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Scholar Stands by Post-9/11 Writings On Torture, Domestic Eavesdropping
In reasoning Bush cited last week in defending his decision to authorize warrantless wiretapping of U.S. citizens, Yoo's Sept. 25, 2001, memo said Congress granted the president great latitude on Sept. 14, 2001, when it supported the use of force in response to the attacks. The resolution specified the Sept. 11 plotters and their supporters.
"Nonetheless," the memo concluded, "the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters."
The majority view among constitutional scholars holds that the Framers purposely imposed checks on the executive branch, even in wartime, not least in reaction to the rule of Britain's King George III. On such issues, Yoo's critics contend, he went too far. "It's largely a misreading of original intent," Cole said. "The Framers, above all, were concerned about a strong executive."
An Aug. 1, 2002, memo on interrogation, written largely by Yoo, drew the most intense criticism. Saying the administration was not bound by federal anti-torture laws, it declared that, to be considered torture, techniques must produce lasting psychological damage or suffering "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
Word of the memo sparked an outcry, causing the White House to back away.
"The idea that . . . Congress has no authority to impose limits on torture has little support in constitutional texts or history, or legal precedent," said University of Chicago law professor Cass Sunstein. Yet Sunstein, like many of Yoo's critics, called him "a very interesting and provocative scholar" who "doesn't deserve the demonization to which he has been subject."
Yoo thinks his critics should understand that he offered legal advice, while others made policy.
"I think people don't understand how difficult was the work we did, how difficult the questions, how recent the 9/11 attacks were," he said. "There was no book at the time you could open and say, 'under American law, this is what torture means.' "
"The lawyer's job is to say, 'This is what the law says and this is what you can't do,' " Yoo said. He advised the White House that the Geneva Conventions do not apply to al Qaeda or the terrorism fight, "but the president could say as a matter of policy we're going to apply them anyway."
Elisa Massimino, Washington director of Human Rights First, is among those who say Yoo deserves considerable blame. "The issues which have most disturbed Americans about the conduct of the executive branch in fighting terrorism can ultimately be traced to legal theories that he espoused in memos pushing the administration in that direction," she said.
Yoo draws inspiration from Thomas and Hatch, saying, "I've seen how they've persevered and still stand up for what they believe in and get their point across." It is a style affirmed by Bork, who wrote a glowing blurb for Yoo's new book, "The Powers of War and Peace."
"He's just being vilified. It's the usual conduct of business in this town right now," Bork said. "You argue your position. What else can you do? There's no tactic that can deflect criticism."
Research editor Lucy Shackelford and researcher Julie Tate contributed to this report.