John Yoo

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John Choon Yoo (born 1967 in Seoul^{[1] [2]}) 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,^[3] 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.^[4] Yoo has also worked as a visiting scholar at the conservative think tank American Enterprise Institute since 2003.

Contents 1 Biography 2 Scholarly work 3 Legal opinions in the War on Terror 3.1 Regarding torture of detainees 3.2 Regarding the Fourth amendment 3.3 Unitary Executive Theory 3.4 Suggested origin of legal opinions 3.5 War crimes accusations 4 Works 5 See also 6 References

[edit] 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.

[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.^[5] 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".^[6]

[edit] Legal opinions in the War on Terror

[edit] Regarding torture of detainees

Main article: enhanced interrogation techniques

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.^[7][8] The memos, known today as the "torture memos,"^[9][10] advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility indivuals face future prosecution under the US War Crimes Act of 1996 for actions taken in the War on Terror.^[11] 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.^[12] 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.^[13]

Student protesters at Berkeley have demanded, to no avail, that he renounce the memos or resign his professorship.^[14]

[edit] Regarding the Fourth amendment

Further information: Fourth Amendment to the United States Constitution, NSA electronic surveillance program, and NSA warrantless surveillance controversy

The aforementioned memoranda also refer to a, as of yet still classified, memo allegedly 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 the memo says in one of its footnotes:

Our office recently concluded that the Fourth Amendment had no application to domestic military operations.^[15]

That interpretation is used to assert that the normal mandatory requirement of a warrant, under the Foreign Intelligence Surveillance Act, could be ignored.^[15] 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.^[16]

[edit] Unitary Executive Theory

At the heart of these legal opinions is the notion that during a time of war the President, in his duty as Commander-in-Chief, with his inherent powers, cannot be bound by law -i.e. Foreign Intelligence Surveillance Act, UN Convention Against Torture, Geneva Conventions- or Congress. Yoo suggested that since the primary task of the President, during a time of war, is protecting US citizens, anything hindering him in that capacity -US and international law or even Congress- can be considered unconstitutional.^[17] 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".^[18] His positions on executive power, termed by some 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.^{[18][19][20][21][22]}

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.[23]

”

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.[24]

”

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.[25]

”

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.[26]

”

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.

[edit] Suggested origin of legal opinions

Professor at law Scott Horton, and other experts, contend that Yoo's analysis that the President was not bound by the Geneva Conventions was based upon work by Carl Schmitt.^[10] Examples of arguments used by Schmitt according to Horton:^[10]

1. Particularly on the Eastern Front, the conflict was a nonconventional sort of warfare being waged against a “barbaric” enemy which engaged in “terrorist” practices, and which itself did not observe the law of armed conflict.
2. Individual combatants who engaged in “terrorist” practices, or who fought in military formations engaged in such practices, were not entitled to protections under international humanitarian law, and the adjudicatory provisions of the Geneva Conventions could therefore be avoided together with the substantive protections.
3. The Geneva and Hague Conventions were “obsolete” and ill-suited to the sort of ideologically driven warfare in which the Nazis were engaged on the Eastern Front, though they might have limited application with respect to the Western Allies.
4. Application of the Geneva Conventions was not in the enlightened self-interest of Germany because its enemies would not reciprocate such conduct by treating German prisoners in a humane fashion.
5. Construction of international law should be driven in the first instance by a clear understanding of the national interest as determined by the executive. To this end niggling, hypertechnical interpretations of the Conventions that disregarded the plain text, international practice and even Germany’s prior practice in order to justify their nonapplication were entirely appropriate.
6. In any event, the rules of international law were subordinated to the military interests of the German state and to the law as determined and stated by the German Führer.

Compared to what is known about Yoo's contribution Scott Horton and historian Heinrich August Winkler, Sandy Levinson, David Abraham and Christopher Kutz see similarities with the writings of Carl Schmitt.^[10] According to legal experts Scott Horton, David Abraham, Ahmad Chehab the concept of the "unitary executive" seems to be based upon his state of exception.^[10][27]

[edit] War crimes accusations

Further information: Jus in bello, Universal jurisdiction, and War crimes

Several legal commentators have 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.^[28]

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.^[29] 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.”^[10]

Jordan Paust of the University of Houston Law Center concurred by 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!^[30]

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.^[31] The complaint seeks damages based on the alleged torture of Padilla attributed by the complaint to Yoo's torture memoranda.

It seems that Mr. Yoo may have anticipated that his memorandums might lead to prosecution. Parts of one legal memorandum written by Mr. Yoo as a member of the Department of Justice's Office of Legal Council are preparation for a criminal defense for hypothetical U.S. government defendants against hypothetical charges of crimes of torture and crimes against humanity.^[32]

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."^[33]

Yoo's torture memoranda had been almost immediately retracted by Jack Goldsmith, the new 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.^[34][35]

[edit] 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.

[edit] See also

• Extraordinary rendition

[edit] References