Academic seminars including University of California law professor John Yoo are no longer apt to be dry discourses on the primacy of executive branch power. At an American Enterprise Institute session here last week, a heckler shouted that Yoo should apologize for drafting Bush administration memos that, in the critic's words, condoned torture.
The questioner was ruled out of order, so Yoo had no opportunity to say again that he feels the claim is a distortion of his legal views. But there is little question that Yoo and his former colleagues in the government -- a group of conservative legal scholars who maintain that President Bush has broad power to pursue the war on terrorism -- are caught in a discomforting spotlight.
The latest in a series of setbacks was the Supreme Court's rejection on Monday of the claim that Bush can detain enemy combatants without independent review. The court spurned the administration's request that it defer to the president's discretion and insisted on what it depicted as a more careful balancing of national security needs and individual rights, a test it said is relevant even in wartime.
Some legal scholars argue that the courts' decisions -- in combination with the administration's repudiation last week of an internal memo arguing that the president has the power to sanction torture -- amount to a permanent rebuke of the expansive view of presidential power that has underpinned numerous Bush administration policies, including an executive order establishing military tribunals that are not subject to judicial review.
Georgetown University law professor David Cole, a longtime critic of the administration, called the court opinions in particular a rejection of "this claim of unchecked presidential authority which has been advocated in so many areas since September 11" and said, "This is really quite remarkable." Neal K. Katyal, a counsel to some of the military lawyers defending detainees at Guantanamo Bay, Cuba, said he believes recent events mean "the administration's legal war on terror is utterly repudiated."
But Viet Dinh, a colleague at Georgetown and former assistant attorney general who played a key role in drafting the administration's USA Patriot Act, said a more narrow legal shift was possible.
"I would not say [the Supreme Court decisions were] . . . a victory for the executive branch," Dinh said to laughter at a Georgetown symposium last week. But he and Yoo have expressed optimism that some powers asserted by the administration -- such as the right of the president to decide which individuals are enemy combatants based on evidence that might not be admissible in court -- may be preserved in new hearings on individual detainees.
Their legal philosophy about presidential powers, however, is supported at present by only a minority of legal scholars, a circumstance that became clear from the storm of criticism that erupted after the disclosure this month of two memos produced by Yoo and others in the Justice Department's Office of Legal Counsel.
An August 2002 memo, provoked by a CIA request for interrogation guidance, suggested that the president's commander-in-chief authorities meant that those acting at his direction would be immune from prosecution for torture. That memo drew on a January 2002 memo that suggested, over the opposition of the State Department's legal adviser, that the president could suspend the application of international protections for detainees.
Taken together, the memos presented a legal groundwork for aggressive questioning of foreign detainees. On June 22, White House counsel Alberto R. Gonzales publicly discredited the memo, an extremely rare event for such opinions.
Gonzales called it "irrelevant and unnecessary to support any action taken by the president." At the same time, however, he said the legal analysis "underpinning the president's decisions" on detainees is not being reevaluated, making it clear that the White House is sticking with its expansive views of Bush's authority.
Yoo, a former law clerk to Supreme Court Justice Clarence Thomas and principal author of the August memo, is a well-known advocate of strong presidential powers. He was deputy head of the Office of Legal Counsel from 2001 to 2003. But others who worked on the memos, including Jay S. Bybee, who headed the office during roughly the same period and who is now a federal appellate judge, shared Yoo's views on presidential authority, as did Gonzales.
Yoo, who declined to comment on how the memos were drafted, said they do not represent "majority views among international law academics." He said their depiction of presidential authority instead was "squarely within the practices of the government" and past decisions by the Supreme Court -- a view his critics contest.
The legal ideas supporting the August memo are part of a broad philosophy holding that international laws such as the Geneva Conventions and the Convention Against Torture are rules that states need not apply in absolute terms. Advocates claim that treaties are more like contracts subject to "situational" adherence than norms of conduct binding on every state, said David B. Rivkin Jr., a White House lawyer in the Reagan administration who now works at Baker and Hostetler in Washington.
"It's a minority viewpoint," said Rivkin, who shares it. "If you line up 1,000 law professors, only six or seven would sign up to it." He said some of its adherents are associated with the Federalist Society, a conservative legal group formed to combat what its Web site calls "orthodox liberal ideology" and judicial interpretations that fail to safeguard individual prerogatives. Both Yoo and Bybee, as well as Attorney General John D. Ashcroft, are close to the society and frequently speak at its meetings, as are other lawyers appointed to senior Bush administration posts at the Defense Department, Justice Department and White House.
But criticism of the memos' claims of presidential powers has come from a wide range of legal scholars, including past heads of the Justice Department Office of Legal Counsel and chief legal advisers to the State Department under Republican and Democratic presidents.
Douglas W. Kmiec, a Pepperdine University law professor who directed the legal counsel's office under presidents Ronald Reagan and George H.W. Bush from 1985 to 1989, termed the August 2002 memo "unrefined" and said its depiction of presidential authorities ran "the risk of being misunderstood." He said it failed in particular to state clearly that anti-torture laws could be superseded only "in grave or unforeseen or imminent" crises that do not exist at present.
Abraham D. Sofaer, a State Department legal adviser from 1985 to 1990, said he also considers the August 2002 memo flawed. "We in the Reagan and Bush administrations intended that deliberate violations of the Convention [Against Torture] should lead to the criminal prosecution," said Sofaer, who testified for the executive branch during Senate hearings on the convention's ratification.
Sofaer said he believes the notion of "inherent" presidential authority to ignore the treaty is vague and has little basis.
Walter Dellinger, who directed the Office of Legal Counsel in the Clinton administration, said the memo's assertion of presidential authority "goes beyond anything OLC has ever stated" and omitted any reference to a key Supreme Court decision that acknowledges congressional power to enact laws that limit presidential authority. That decision, barring President Harry S. Truman from seizing steel mills to stop a strike during the Korean War, was specifically cited by the Supreme Court last week in its rulings on foreign detainees.
Congress has mostly been silent on these issues. But five Republican senators bolted from their party June 24 to pass a measure limiting U.S. interrogation techniques to those that the United States would consider legal for other nations to use. It urged the prompt prosecution or release of detainees to avoid their "indefinite detention . . . which is contrary to the legal principles and security interests of the United States."
The Defense Department had opposed the measure sponsored by Sen. Patrick J. Leahy (D-Vt.), saying it would insert Congress "inappropriately into the executive function of conducting the war on terrorism" and potentially diffuse the "national focus on protecting Americans." But this view was rejected by Republicans who have been highly critical of detainee abuses -- Sens. John McCain (Ariz.), Lindsey O. Graham (S.C.), Mike DeWine (Ohio), Chuck Hagel (Neb.), and Arlen Specter (Pa.), who voted for the measure.