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John Choon Yoo (born 1967 in Seoul) is an American professor of Law at the Boalt Hall School of Law, University of California, Berkeley, known for his work from 2001 to 2003 in the United States Justice Department's Office of Legal Counsel, assisting the Attorney General in his function as legal advisor to President Bush and all the executive branch agencies.

He contributed to the PATRIOT Act and wrote memos in which he advocated the possible legality of torture and that enemy combatants could be denied protection under the Geneva Conventions. Yoo has also worked as a visiting scholar at the conservative think tank American Enterprise Institute since 2003.

Biography

As an infant, Yoo emigrated with his parents from South Korea to the United States. He grew up in Philadelphia, Pennsylvania, graduating from the Episcopal Academy in 1985, and graduated with a B.A., summa cum laude in American history from Harvard University in 1989 and Yale Law School in 1992. Yoo clerked for United States Supreme Court Justice Clarence Thomas and U.S. Court of Appeals for the D.C. Circuit Judge Laurence Silberman. From 1995 to 1996 he was general counsel for the Senate Judiciary Committee. He is currently a Professor of Law at Boalt Hall School of Law in Berkeley, California. Professor Yoo is an active member of the The Federalist Society and is one of the most influential members of the Federalist Society in Northern California. Yoo is married to the daughter of Pulitzer Prize-winning journalist Peter Arnett.

Scholarly work

Yoo's academic work includes analysis of the history of judicial review in the U.S. Constitution. (See discussion in the Marbury v. Madison entry.) Yoo's book The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11 was praised in an Op-Ed in The Washington Times written by Nicholas J. Xenakis, an assistant editor at The National Interest. It was cited during the Senate hearings for then-U.S. Supreme Court nominee Samuel Alito by Senator Joseph Biden, who "pressed Alito to denounce John Yoo's controversial defense of presidential initiative in taking the nation to war."

Legal opinions in the War on Terror

The following memos are some of those known or believed to have been authored, in whole or in part, by John Yoo during his stint at the Office of Legal Counsel; some are still classified, and in some cases dates are approximate for that reason. (See Jan. 5, 2005 letter from Senator Patrick Leahy requesting some of these documents.)

• October 17, 2001 Memorandum for Alberto Gonzales and William J. Haynes, "Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States" (signed by John Yoo and Robert Delahunty).

• December 28, 2001 Memorandum for William J. Haynes, "Re: Possible Habeas Jurisdiction Over Aliens Held in Guantanamo Bay" (signed by John Yoo and Patrick Philbin).

• January 9 (22?), 2002 memo for William J. Haynes, "Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees" (signed by Jay S. Bybee).

• February 7, 2002 memo for Alberto Gonzales, "Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949" (signed by Jay S. Bybee).

• February 26, 2002 memo for William J. Haynes, "Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan" (signed by Jay S. Bybee).

• March 13, 2002 Memorandum for William J. Haynes, "Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations" (signed by Jay S. Bybee).

• August 1, 2002 memo for Alberto R. Gonzales, "Re: Standards of Conduct for Interrogation Under 18 U.S.C. 2340-2340A" (signed by Jay S. Bybee) (the Bybee memo). (Link includes Aug. 1, 2002 cover letter summarizing memo.)

• March 14, 2003 memo for William J. Haynes II, "Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" (signed by John C. Yoo).

Regarding torture of detainees

After he left the Department of Justice, it was revealed that Yoo authored memos, including co-authoring the Bybee memo defining torture and American habeas corpus obligations narrowly. The memos, known today as the "torture memos," advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility American officials and surrogates face future prosecution under the US War Crimes Act of 1996 for actions taken in the War on Terror. In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S. Several top military lawyers, including Alberto J. Mora, reported that policies allowing methods equivalent to torture were officially handed down from the highest levels of the administration, and led an effort within the Department of Defence to put a stop to those policies and instead mandate non-coercive interrogation standards.

Student protesters at Berkeley have demanded, to no avail, that he renounce the memos or resign his professorship.

On June 26, 2008, Yoo and Vice President Dick Cheney's chief of staff and former counsel David Addington testified before the House Judiciary Committee in a contentious hearing on detainee treatment, interrogation methods and the extent of executive branch authority.

Regarding the Fourth amendment

The aforementioned memoranda also refer to a still-classified memo allegedly asserting that the President had sufficient power to allow the NSA to monitor the communications of US citizens on US soil without a warrant because the fourth amendment does not apply. Or, as the memo says in one of its footnotes:

Our office recently concluded that the Fourth Amendment had no application to domestic military operations.

That interpretation is used to assert that the normal mandatory requirement of a warrant, under the Foreign Intelligence Surveillance Act, could be ignored. Yoo, citing the classified nature of the matter, has declined to confirm or deny reports that he authored the position that the President had sufficient power to allow the NSA to monitor the communications of US citizens on US soil without a warrant (see, NSA warrantless surveillance controversy).

Unitary Executive Theory

At the heart of these legal opinions is the notion that during a time of war the President, in his duty as Commander-in-Chief, with his inherent powers, cannot be bound by law (see, Foreign Intelligence Surveillance Act, UN Convention Against Torture, Geneva Conventions) or Congress. Yoo suggested that since the primary task of the President, during a time of war, is protecting US citizens, any hindrance to that capacity, whether US and international law or even Congress, can be considered unconstitutional. Yoo contends that the Congressional check on Presidential war making power comes from its power of the purse, and that the President, and not the Congress or courts, has sole authority to interpret international treaties such as the Geneva Convention "because treaty interpretation is a key feature of the conduct of foreign affairs". His positions on executive power, termed by some the Yoo Doctrine, also known as Unitary executive theory, are controversial because it is suggested that the theory holds that the President's war powers place him above any law. In 2006, Yoo opinioned that if the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no treaty that can stop him.

He has criticized popular views on the Separation of Powers doctrine as historically inaccurate and problematic for the Global War on Terrorism, stating, for instance:

We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.

and

To his critics, Mr. Bush is a “King George” bent on an “imperial presidency.” But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive.

However, these views seem to contradict his earlier statements on executive power as it related to the Clinton presidency:

President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.

and

In democracies, we distinguish between a public office and the person who holds that office; people for whom the office and the person are one and the same are called kings.

Likewise, at a conference on executive power in 2000, Yoo declared:

...the Clinton administration has undermined the balance of powers that exist in foreign affairs, and have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration.

And regarding the Clinton administration’s legal interpretation of the ABM treaty, he added:

...the legal arguments are so outrageous, they’re so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulatable it is.

Source: Charlie Savage, Takeover (New York: Little Brown & Co, 2007); pg 67. Video available at http:www.cato.org/realaudio/con-07-12-00p4.ram. The George Washington University law professor Orin Kerr wrote about this presentation on the legal blog Volokh Conspiracy on September 18, 2006.

Suggested origin of legal opinions

Professor of Law Scott Horton and other experts contend that Yoo's analysis that the president is not bound by the Geneva Conventions was based on work by Carl Schmitt (1888-1985). Examples of arguments used by Schmitt, according to Horton:

1. Particularly on the Eastern Front, the conflict was a nonconventional sort of warfare being waged against a “barbaric” enemy which engaged in “terrorist” practices, and which itself did not observe the law of armed conflict.
2. Individual combatants who engaged in “terrorist” practices, or who fought in military formations engaged in such practices, were not entitled to protections under international humanitarian law, and the adjudicatory provisions of the Geneva Conventions could therefore be avoided together with the substantive protections.
3. The Geneva and Hague Conventions were “obsolete” and ill-suited to the sort of ideologically driven warfare in which the Nazis were engaged on the Eastern Front, although they might have limited application with respect to the Western Allies.
4. Application of the Geneva Conventions was not in the enlightened self-interest of Germany because its enemies would not reciprocate such conduct by treating German prisoners in a humane fashion.
5. Construction of international law should be driven in the first instance by a clear understanding of the national interest as determined by the executive. To this end, niggling, hypertechnical interpretations of the Conventions that disregarded the plain text, international practice, and even Germany’s prior practice in order to justify their nonapplication were entirely inappropriate.
6. In any event, the rules of international law were subordinate to the military interests of the German state and to the law as determined and stated by the German Führer.

In Yoo's known contributions, Scott Horton and historians Heinrich August Winkler, Sandy Levinson, David Abraham, and Christopher Kutz see similarities with the writings of Carl Schmitt. According to legal experts Scott Horton, David Abraham, and Ahmad Chehab, the concept of the "unitary executive" seems to be based upon Schmitt's state of exception.

War crimes accusations

Several legal commentators have argued that Yoo could potentially be indicted for crimes against the laws and customs of war, the crime of torture, and/or crimes against humanity.

On 14th November 2006, invoking the principle of command responsibility, German attorney Wolfgang Kaleck filed a complaint with the German Federal Attorney General (Generalbundesanwalt) against Yoo, along with 13 others for his alleged complicity in torture and other crimes against humanity at Abu Ghraib in Iraq and Guantanamo Bay, Cuba. Mr. Kaleck acted on behalf of 11 alleged victims of torture and other human rights abuses, as well as about 30 human rights activists and organizations. The co-plaintiffs to the war crimes prosecution included Adolfo Pérez Esquivel, Martín Almada, Theo van Boven, Sister Dianna Ortiz, and Veterans for Peace. Responding to the so-called "torture memoranda" Scott Horton pointed out

the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous "Night and Fog Decree."

Jordan Paust of the University of Houston Law Center concurred, responding to Mukasey's refusal to investigate and/or prosecute anyone that relied on these legal opinions:

it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense!

On January 4, 2008, John Yoo was sued in the U.S. District Court, Northern District of California (Case Number 08-cv-00035-JSW) by José Padilla and his mother. The complaint seeks damages based on the alleged torture of Padilla attributed by the complaint to Yoo's torture memoranda.

It seems that Mr. Yoo may have anticipated that his memorandums might lead to prosecution. Parts of one legal memorandum written by Mr. Yoo as a member of the Department of Justice's Office of Legal Council are preparation for a criminal defense for hypothetical U.S. government defendants against hypothetical charges of crimes of torture and crimes against humanity.

Retired Colonel Lawrence B. Wilkerson, General Colin Powell's former chief of staff (in both the Persian Gulf War and while Powell was Secretary of State in the Bush Administration), has stated the following regarding Mr. Yoo: "Haynes, Feith, Yoo, Bybee, Gonzalez and - at the apex - Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In the future, some government may build the case necessary to prosecute them in a foreign court, or in an international court." Retired Major General Antonio Taguba writes: "There is no longer any doubt as to whether the current administration has committed war crimes; the only question that remains to be answered is whether those who ordered the use of torture will be held to account."

Yoo's torture memoranda had been almost immediately retracted by Jack Goldsmith, the new chief of the Office of Legal Counsel in the Department of Justice. The Padilla complaint, on page 20, cites Goldsmith's 2007 book The Terror Presidency in support of its case. Goldsmith's book and his interviews while marketing the book claimed that the legal analysis in Yoo's torture memoranda was incorrect and that there was widespread opposition to the memoranda among some lawyers in the Justice Department, providing the basis for the lawsuit. The claim is that Yoo caused Padilla's damages by authorizing his alleged torture through his memoranda.

Other Activities

Yoo is known as a public opponent of the Chemical Weapons Convention, a treaty which outlaws the possession or manufacture of chemical weapons, including deadly nerve gas, which was signed by George H. W. Bush in 1993 and successfully ratified by the United States Senate in 1997.

Works

Yoo has authored two recent books.

• The Powers Of War And Peace: The Constitution And Foreign Affairs After 9/11 (ISBN 0-226-96031-5). University of Chicago Press, 2005.
• War by Other Means: An Insider's Account of the War on Terror (ISBN 0-87113-945-6). Atlantic Monthly Press, September 8 2006.

See also

• Extraordinary rendition

References

1. Who2 Almanac: John Yoo
2. Contemporary Authors Online, Thomson Gale, 2008.
3. A Junior Aide Had a Big Role in Terror Policy, New York Times, December 23, 2005
4. Torture and Accountability, The Nation, June 28 2005;
   • Parsing pain, Salon (magazine), February 23 2006;
   • U.S. Officials Misstate Geneva Convention Requirements , Human Rights Watch, January 28 2002;
   • Findings Report: Enemy Combatants and the Geneva Conventions, Council on Foreign Relations, December 12 2002;
   • Memos Reveal War Crimes Warnings, MSNBC, May 19 2004;
   • The New CIA Gulag of Secret Foreign Prisons: Why it Violates Both Domestic and International Law, Findlaw, November 7 2005;
   • US Lawyers Warn Bush on War Crimes, Global Policy Forum, January 28 2003.
5. Congress goes wobbly, The Washington Times, Oct. 25, 2005
6. "The War Over the War Powers"
7. Double Standards?, MSNBC, May 15 2005
8. The Interrogation Documents: Debating U.S. Policy and Methods the memos written as part of the war on terrorism
9. Yoo memos referred to as "torture memos"
   • The Torture Memos and Academic Freedom by Christopher Edley, Jr., The Honorable William H. Orrick, Jr. Distinguished Chair and Dean of UC Berkeley School of Law, Boalt Hall, April 10, 2008
   • The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, Executive Authority, DOJ and OLC Marty Lederman, Balkinization, July 08, 2007
   • Bush Admits To Knowledge of Torture Authorization by Top Advisers by the ACLU
   • Yoo Two], by Scott Horton, No Comment, April 3, 2008
   • John Yoo: Spearhead or scapegoat? by Glenn Greenwald, April 12, 2008
10. ^ Suggested origin of legal justifications
    • Thinking out loud about John Yoo (and about Carl Schmitt) by Sandy Levinson, Balkinization, April 12, 2008
    • The Bush Regime from Elections to Detentions: A Moral Economy of Carl Schmitt and Human Rights by Abraham, David, University of Miami - School of Law, University of Miami Legal Studies Research Paper No. 2007-20 May 2007
    • Torture, Necessity and Existential Politics by Kutz, Christopher L., University of California, Berkeley - School of Law (Boalt Hall), UC Berkeley Public Law Research Paper No. 870602, December 2005
    • The Return of Carl Schmitt Scott Horton, Balkinization, November 07, 2005
    • Deconstructing John Yoo by Scott Horton, Harpers, January 23, 2008
    • The will to undemocratic power By Philip S Golub, Le Monde Diplomatique, September 2006
    • The Leo-conservatives by GERHARD SPÖRL, Der Spiegel, August 04, 2003
11. War crimes warning
    • Memos Reveal War Crimes Warnings By Michael Isikoff, Newsweek, May 19 2004
    • Torture and Accountability by Elizabeth Holtzman, The Nation, June 28 2005
    • US Lawyers Warn Bush on War Crimes By Grant McCool, Lawyers Against the War, Global Policy Forum, January 28 2003
12. US definition of torture
    • Judge's anger at US torture by Richard Norton-Taylor and Suzanne Goldenberg, The Guardian, February 17 2006
    • Torture as National Policy By Dahr Jamail, Tomdispatch.com, March 9 2006
13. Torture as policy?
    • Memorandum for Inspector General, Department of the Navy July 7 2004
    • THE MEMO -How an internal effort to ban the abuse and torture of detainees was thwarted by JANE MAYER, The New Yorker, February 20 2006
    • How the Pentagon Came to Adopt Criminal Abuse as Official Policy by Marty Lederman, February 20 2006
14. Protest Targets Law Professor's Prisoner Memo by Jacob Schneider, The Daily Californian, June 28 2004
15. Cal Alumni Against John Yoo
16. Dan Eggen (2008-06-27). "Bush Policy Authors Defend Their Actions". The Washington Post.
17. Scott Shane (2008-06-27). "Two Testify on Memo Spelling Out Interrogation". The New York Times.
18. Dana Milbank (2008-06-27). "When Anonymity Fails, Be Nasty, Brutish and Short". The Washington Post.
19. ^ Fourth amendment does not apply
    • DOJ Endorsed Terrorism Exception to 4th Amendment in Another Disavowed Memo, By Debra Cassens Weiss, the ABA Journal, magazine of the American Bar Association, April 4, 2008
    • Bush Administration Memo Says Fourth Amendment Does Not Apply To Military Operations Within U.S. ACLU, April 2, 2008
    • Memo linked to warrantless surveillance By PAMELA HESS and LARA JAKES JORDAN, Associated Press, April 3, 2008
    • [Administration Asserts No Fourth Amendment for Domestic Military Operations
    Posted by Kurt Opsahl Administration Asserts No Fourth Amendment for Domestic Military Operations] by Kurt Opsahl, Electronic Frontier Foundation, April 2nd, 2008
20. Bush Authorized Domestic Spying: Post-9/11 Order Bypassed Special Court, Washington Post, December 16 2005
21. Suggested interpretation of War Powers in the Bush administration
    • The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? By JENNIFER VAN BERGEN, Findlaw, January 09, 2006
    • The President Does Not Know Best By Elizabeth de la Vega, Tomdispatch.com. Posted January 19, 2006
    • Guest Opinion by Roger A. White, Arizona Daily Star, January 22, 2006
    • Bush on Trial for Crimes against Humanity By Marjorie Cohn, Truthout, January 24, 2006
    • How Much Authority Does the President Possess When He Is Acting as "Commander In Chief"? Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent By EDWARD LAZARUS, FindLaw, January 5, 2006
    • George Bush's rough justice - The career of the latest supreme court nominee has been marked by his hatred of liberalism by Sidney Blumenthal, The Guardian, January 12, 2006
    • Vice President Cheney and The Fight Over "Inherent" Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11By John W. Dean, FindLaw,February 10, 2006
    • No Checks, Many Imbalances By George F. Will, Washington Post, 16 February 2006
    • How Close Are We to the End of Democracy? by Martin Garbus, Huffington Post, January 20, 2006
    • Administration Paper Defends Spy Program Detailed Argument Cites War Powers By Carol D. Leonnig, Washington Post, January 20, 2006
    • Scholar Stands by Post-9/11 Writings On Torture, Domestic Eavesdropping By Peter Slevin, Washington Post, December 26, 2005.
22. ^ An interview with John Yoo: author of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 Cite error: The named reference "UChicInterview" was defined multiple times with different content (see the help page).
23. A Wunnerful, Wunnerful Constitution, John Yoo Notwithstanding, After Downing Street, December 9 2005
24. The Unitary Executive in the Modern Era, 1945-2001 (.pdf), Vanderbilt University
25. ^ Meek, mild and menacing, Salon (magazine), January 12 2006
26. 9/11: Five years later: Bush continues to wield power by Bob Egelko, San Francisco Chronicle, page E-2 of print edition, September 10, 2006.
27. How the Presidency Regained Its Balance by John Yoo, The New York Times, September 17 2006.
28. Chapter 12: The Imperial President Abroad, by John Yoo. Page 159 in The Rule of Law in the Wake of Clinton edited by Roger Pilon, published by the Cato Institute in 2000. ISBN 1930865031.
29. A Privileged Executive? by John C. Yoo, Wall Street Journal, March 2, 1998. Accessed April 5, 2008 via Google News Archives.
30. Unitary executive and Schmitt
    • Lessons from Carl Schmitt: Political Theology, Executive Power and the "Impact of Political Events" University of Chicago Press, 2005
    • Neocons’ Nazi Hero - How Carl Schmitt Spawned Fascist America By ARTHUR VERSLUIS, Counterpunch, August 10, 2006
    • THE UNITARY EXECUTIVE AND THE JURISPRUDENCE OF CARL SCHMITT: THEORETICAL IMPLICATIONS FOR THE "WAR ON TERRORISM" Author: Ahmad Chehab Research Sponsor: Dr. Brad Roth Department: Political Science Institution: Wayne State University
31. Glenn Greenwald (2008-04-02). "John Yoo's War Crimes". Retrieved 2008-04-27.
32. Universal jurisdiction
    • Charges Sought Against Rumsfeld Over Prison Abuse by ADAM ZAGORIN, Time
    • War Crimes Suit Prepared against Rumsfeld Democracy Now, November 9th, 2006
    • War Criminals, Beware by Jeremy Brecher and Brendan Smith, The Nation, November 3, 2006
33. Just Following Orders? DOJ Opinions and War Crimes Liability Jordan Paust, JURIST, February 18, 2008
34. John Yoo (January 19, 2008). "Terrorist Tort Travesty". Wall Street Journal. pp. Page A13. Retrieved 2008-02-10. Last week, I (a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys. {{cite news}}: Check date values in: |date= (help)
35. ""Yoo Memorandum, Office of Legal Counsel, March 14th, 2003, pp.74 - 81"" (PDF).
36. Richard Norton-Taylor (April 19, 2008). "Top Bush Aides Pushed For Guantanamo Torture". The Guardian. Retrieved 2008-04-27. {{cite news}}: Check date values in: |date= (help)
37. Scott Shane (June 25, 2008). "Bipartisan Group to Speak Out on Detainees". The New York Times. Retrieved 2008-06-28. {{cite news}}: Check date values in: |date= (help)
38. Curt Anderson (January 4, 2008). "Padilla Sues Ex-Bush Official Over Memos". Associated Press. Retrieved 2008-02-10. {{cite news}}: Check date values in: |date= (help)
39. Elaine Cassel (January 4, 2008). "Jose Padilla's Suit Against John Yoo: An Interesting Idea, But Will It Get Far?". Findlaw. Retrieved 2008-02-10. {{cite news}}: Check date values in: |date= (help)
40. "The U.S. Debate Over the CWC: Supporters and Opponents". The Henry L. Stimson Center. 2007. Retrieved 2008-08-09. {{cite web}}: Check date values in: |date= (help)

• American legal academics
• American legal writers
• American foreign policy writers
• American political writers
• George W. Bush Administration personnel
• George W. Bush administration controversies
• War on Terror
• American Enterprise Institute
• University of California, Berkeley faculty
• Yale Law School alumni
• Harvard University alumni
• Korean Americans
• 1967 births
• Living people