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A Young Lawyer
Helps Chart Shift
In Foreign Policy
By PAUL M. BARRETT
Staff Reporter of THE WALL STREET JOURNAL
September 12, 2005; Page A1
In June, about 100 people gathered at the American Enterprise Institute, a conservative Washington think tank, to hear a lecture by John Yoo on "fighting the new terrorism." Mr. Yoo recommended an unusual idea: assassinating more suspected terrorists.
A law professor at the University of California at Berkeley, he said 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."
Mr. Yoo, 38 years old, is no ordinary ivory-tower theorist. During a two-year stint at the Justice Department from 2001 through 2003, he wrote some of the most controversial internal legal opinions justifying the Bush administration's aggressive approach to detaining and interrogating suspected terrorists.
Some of those memos have become public, but not all of them. Asked after his AEI talk 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."
A spokesman for the Justice Department declined to comment.
Mr. Yoo is playing an instrumental role in redefining the murky area where law intersects with foreign policy. The change underpins President Bush's claim that he possesses the sort of far-reaching emergency powers exercised by past presidents during conventional wars.
Mr. Yoo, like others in the academic clique known as "sovereigntists," is 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.
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."
In the wake of the Abu Ghraib prisoner-abuse scandal, the Bush administration has backed away from Mr. Yoo's most extreme ideas about interrogation. But that hasn't discouraged him from waging an intellectual offensive in speeches, articles and a forthcoming book to be published by the University of Chicago. His claim is 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.
Another illustration of the Bush mind-set was the president's recess appointment last month of John Bolton as U.S. ambassador to the United Nations, an institution Mr. Bolton had derided as largely superfluous.
Not surprisingly, Mr. Yoo is reviled on the political left. Students at Berkeley last year circulated a petition demanding that he recant his Justice Department work or resign his professorship. (He has done neither.) Human-rights advocates suggest he might be a war criminal and compare his memos with Nazi legal documents. Amnesty International urged in May that state bar associations consider sanctions against Mr. Yoo and others.
Within the Bush administration, former Secretary of State Colin Powell warned in 2002 in an internal memo that Mr. Yoo's ideas about treatment of detainees would "undermine the protections of the law of war for our troops." In July, senior uniformed military lawyers deplored his analysis in Senate testimony.
In person, the academic is disarmingly mild and defends his views calmly. He has had plenty of practice, and not just in media interviews and on campus. His wife, Elsa Arnett, he says, disagrees with almost everything he believes about politics and policy. "We have some heated discussions," he says. "I welcome it. It keeps me honest."
Mr. Yoo has always enjoyed being a conservative fly in the liberal soup. He met his future wife when they were both Harvard undergraduates on the staff of the campus daily, where he relished the role of token right-winger. She is the daughter of veteran war correspondent Peter Arnett. "Elsa was always a smart, interesting person, and that was attractive to John, even though they disagreed about everything political," says David Lazarus, a friend since college who affectionately refers to Mr. Yoo as "the evil one." Ms. Arnett, a writer, declined to be interviewed.
Mr. Yoo inherited conservative instincts from his parents, who emigrated from South Korea when he was an infant. Both physicians, they hated communism and admired Ronald Reagan. They sent their son to a private Episcopal high school in Philadelphia where he studied Greek and Latin and attended chapel three times a week.
At Yale Law School in 1989, he joined the Federalist Society, a national group of right-leaning lawyers that sponsors debates and serves as a job-referral network.
With help from Federalists, he snared prestigious clerkships: first with Judge Laurence Silberman, an appellate jurist in Washington much admired on the right, and then with Supreme Court Justice Clarence Thomas. A good word from the justice, Mr. Yoo says, helped him obtain a top staff job with Republican Sen. Orrin Hatch of Utah, then chairman of the Senate Judiciary Committee.
While on Sen. Hatch's staff, Mr. Yoo clashed with Democrats over Clinton judicial nominees. In 2000, he aided the Republican legal contingent that helped win the decisive electoral brawl in Florida.
Even by the standards of elite Washington legal circles, Mr. Yoo earned a reputation for what Justice Thomas calls "a very high level of confidence in conclusions he might reach." In an interview, the justice warmly recalls his former clerk as "a real showman and a real intellectual -- a smooth talker who made good arguments." Mr. Yoo had an unusual degree of certainty that he knew the "original intent" of the Constitution's authors, Justice Thomas says. "We'd kid him sometimes that he was right there at the founding."
Former co-clerk Saikrishna Prakash recalls teasing, "John, break out the crystal ball and tell us what the framers thought." Mr. Yoo would fire back, "Yes, I consulted the framers. You're all wrong, and I'm right."
When he wasn't drafting opinions in the Thomas chambers, Mr. Yoo sometimes played squash with Justice Antonin Scalia, another conservative hero. Mr. Yoo says he didn't let the justice win, as some other clerks did. A Supreme Court spokeswoman says the justice recalls the matches but doesn't remember losing.
In 1996, Mr. Yoo moved to liberal Berkeley, where he had taught briefly before. He explains this fish-out-of-water situation in careerist terms: Berkeley was the best law school that offered him a tenure-track job.
Mr. 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.
Seeking to play down the seemingly clear wording of the declare-war clause, for example, he argues that Alexander Hamilton and his colleagues adapted the British idea that Parliament could declare the existence of an all-out war, but such a statement wasn't necessary before the king could launch hostilities. Congress, Mr. Yoo contends, was given only two ways to counter the commander-in-chief: impeaching him or cutting off funds for the military. In James Madison's words: "The sword is in the hands of the British king; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist."
In practice, Mr. Yoo's assertion that the commander-in-chief has vast "inherent" authority in times of crisis pretty accurately describes what past presidents have done. Since the nation's earliest days, when George Washington waged war against Indians in the Ohio River Valley and John Adams sent American ships against the French, presidents have ordered troops into scores of conflicts without formal congressional declarations. In fact, Congress has declared war only five times.
Mr. Yoo likes to point out that Bill Clinton sent U.S. forces to Bosnia, Kosovo, Iraq, Sudan and Afghanistan -- all without formal congressional declarations. And war presidents from Washington to Abraham Lincoln to Franklin Roosevelt used military commissions to try enemy soldiers without the usual panoply of courtroom niceties.
It's vital, says Mr. Yoo, to see the antiterrorism effort as a genuine war. Facing terrorists who don't obey treaties and can't be disciplined at the U.N., the president must be able to act swiftly and flexibly, he contends.
Mr. Yoo got a chance to put his ideas into practice in 2001, when he received a midlevel political appointment in the Justice Department's Office of Legal Counsel. The small office opines on the legality of executive-branch actions.
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.
These opinions remained secret until abuse at Abu Ghraib came to light in spring 2004. The memos began to leak, and then, in 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."
By then, Mr. Yoo had completed his planned two-year stint in Washington and returned to Berkeley. Disappointed by the administration's response -- "They kind of ran and hid," he says -- he wasn't surprised when he became a target for Bush critics.
A White House spokeswoman declined to expand on Mr. Gonzales's earlier comments.
Massachusetts Democratic Sen. Edward Kennedy suggested in a speech in April that Mr. Yoo and others deserved formal disciplining. "No action -- criminal, administrative, or otherwise -- has been taken against the high civilian officials responsible for the authorization of torture and mistreatment by U.S. officials," he said.
Jeremy Waldron, a law professor at Columbia University, gave voice to a common view in legal circles, calling the Yoo memo on torture "shocking as a jurisprudential matter" and a mark of "dishonor for our profession."
While publicly the administration has kept its distance from Mr. Yoo, other arms of the conservative establishment, including this newspaper's editorial page, have defended him. (Mr. Yoo worked as a summer intern for The Wall Street Journal's news department before starting law school and has written articles for its opinion pages.)
Mr. Yoo says his former boss, Justice Thomas, no stranger to personal controversy, privately offered moral support but warned that "these things will always be harder on your family than on you." Indeed, Mr. Yoo's wife only learned about the memos along with the rest of the country. While at the Justice Department, her husband hadn't talked about his classified work at home.
In explaining the fallout to her, Mr. Yoo says he stressed that as a lawyer, he had described the reach of statutes and treaties, leaving policy choices to more senior officials. The torture memo, he says, responded to a question posed by the Central Intelligence Agency: "How far are we allowed to go?" A CIA spokesman declined to comment.
Contrary to critics who say his work started the U.S. down a "road to Abu Ghraib," Mr. Yoo says none of his most controversial memos applied to ordinary prisoners in Iraq, only to alleged terrorists who might know about future mass attacks. He says he deplores the abuse at Abu Ghraib, but attributes it to military misbehavior, not legal interpretations.
Mr. Yoo says al Qaeda members don't qualify for prisoner-of-war protections under the Geneva Conventions, because those treaties are between nations. Al Qaeda isn't a nation and doesn't respect rules of war, he says, such as not intentionally attacking civilians.
The president ordered American officials in February 2002 "to continue to treat detainees humanely" and "in a manner consistent with the principles" of the Geneva Conventions. But he added the caveat that this should be done "to the extent appropriate and consistent with military necessity." The Bush administration says that it complies with the United Nations Convention Against Torture, which the U.S. ratified in 1994.
Mr. Yoo takes solace in that 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."