The Yoo Doctrine

I'd like to thank Quintus Jett for holding a discussion over at MViMV because it gives me time to summarize this interesting--and scary--story from today's Wall Street Journal (subscription only).

38 year old lawyer John C. Yoo has an idea for dealing with "the new terrorism": assassinating more suspected terrorists. His proposal would require "a change in the way we think about the executive order banning assassination, which has been with us since the 1970s." Such a change is needed, he said, because it is wartime: "A nation at war may use force against members of the enemy at any time, regardless of their proximity to hostilities or their activity at the time of attack."

Yoo is a law professor at the University of California at Berkeley, that hotbed of liberalism. Ordinarily, we'd write this guy off as another extreme right-wing Ivory tower crackpot except that he was a lawyer in the Justice Department's Office of Legal Counsel from 2001-2003. During his tenure, he authored "some of the most controversial internal legal opinions justifying the Bush administration's aggressive approach to detaining and interrogating suspected terrorists." Some of his memos are public, others are not.

Asked ... whether there is a classified Justice Department opinion justifying assassinations, Mr. Yoo hinted that he'd written one himself. "You would think they -- the administration -- would have had an opinion about it, given all the other opinions, wouldn't you?" he said, adding, "And you know who would have done the work."

Yoo has been a major player in taking advantage of that gray area where law intersects with foreign policy. That change is the basis of Bush's claim that he possesses the sort of far-reaching emergency powers exercised by past presidents during conventional wars. He belongs to an academic circle known as "sovreigntists;" they are "skeptical of international law and the idea that international relations are ever based on principle, as opposed to self-interest. Mr. Yoo argues that the Constitution gives Congress limited authority to deter presidential actions in foreign affairs. The judiciary, he says, has almost none."

I'm going to let the WSJ take it from here:

At the Justice Department, Mr. Yoo crafted legal arguments for the president's power to launch pre-emptive strikes against terrorists and their supporters. He molded a theory for not applying the Geneva Conventions to captured terrorist suspects. And he interpreted the federal antitorture statute as barring only acts that cause severe mental harm or pain like that accompanying "death or organ failure."

Yoo believes that American law permits the president to go to almost any lengths in the name of fighting terrorism.

The Yoo Doctrine, as it might be called, fits with the broader Bush-administration view that pursuing American interests is best for the country and the rest of the world. Before 9/11, Mr. Yoo helped lay legal groundwork for some of the president's high-visibility withdrawals from treaties, including the antiballistic missile pact with Russia and the agreement underpinning the International Criminal Court in the Netherlands, established in 1998 to deal with the gravest international crimes.

It should come as a surprise to no one that he is a member of the Federalist Society (he joined while attending Yale Law School in 1989). And since the Federalist Society also doubles as an employment network, Yoo has clerked for Judge Laurence Silberman, an appellate jurist in Washington much admired on the right, and then with Supreme Court Justice Clarence Thomas. Thomas helped Yoo obtain a staff job with Sen. Orrin Hatch. In 2000, he was a member of the Republican legal team in Florida.

Oh, and Yoo believes he knows the "original intent" of the Constitution's authors. Riiight.

Yoo challenges an academic consensus that for decades has promoted international law and other legal restraints on U.S. war making. This thinking grew out of the post-World War II goals of resolving conflict at the United Nations and checking executive-branch excesses during the long nuclear standoff with the Soviets.

The majority view relies heavily on constitutional provisions, such as the one stating that Congress, not the president, has the power "to declare war" and "raise and support armies."

Years before he joined the Bush administration, Mr. Yoo was writing law-review articles arguing that this consensus is at once outdated and -- despite the Constitution's language -- in conflict with the intentions of the founding fathers.

[...]

When the planes hit on 9/11, anxiety raced through Justice Department headquarters on Pennsylvania Avenue, recalls Robert Delahunty, then a lawyer in the counsel's office. He says Mr. Yoo immediately asserted himself, declaring, "This is war. The law operates differently." He "came to this first, before others," says Mr. Delahunty, who now teaches at the University of Saint Thomas School of Law in Minneapolis.

In the months that followed, the White House asked Mr. Yoo's office for memos on antiterrorism authority. He served as primary draftsman of key documents, such as one dated Sept. 25, 2001, that said the president had broad constitutional power to launch military attacks on terrorist groups or states that support them, "whether or not they can be linked" to 9/11.

A Jan. 9, 2002, memo concluded that neither the federal War Crimes Act nor the Geneva Conventions constrained the administration in its handling of al Qaeda and Taliban detainees held at Guantanamo Bay.

The most startling memo in this series was an Aug. 1, 2002, analysis concluding the federal antitorture statute forbids "only extreme acts" that cause either "lasting psychological harm" or physical pain "akin to that which accompanies serious physical injury such as death or organ failure." As commander-in-chief, the opinion stated, Mr. Bush could bypass U.S. law and international treaties prohibiting inhumane treatment of prisoners.

This is the guy folks. This guy is so extreme that he even scared the Bush folks; they would not defend him publicly. When the allegations and photos about Abu Ghraib surfaced, the memos started to leak out. "[I]n June 2004, the White House released a batch of them as part of a damage-control effort. Alberto Gonzales, then the White House counsel and now attorney general, disavowed the Aug. 1, 2002, memo on interrogation. He dismissed its analysis of presidential authority to disregard antitorture laws as "irrelevant and unnecessary."

Yoo has a small consolation, though:

"...most of the ideas he advocated are very much alive in Washington. The military and CIA continue to operate secretive detention-and-interrogation centers. The indefinite imprisonment of terrorism suspects and use of military commissions have survived legal challenges.

In June 2004, the Supreme Court ruled that federal courts can review the grounds for detaining foreign enemy combatants held outside the U.S. The justices separately ruled that American citizens held as terrorism suspects must have access to lawyers and fair hearings.

But beyond providing for the barest sort of judicial oversight, the court seemed to accept the idea that the country is at war and that the president and his subordinates have exceedingly broad latitude to run it. If confirmed, Supreme Court nominee John Roberts is expected to be a strong proponent of this view.

"It seems to me," says Mr. Yoo, "that the leaders in government and the judges and some legal thinkers, too, accept now that the fight against terrorism is a real war."

I'm sorry but guys like this shouldn't be let anywhere near the Constitution. Yoo is a lawyer who does not respect the rule of international and treaty law--and this is not a problem? He had to have known that his memos would be used to justify committing war crimes. These memos are not written in a vaccuum. How could he ignore the likelihood that his memos would facilitate the abuse of prisoners?

Incompetence or criminal neglect? You decide.

Postscript: In May 2004, a petition was circulated at Berkeley demanding Yoo's resignation when his role in setting the policies came to light. While Yoo was philosophical regarding the controversy, he said, "The only thing different was asking me to resign my position, which I think was over the line. It was a shock to me."