Amid Scrutiny, Yoo Pushes Back
Quietly but Forcefully, Author of Detainee Memos Rebuts Critics
Monday, July 27, 2009
Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.
The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up.
Last month, a federal judge in California refused to dismiss a lawsuit that accuses Yoo of violating a detainee's constitutional rights. This month, the Justice Department's inspector general described Yoo's legal analysis of the Bush surveillance program as "insufficient" and sometimes inaccurate. Also expected in coming weeks is a department ethics report that sources have said could renounce Yoo's approval of harsh CIA interrogation practices and recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.
While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president's authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics' arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination."
The uncompromising rhetoric can be hard to square with a soft-voiced man who easily made friends at Harvard University and Yale Law School, without regard for ideological affiliation. But the blaze of criticism that ignited late in the Bush administration appears to have pushed Yoo, 42, onto a far more assertive path, according to friends and lawyers who have followed his career.
In many ways, Yoo, who declined to comment for this article, has become the face of what critics see as the Bush era's legal overreaching -- all tied to memos written from 2001 to 2003 spelling out his expansive views of interrogation, electronic surveillance and the deployment of soldiers on U.S. soil.
They were ideas born early in his legal career, before stints as a law clerk to Supreme Court Justice Clarence Thomas and Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit. Those positions, which even friends call extreme, endeared him to a Bush White House seeking to adopt a centralized approach to power.
Six months into a new administration, Yoo is a man with little to lose. As a tenured law professor, he has held onto his job despite protesters who have picketed the Berkeley campus and petitioned school leaders for his ouster.
Attorney General Eric H. Holder Jr. has rejected the idea of criminal investigations of Bush lawyers who developed counterterrorism policy. Probes announced by authorities in Spain and Germany could take years, and the five-year statute of limitations for allegations of attorney misconduct in Pennsylvania, where Yoo is licensed to practice law, has expired. That makes it unlikely the state bar will take up an ethics inquiry into his work at the Justice Department, which he left in 2003.
He departed after then-Attorney General John D. Ashcroft, angry over Yoo's back-door conversations with Vice President Richard B. Cheney's office on national security issues, refused to recommend him for the top job at the Justice Department's Office of Legal Counsel.
Now, as Yoo navigates his various legal challenges, he and the Justice Department have once more parted ways.
This month, government lawyers who had been representing Yoo since his departure from the department told a federal judge in San Francisco that "private counsel will be assuming representation of Mr. Yoo" in a case filed by Jose Padilla, a onetime domestic terrorism suspect who was held without criminal charge for more than five years. U.S. District Judge Jeffrey S. White allowed Padilla and his mother to pursue the case, which argued that Yoo had violated Padilla's civil rights by authorizing the government's terrorist-detention policies.