Is there a petition or a blog somewhere with the aim of getting this hideous man fired from Berkeley? Do you want him teaching new lawyers?

I really don't understand.

Is Yoo actually saying that it was OK to torture prisoners in "Gitmo", but not prisoner's captured in Iraq?

What's the difference? In both cases, people were detained and tortured without any charges being brought.

(I guess, from Yoo's "legal standpoint", Gitmo was assumed not to have to comply with any laws, but Abu Ghraib was?)

Paul,

It strikes me that focusing too much on John Yoo and his legal memoranda obscures a larger point that's well worth making.

The Bush Administration has been perhaps the most legalistic administration in our history. That's a point well-worth contemplating by liberals, given our tendency to fetishize careful adherence to the rules. Let's take the Yoo case as an illustration.

John Yoo's logic in these memos has been described as forced, his decisions as unconscionable. But the blunt truth is that he was able to offer a legal rationale for some truly outrageous ideas - that the president's inherent authority essentially allows him to dispose of any legal restriction he finds inconvenient in a time of war. You or I can reject that logic. Legal scholars can find it unconvincing. But whatever we say, the fact remains that OLC issued these memoranda, and that government officials acted on that basis.

What the Bush Administration figured out was that when you vest ultimate authority in lawyers, anything can be justified. Liberal critics have been pointing to a host of countervailing rules, treaties, and laws, but by engaging on that premise, they've already lost the argument. All administration officials need to do is find their own lawyers, who disagree, and get them to issue opinions backing their views. Sure, the whole thing may end up in the courts - but you'll have a devil of a time making charges stick against officials acting on the written advice of counsel.

Laws are meant to enshrine moral and social values, allowing us to clearly proclaim and then enforce them. They are not a standard against which to measure our conduct, nor an excuse for immoral behavior. That something may be legal does not imply that it is therefore acceptable. When an administration official announces that he acted as he did because John Yoo said it was acceptable, the proper response is not to blame Yoo - it's to ask the official when and how he came to abdicate moral responsibility for his own acts. That doesn't mean we should let Yoo off the hook, but the fact remains that he's pretty much correct - all he did was say, OK. That was reprehensible, but if others hadn't decided to rely upon his permission in carrying out morally abhorrent policies, it would also have been irrelevant.

There's a pattern here. I doubt that we'll ever see a conviction of a senior administration official for the dismissal of the US Attorneys, for leaking Valerie Plame's name, for ordering torture, for domestic spying, or for a range of other equally outrageous actions. That's because the administration has mastered the art of twisting laws against their clear intent, and finding legal authority to act in plainly immoral ways. Focusing on the lawyers who've enabled that is important, of course. But they were just enablers. Ultimate responsibility rests with those who pressured them for their opinions, and who then seized upon them in order to act in immoral fashion, under the guise of adhering to legal standards. When we argue about legality, they win. When we argue about morality, they lose.

FOTW says: "the blunt truth is that he was able to offer a legal rationale for some truly outrageous ideas - that the president's inherent authority essentially allows him to dispose of any legal restriction he finds inconvenient in a time of war."

The legal language which one uses to gussy up a bad opinion should not confuse the issue. The fact is that the constitution specifically gives Congress the right to "make Rules concerning Captures on Land and Water", in the same clause as the right to declare war. This Yoo memo stood in direct contrast to a clause of the constitution which any lawyer would HAVE to know, especially when formulating legal opinions for administration officials on this issue. This congressional right guided the Hamdan decision and led to the MCA passed immediately prior to the 06 midterm election.

Don't be fooled by the Jedi Mind Tricks used by the Bush administration's lawyers. Legal language does not equal sound legal opinion, and Yoo's memo sets an all new low for acceptable legal backing of an obviously bad and unconstitutional policy.

"Yoo's" on First. "I didn't mean what I said" is on second, and "Waterboard" is on third.

Meet John Yoo, the quintessential example of a Bush/Cheney political appointee.

Cheney: "John I need legal cover to reinstitute "camps."

Yoo: "Coming right up, Chief."

I think another distraction in this is that anybody is caring what Yoo "meant," or "intended," or even "thinks." What matters is what he did, and the effect that his actual work had. To ask him what he thinks of those who think he is a bad lawyer, or making bad legalisms just gets mired in the details. The fact is that his work was used for torture.

And when's TPM going to fix the login/caching problems I've been getting since they released the new comments system?

but it's just about impossible to prosecute an administration official for acting in accordance with legal guidance

I understand the point -- Marty Lederman has argued the same thing -- but the present situation may be unprecedented, by which I indeed mean "no precedential cases."

There is evidence that Yoo's opinions were drafted in bad faith and provided in bad faith to persons who'd requested them in bad faith, all in a conspiracy to commit torture etc. under the shield of OLC opinions.

Such a conspiracy would be VERY difficult to prove in court, particularly given our judiciary's excessive deference ("state secrets" etc.), but I don't think anyone can say that *existing* case law rules out such a legal theory against Yoo, Addington, Rumsfeld, etc.

If you haven't already, Fly, see Philippe Sands' new article in Vanity Fair, which goes directly to the kind of evidence I've described. His book is out next month.

“I don’t [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did.”

You have to hand it to the Bush administration: Its handmaidens really know how to bury discussion of an issue simply by taking each atomic component and arguing them until the whole brou-ha blows over.

For instance, “X took Y’s yellow dog.” OK... Define “took”. When does someone “take” something that isn’t their’s – and does not “taking” imply transportation, that something cannot be “taken” until it is “taken away” from its primary location? Indeed, can we even be sure, if, concerning the dog that may or may not have been “taken”, that it was yellow? Could any witness be color blind? Could someone else describe the dog as “brown?” And can we be sure that a living animal can be possessed to the degree that a third party can “steal” it?

These kinds of lawyer games “termite” any topic by relentlessly dwelling on individual parts until everyone is too bored to follow up on the sum of those parts.

Well, something traveled to Iraq, and it had been well-practiced by the time it got there. And the process was diligently documented on film and video tape, and then repeatedly shown to the world in a manner that shamed this country AND made many, many a die-hard enemy out of what had been the “Arab on the street”.

Yoo was able to offer a legal rationale for some truly outrageous ideas

But at this point in time as far as we know Yoo did not have the authority to author the opinion. He was never Assistant Attorney General or Acting AAG.

We still don't know under whose authority torture was deemed legal. Yoo was not authorized and not in a position to sign a formal OLC opinion.

We also don't know how the opinion was circulated. Are we supposed to think that Yoo's memo was shown to CIA lawyers and they accepted it as all they needed to proceed? No, there is something signed somewhere.

We could always submit him to a water-board interview. I think he's holding out on some information. What say you...

"I was just following orders" was not a defense, in Nuremburg - neither should it be, here - John Yoo or no John Yoo. Just because he gave an "opinion" doesn't mean anyone had to go along with doing torture; only sadists would agree to do such things - that includes "our troops", whom we profess to support and revere, so much.

There's another way of examining this document. Geneva bans "all abuse". If you search the OLC Memo, and serach for "abuse", you'll see the problem: Yoo fails to understand abuse, does not mention it in the context of Geneva. You only focuses on the US Statute, and ignores Geneva. However, legal counsel's oath of office, to the US Constitution as the Supreme Law, includes all treaty obligations under Geneva.

Yoo appears to be arguing against himself. Look at the plain language of the memo he wrote:

§ 2340A (prohibiting torture outside the United States).10 of 20

Yoo fails to explain why he's distancing himself, now, from torture, when his memo expressly states it's illegal. Whether it's a good or idea then or now is meaningless drivel. Hiw own Memo fails to permit torture. Yet, recall, the issue isn't the "definition" of torture; but whether Yoo understands that Geneva bars all abuse. Yoo is shifting the focus from whether we agree or don't agree about torture; and distracting attention from the known geneva requirement barring all abuse. Whether "torture" is or isn't a good idea now or then is unrelated to the legal question of whether the POWs have or haven't been subjected to any abuse.

Linking DoJ OLC Memo With Documented DoD Interrogation Methods

Yoo got himself into trouble on these Geneva issues because he and Addington ignored the JAGs. The DoD's Judge Advocate Generals might have well have mitigated these legal issues after 2001 had DoJ and DoD, under direction from Addington, paid attention to their legal expertise during the POW Working Group Meetings. (Sample: See: "Working Group Recommendations on Detainee Interrogations")

This appears to be a DoD/JAG-raised concern about this Yoo DoJ OLC Memo:

2. (U) The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report's Conclusions, Recommendations, and PowerPoint spreadsheet analysis of the interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion. From

The above comment shows there is a direct link between the DOJ OLC memo, DoD concerns, and other DoD work products.

- Is the now-released Yoo-memo the DoJ OLC memoranda cited in these DoD concerns, and linked with specific spreadsheets on interrogation methods? This appears to be something that DoD General Counsel and Rumsfelt reviewed, approved, and annotated.

- Isn't this the missing link between Rumsfeld/DoD legal counsel and the POW abuses and alleged war crimes?

If Yoo is teaching at Boalt Hall, one would assume that he is a member of the Bar of the State of California. Citizens can file complaints against California lawyers and seek their disbarment. We need to explore that avenue and petition the State Bar for a hearing on Yoo's Torture memo. Even if the ploy doesn't succeed,(The State Bar is a notoriously poor overseer of Mouthpiece malpractice.), at least it could shame the University into firing the asshole.

JAGs Well Warned Yoo Of Torture Against US Miltiary Personnel In Permitted Retaliatory, Reciprocal Actions

It is absurd what Yoo is saying today about torture in 2008; or whether he did or didn't think it was a good idea. These comments below will show you that Yoo was well warned of the risks to US personnel if this Memo were fully implemented. It should have been clear to Yoo that his Memo would be used as a legal basis for foreign powers to commit like abuses against simialrly situated American POWs.

Geneva permits retaliation and reciprocial action to enforce the laws of war. If one combatant refuses to constrain themselves, and commits war crimes against another, other combatants may commit like or similar abuses. These secondary violations are protected violations of Geneva. They are designed to punish the offending nation immediately during wartime.
This lays out the memos from 2003 which cite Yoo's now-released memo, and show there was major disagreement on the POW abuse issues and has direct bearing on Yoo's comments reported today on TPMM. If you read the letters from DoD personnel, they've ripped Yoo's legal arguments to shreds.

The JAGs well state that the fundamental basis for Yoo's legal opinion (and that of Addington and Gonzalez) is flawed on the claims about prisoner abuse and executive orders during wartime. The JAGs are arguing that there no "inherent authority" of the President during wartime to ignore the Constitution, Supreme Law, Geneva Conventions, or international treaties. If the US permits abuse of POWs or torture, Yoo well knew this opened US combat forces to similar abuse and torture. Whether Yoo "liked" or "agreed" with torture then or now was and is meaningless: His memo would expose American military service personnel through the principles of retalation and reciprocity to similar POW abuse and torture:

4. (U) The OLC opinion states further that customary international law cannot bind the U.S. Executive Branch as it is not part of the federal law. As such, any presidential decision made in the context of the ongoing war on terrorism constitutes a ``controlling'' Executive act; one that immediately and automatically displaces any contrary provision of customary international law. This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide. On the one hand, such a policy will open us to international criticism that the ``U.S. is a law unto itself.'' On the other, implementation of questionable techniques will very likely establish a new baseline for acceptable practice in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades.

The JAGs were very clear: This DOJ OLC memoranda, if it was not changed, would permit other nationsn to commit like abuses and torture against similarly detained US military personnel. Yoo, in 2008, cannot credibly argue that he "did or didn't think" torture was or wasn't a good idea then or now. Yoo knew or should have known what his DOJ OLC memoranda was saying, what it permitted, and what the natural consequences of those war crimes would be: Reciprocal violations through abuse and torture of US military personnel and similarly detained POWs.

The JAG memos clearly responded to Yoo's DOJ OLC Memoranda which opened the door to torture. The JAGs were concerned not just about the legal opinion, but the actions the memoranda would "permit" (torture); and the subsequent legal and poltiical consequences to civilian and military leaders. Yoo's statement about torture in this interview smacks of "I had no idea what those JAGs were trying to tell me". He "knew" enough then to ignore the memos and stand by the memo over the JAG's objections. Arguably, despite being told in writing of likely reciprocal actions against US military personnel through torture, Yoo allegedly recklessly refused to change his memo arguing for illegal POW abuse, torture, and violations of the laws of war. It defies reason for anyone to believe Yoo's statements in 2008 somehow immunize or defend himself for what he wrote in the DOJ OLC memoranda. He didn't listen then, and he's not taking responsibilty for what he allegedly failed to do: Fully enforce the laws of war with competent legal analysis.

FOIA: Yoo Allegedly Discloses Existence of Other Memos Written To Override JAG Concerns With This DOJ OLC Memoranda

Yoo would have us believe in 2008 that he had the opposite view, people weren't listening to him, and he had to appeal to others to get them to listen to his "concerns" about POW treatment. This defies reason. He ran to higher ups because the JAGs were at his throat. This smacks of an alleged gross, reckless misrepresentation:

he expressed those reservations “to officials higher up the chain of command.”...

This means there are other memos! The JAGs well know the opposite: Yoo had no reservations, but it was the JAGs who had the reservations. Yoo who authored the opinion; and that it was Yoo and others who ignored the JAGs. The JAG comments show that DoJ OLC and Yoo did not speak on behalf of DoD, these views, or concerns about retalation against Dod personnel. You wasn't in the DoD Chain of Command.

2. The common thread among our recommendations is concern for servicemembers. OLC does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion. Notably, their opinion is silent on the UCMJ and foreign views of international law.From

Yoo's comments today smack of convoluted non-sense in light of this, the same clap-trap from Addington on the Unitary Executive in ignoring Geneva:

4. (U) The OLC opinion states further that customary international law cannot bind the U.S. Executive Branch as it is not part of the federal law.

Like FISA violations, Yoo wasn't appealing to the real chain of command on legal issues, the Courts:

Although a wide range of defenses to these accusations theoretically apply, it is impossible to be certain that any defense will be successful at trial; our domestic courts may well disagree with DoJ/ OLC's interpretation of the law.

Either Yoo is lying and there are no other memos; or he's telling the truth, and he's disclosed other memos he wrote to override the JAG objections. The question is: Where are those memos, when were they written, and who were they addressed to.

- Where did Yoo subsequently provide other memos to prepare for these foreseeable legal actions the JAGs raised; how did Yoo convince the President to ignore the JAG's concerns; what legal arguments did Yoo provide in other memos to override what the JAGs expressed as concerns with Yoo's memo; when did the White House counsel get a ocpy of these concerns Yoo raised to override the JAG's concerns?

- Which specific "officials" in the DoD, DoJ, or White House "chaing of command" is Yoo referring to; how were these subsequent communciations documented in other to-be-revealed memoranda?

- How, other than this DoJ OLC memoranda, did Yoo present his views; is Yoo implicitly arguing, despite this memo, that there were other memos he wrote to argue over and against what the DOD JAGs had documented at the link; where are these backup memos to this now-released memo which Yoo now refers? [FOIAs]

- Which specific other or higher officials in the chain of command is Yoo talking about? Clearly, not anyone in in the JAG office. Yoo wasn't in DoD. Which "chain of command" is Yoo referring to when he refers to his other views: Was it in the White House, National Security Council, White House Counsel's office?

The JAG's expressly contradicted Yoo's contention in Esquire that the memo would "not" apply to Iraq. The JAGs were concerned this memo, when applied worldwide, would subject US forces worldwide to reprisals. The JAG was concerned Yoo's DOJ OLC memo, if relied upon,

"could adversely impact DOD interests worldwide." From

The JAGs in 2003 did not view this DOJ OLC memo as only applying to Guantanamo, contrary to Yoo's assertions to Esquire in 2008.

I am a blue collar gal and I know you can't prattle on and on about Executive Power and then forget to cite Youngstown for chrissakes !

of course he apparently forgot US v Alstoetter as well

Unitary Executive is the Intelligent Design of Constitutional Law

John Yoo had a history of being able to write "opinions" that conveniently met the requests of the party asking for decisions as opposed to actually doing legal work.

I find it interesting that these memos have come out all of a sudden. They've been withheld up to this point.

Why the sudden change?

Justin, if you want to do something useful, get himindicted, dont try to get him fired, that's just lame, and seems contrary to academic freedom.
You will just get him martyr status.

Try and get his profitts from his books garnished as profit from crminal behavior.

Also, from his web site:
Professor Yoo also has received the Paul M. Bator Award for excellence in legal scholarship and teaching from the Federalist Society for Law and Public Policy.

Does it mean he is a Master Bator??.

"The point is that so long as legality is our guiding standard, it opens the door to this sort of abuse. The appropriate question for us to ask isn't, 'Is it legal?' but rather 'Was it ethical?'"

Fly, this is so wrong on so many levels, it's hard to know where to start...

First, your entire argument seems to be based on an assumption that "legality" is determined by lawyers dreaming up rationales. It is not. It is determined by judges and juries hearing evidence and comparing the evidence against existing laws. The opinions of lawyers hardly enters into the equation.

Second, a nation runs according to its laws, not what people think is ethical. When enough people feel strongly about the ethics of a given situation, they pass laws codifying it. No one gets convicted of being unethical in criminal court -- that's a tort, not a crime.

"Congress, I think, still doesn't get this. It calls its oversight hearings, and roots around in the muck for some evidence of laws being broken."

Wrong again. The failure of congress to impeach (which is what's called for) is not a failure to find any number of "smoking guns," it's the cowardice of Pelosi, Reid, and those who follow them. There are dozens of smoking guns to impeach this administration and send them to prison, where they belong. It's only the craven cowardice of our Democratic "leaders," who fear (irrationally) a backlash similar to the (well-deserved) one the Republicans took after their show-trial impeachment of Clinton.

The constitution and other laws are perfectly sufficient to deal with these blatant criminals. Asking, "is it ethical?" would be tantamount to writing Osama bin-Laden an angry letter, an exercise that would only produce ridicule and contempt.

Bush & Co. violated the constitution and the Geneva conventions, and a bunch of opinions from a whore lawyer that amount to, "you can ignore the laws and treaties" doesn't diminish that fact in the slightest.