The Rehabilitation of John Yoo?

by Duncan Hollis

The June 2008 issue of Esquire magazine has a feature piece on John Yoo by John H. Richardson, plus an on-line transcript of part of Richardson’s interview and an autobiographical sketch by Yoo himself. Although framed as a cautionary tale, the article clearly seeks to humanize Yoo. The reader gets a view of Yoo the professor, questioning students on what “war” is in an elegant blue suit offset by a shiny tie (sorry, unlike many Esquire articles there’s no brand name given or price tag). We learn about his personal interests, including classical music, bands like the Who and U2, and the anime Ghost in the Shell. Among the piece’s stranger quotes, Yoo explains his affinity for Berkeley, “Liberals from the sixties do a great job of creating all the comforts of life–gourmet food, speciality jams, the best environmentally conscious waters.” More substantively, Yoo describes how his parents thought Truman saved Korea by going in without Congressional backing, a point that Richardson uses to explain the origins of Yoo’s views on Presidential Power. Of course, Lincoln is also brought up in Yoo’s defense (e.g., the Emancipation Proclamation and suspension of habeas).

In terms of what Yoo’s become famous for–his work on the Geneva Conventions and torture–the article offers some balance; noting the overwhelmingly negative reaction it’s received and the subsequent hostility to Yoo and his opinions. But, on the whole, the piece tries to explain (and to some extent defend) Yoo through multiple lenses.

First, the article explains Yoo’s memos as a function of the time and circumstances, whether in the aftermath of 9/11 with the Pentagon still in flames or in capturing Abu Zubadaydah who was said to have “details of attack plans that could include nuclear weapons” but who “was an expert in interrogation and how to resist interrogation.” Richardson even invokes the ticking time bomb for Zubadaydah–”If it wasn’t exactly the famous “ticking bomb scenario come to life . . . it was close enough.” I’m not persuaded by these arguments, however, particularly where the on-line interview makes clear Yoo’s memos weren’t turned around in a day or two, but were the product of weeks of work (i.e., the Geneva Conventions debate occurred in January and February 2002, months after 9/11 and the “Torture Memo” came out in August 2002, months after Zubadahdah’s March 2002 capture).

Second, Yoo is allowed to explain how the scope of his opinions was not as broad as many assume. For starters, he was only writing legal opinions, not policy ones. And so, he says on the Geneva Conventions:

Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy. . . . There’s a balance. Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It’s a very difficult trade off. And then it’s harder and harder because there’s the question that if you don’t give them full Geneva Convention protection, what are you going to give them? That’s a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It’s not my job to say what they should do.


In the article though Yoo is reported to have admitted his arguments about Afghanistan as a failed state so as to exclude the Geneva Conventions may have “been pushing it” (a retreat I’m happy to hear, since that issue was something I worked on for the State Department during my time there). Moreover, I take issue with how the article–it’s not clear if it’s Richardson or Yoo’s characterization–portrays Bush’s decision on the Geneva Conventions, denying their application to Al-Qaeda but extending them to the Taliban. Although literally true, this version ignores the President’s decision that none of the Taliban qualified for protection under the Geneva Convention because they were illegal combatants, which put them functionally in the same boat as Al Qaeda in the end.

On torture, moreover, Yoo emphasizes his distaste for the use of his memo beyond CIA circles, and in the process the article suggests he should get credit for trying to draw some lines:

Yoo . . . says he thought he was writing a memo for exceptional cases, for the highly trained specialists of the CIA. “I never thought it would be a good idea for the Army to do it, to put it into the hands of eighteen-year old kids. But it would be inappropriate if I had that worry and it changed the way I interpreted the law.” So he buckled down to one of the world’s most thankless jobs, defining the limits of acceptable pain. He knew it would be easy to draw a vague standard that sounded good and then give the CIA a meaningful wink. But that wouldn’t be fair to the officers in the field. He wanted to draw a clear line.

Third, the article’s humanization theme culminates around the idea that readers shouldn’t dehumanize John Yoo unless they can say what they would have done. Thus, the only critic who gets featured prominently in the article–Padilla’s lawyer Jonathan Freiman–gets knocked for refusing to draw the torture line, despite Richardson asking him to do so three times. Yoo’s on-line interview takes a swing at Jack Goldsmith on the same point, given Goldsmith’s critique of Yoo’s memo:

I think that’s unfair, first because Goldsmith never issued an opinion of his own. He’s certainly free to criticize. It goes back to unless you’ve actually made the hard decision yourself, then you don’t really know how you think it through, what you would do. So he says “slapdash opinion,” but we have no idea what he would have done, because he left. Second thing is, it went through the normal process opinions go through in the Justice Department. It was primarily worked on by career staff people, and then went through a process of editing and review by different offices within the department, no different than any other.

The article closes by saying we can’t think of Yoo as a “monster” because “that just means we don’t have to think about why he did what he did. Grant him his good intentions, entertain the possibility that he did it to save lives, recognize the honor in his refusal to hide, and his story becomes a cautionary tale about the incremental steps that can lead a nation to disaster.”

On the whole, the article is a further testament to how much government lawyering has become part of our popular culture, with John Yoo as the face of the current Administration’s efforts. In the end, I’m not sure I agree that Yoo’s as deserving of a defense as Richardson gives him. But I do agree that the questions he asks–Why did John Yoo do what he did and what would you have done differently if you were him–are entirely fair game. I know where I stood on the Geneva Conventions at the time, and would like to think I’d have answered the torture question differently than Yoo if I’d been asked about it while at State (so far as I know though, State was never asked for its views). What about you?

Update: Esquire let me know that it has now put up on-line the complete transcript from Richardson’s interview of John Yoo. Richardson’s questions, however, do not appear, so one has to make a few inferences to read it coherently. Still, it’s 10 web-pages of material, so I’m sure some will find it of great interest.

http://opiniojuris.org/2008/05/20/the-rehabilitation-of-john-yoo/

9 Responses

  1. John You likes to listen to U2? Just imagine if he was listening to Bono’s voice on his iPod while drafting the torture memos. The irony needs to be appreciated.

    One a more serious note, I strongly dispute the premise of his statement/defense/question, that we can’t criticize him without being in his shoes. That’s like saying that somebody who has never been a judge could never criticize a judicial opinion, or like saying (and this one is actually quite frequent) that someone who hasn’t fought in the military can never criticize what the military does. Why not? I may never have been (and never will be) one of the few people who have had such an important position as an OLC legal adviser that Yoo did, but that cannot and does not stop me from saying that those opinions of his, despite looking legal with footnotes and citations etc., are a complete and total disgrace, that no reasonable and/or competent lawyer could have written.

  2. ‘It’s not my job to say what they should do’

    But it was his job to say what they legally could do, and he essentially said that they could abuse detainees regardless of Congress or the Constitution. He is a monarchist, not an originalist. He ‘construes’ laws to not apply to our treatment of people we capture so as not to infringe on the precious executive power, despite the Constitution itself in Article I, Sec. 8, expressly stating that ‘Congress shall have Power To . . . make Rules concerning Captures on Land and Water’ (in addition to Congress’s other extensive national-security rule-making powers from the same section, and the memo footnotes on this issue are intentionally deceptive). There is no justification for his ‘construction’ other than monarchism. The originalist approach leads to the opposite conclusion.

    Also, Prof. Organ-Failure-or-Death knew full well that these memos were going to be policy. And his memos are addressed to the military; most do not even mention the CIA. He alleges that ‘it went through the normal process opinions go through in the Justice Department’–show me the routing sheets. It is hardly normal for a V.P.’s counsel to ghost-write OLC opinions. It is abnormal for an OLC memo to not be signed by either the actual or acting head of OLC as required by law. This rehabilitation effort is founded on lies.

    But the latter of the two questions posed is important: ‘What would you have done differently if you were him?’ We all need to think this through. How would you hold up under tremendous pressure? There are many reactions, some good, some bad, and some dependent on the situation. One could resign, one could stay and be miserable and give up promotion chances by standing for truth, one could raise objections but ultimately follow orders, one could seek compromises that preserve at least some core principles, one could join in and make dishonest arguments.

    We need to continue to search out and publicly salute those who stood for truth. There are many and they are largely unknown, ignored and forgotten. Their being publicly honored may encourage others to do similarly in the future.

    Likewise, I find it appropriate to insult and deride those who have shown themselves to be enemies of the Constitution. I hope (albeit perhaps in vain) that such derision may discourage others from becoming the same. And not only can we criticize him, we must. His story is indeed ‘a cautionary tale about the incremental steps that can lead a nation to disaster’ and we must warn and fight against sophisticated and incremental evil, not coddle it. The mocking and derision should stop when Prof. Organ-Failure-or-Death recants and apologizes.

  3. 1) Yoo’s memo of March 14, 2003 was to the military – not just to the CIA as was the August 1, 2002. I believe he is special pleading to try to somehow avoid being considered as having enabled Abu Ghraib.

    2) The legal analysis is not just slapdash – it is made up from whole cloth as I detailed before here.

    3) What would I have done? Recommended we apply the Geneva Conventions to POW’s, security detainees, and civilians as well as customary international law.

    While 9/11 was happening I was teaching a class and I asked my students what they would advise the president. A former Navy guy said, “go back to what are first principles for America”. One first principle is “Keep our honor clean.”

    4) Now we should criminally prosecute Yoo, Addington, Haynes, Bybee and the rest of the torture team as well as the National Security Principals who put this all in place.

    5) Panic and improvisation should not be excused. Not at this level.

    6) I have met John Yoo and told him this to his face. Nice guys can do war crimes and evil too.

    Best,

    Ben

  4. Yoo insists in the interview that his definition of “severe pain” is what Congress wrote. This is simply wrong. The relevant section of a note on this I did at Jurist The Yoo Torture Memo: Break the Silence of the Lambs is below.


    For example Yoo says the medical emergency standard is:

    “These statutes define an emergency condition as one “manifesting itself by ,’acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of ‘immediate medical attention to result in-placing the health of the individual …

    (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” Id. § 1395w-22(d)(3)(B) (emphasis added).”

    This language is the same in the other statutes to which Yoo refers in that section of the text (See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000)).

    Note that language and then note the next sentence which is on page 38:

    “They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.”

    But none of the statutes Yoo cites treat the damage as that rising to the level of death, organ failure or the permanent impairment of a significant body function.

    What is the use of keeping bringing this up? Most of you really do not care about this, do you? Just like the author of the article, you are blithely willing to go along with the flow and ignore torture, cruel inhumane or degrading treatment. I am not sure why persons are so somatized but there we have it.

    I should mention Alberto Mora who did the far lonelier task of protesting in the Defense Department. Or Specialist Darby at Abu Ghrain. Those are the persons who should be getting the Esquire interviews about their resistance to barbarity back when resistance to barbarity wasn’t “cool”.

    I seriously doubt that the Yoo memos just went through the Justice Department with nary a peep (the way he describes it) from the career persons.

    This is more of the effort to have us acquiesce in all this and just go on to our grading and other summer research grant activities in our bucolic indifference to what is done in our names in dark places around the world.

    No doubt it sells magazines so the “hip” can think they have the “cool” take on torture. Makes you want to puke.

    Best,

    Ben

  5. I think the “what would you have done differently” comment is another way of saying that most people, when they write a piece about the laws of war or human rights, don’t see the consequences if they restrict the government’s freedom of action. Yoo knew better than most — i.e., better than you in the human rights committee — that confining the government could cause people to die. When speaking of Yoo, one should try to take these costs that only he would shoulder into account.

  6. NewStream:

    And not confining the government with regards interrogation, not only could cause people to die, it has caused people to die – apparently over 100 since the war on terror began. But this simply did not enter into Yoo’s moral calculus.

    I have no doubt that Yoo felt justified in what he was doing. But talk of Yoo’s background and views on the likelihood of another 9/11 only substantiate the possibility that he deliberately slanted his legal analysis so that the administration would brutalize detainees.


  7. I think the “what would you have done differently” comment is another way of saying that most people, when they write a piece about the laws of war or human rights, don’t see the consequences if they restrict the government’s freedom of action. Yoo knew better than most — i.e., better than you in the human rights committee — that confining the government could cause people to die. When speaking of Yoo, one should try to take these costs that only he would shoulder into account.

    I take the point that Yoo is responsible for his acts. But the comment suggests that people in the JAG corps, the FBI, Secretary PoweLl in arguing for Geneva to apply, and others like them who objected to these coerced interrogations are somehow unable to see the consequences of restricting the government’s freedom of action (put another way making the goverment comply with the law). Of course these persons are able to see the consequences – that is one of the reasons that many argued against the exotic interpretations of John Yoo.

    It is speculation that confining the government to apply the laws of war and human rights could cause people to die -it could also cause people not to die (see War in Iraq not happening).

    Yoo’s task was to draft a legal opinion and his analysis was seriously flawed – something that is different from permanently flawed (i.e. another way of showing the flaw).

    Best,

    Ben

  8. Those of us who oppose the abuse of detainees by the U.S. are often accused of being armchair quarterbacks.

    First, that accusation would be more effective if it was backed-up with persuasive reasons why hands-on experience is necessary to form a legitimate opinion on the subject. It is not. To the contrary, this issue has brought shame to America and every citizen is entitled to be concerned about anything that does that. Some believe that representative democracy is quaint and the important policy decisions should be left to experts (but that’s another debate). Experience can certainly provide insight, and insight is welcome, but a lack of personal experience in no way disqualifies one from engaging the debate.

    Second, that accusation would be more effective if it were correct. It is not. An informed person will be aware that many of the opponents of detainee abuse are not armchair quarterbacks at all.

    However, if one wants to apply the test of who ‘knew better than most’ the consequences of these opinions, the results are not favorable to Prof. Organ-Failure-or-Death himself, who never served in the military. [The absence of military service is common among the key folks behind the torture memos: the now-Judge, the Vice President, David Addington (though at CIA in the early 80s). Al Gonzales had an abbreviated stint in the Air Force.]

    Despite his lack of military experience, Prof. Organ-Failure-or-Death did not seek input from the military, those who might best understand the consequences of these memos; instead he overruled their objections.

  9. To put a fine point on this, here is a Washington Post article today which talks about the career Justice lawyers objecting up and down the line to these techniques. They raised the issue in meetings, they raised it with everyone’s apparent friend John Bellinger III as the Legal Adviser in the National Security Council, and they raised it in the Justice Department. All these objections were ignored. These objections are not from what no doubt most of you think are wussy “human rights types” though that is far from the truth, but from the kind of people whose job is to work hard to protect us and get the bad guys. These persons rejected fundamentally this Yooist nonsense. The torturers and their lawyers are the cowards as were their enablers right up to the President. F’ em all. The story is Rough Tactics Were Challenged.

    Best,

    Ben

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