The Trial of John Yoo

John Yoo

John Yoo

I have just returned from a debate on presidential power at Chapman University Law School.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled “Presidential Power and Success in Times of Crisis,” and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S. and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush — and, by clear implication, Yoo himself — should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration’s policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At Chapman today, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

  4 comments for “The Trial of John Yoo

  1. dgs
    April 22, 2009 at 7:31 am

    Curious: Did Jackson’s Youngstown concurrence come up at all?

  2. Reggie
    April 22, 2009 at 8:12 am

    I saw it more as Yoo’s going away party! Yeah!!!!

    Eastman got what he wanted out of Yoo’s visit – attention for the law school. I’m supposing he may believe in the idea that any mention of your name is good, because that’s the PR he got.

  3. April 22, 2009 at 5:00 pm

    DGS: The Youngstown Steel seizure case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) — limiting the power of the President to seize private property in the time of war in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress) — did come up — but it was raised by Darmer and Rosenthal, not Yoo or Eastman.

    Jackson’s beautifully written and insightful concurring opinion did not come up — although his analysis is certainly relevant:

    “The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand…That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history…The essence of our free Government is ‘leave to live by no man’s leave, underneath the law’ — to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

  4. Frank Hamann
    April 25, 2009 at 8:16 am

    Torture the Little Children?* April 22, 2009

    Will Grigg’s Liberty Minute

    April 22, 2009

    In December 2005, John Yoo, the Bush administration Justice Department official who wrote several key memos defending the legality of torture, was asked in a debate if the president could legally order the torture of children. Yoo replied that this would depend on the reasons why such torture would be considered necessary by the president.

    Newly released documents provide compelling evidence that the Bush administration did indeed torture children – in this case, the children of alleged 9-11 mastermind Khalid Sheik Mohammed, who were seized in Pakistan in 2002 and held for several months in U.S. custody. Specifically, the children were assaulted with ants and other insects for the supposed purpose of compelling them to reveal their father’s whereabouts.

    Earlier disclosures indicate that after Mohammed was apprehended, interrogators threatened to harm or kill his children if he didn’t cooperate.

    If we’ve become the kind of people who torture children, how are we morally superior to the terrorists?

    Let us take back the liberty wherewith Christ has made us free.

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