John Yoo

John Choon Yoo (born July 10, 1967) 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.

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 Trento 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 combatants" 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.

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 University 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. He is married to Elsa Arnett, the daughter of Pulitzer Prize-winning journalist Peter Arnett.

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 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:

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 corpus 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:

"Chairman Conyers: I didn't ask you if you ever gave him advice, I asked you do you think the President could order a suspect buried alive? Yoo: Mr. Chairman, my view right now, is I don't think a president would - no American president would ever have to order that or feel it necessary to order that. Chairman Conyers: I think we understand the games that are being played..."

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 war 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.

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 Presidency". For instance, Yoo wrote:

"President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law."

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:

"Before the impeachment spectacle, such constitutional about-faces might have been surprising. But today it is obvious that congressional Democrats aren't about to raise war power problems when they agree with a Democratic president's foreign policy. While they opposed Republican use of troops for what they saw as hawkish goals, such as winning the Cold War, Democrats today are only too happy to look the other way when Mr. Clinton uses American troops as part of a multinational force for goals they support, such as peacekeeping and nation-building. Can there be any doubt today that in the 1980s Democrats used their arguments about war powers merely as a cover to challenge the substantive foreign policy goals of Republican presidents?"

Yoo further stated, in regard to the Clinton administration's use of executive power: "In democracies, we distinguish between a public office and the person who holds that office; people for whom the office and the person are one and the same are called kings."

Yoo declared in 2000, at a conference regarding executive power: "...the Clinton administration has undermined the balance of powers that exist in foreign affairs, and [they] have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration."

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:

"Mr. Clinton's attempt to extend the privilege to matters involving claims of personal sexual misconduct has little foundation...Mr. Clinton's relationship with Ms. Lewinsky may have been many things, but it hardly constitutes "official government matters. In response, Mr. Clinton's lawyers might argue that even if the president's relationship with Ms. Lewinsky were not official government business, discussions concerning the investigation arising from it are. Similar thinking led Mr. Clinton to claim presidential immunity from the Paula Jones suit and to argue that he could employ government lawyers to work for him on the Whitewater investigation -- both private matters that occurred before he became president. Both claims were unsuccessful. Similar reasoning would have allowed Nixon to succeed in his claims of executive privilege over the Watergate tapes; after all, he was just discussing official government responses to the Watergate investigation. A decision to invoke executive privilege in this case would be yet another example of the Clinton administration's failure to understand the distinction between the office of the president and the person who happens to be the president. In democracies, we distinguish between a public office and the person who holds that office; people for whom the office and the person are one and the same are called kings."

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 his ultimate defense, Mr. Clinton could claim that his theory of the presidency and impeachment trumps the authority of the federal judiciary to interpret the Constitution. While some presidents, notably Jefferson and Lincoln, have suggested that they possess such power, they also understood the rule of law demands that it never be exercised except in dire emergency (such as civil war). Mr. Clinton, who promised to tell "more rather than less, sooner rather than later," would risk a constitutional crisis to conceal alleged sexual peccadilloes. A president determined to fulfill his constitutional duty to faithfully execute the law, and conscious of the need for compromise and stability in our political system, should testify voluntarily rather than force a court to issue a subpoena against him. It would be unfortunate if Mr. Clinton were remembered by history for provoking such a breakdown of the rule of law."

In the George W. Bush administration
Following his tenure as an appointee of the George W. Bush Administration, 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: "We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch."

and "To his critics, Mr. Bush is a "King George" bent on an "imperial presidency". But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive."

War crimes accusations
Glenn Greenwald 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 "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. Altstötter, 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 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."

Office of Professional Responsibility Report
The Department of Justice's Office of Professional Responsibility 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."