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Amid Scrutiny, Yoo Pushes Back
Quietly but Forcefully, Author of Detainee Memos Rebuts Critics
By Carrie Johnson
Washington Post Staff Writer
Monday, July 27, 2009
Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.
The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up.
Last month, a federal judge in California refused to dismiss a lawsuit that accuses Yoo of violating a detainee's constitutional rights. This month, the Justice Department's inspector general described Yoo's legal analysis of the Bush surveillance program as "insufficient" and sometimes inaccurate. Also expected in coming weeks is a department ethics report that sources have said could renounce Yoo's approval of harsh CIA interrogation practices and recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.
While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president's authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics' arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination."
The uncompromising rhetoric can be hard to square with a soft-voiced man who easily made friends at Harvard University and Yale Law School, without regard for ideological affiliation. But the blaze of criticism that ignited late in the Bush administration appears to have pushed Yoo, 42, onto a far more assertive path, according to friends and lawyers who have followed his career.
In many ways, Yoo, who declined to comment for this article, has become the face of what critics see as the Bush era's legal overreaching -- all tied to memos written from 2001 to 2003 spelling out his expansive views of interrogation, electronic surveillance and the deployment of soldiers on U.S. soil.
They were ideas born early in his legal career, before stints as a law clerk to Supreme Court Justice Clarence Thomas and Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit. Those positions, which even friends call extreme, endeared him to a Bush White House seeking to adopt a centralized approach to power.
Six months into a new administration, Yoo is a man with little to lose. As a tenured law professor, he has held onto his job despite protesters who have picketed the Berkeley campus and petitioned school leaders for his ouster.
Attorney General Eric H. Holder Jr. has rejected the idea of criminal investigations of Bush lawyers who developed counterterrorism policy. Probes announced by authorities in Spain and Germany could take years, and the five-year statute of limitations for allegations of attorney misconduct in Pennsylvania, where Yoo is licensed to practice law, has expired. That makes it unlikely the state bar will take up an ethics inquiry into his work at the Justice Department, which he left in 2003.
He departed after then-Attorney General John D. Ashcroft, angry over Yoo's back-door conversations with Vice President Richard B. Cheney's office on national security issues, refused to recommend him for the top job at the Justice Department's Office of Legal Counsel.
Now, as Yoo navigates his various legal challenges, he and the Justice Department have once more parted ways.
This month, government lawyers who had been representing Yoo since his departure from the department told a federal judge in San Francisco that "private counsel will be assuming representation of Mr. Yoo" in a case filed by Jose Padilla, a onetime domestic terrorism suspect who was held without criminal charge for more than five years. U.S. District Judge Jeffrey S. White allowed Padilla and his mother to pursue the case, which argued that Yoo had violated Padilla's civil rights by authorizing the government's terrorist-detention policies.
In a single sentence, the judge crystallized the ongoing public debate about Yoo, describing it as a struggle to balance the anti-terrorism effort with "using tactics of terror" to win.
Yoo, who argued that he enjoys immunity from lawsuits because he was acting as a government official, will appeal the decision and is being represented by prominent Supreme Court advocate Miguel Estrada. Estrada will work at the government rate of $200 per hour, reimbursed by taxpayers because Yoo is being sued in connection with his government service.
Department spokeswoman Tracy Schmaler said in a statement that "as this case moves forward, the defendant deserves the opportunity to retain defense counsel that can make any and all arguments available on his behalf."
Lawyers not involved in the case say the shift to private counsel spares new Justice Department leaders from having to defend Yoo's sweeping views of presidential power and his memos. It also liberates Yoo to assert that he was acting at the behest of Cheney, President George W. Bush, adviser David Addington and then-White House counsel Alberto R. Gonzales, an argument legal sources said he may make if the case progresses.
Yoo has broken off ties with some former colleagues who criticized his work at Justice. But he does not shy away from public appearances. He and his wife Elsa, the daughter of former CNN newsman Peter Arnett, still socialize with friends on the West Coast. In addition to teaching, Yoo writes a regular legal-opinion column, dubbed "Closing Arguments," for his hometown newspaper, the Philadelphia Inquirer. Editors were deluged with complaints after the arrangement became public.
Jesse Choper, a Berkeley colleague of Yoo's, said he thinks "very highly" of his scholarship, even if they disagree on some issues. "This is not a person who goes around raging or screaming at people -- quite the opposite," Choper said.
Just last week, Yoo once again drew attention after a video of Australian comedians infiltrating his classroom swept the Web. One comic was dressed in a black garment reminiscent of the garb worn by detainees photographed at the Iraqi prison Abu Ghraib. "How long can I be required to stand here till it counts as torture?" the man asked.
Yoo awkwardly concluded the class, and gently told the comedians that he would give them a few minutes to disperse before he called security.
Yoo's vocal justifications stand in contrast to the muted approach of former Justice Department colleagues also under scrutiny by ethics investigators. Bybee, now a federal appeals court judge in California, led the Office of Legal Counsel while Yoo worked there. Bybee has told students and colleagues that he has regrets about how the controversial memos have been viewed and how they were prepared.
Steven G. Bradbury, who took over from Bybee but never won Senate confirmation, quietly joined the Dechert law firm in Washington as a partner last week.
To his lasting regret, friends say, Yoo never got a chance to appear at his nomination hearing. Last year, though, Democrats on the House Judiciary Committee summoned him for what became a hostile session on the origins of the interrogation strategies that critics assert are torture.
As former vice presidential aide Addington slouched in his seat, glaring at lawmakers and offering dismissive replies, Yoo scanned a crowd filled with protesters and reporters. His dark eyes widened as he appeared to search for a friendly face. He did not find one.