Sorry to contribute to this phenomenon, but John Yoo’s new book War By Other Means: An Insider’s Account of the War on Terror is now out from Atlantic Monthly Press (not affiliated with the Atlantic Monthly, I was surprised to discover, though it’s something of an explanation), and shouldn’t go ignored. As signaled by the subtitle, this is not a book directed at an academic audience, and I’m not going to do the equivalent of a review here (I’ve collected some highlights after the jump).
A couple of brief observations: Yoo presses the law/policy distinction heavily, as he has in other defenses of his lawyering for the Administration, as in “I was laying out the law, but that doesn’t mean that I was telling them what to do.” I think Dan Kahan has the better of that question, and Yoo betrays himself here by setting forth his policy views (under chapter subsections labeled as such) which pretty much has him on board with what the Administration did end up doing. So the idea that he was a policy agnostic is hard to sustain, if it ever was.
Second, a persistent move Yoo makes which undermines his basic defense of Administration policies: he describes how terrorism has changed the nature of the threat without working out how that change might impact the nature of the response and the law governing that response. He trots out all the received wisdom of traditional national security law without considering the possibility that some of it no longer works in this novel context.
Finally, he shows a remarkable trust in the Administration’s good faith and competence, perhaps not surprising given that he was a part of it. I think many of us started out there, that is, trusting the Administration to do things right in 9/11’s wake, but for many if not most that trust has been compromised, at least.
Yoo also for the first time (as far as I know) reveals some of his own feelings about his involvement, both inside the Administration and as a defender of its policies as a former official. But the book is not especially gripping as a read: events aren’t brought to life (with a few exceptions, notably the description of a FISA court appeals argument in September 2002); personalities aren’t really developed; and there’s not really a story line (other than knee-jerk civil libertarians trying to undermine the GWOT). I don’t think this one is likely to be optioned for the big screen. Companion reading: Guantanamo, by Joseph Margulies.
Highlights:
On the withdrawal of the 2002 “torture memo” by OLC: “its purpose was to give the White House political cover by making the language more vague and thus, presumably, more politically correct. . . it is unfortunate, in my view, that this political game had to be conducted at the expense of our men and women in the field.” (viii-ix)
“Much of the attention on me is due to the fact that there are few Bush administration veterans who will defend their decisions in the war on terrorism and public. Some inside and outside the administration have chosen to fall silent out of lawyerly discretion, lack of time or energy, or fear of partisan attack. Others have tried to engage in a series of self-serving leaks intended to distance themselves from those decisions.” (ix)
“The political and personal criticism of me, I admit, has proved an unpleasant at times.” (x)
Alluding to Alexander Hamilton’s defense of the Jay Treaty, “I decided to take Hamilton as my role model.” (xii)
First thought on flying into Guantánamo Bay: “I couldn’t help thinking that it would all make great beachfront property if Castro ever died.” (18)
“OLC wanted to make clear that we were discussing only issues of law, not policy.” (29) Also: “simply because we can kill a member of Al Qaeda does not mean we should” (55); “the law is not the same as policy.” (150)
On inter-agency deliberations: “in our arguments, State would authoritatively pronounce what the international law was. OLC usually responded ‘Why?’ — as in why do you believe that, why should we follow Europe’s view of international law, why should we not fall back on our traditions and historical state practices?” (33)
On how to interpret the Geneva conventions: “at this moment in world history the United States’ conduct should bear the most weight in defining the customs of war. . . US practice in its wars – to maintain global peace and stability – have primary authority in setting international law on the rules of warfare.” (37)
FISA and the Patriot Act “are our new Maginot line.” (95)
On Ashcroft: “he usually didn’t get my jokes; I didn’t laugh at many of his.” (100)
“Critics of the NSA program want to overturn American historical practice in favor of a new and untested theory about the wartime powers of the president and Congress. Our intelligence and military will have difficulty fostering innovation and creativity – and the NSA program is precisely that – if we reject decades of constitutional practice in the middle of war.” (124-125)
“I not only wrote memos but also assembled them and carried the growing pile of paper to its designated stops. I sometimes wondered what would happen if I were hit by a car while walking around Washington, DC, with my beat-up, government-issue locked blue pouch of classified documents clutched in my arms.” (140)
“Legally, the Padilla case is virtually identical to that of the Nazi saboteurs.” (147)
“Civil libertarians, not the Bush administration, seek a radical reordering of our system for making war.” (149)
“Hamdi, Padilla, and their civil libertarian allies want to [change] all the laws and all the historical precedents of war to contain a brand-new exception for everything that occurs on American soil or involves Americans who join the enemy.” (150)
“Civil liberties absolutists say sworn statements by our national security and defense officials aren’t enough. . . . today, the good faith of our government’s efforts against Al Qaeda is not, or should not be, at issue.” (154)
“The avant-garde effort today is to enact a conception of human rights into law worldwide.” (162)
More on the withdrawal of his OLC memo: “a disservice to the personnel . . who had to take risks in fighting the [GWOT] . . . [an] exercise in political image-making . . . misguided politicization [undertaken] to placate the sensibilities of those who didn’t like seeing the law of torture and harsh interrogation even discussed.” (171)
Inevitable reference to television show “24”. (172)
“Looking back, I realize that we did not explain ourselves as clearly as we could have in 2002.” (177)
Treatment of detainees is “like basic training or boot camp in the Army or Marines.” (179)
On the failure to cite Youngstown in the 2002 opinion: “because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President’s conduct of foreign affairs and national security,” that it was just a case about labor disputes.(184)
Ashcroft “pretended” in 2004 that he had been out of the loop on the 2002 memo, “in a transparent effort to avoid responsibility.” (186)
“Military commissions have been the Bush Administration’s most conspicuous failure in the war against al Qaeda.” (208)
“At some point, the threat from al Qaeda will recede.” (232)
In Hamdan, “the Court chose to reinvent this area of the law out of whole cloth.” (237)
“The future of the American war against terrorism, like it or not, is being and will continue to be fought by the men and women of the executive branch of this nation.” (241)
Question — Does Yoo talk about why he left DOJ?
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