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John Yoo

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For the Chinese-Australian pediatrician, see John Yu.
John Yoo

John Choon Yoo (born June 10, 1967 in Seoul[1]) is an American professor of Law at the Boalt Hall School of Law, University of California, Berkeley, known for his work from 2001 to 2003 in the United States Justice Department's Office of Legal Counsel,[2] assisting the Attorney General in his function as legal advisor to President Bush and all the executive branch agencies.

He contributed to the PATRIOT Act and wrote memos in which he advocated the possible legality of torture and that enemy combatants could be denied protection under the Geneva Conventions.[3] Yoo has also worked as a visiting scholar at the conservative think tank American Enterprise Institute since 2003.

Biography

As an infant, Yoo emigrated with his parents from South Korea to the United States. He grew up in Philadelphia, Pennsylvania, 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. He is currently a Professor of Law at Boalt Hall School of Law in Berkeley, California. Professor Yoo is an active member of the The Federalist Society and is one of the most influential members of the Federalist Society in Northern California.

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.[4] 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".[5]

Unitary Executive Theory

Yoo contends that the Congressional check on Presidential war making power comes from its power of the purse. Yoo also contends 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".[6] His positions on executive power, termed by left-leaning bloggers as the Yoo Doctrine, also known as Unitary executive theory, are controversial since it is suggested the theory holds that the President's war powers place him above any law.[6][7][8][9][10]

In explaining the Unitary executive theory, Yoo made the following statements during a December 1, 2005, debate in Chicago, Illinois, with Notre Dame Law School Professor Doug Cassel:

Cassel: 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?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.[11]

He has criticized popular views on the Separation of Powers doctrine as historically inaccurate and problematic for the Global War on Terrorism, for instance stating:

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.[12]

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.[13]

However, his views of executive power as it relates to the Clinton presidency may seem at odds with this:

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.[14]

and

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.[15]

and

At a conference on executive power in 2000, Yoo declared that “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.” And in the Clinton administration’s strained legal interpretation of the ABM treaty, he added, “the legal arguments are so outrageous, they’re so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulatable it is.”

Source: Charlie Savage, Takeover (New York: Little Brown & Co, 2007); pg 67. Video available at http:www.cato.org/realaudio/con-07-12-00p4.ram. The George Washington University law professor Orin Kerr wrote about this presentation on the legal blog Volokh Conspiracy on September 18, 2006.

Main articles: Enhanced interrogation techniques and NSA electronic surveillance program

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.[16][17][18] The memos advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution for war crimes.[19][20] 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.[21] 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 Defence to put a stop to those policies and instead mandate non-coercive interrogation standards.[22]

Student protesters at Berkeley have demanded, to no avail, that he renounce the memos or resign his professorship.[23] Yoo, citing the classified nature of the matter, has declined to confirm or deny reports that he authored the position that the President had sufficient power to allow the NSA to monitor the communications of US citizens on US soil without a warrant, i.e. NSA warrantless surveillance controversy.[24]

War crimes accusations

On 14th 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.[25]

On January 4, 2008, John Yoo was sued in the U.S. District Court, Northern District of California (Case Number CV08 0035) by José Padilla and his mother.[26] The complaint seeks damages based on the alleged torture of Padilla attributed by the complaint to Yoo's torture memoranda. Yoo's torture memoranda were almost immediately retracted by Jack Goldsmith, the new chief of the Office of Legal Counsel in the Department of Justice. In 2007, Goldsmith published a book, The Terror Presidency, which is cited on page 20 of the Padilla complaint. 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.[27][28]

Works

Yoo has authored two recent books.

  • The Powers Of War And Peace: The Constitution And Foreign Affairs After 9/11 (ISBN 0-226-96031-5). University of Chicago Press, 2005.
  • War by Other Means: An Insider's Account of the War on Terror (ISBN 0-87113-945-6). Atlantic Monthly Press, September 8 2006.

See also

References

  1. ^ [1]
  2. ^ A Junior Aide Had a Big Role in Terror Policy, New York Times, December 23, 2005
  3. ^ Torture and Accountability, The Nation, June 28 2005;
  4. ^ Congress goes wobbly, The Washington Times, Oct. 25, 2005
  5. ^ "The War Over the War Powers"
  6. ^ a b An interview with John Yoo: author of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 Cite error: The named reference "UChicInterview" was defined multiple times with different content (see the help page).
  7. ^ A Wunnerful, Wunnerful Constitution, John Yoo Notwithstanding, After Downing Street, December 9 2005
  8. ^ The Unitary Executive in the Modern Era, 1945-2001 (.pdf), Vanderbilt University
  9. ^ Meek, mild and menacing, Salon (magazine), January 12 2006
  10. ^ The End of 'Unalienable Rights', Consortiumnews, January 24 2006
  11. ^ Cassell-Yoo exchange, January 8 2006 (mp3 audio file)
  12. ^ 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.
  13. ^ How the Presidency Regained Its Balance by John Yoo, The New York Times, September 17 2006.
  14. ^ 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.
  15. ^ A Privileged Executive? by John C. Yoo, Wall Street Journal, March 2, 1998. Accessed April 5, 2008 via Google News Archives.
  16. ^ Double Standards? by Michael Isikoff, Newsweek, May 21 2004 (subscription or fee required).
  17. ^ The Interrogation Documents: Debating U.S. Policy and Methods the memos written as part of the war on terrorism
  18. ^ The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, Executive Authority, DOJ and OLC Marty Lederman, Balkinization, July 08, 2007
  19. ^ War crimes warning
  20. ^ Memo: Laws Didn't Apply to Interrogators by Dan Eggen and Josh White, The Washington Post, April 2 2008. An article on a memorandum, dated March 14, 2003, which was authored by John Yoo and declassified in early April 2008. A PDF of the memo is linked in the article.
  21. ^ US definition of torture
  22. ^ Torture as policy?
  23. ^ Protest Targets Law Professor's Prisoner Memo by Jacob Schneider, The Daily Californian, June 28 2004
  24. ^ Bush Authorized Domestic Spying: Post-9/11 Order Bypassed Special Court, Washington Post, December 16 2005
  25. ^ Universal jurisdiction
  26. ^ John Yoo (January 19, 2008). "Terrorist Tort Travesty". Wall Street Journal. pp. Page A13. Retrieved 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. {{cite news}}: Check date values in: |date= (help)
  27. ^ Curt Anderson (January 4, 2008). "Padilla Sues Ex-Bush Official Over Memos". Associated Press. Retrieved 2008-02-10. {{cite news}}: Check date values in: |date= (help)
  28. ^ Elaine Cassel (January 4, 2008). "Jose Padilla's Suit Against John Yoo: An Interesting Idea, But Will It Get Far?". Findlaw. Retrieved 2008-02-10. {{cite news}}: Check date values in: |date= (help)
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