John Yoo

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John Yoo

John Choon Yoo (born June 10, 1967 in Seoul)[1] is an American attorney, former official in the U.S. Department of Justice, and law professor at the University of California, Berkeley School of Law. He is currently serving as a visiting professor of law at the Chapman University School of Law in Orange County, California. Yoo has authored two books on presidential power and the war on terrorism, as well as numerous journal and newspaper articles.[2] He has held the Fulbright Distinguished Chair in Law at the University of Trento and has also been a visiting law professor at the Free University of Amsterdam and the University of Chicago. Since 2003, Yoo has also worked as a visiting scholar at the American Enterprise Institute, a conservative and libertarian think tank.

Yoo is best known for his work from 2001 to 2003 in the Department of Justice's Office of Legal Counsel under the George W. Bush Administration. Yoo assisted the U.S. Attorney General in his function as legal advisor to President Bush.[3][4][5] In the Justice Department, Yoo's expansive view of Presidential power led to a close relationship with the office of Vice President Dick Cheney.[4] Yoo played a significant role in the legal justification for the Bush Administration's policy in the War on Terror, arguing that the Geneva Conventions did not apply to the War in Afghanistan or to the Guantanamo Bay detention camp, justifying waterboarding and other "enhanced interrogation techniques", asserting that the President was not bound by the War Crimes Act, and providing a legal opinion backing the Bush Administration's warrantless wiretapping program.[4][5][6][7]

Yoo's legal opinions were controversial within the Bush Administration. Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,[7], 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 legal opinions.[8] In December 2003, Yoo's memos on torture and permissible interrogation techniques were repudiated by the Office of Legal Counsel, then under the direction of Jack Goldsmith, as legally unsound.[8]

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.[9] The Justice Department's Office of Professional Responsibility has been investigating Yoo's work since 2004, and is completing a report which is said to be sharply critical of his legal justification for waterboarding and other interrogation techniques.[10][11] In 2009, a judge and certain prosecutors in Spain launched an investigation of Yoo for war crimes on the basis of his work as an official in the Bush administration.[12] These efforts were "strongly criticized" by Spanish Attorney General Candido Conde-Pumpido, who stated that the proceedings against Yoo and the other Americans named in the complaint were a legal "artifice."[13]


[edit] Biography

As an infant, Yoo emigrated with his parents from South Korea to the United States. He grew up in Philadelphia, Pennsylvania, graduating from the Episcopal Academy in 1985, and graduated with a B.A., summa cum laude in American history from Harvard University in 1989 and Yale Law School in 1992. Yoo clerked for United States Supreme Court Justice Clarence Thomas and U.S. Court of Appeals for the D.C. Circuit Judge Laurence Silberman. 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 the daughter of Pulitzer Prize-winning journalist Peter Arnett.

[edit] Scholarly work

Yoo's academic work includes analysis of the history of judicial review in the U.S. Constitution. (See discussion in the Marbury v. Madison entry.) 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.[14] It was cited during the Senate hearings for then-U.S. Supreme Court nominee Samuel Alito by Senator Joseph Biden, who "pressed Alito to denounce John Yoo's controversial defense of presidential initiative in taking the nation to war."[15] Yoo is known as a public opponent of the Chemical Weapons Convention[16]

Yoo was the principal author of the August 2002 legal memo that gave the C.I.A. its first detailed legal approval for waterboarding and other harsh interrogation treatments. He is now the subject of an investigation by the United States Justice Department's ethics office about his legal analyis. The draft ethics report has been described as highly critical of Yoo.

[edit] Legal opinions

The following memos are some of those known or believed to have been authored, in whole or in part, by John Yoo during his tenure at the Office of Legal Counsel; some remain classified, and in some cases dates are approximate for that reason. (See Jan. 5, 2005 letter from Senator Patrick Leahy requesting some of these documents, and the Obama Administration's March 2, 2009 release of many of the memos.)

  • November 6, 2001 Memorandum to Alberto Gonzales, "Legality of the Use of Military Commissions To Try Terrorists" (by Patrick F. Philbin). Not yet repudiated.[20]
  • November 15, 2001 Memorandum for John Bellinger III, "Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty" (signed by John C. Yoo and Robert Delahunty). Claims that Bush could suspend any provisions he wanted in the ABM Treaty with the USSR/Russia, or any other treaty, without even telling the Senate or other states-parties. Repudiated.[17]
  • December 28, 2001 Memorandum for William J. Haynes, "Re: Possible Habeas Jurisdiction Over Aliens Held in Guantanamo Bay" (signed by John Yoo and Patrick Philbin).
  • February 8, 2002 Memorandum ("OLC 62") for William J. Haynes, "Re: (Classified Matter)", by John C. Yoo. Described in court declaration as "prepared in response to a request for OLC views regarding the legality of certain hypothetical activities." Repudiated.[17][21][22]
  • February 26, 2002 Memorandum for William J. Haynes, "Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan" (signed by Jay S. Bybee).
  • March 13, 2002 Memorandum for William J. Haynes, "Re: The President’s Power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations" (signed by Jay S. Bybee). "We conclude that as Commander in Chief and Chief Executive, the President has the plenary constitutional power to detain and transfer prisoners captured in war. We also conclude that neither the GPW (Third Geneva Convention) nor the Torture Convention restrict the President's legal authority to transfer prisoners captured in the Afghanistan conflict to third countries. Although the GPW places conditions on the transfer of POWs, neither al-Qaeda nor Taliban prisoners are legally entitled to POW status, and hence there are no GPW conditions placed on their transfer. While the Torture Convention arguably might govern transfer of these prisoners, it does not apply extraterritorially." Repudiated.[17]
  • April 8, 2002 Memorandum for Daniel J. Bryant, "Re: Swift Justice Authorization Act" (signed by Patrick F. Philbin). Claims that proposed legislation governing military tribunals impermissibly encroaches on the President's alleged powers as 'Commander in Chief'. Repudiated.[17]
  • June 8, 2002 Memorandum for the Attorney General, "Determination of Enemy Belligerency and Military Detention" (signed by Jay S. Bybee). Concludes that the US military has the legal authority to detain US citizen Jose Padilla as a prisoner captured during an international armed conflict. Not yet repudiated.
  • June 27, 2002 Memorandum for Daniel J. Bryant, "Re: Applicability of 18 U.S.C. 4001(a) to Military Detention of United States Citizen" (signed by John C. Yoo). Claims that statute flatly saying "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" does not, and constitutionally could not, interfere with Bush's claimed authority to detain Jose Padilla as 'Commander in Chief'. Repudiated.[17]
  • August 1, 2002 Memorandum for Alberto R. Gonzales, "Re: Standards of Conduct for Interrogation Under 18 U.S.C. 2340-2340A" (signed by Jay S. Bybee) (the Bybee memo). (Link includes Aug. 1, 2002 cover letter summarizing memo.) Repudiated.[17][23]
  • October 11, 2002 Memorandum ("OLC 129"), 9pp, concerning the legality of certain communications intelligence activities.[21][24]
  • March 14, 2003 Memorandum for William J. Haynes II, "Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" (signed by John C. Yoo). Parts of this memorandum are preparation for a criminal defense for hypothetical U.S. government defendants against hypothetical charges of crimes of torture and crimes against humanity.[25] Repudiated.[17][23]

[edit] Regarding torture of detainees

After he left the Department of Justice, it was revealed that Yoo authored memos, including co-authoring the Bybee memo defining torture and American habeas corpus obligations narrowly.[26][27] The memos, known today as the "torture memos,"[28][29] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility American officials and surrogates face future prosecution under the US War Crimes Act of 1996 for actions taken in the War on Terror.[30] 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.[31] 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.[32]

On December 1, 2005, Yoo appeared in a debate in Chicago with Notre Dame professor Doug Cassel, a long time human rights legal scholar. 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."[33][34]

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.[35][36][37]video

[edit] 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."[18][38]

That interpretation is used to assert that the normal mandatory requirement of a warrant, under the Foreign Intelligence Surveillance Act, could be ignored.[38]

[edit] Unitary executive theory

Yoo suggested that since the primary task of the President during a time of war is protecting certain US citizens[citation needed], the President has inherent authority to subordinate independent government agencies, and plenary power to use force abroad.[39] 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 Convention "because treaty interpretation is a key feature of the conduct of foreign affairs".[40] His positions on executive power are controversial because it is suggested that the theory holds that the President's war powers place him above any law.[40][41][42][43]

[edit] Statements on the Clinton Administration's use of Presidential powers

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.[44]

Yoo further stated, in regards 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.[45]

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.

[edit] Statements on the George W. Bush Administration's use of Presidential powers

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.[46]


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.[47]

[edit] 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.[48] 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.[49][50]

On 14 November 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 Guantanamo Bay, Cuba. Mr. 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.[51] 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."[29]

Legal scholars speculated shortly thereafter that the case has little chance of successfully making it through the German court system.[52]

Jordan Paust of the University of Houston Law Center concurred, responding to 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![53]

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.[54] The complaint seeks damages based on the alleged torture of Padilla attributed by the complaint to Yoo's torture memoranda.

Retired Colonel Lawrence B. 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 Mr. Yoo: "Haynes, Feith, Yoo, Bybee, Gonzalez 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."[55]

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.[56][57]

[edit] Works

Yoo has authored two books.

  • The Powers Of War And Peace: The Constitution And Foreign Affairs After 9/11. University of Chicago Press. 2005. ISBN 0-226-96031-5. 
  • War by Other Means: An Insider's Account of the War on Terror. Atlantic Monthly Press. 2006. ISBN 0-87113-945-6. 

[edit] See also

[edit] References

  1. ^ Contemporary Authors Online, Thomson Gale, 2008.
  2. ^ AEI Bibliography; SSRN Bibliography.
  3. ^ "A Young Lawyer Helps Chart Shift in Foreign Policy". Wall Street Journal. September 12, 2005.,,SB112649010425437670,00.html?mod=home_page_one_us. Retrieved on April 21, 2009. 
  4. ^ a b c Golden, Tim (December 23, 2005). "A Junior Aide Had a Big Role in Terror Policy". New York Times. Retrieved on April 21, 2009. 
  5. ^ a b Richardson, John (May 13, 2008). "Is John Yoo a Monster?". Esquire. Retrieved on April 21, 2009. 
  6. ^ Shapiro, Walter (February 23, 2006). "Parsing Pain". Retrieved on April 21, 2009. 
  7. ^ a b Isikoff, Michael (May 17, 2004). "Memos Reveal War Crimes Warnings". Newsweek. 
  8. ^ a b Mayer, Jane (February 27, 2006). "The Memo: How An Internal Effort to Ban the Abuse and Torture of Detainees was Thwarted". New Yorker. Retrieved on April 22, 2009. 
  9. ^ Eggen, Dan (June 27, 2008). "Bush Policy Authors Defend Their Actions". Washington Post. Retrieved on April 22, 2009. 
  10. ^ Shane, Scott (February 16, 2009). "Justice Dept. to Critique Interrogation Methods Backed by Bush Team". New York Times. Retrieved on April 22, 2009. 
  11. ^ Shane, Scott (February 23, 2009). "Waterboarding Focus of Inquiry by Justice Dept.". New York Times. Retrieved on April 22, 2009. 
  12. ^
  13. ^ Spain's Attorney General Opposes Prosecutions of 6 Bush Officials on Allowing Torture, Apr. 16, 2009.
  14. ^ Congress goes wobbly, The Washington Times, Oct. 25, 2005
  15. ^ "The War Over the War Powers"
  16. ^ "The U.S. Debate Over the CWC: Supporters and Opponents". The Henry L. Stimson Center. 2007. Retrieved on 2008-08-09. 
  17. ^ a b c d e f g h i "Memorandum regarding status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Acts of September 11, 2001" (PDF). US Department of Justice Office of Legal Counsel. 2009-01-15. Retrieved on 2009-03-02. 
  18. ^ a b "Bush Administration Claimed Fourth Amendment Did Not Apply to NSA Spying". Electronic Frontier Foundation. 2009. Retrieved on 2009-03-02. 
  19. ^ "Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities" (PDF). US Department of Justice Office of Legal Counsel. 2008-10-06. Retrieved on 2009-03-02. 
  20. ^ June 8, 2002 Memorandum for the Attorney General, "Determination of Enemy Belligerency and Military Detention"
  21. ^ a b "Second Redacted Declaration of Steven G. Bradbury". US Department of Justice Office of Legal Counsel. 2007-10-18. page 20. Retrieved on 2009-03-19. 
  22. ^ "Sunshine Week: February 8, 2002 NSA Surveillance Memo". Electronic Frontier Foundation. 2009-03-18. Retrieved on 2009-03-19. 
  23. ^ a b "Re: Legal Standards Applicable under 18 U.S.C. 2340-2340A". US Department of Justice Office of Legal Counsel. 2004-12-30. Retrieved on 2009-03-02. 
  24. ^ "Sunshine Week: October 11, 2002 NSA Surveillance Memo". Electronic Frontier Foundation. 2009-03-19. Retrieved on 2009-03-19. 
  25. ^ "Yoo Memorandum, Office of Legal Counsel, March 14th, 2003, pp.74 - 81" (PDF). 
  26. ^ Double Standards?, MSNBC, May 15, 2005
  27. ^ The Interrogation Documents: Debating U.S. Policy and Methods the memos written as part of the war on terrorism
  28. ^ Yoo memos referred to as "torture memos"
  29. ^ a b Suggested origin of legal justifications
  30. ^ War crimes warning
  31. ^ US definition of torture
  32. ^ Torture as policy?
  33. ^
  34. ^ Meek, mild and menacing
  35. ^ Dan Eggen (2008-06-27). "Bush Policy Authors Defend Their Actions". The Washington Post. 
  36. ^ Scott Shane (2008-06-27). "Two Testify on Memo Spelling Out Interrogation". The New York Times. 
  37. ^ Dana Milbank (2008-06-27). "When Anonymity Fails, Be Nasty, Brutish and Short". The Washington Post. 
  38. ^ a b Fourth amendment does not apply
  39. ^ Suggested interpretation of War Powers in the Bush administration
  40. ^ a b An interview with John Yoo: author of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11
  41. ^ A Wunnerful, Wunnerful Constitution, John Yoo Notwithstanding, After Downing Street, December 9, 2005
  42. ^ The Unitary Executive in the Modern Era, 1945-2001 (.pdf), Vanderbilt University
  43. ^ Meek, mild and menacing, Salon (magazine), January 12, 2006
  44. ^ Chapter 12: The Imperial President Abroad, by John Yoo. Page 159 in The Rule of Law in the Wake of Clinton edited by Roger Pilon, published by the Cato Institute in 2000. ISBN 1930865031.
  45. ^ A Privileged Executive? by John C. Yoo, Wall Street Journal, March 2, 1998. Accessed April 5, 2008 via Google News Archives.
  46. ^ 9/11: Five years later: Bush continues to wield power by Bob Egelko, San Francisco Chronicle, page E-2 of print edition, September 10, 2006.
  47. ^ How the Presidency Regained Its Balance by John Yoo, The New York Times, September 17 2006.
  48. ^ Glenn Greenwald (2008-04-02). "John Yoo's War Crimes". Retrieved on 2008-04-27. 
  49. ^ Julian Borger, "Spanish judge to hear torture case against six Bush officials", The Observer, 29 March 2009
  50. ^ "Spain may decide Guantanamo probe this week". Reuters. 2009-03-28. Retrieved on 2009-03-29.  mirror
  51. ^ Universal jurisdiction
  52. ^,8599,1560224,00.html
  53. ^ Just Following Orders? DOJ Opinions and War Crimes Liability Jordan Paust, JURIST, February 18, 2008
  54. ^ John Yoo (January 19, 2008). "Terrorist Tort Travesty". Wall Street Journal. pp. Page A13. Retrieved on 2008-02-10. "Last week, I (a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys." 
  55. ^ Richard Norton-Taylor (April 19, 2008). "Top Bush Aides Pushed For Guantanamo Torture". The Guardian. Retrieved on 2008-04-27. 
  56. ^ Curt Anderson (January 4, 2008). "Padilla Sues Ex-Bush Official Over Memos". Associated Press. Retrieved on 2008-02-10. 
  57. ^ Elaine Cassel (January 4, 2008). "Jose Padilla's Suit Against John Yoo: An Interesting Idea, But Will It Get Far?". Findlaw. Retrieved on 2008-02-10. 
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