In 2004 WSJ op-ed, Yoo made claims at odds with his Justice Department memos

››› ››› RAPHAEL SCHWEBER-KOREN

In a May 2004 op-ed, John Yoo made assertions that were later revealed to be highly misleading or at odds with legal memos he had written during the Bush administration.

On May 11, Philadelphia Daily News senior writer Will Bunch reported that Philadelphia Inquirer editorial page editor Harold Jackson had justified his decision to hire University of California-Berkeley law professor John Yoo as a regular columnist in part by claiming that Yoo is "very knowledgeable about the legal subjects he discusses in his commentaries. Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts, including measures taken by the White House post-9/11." However, Yoo's newspaper writing may not have always presented his actual "thoughts" or views: In a May 29, 2004, Wall Street Journal op-ed, Yoo made assertions that were later revealed to be highly misleading or at odds with legal memos he had written during the Bush administration as a deputy assistant attorney general in the Justice Department's Office of Legal Counsel.

In his Journal op-ed, Yoo stated that "interrogations of detainees captured in the war on terrorism are not regulated under Geneva. This is not to condone torture, which," he then asserted, "is still prohibited by the Torture Convention and federal criminal law." However, in a March 14, 2003, memo to William Haynes, then the general counsel for the Defense Department, Yoo wrote that "[i]n our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield" and thus concluded, "we will construe potentially applicable criminal laws ... not to apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority":

As we have discussed above, the President's power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President's constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.

To avoid this constitutional difficulty, therefore, we will construe potentially applicable criminal laws, reviewed in more detail below, not to apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority. We believe that this approach fully respects Congress's authority.

Similarly, an August 1, 2002, memo -- reportedly written "primarily" by Yoo -- on "Standards of Conduct for Interrogation" under the federal torture statute stated that the prohibitions of federal law did not apply to interrogations authorized by the president as part of the war against Al Qaeda because "Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield." From the August 1, 2002, memo, signed by then-Assistant Attorney General Jay Bybee:

V. The President's Command-in-Chief power

Even if an interrogation method arguably were to violate [the federal law prohibiting torture, 18 U.S.C.] Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign. As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.

[...]

In order to respect the President's inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. As our Office has consistently held during this Administration and previous Administrations, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.

[...]

As we discuss below, the President's power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. A construction of Section 2340A that applied the provision to regulate the President's authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.

In addition, in the Journal op-ed, Yoo made statements about the legal status of Afghanistan that contradicted what he wrote in a Justice Department memo about why Taliban detainees were not entitled to prisoner-of-war status under the Geneva Conventions. In the Journal op-ed, Yoo wrote: "While Taliban fighters had an initial claim to protection under the [Geneva] Conventions (since Afghanistan signed the treaties), they lost POW status by failing to obey the standards of conduct for legal combatants: wearing uniforms, a responsible command structure, and obeying the laws of war." But in a draft January 9, 2002, memo to Haynes about the "Application of Treaties and Laws to al Qaeda and Taliban detainees," Yoo had a different view of Afghanistan's status as a party to the Geneva Conventions. He wrote: "Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions, and the Taliban militia, like al Qaeda, is therefore not entitled to the protections of the Geneva Conventions." From the January 9, 2002 draft memo by Yoo and then-special counsel Robert J. Delahunty:

III. Application of the Geneva Conventions to the Taliban Militia

Whether the Geneva Conventions apply to the detention and trial of members of the Taliban militia presents a more difficult legal question. Afghanistan has been a party to all four [sic: of] the Geneva Conventions since September 1956. Some might argue that this requires application of the Geneva Conventions to the present conflict with respect to the Taliban militia, which would trigger the WCA [War Crimes Act]. This argument depends, however, on the assumptions that during the period in which the Taliban militia was ascendant in Afghanistan, the Taliban was the de facto government of that nation, that Afghanistan continued to have the essential attributes of statehood, and that Afghanistan continued in good standing as a party to the treaties that its previous governments had signed.

We think that all of these assumptions are disputable, and indeed false. The weight of informed opinion strongly supports the conclusion that, for the period in question, Afghanistan was a "failed State" whose territory had been largely overrun and held by violence by a militia or faction rather than by a government. Accordingly, Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions, and the Taliban militia, like al Qaeda, is therefore not entitled to the protections of the Geneva Conventions. Furthermore, there appears to be substantial evidence that the Taliban was so dominated by al Qaeda and so complicit in its actions and purposes that the Taliban leadership cannot be distinguished from al Qaeda, and accordingly that the Taliban militia cannot stand on a higher footing under the Geneva Conventions.

Harvard law professor Jack Goldsmith, who was the head of the Office of Legal Counsel from late 2003 to 2004, wrote in his book The Terror Presidency:

When the Bush administration decided in early 2002 to deny al Qaeda and Taliban forces legal protections under the Geneva Conventions, it was acting in step with this long-held U.S. position that terrorists and other enemy fighters who did not wear uniforms or carry their arms openly would be denied POW status. Contrary to conventional wisdom, this decision was not controversial inside the administration. lt had the full support not only of the Justice Department but also of the Department of Defense and the State Department. "The lawyers all agree that al Qaeda or Taliban soldiers are presumptively not POWs," wrote Will Taft, the State Department's Legal Advisor, in February 2002.

There was a very sharp internal dispute over the reasons for this conclusion. John Yoo floated the idea that the Taliban did not receive POW protections because Afghanistan was a failed state and thus did not deserve the protections of the Geneva Conventions at all. The State Department vehemently opposed this argument. So did the Pentagon, where the normally mild-mannered Chairman of the Joint Chiefs of Staff, General Richard Myers, argued passionately against Yoo's position. He believed, according to Douglas Feith, that the Geneva Conventions were "ingrained in U.S. military culture," that "an American soldier's self-image is bound up with the Conventions," and that "[a]s we want our troops, if captured treated according to the Conventions, we have to encourage respect for the law by our own example." Feith supported Myers and argued to [Donald] Rumsfeld that the "failed state" approach harkened back to the subjective and politicized criteria in Protocol I that the United States had rightly rejected twenty years earlier. These men did not believe or argue that Taliban soldiers should get POW protections. They simply thought it was important to affirm the treaty's applicability to the traditional interstate conflict with Afghanistan even if the United States denied Taliban soldiers rights under the treaty. Rumsfeld eventually agreed. [Pages 113-114]

In a February 7, 2002, memo, President Bush stated that he had the "authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time." He also stated: "Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva."

As Media Matters for America documented, Yoo has also made inconsistent, hypocritical statements on the issue of judges showing empathy. In his May 10 column, Yoo denounced President Obama's stated intention to nominate a Supreme Court justice who demonstrates the quality of empathy. But in a review of Supreme Court Justice Clarence Thomas' 2007 memoir, My Grandfather's Son (HarperCollins) -- in which Yoo praised Thomas' "unique, powerful intellect" and commitment to "the principle that the Constitution today means what the Framers thought it meant" -- Yoo touted the unique perspective that he said Thomas brings to the bench and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

From Yoo's Journal op-ed:

A response to criminal action by individual soldiers should begin with the military justice system, rather than efforts to impose a one-size-fits-all policy to cover both Iraqi saboteurs and al Qaeda operatives. That is because the conflict with al Qaeda is not governed by the Geneva Conventions, which applies only to international conflicts between states that have signed them. Al Qaeda is not a nation-state, and its members -- as they demonstrated so horrifically on Sept. 11, 2001 -- violate the very core principle of the laws of war by targeting innocent civilians for destruction. While Taliban fighters had an initial claim to protection under the Conventions (since Afghanistan signed the treaties), they lost POW status by failing to obey the standards of conduct for legal combatants: wearing uniforms, a responsible command structure, and obeying the laws of war.

As a result, interrogations of detainees captured in the war on terrorism are not regulated under Geneva. This is not to condone torture, which is still prohibited by the Torture Convention and federal criminal law. Nonetheless, Congress's definition of torture in those laws -- the infliction of severe mental or physical pain -- leaves room for interrogation methods that go beyond polite conversation. Under the Geneva Convention, for example, a POW is required only to provide name, rank, and serial number and cannot receive any benefits for cooperating.

We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.