until this week. In Wilkins v. Officer Gaddy, North Carolina inmate Jamey Wilkins alleged that he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a prison guard. The district court judge who initially reviewed Wilkins' allegations dismissed them, and the U.S. Court of Appeals for the Fourth Circuit affirmed this ruling in an unpublished one-paragraph opinion.