John Yoo | |
|---|---|
| 유준 | |
.jpg) Yoo in 2012 | |
| Deputy Assistant Attorney General for theOffice of Legal Counsel | |
| In office July 2001 – May 2003 | |
| Appointed by | Jay S. Bybee |
| President | George W. Bush |
| Personal details | |
| Born | Yoo Choon (1967-07-10)July 10, 1967 (age 58) Seoul, South Korea |
| Party | Republican |
| Spouse | Elsa Arnett |
| Education | Harvard University (BA) Yale University (JD) |
| Occupation | Law professor |
| Known for | "Torture Memos" (2002) |
| Awards | Federalist SocietyPaul M. Bator Award (2001)[1] |
| Korean name | |
| Hangul | 유준 |
| Hanja | 有俊 |
| RR | Yu Jun |
| MR | Yu Chun |
John Choon Yoo (Korean: 유준; born July 10, 1967)[2] is a South Korean-born American legal scholar and former government official who is the Emanuel S. Heller Professor of Law at theUniversity of California, Berkeley. While serving in theGeorge W. Bush administration, he became known for his legal opinions concerningexecutive power,warrantless wiretapping, and theGeneva Conventions.
Yoo was the author of the controversial "Torture Memos" in thewar on terror. As the deputy assistant attorney general in theOffice of Legal Counsel (OLC) of theDepartment of Justice, Yoo wrote the Torture Memos to determine the legal limits for thetorture of detainees following theSeptember 11 attacks. The legal guidance on interrogation authored by Yoo and his successors in the OLC were rescinded by PresidentBarack Obama in 2009.[3][4][5] Some called for investigating and prosecuting Yoo under various anti-torture and anti-war crimes statutes.[6][7][8][9]
A report by the Justice Department'sOffice of Professional Responsibility stated that Yoo's justification ofwaterboarding and other "enhanced interrogation methods" constituted "intentional professional misconduct" and recommended that Yoo be referred to his state bar association for possible disciplinary proceedings.[10][11][12][13] Senior Justice Department lawyer David Margolis overruled the report in 2010, saying that Yoo andAssistant Attorney GeneralJay Bybee—who authorized the memos—had exercised "poor judgment" but that the department lacked a clear standard to conclude misconduct.[14][12]
Yoo was born on July 10, 1967, inSeoul, South Korea. His parents were teenagers during theKorean War who became medical doctors before moving to the United States when Yoo was three months old.[15] Because of their experience aswar refugees, Yoo's parents were anti-communist.[16]
After immigrating to the United States with his family as an infant, Yoo grew up inPhiladelphia, Pennsylvania.[16] He attended high school atEpiscopal Academy and graduated in 1985.[17] He then studiedAmerican history atHarvard University, where he was the deputy editorial chairman ofThe Harvard Crimson.[18] He wrote hissenior thesis on the foreign policy of presidentsDwight D. Eisenhower,John F. Kennedy, andLyndon B. Johnson under the supervision of historianBrian Balogh.[19][20]
In 1989, Yoo graduated fromHarvard College with aBachelor of Arts,summa cum laude, with membership inPhi Beta Kappa, and won the college's Washburn Prize and Detur Prize for academic achievement. He then enrolled atYale Law School, where he became an editor ofThe Yale Law Journal, and earned aJuris Doctor (J.D.) in 1992.[21]
After law school, Yoo was alaw clerk for JudgeLaurence H. Silberman of theU.S. Court of Appeals for the District of Columbia Circuit from 1992 to 1993 and for JusticeClarence Thomas of theU.S. Supreme Court from 1994 to 1995. He served as general counsel of theSenate Judiciary Committee from 1995 to 1996.[22]
Yoo has been a professor at theUniversity of California, Berkeley, School of Law since 1993, where he is the Emanuel S. Heller Professor of Law. He has written multiple books on presidential power and thewar on terrorism, and many articles in scholarly journals and newspapers.[23][24] He has held the Fulbright Distinguished Chair in Law at theUniversity of Trento and has been a visiting law professor at theFree University of Amsterdam, theUniversity of Chicago, andChapman University School of Law. Since 2003, Yoo has also been a visiting scholar at theAmerican Enterprise Institute, a conservativethink tank in Washington. He wrote a monthly column, "Closing Arguments", forThe Philadelphia Inquirer.[25] He has written academic books includingCrisis and Command.[25]
Yoo has been principally associated with his work from 2001 to 2003 in the Department of Justice'sOffice of Legal Counsel (OLC) under Attorney GeneralJohn Ashcroft during theGeorge W. Bush Administration.[26][27][6] Yoo's expansive view of presidential power led to a close relationship with Vice PresidentDick Cheney's office.[27] He played an important role in developing a legal justification for the Bush administration's policy in thewar on terrorism, arguing thatprisoner of war status under theGeneva Conventions does not apply to "enemy combatants" captured during thewar in Afghanistan and held at theGuantánamo Bay detention camp.[28]
In what was originally known as the Bybee memo, Yoo asserted that executive authority during wartime allowswaterboarding and other forms of torture, which wereeuphemistically referred to as "enhanced interrogation techniques"[29] were issued to the CIA. Yoo's memos narrowly defined torture and Americanhabeas corpus obligations.[30] Yoo argued in his legal opinion that the president was not bound by the AmericanWar Crimes Act of 1996. Yoo's legal opinions were not shared by everyone within the Bush Administration. Secretary of StateColin Powell strongly opposed what he saw as an invalidation of theGeneva Conventions,[31] while U.S. Navy general counselAlberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's opinions.[32] In December 2003, Yoo's memo on permissible interrogation techniques was repudiated as legally unsound by the OLC, then under the direction ofJack Goldsmith.[32]
In June 2004, another of Yoo's memos on interrogation techniques was leaked to the press, after which it was repudiated by Goldsmith and the OLC.[33] On March 14, 2003, Yoo wrote a legal opinion memo in response to the General Counsel of the Department of Defense, in which he concluded that torture not allowed by federal law could be used by interrogators in overseas areas.[34] Yoo cited an 1873 Supreme Court ruling, on theModoc Indian Prisoners, where the Supreme Court had ruled that Modoc Indians were notlawful combatants, so they could be shot, on sight, to justify his assertion that individuals apprehended in Afghanistan could be tortured.[35][36]
Yoo's contribution to these memos has remained a source of controversy following his departure from the Justice Department;[37] he was called to testify before theHouse Judiciary Committee in 2008 in defense of his role.[38] The Justice Department'sOffice of Professional Responsibility (OPR) began investigating Yoo's work in 2004 and in July 2009 completed a report that was sharply critical of his legal justification forwaterboarding and other interrogation techniques.[39][40][41][42] The OPR report cites testimony Yoo gave to Justice Department investigators in which he claims that the "president's war-making authority was so broad that he had the constitutional power to order a village to be 'massacred.'"[12] The OPR report concluded that Yoo had "committed 'intentional professional misconduct' when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques againstAl Qaeda suspects," although the recommendation that he be referred to his state bar association for possible disciplinary proceedings was overruled by David Margolis, another senior Justice department lawyer.[12]
In 2009, PresidentBarack Obama issuedExecutive Order 13491, rescinding the legal guidance on interrogation authored by Yoo and his successors in the Office of Legal Counsel.[3][4][5]
In December 2005, Doug Cassel, a law professor from theUniversity of Notre Dame, asked Yoo, "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied, "No treaty." Cassel followed up with "Also no law by Congress—that is what you wrote in the August 2002 memo," to which Yoo replied, "I think it depends on why the President thinks he needs to do that."[43]
Criminal proceedings against Yoo have begun in Spain[needs update]: in a move that could have led to an extradition request, JudgeBaltasar Garzón in March 2009 referred a case against Yoo to the chief prosecutor.[44][45] The Spanish Attorney General recommended against pursuing the case.[citation needed]
On November 14, 2006, invoking the principle ofcommand responsibility, the German attorneyWolfgang Kaleck filed a complaint with theAttorney General of Germany (Generalbundesanwalt) against Yoo, along with 13 others, for his alleged complicity in torture and other crimes against humanity atAbu Ghraib in Iraq andGuantánamo Bay. 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 includedAdolfo Pérez Esquivel,Martín Almada,Theo van Boven,Sister Dianna Ortiz, andVeterans for Peace.[46] Responding to the so-called "torture memoranda,"Scott Horton noted
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 ofUnited 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'.[47]
Legal scholars speculated shortly thereafter that the case has little chance of successfully making it through the German court system.[48]
Jordan Paust of theUniversity of Houston Law Center concurred with supporters of prosecution and in early 2008 criticized the US Attorney GeneralMichael Mukasey's refusal to investigate and/or prosecute anyone who relied on these legal opinions:
[I]t 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![49]
In 2009, the Spanish JudgeBaltasar Garzón Real launched an investigation of Yoo and five others (known asthe Bush Six) for war crimes.[50]
On April 13, 2013, theRussian Federation banned Yoo and several others from entering the country because of allegedhuman rights violations. The list was a direct response to the so-calledMagnitsky list revealed by the United States the day before.[51] Russia stated that Yoo was among those responsible for "the legalization of torture" and "unlimited detention".[52][53]
After the December 2014 release of the executive summary of theSenate Intelligence Committee report on CIA torture,Erwin Chemerinsky, then the dean of theUniversity of California, Irvine School of Law, called for the prosecution of Yoo for his role in authoring theTorture Memos as "conspiracy to violate a federal statute".[8]
On May 12, 2012, theKuala Lumpur War Crimes Commission found Yoo, along with former President Bush, former Vice President Cheney, and several other senior members of the Bush administration, guilty of war crimes in absentia. The trial heard "harrowing witness accounts from victims of torture who suffered at the hands of US soldiers and contractors in Iraq and Afghanistan".[54]
Yoo provided a legal opinion backing the Bush Administration'swarrantless wiretapping program.[27][6][55][31] Yoo authored theOctober 23, 2001 memo asserting that the President had sufficient power to allow the NSA to monitor the communications of US citizens on US soil without a warrant (known as thewarrantless wiretap program) because the Fourth Amendment does not apply. As another memo says in a footnote, "Our office recently concluded that the Fourth Amendment had no application to domestic military operations."[56][57][58][59][60] That interpretation is used to assert that the normal mandatory requirement of a warrant, under theForeign Intelligence Surveillance Act, could be ignored.[57][59]
In a 2006 book and a 2007 law review article, Yoo defended President Bush's terrorist surveillance program, arguing that "the TSP represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during wartime".[61] He claimed that critics of the program misunderstand the separation of powers between the President and Congress in wartime because of a failure to understand the differences between war and crime, and a difficulty in understanding the new challenges presented by a networked, dynamic enemy such asAl Qaeda. "Because the United States is at war with Al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity."[61] In aWall Street Journal opinion piece in July 2009, Yoo wrote it was "absurd to think that a law likeFISA should restrict live military operations against potential attacks on the United States."[62]
In December 2020, President Donald Trump appointed Yoo to a four-year term on theNational Board for Education Sciences, which advises theDepartment of Education on scientific research and investments.[63][64][needs update]
Yoo suggested that since the primary task of the President duringa time of war is protecting U.S. citizens, the President has inherent authority to subordinate independent government agencies, and plenary power to use force abroad.[65][66][17] Yoo contends that the Congressional check on Presidential war-making power comes from itspower of the purse. He says that the President, and not the Congress or courts, has sole authority to interpret international treaties such as theGeneva Conventions, "because treaty interpretation is a key feature of the conduct of foreign affairs".[67] His positions on executive power are controversial because the theory can be interpreted as holding that the President's war powers afford him executive privileges which exceed the bounds which other scholars associate with the President's war powers.[67][68][69][70] His positions on the unitary executive are controversial as well because they are seen as an excuse to advance a conservative deregulatory agenda; the unitary executive theory says that every president is able to roll back any regulation passed by previous presidents, and it came to prominence in the Reagan administration as a "legal strategy that could enable the administration to gain control of the independent regulatory agencies that were seen as impeding the...agenda of deregulating business."[71]
Following his tenure as an appointee of theGeorge W. Bush administration, Yoo criticized certain views on theseparation of powers doctrine as allegedly being historically inaccurate and problematic for the global war on terrorism. For instance, he wrote, "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."[72]
In 1998 Yoo criticized what he characterized as an imperial use of executive power by the Clinton administration.[73] In an opinion piece in theWSJ, he argued that the Clinton administration misused the privilege to protect the personal, rather than official, activities of the President, such as in theMonica Lewinsky affair.[73] At the time, Yoo also criticized Clinton for contemplating defiance of a judicial order. He suggested that Presidents could act in conflict with the Supreme Court, but that such measures were justified only during emergencies.[74] In 2000 Yoo strongly criticized what he viewed as theClinton administration's use of powers of what he termed the "Imperial Presidency". He said it undermined "democratic accountability and respect for the law".[75] Yet, Yoo has defended Clinton for his decision to use force abroad without congressional authorization. He wrote inThe Wall Street Journal on March 15, 1999, that Clinton's decision to attackSerbia was constitutional. He then criticized Democrats in Congress for not suing Clinton as they had sued presidents Bush and Reagan to stop the use of force abroad.[76]
In 2019, onFox News, Yoo made the comment "Some might call that espionage"[77] when discussing Lt. Col.Alexander Vindman, the top Ukraine expert on theNational Security Council. Vindman was set to testify in front of Congress the next day about Trump requesting that the Ukrainian president start an investigation into his political rivalJoe Biden. Yoo subsequently said "I really regret the choice of words" and that he had been referring to Ukrainian officials rather than Vindman.[78]
In 2020, Yoo praised Trump as a "constitutional conservative".[79] He wrote a 2020 book about Trump titledDefender in Chief: Donald Trump's Fight for Presidential Power.[80][81] During an interview onC-SPAN in August 2020, Yoo defended the use of enhancedexecutive privilege within the Trump administration.[82] He stated in a concurrent interview onCBS withTed Koppel that his support for Trump may be guided by his possible reading of PEADs (Presidential Emergency Action Documents) as further supplementing his support for enhanced executive privilege during wartime and other national emergencies.[83]
After Trump lost his bid for re-election in the2020 United States presidential election, Yoo stated in an opinion piece that the Supreme Court could decide the outcome of the election.[84] Weeks later, Yoo andJ. Michael Luttig advisedMike Pence that the Vice President had no constitutional authority to interfere withthe certification of Electoral College votes on January 6, 2021, as had been proposed to Pence by Trump attorneyJohn Eastman.[85][86]
At a July 2024National Conservatism Conference meeting, former Donald Trump attorneyJohn Eastman, who also clerked for Justice Clarence Thomas, had been disbarred and was facing prosecution for his alleged role in thePence card conspiracy to overturn the 2020 presidential election results, remarked, "We've got to start impeaching these judges for acting in such an unbelievably partisan way from the bench." Yoo responded, "People who have used this tool against people like John or President Trump have to be prosecuted by Republican or conservativeDAs in exactly the same way, for exactly the same kinds of things, until they stop."[87]
On January 4, 2008,José Padilla, a U.S. citizen convicted of terrorism, and his mother sued John Yoo in the U.S. District Court, Northern District of California (Case Number 08-cv-00035-JSW), known asPadilla v. Yoo.[88] The complaint sought $1 in damages based on the allegedtorture of Padilla, attributed to the authorization by Yoo's torture memoranda. JudgeJeffrey White allowed the suit to proceed, rejecting all but one of Yoo's immunity claims. Padilla's lawyer says White's ruling could have a broad effect for all detainees.[89][90][91]
Soon after his appointment in October 2003 as chief of the Office of Legal Counsel, DOJ,Jack Goldsmith withdrew Yoo's torture memoranda. The Padilla complaint, on page 20, cited Goldsmith's 2007 bookThe Terror Presidency in support of its case. In it Goldsmith had 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. Padilla's attorney used this information in the lawsuit, saying that Yoo caused Padilla's damages by authorizing his alleged torture by his memoranda.[92][93]
While the District Court ruled in favor of Padilla, the case was appealed by Yoo in June 2010. On May 2, 2012, theNinth Circuit Court of Appeals held that Yoo hadqualified immunity at the time of his memos (2001–2003), because certain issues had not then been settled legally by the U.S. Supreme Court. Based on the Supreme Court's decision inAshcroft v. al-Kidd (2011), the Appeals Court unanimously ruled against Padilla, saying that, when he was held as a detainee, it had not been established that anenemy combatant had the "same constitutional protections" as a convicted prisoner or suspect, and that his treatment had not been legally established at the time as torture.[94]
RetiredColonelLawrence Wilkerson,chief of staff toGeneral Colin Powell in thePersian Gulf War and while Powell was Secretary of State in theBush Administration, has said of Yoo and other administration figures responsible for these decisions:
Haynes, Feith, Yoo,Bybee, Gonzales 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.[95]
The Department of Justice'sOffice of Professional Responsibility concluded in a 261-page report in July 2009 that Yoo committed "intentional professional misconduct" when he "knowingly failed to provide a thorough, objective, and candid interpretation of the law", and it recommended a referral to the Pennsylvania Bar for disciplinary action.[10][11] But David Margolis, a career Justice attorney,[96] countermanded the recommended referral in a January 2010 memorandum.[97] While Margolis was careful to avoid "an endorsement of the legal work", which he said was "flawed" and "contained errors more than minor", concluding that Yoo had exercised "poor judgment", he did not find "professional misconduct" sufficient to authorize OPR "to refer its findings to the state bar disciplinary authorities".[97]
Yoo contended that the OPR had shown "rank bias and sheer incompetence", intended to "smear my reputation", and that Margolis "completely rejected its recommendations".[98]
Although stopping short of referral to the bar, Margolis had also written:
[Yoo's and Bybee's] memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions which reflected his own extreme, although sincerely held, views of executive power while speaking for an institutional client.[97]
Margolis's decision not to refer Yoo to the bar for discipline was criticized by numerous commentators.[99][100][101][102]
Yoo's writings and areas of interest have fallen into three broad areas: American foreign relations; the Constitution's separation of powers and federalism; and international law. In foreign relations, Yoo has argued that the original understanding of the Constitution gives the President the authority to use armed force abroad without congressional authorization, subject to Congress's power of the purse; that treaties do not generally have domestic legal force without implementing legislation; and that courts are functionally ill-suited to intervene in foreign policy disputes between the President and Congress.
With the separation of powers, Yoo has argued that each branch of government has the authority to interpret the Constitution for itself.[citation needed] In international law, Yoo has written that the rules governing the use of force must be understood to allow nations to engage in armed intervention to end humanitarian disasters, rebuildfailed states, and stop terrorism and the proliferation of weapons of mass destruction.[103][104][105][106][107]
Yoo's academic work includes his analysis of the history ofjudicial review in theU.S. Constitution.[108] Yoo's book,The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, was praised in an Op-Ed inThe Washington Times, written by Nicholas J. Xenakis, an assistant editor atThe National Interest.[109] It was quoted by SenatorJoe Biden during the Senate hearings for then-U.S. Supreme Court nomineeSamuel Alito, as Biden "pressed Alito to denounce John Yoo's controversial defense of presidential initiative in taking the nation to war".[110] Yoo is known as an opponent of theChemical Weapons Convention.[111]
During 2012 and 2014, Yoo published two books with Oxford University Press.Taming Globalization was co-authored withJulian Ku in 2012, andPoint of Attack was published under his single authorship in 2014. His 2017 bookStriking Power: How Cyber, Robots, and Space Weapons Change the Rules for War is co-authored with by Jeremy Rabkin.
Yoo's latest book,Defender in Chief: Donald Trump's Fight for Presidential Power, was published in July 2020.[112]
Yoo is married to Elsa Arnett, the daughter of journalistPeter Arnett.[113]
Consider former Deputy Assistant Attorney General John Yoo's 2003'torture memos' in support of torture in the War on Terror. As Chickasaw scholar Jodi Byrd notes, Yoo cited the 1873 Modoc Indian Prisoners Supreme Court opinion that justified the murder of Indians by U.S. soldiers.'All the laws and customs of civilized warfare,' the Court opined,'may not be applicable to an armed conflict to Indian tribes on our Western frontier.''Indians' were legally killable because they possessed no rights as'enemy combatants,' as it is with those now labeled "terrorist."
Drawing a legal analogy between the Modoc prisoners and the Guantánamo detainees, Assistant US Attorney General Yoo employed the legal category of homo sacer—in Roman law, a person banned from society, excluded from its legal protections but still subject to the sovereign's power. Anyone may kill a homo sacer without it being considered murder. To buttress his claim that the detainees could be denied prisoner of war status, Yoo quoted from the 1873 Modoc Indian Prisoners opinion...
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.
