Jennifer Van Bergen
Global Research
April 23, 2008
The title of this article – The President’s Executioner – is a play on words. It refers to professor John Yoo, who teaches law at Boalt Hall, University of California, Berkeley. But this man – mild-mannered by all appearances – is not what he seems. He is the man who was, more often than nearly any other, behind the White House decisions to violate the international laws of war. He was the one who told the White House how to get away with committing war crimes. While he may have been a henchman for others who instructed him to make the arguments he did, he repeatedly refused to reverse himself, both while he worked in the Department of Justice and after he left that office and returned to academia.
But it was also during this time period, as we now know, that the Department of Justice became “politicized.” Instead of executing the laws as it should have been doing, the Justice Department became an instrument of President Bush, executing his wishes.
And John Yoo executed White House wishes to twist the law into something it was not and was not meant to be.
Yoo, however, did more than execute orders. The so-called “Torture Memos,” in the writing of which Yoo was an active and primary participant, opened the door to such abuse of the laws that some detainees were actually murdered. For all practical purposes, they were executed, without a trial or guilty verdict.
Thus, the President’s Executioner.
Yoo & the Unlimited Executive
Professor Yoo teaches the following courses: International Civil Litigation, International Law, Constitutional Law, Foreign Relations Law, Civil Procedure, International Trade, Separation of Powers Law. These courses cover big issues. They relate not to person-to-person issues, to one family’s inheritance, a personal injury lawsuit, or a burglary. Most of the courses Professor Yoo teaches relate to how our country is run and who has the power to do what, internally and internationally.
But it would be a mistake to rely on Yoo’s advice in these areas, for he would be interpreting laws he has broken and advised others to break.
The Office of Legal Counsel (OLC) at the Department of Justice is the office that issues legal opinions for the President and other departments (including the Department of Defense) in the executive branch. OLC opinions are relied on by these offices to guide them in carrying out their jobs. They are rarely rescinded, having almost the precedental effect of judicial decisions.
Yoo was the Deputy Assistant Attorney General in the OLC. While there he participated in authoring several documents, all of which became mainstays of the administration’s policies at particular points and most or all of which the OLC later rescinded. The memos all manifest one characteristic: they all suggest that the President, as President and Commander-in-Chief, has the authority to violate any laws or treaties he sees fit in order to protect the country.
Jack Goldsmith, a Harvard law professor who became Deputy Attorney General after Yoo left and who was the one who made the difficult (and unpopular) decision to rescind Yoo’s opinions (and who later resigned because of it), writes in his book “The Terror Presidency: Law and Judgment Inside the Bush Administration” that Yoo’s “interrogation opinions” contained an “unusual lack of care and sobriety in their legal analysis,” and that “[n]owhere was this more evident than in the opinions discussion of the President’s commander-in-chief powers.” (p. 148)
Yoo’s opinion went much further than necessary, Goldsmith thought. Yoo wrote: “Any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” Goldsmith states: “This extreme conclusion has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.” (pp. 148-9) Yoo’s pronouncement about presidential powers, furthermore, “was all the more inappropriate because it rested on cursory and one-sided legal arguments that failed to consider Congress’s competing wartime constitutional authorities, or the many Supreme Court decisions potentially in tension with the conclusion.” (p. 149)
Of course, the “interrogation opinion” was not Yoo’s only one, as we now know.
The Yoo Memos
Yoo’s memos were written in the wake of 9/11. On September 18, 2001, Congress issued the Authorization to Use Military Force (AUMF), which authorized President Bush to: use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Only fourteen days after 9/11 and a week after Congress issued the AUMF, Yoo submitted his first memo: “Memorandum Opinion for the Deputy Counsel to the President” titled “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them.” This memo claimed:
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
On November 13, 2001, the White House issued a Presidential Military Order (PMO) on detentions, which Yoo co-authored with Vice President Cheney’s legal counsel, David Addington. The PMO purported to authorize the Secretary of Defense to detain terrorist suspects indefinitely and created military commissions to try those he decided to try. It established procedural baselines for commissions which (along with later-issued DOD procedures) were later ruled unconstitutional by the Supreme Court in Hamdan v. Rumsfeld. <