The Real John Yoo

January 12th, 2010 at 8:02 am David Frum | 26 Comments |

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Jon Stewart opened his interview last night with John Yoo by inviting Yoo to give himself a pity party. “You are infamous. Do you feel that … people have impassioned feelings about you without knowing you? Do you feel that’s unfair.”

Yoo gently answered: “The same thing must happen to you.”

That’s the John Yoo I know – modest, realistic, and smilingly tough.

Stewart then tossed him the opposite pitch. “Are you a good lawyer?”

Yoo, startled, “You mean did Bush ask me that – or are you asking me that?” Then, Yoo pushed this aside too. “Well usually they say that those who can’t do teach.”

Yoo had come to the interview to elucidate a couple of simple points. The question he had been asked by the security arm of government was not, “How can we torture?” but “What can we do that isn’t torture?” Yoo is a lawyer, not an expert in interrogation. He did not recommend techniques. He tried to do something that the U.S. government had not done before: define the legal limit of the permissible.

Maybe that job should never have been assigned. Possibly Yoo’s answer was wrong. (Knowing John, he’d be more than usually open to that second possibility – few people in high government office can ever have had less ego than John Yoo.) But that’s the ground on which he has to be engaged, not in the angels-and-demons style of much of the media coverage … a style that has the incidental effect of recategorizing some of the most brutal enemies the United States has ever faced as pitiful victims.

“We were talking about defining torture. We’d never been asked to define it in the sense of developing things that we could do that would not be torture but would be more uncomfortable than talking. … So you, the legal scholar had to come up with : you can hit them three times with an open hand … but you have to be smiling.”

Yoo: “That’s kind of what this is like.”

Part of the problem for Stewart was his own inability to transcend in this case the conventional liberal categories of thought. So at one point he asked Yoo whether he would equate the Emancipation Proclamation with the so-called torture memos. Stewart apparently could not conceptualize that the Emancipation Proclamation as ever having been constitutionally controversial – although of course it was, bitterly so. To use executive power to alter property relations? How was that a war power?

Unflappable, self-effacing – “I don’t know whether the Iraq war was the right thing to do. The Constitution does not prevent people from making stupid decisions.”

Stewart , baffled and flummoxed, “You are the most charming torturer I have ever met.”

Yoo: “We left space on the back of the back for those words.”

The last words from Stewart: “My mind is blown, quite frankly.” And then a confession: “I do feel not very equipped to handle this discussion.”

On that last, Stewart is unfair to himself. He’s a very intelligent man, with a quick mastery of many subjects. If Stewart was balked here, it was not because he was overwhelmed by the subject’s abstruseness, but because confronted directly with its details, the subject revealed itself as more difficult than usually presented – and Yoo, the man cast as monster, revealed himself to be what he should long ago have been credited as: a conscientious public servant, trying to do the best job he knew how to do to protect his country in time of declared war.



The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Daily Show: Exclusive – John Yoo Extended Interview Pt. 1
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The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Exclusive – John Yoo Extended Interview Pt. 2
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The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Exclusive – John Yoo Extended Interview Pt. 3
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26 Comments so far ↓

  • rbottoms

    He tried to do something that the U.S. government had not done before: define the legal limit of the permissible.

    He failed.

    Consequently a number of people were beaten to death because of his failure., for example the innocent cab driver Dilawar beaten, and left to freeze to death on the floor of his Bhagram prison cell.

    Poor John Yoo.

  • teabag

    My heart bleeds for torture enable John Yoo.

    NOT. He should be in a prison cell having some of the “enhanced interrogation techniques” applied to him. Next door should be Cheney and next door to that should be a double cell for Rice and Bush. After all they were REALLY close at one time.

  • sdm

    A false equivalency underlies this post: If John Yoo was conscientious and comes off as self effacing, then his actions and their consequences must be viewed in that light.

    Unlike many of my blogging peers, I have spend considerable time reading Yoo’s legal memos. They are simply and unalterably junk law (as opposed to junk science), while the horrid consequences of those memos are well known.

  • sinz54

    My problem with John Yoo is NOT that he tried to find a rationale for enhanced interrogation techniques.

    My problem with John Yoo was his total about-face on the issue of presidential prerogatives and presidential power.

    When Clinton was in office, Yoo railed against the “imperial Presidency,” including Clinton’s wars in Serbia and elsewhere.

    But when Bush was President, Yoo tried to argue that Bush had total power to carry out domestic surveillance without warrants and lots of other things, entirely on his own.

    Contrast this with Alan Dershowitz’s approach:

    After 9-11, Dershowitz recognized that there would be new security measures at airports, new surveillance methods, maybe even waterboarding where there was an imminent threat. But in ALL these cases, Dershowitz insisted there had to be approval from at least ONE of the other major branches of our Federal Government. That is, Bush would have to get approval from either the Congress or the Supreme Court.

    That would have prevented the worst abuses of the Bush Administration.

    But it would leave open the possibility of taking extreme measures to save American lives in imminent danger.

    If there were a suitcase nuke about to go off in San Francisco, would Nancy Pelosi really say no to waterboarding a prisoner to find out where that nuke was hidden? I doubt it.

    So the “ticking bomb” scenario would be covered.

    And as a conservative who really does believe in limited government, I liked it for the limits it placed on Presidential power.

    John Yoo tried to expand Presidential power as far as he could rationalize it. That’s not something we conservatives should be doing.

    FDR expanded Presidential power way beyond any previous President. We conservatives didn’t like it. We shouldn’t like it, even if “our guy” is in the White House. We should be loyal to the principle of limited government before we’re loyal to any politician.

  • balconesfault

    All concerns of men go wrong when they wish to cure evil with evil.
    Sophocles

    Having just read an excellent novel (the Stalin Epigrams) about the bureaucracy that in a very organized and deliberate fashion carried out Stalin’s purges in the 1930′s (all in the name of security, of course), I see a Woo and can comprehend how literate, well educated, otherwise mild-mannered men can sign off on evil … all in the name of security, of course.

  • balconesfault

    sdm Unlike many of my blogging peers, I have spend considerable time reading Yoo’s legal memos. They are simply and unalterably junk law (as opposed to junk science), while the horrid consequences of those memos are well known.

    I’ve not read his memos, but I have a friend who has publicly debated Yoo numerous times going back into the 90′s. His opinion is that Yoo’s ascendence represents a failure of the academy – by pushing an extreme legal philosophy, and because the college kids who run the journals aren’t always experienced enough to recognize junk law, Yoo got published and attention, and once you start getting published and attention you gain a measure of acceptance even if there’s no clothes.

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  • irisheyes

    I watched the interview. While I was watching it I found myself wondering at the startling banality of evil.

    I had heard about this in connection with the German judiciary during the Nazi regime. Many of the best German legal minds – so called, responded when called upon by the Nazi regime to provide them with the legal cover that the tidy-minded bureaucrats required to justify the whole nightmare that followed.

    Many of these legal professionals were able to continue their careers after the war, because like John they defended themselves with the same argument he did. They were only asked for their legal opinions within the laws that existed at the time. They recommended no course of action only legal opinions.

    John strikes me as a pretty together guy. I hope he is as tough as he appears. I can’t image what it must be like to feel that you did your duty, performed your best for your country and your employer and to come out of it wondering for the rest of your life if you were complicit in some of the most remarkable war crimes of the modern era. No, I’ve tried… I can’t imagine…

  • TAZ

    Yoo was a crutch used by a President that didn’t have the balls to say, “Yep, I know torture is illegal and against everything America stands for, but it is what I ORDERED DONE, sue me”.

    I may personally support torturing the crap out of terrorists (suspected terrorists) but I would never want it debated publicly as a policy, nor would I ever admit it ever occurred.

    I would have more respect for a president that had been caught torturing suspects and then took the blame vs. the sad display of debating American torture policy in public.

    I liken it to the Reagan Iran arms for hostages deal. Some things should just be kept secret…. but if your caught, man up, and save America the blame.

  • PracticalGirl

    Sinz:

    I wholeheartedly agree with your first two sentences in post #4.

    Teabag:

    I almost always agree with you, but today must take exception. When an attorney is asked to perform the job that he has been trained to do, it is just that. But to wish a jail term on Yoo who, yes, helped justify-within legal boundaries-a political decision we find reprehensible is a bit much. It is no different from those who called Ramsey Clark a traitor for representing Saddam Hussein, those who villify any lawyer who agrees to represent detainees in Guantanamo, as the Right Wing has my friend who is doing so. Do his politics come into his decision to represent? Sure, but while they might drive his motivations, his legal work is above reproach and within legal boundaries.

    Did Yoo get it legally right? I’m as flummoxed as Stweart on this one. Morally and politically, I can condemn the action. But even within a political spectrum, I have a hard time locking up a lawyer who takes a job and does it to the best of his ability.

  • sinz54

    PracticalGirl: I have a hard time locking up a lawyer who takes a job and does it to the best of his ability.
    I agree.

    If we’re going to start locking up lawyers whose legal opinions helped precipitate a travesty of justice, maybe we ought to lock up Johnnie Cochran.

  • GOProud

    When did anyone start to take any interview on Jon Stewart’s comedy show as serious? Come on, it’s Jon Stewart, a hacked comedian who can’t do stand-up. Even for cable, Stewart’s best shot is that he has better ratings than CBS’s Katie Couric… when he books better guests. Better than Couric ain’t saying much constructive.

    Oh, I get it… this is David Frum’s opportunity to appear “hip” with the younger college-aged crowd? LOL. Next, you’ll expect the Democrats to start electing comedians to the US Senate or something.

    Comedians… the next talent pool for Democrats! It just might be their best hope.

  • balconesfault

    Comedians… the next talent pool for Democrats!

    B-grade actors were already taken.

  • mlloyd

    When an attorney is asked to perform the job that he has been trained to do, it is just that.

    Respectfully, PracticalGirl, that is not what happened. The president went to John Yoo (circumventing the usual procedures at the DOJ’s OLC) in order to escape the rule of law. This is not like defending the rights of the accused– a bedrock principle of the rule of law. He was the opposite of a good lawyer– he told his bosses what they wanted to hear. He was like an accountant at Enron, going along with his bosses’ schemes– except that instead of bankrupting a corporation, he brought shame and dishonor on his country.

    His legal memos on the president’s authority to torture did not even mention Youngstown Sheet and Tube, the leading case in that area. He was not asked to perform a job in a professional manner, he was asked to legitimize evil. And he did it.

  • balconesfault

    He was the opposite of a good lawyer– he told his bosses what they wanted to hear.

    In defense of Yoo … and I really hate saying those words … Yoo held pretty much those positions before the Bush crowd came looking for him.

    They chose him because he was more a believer than most of the Bushies, and not just because he was compliant. In this I think he was very different form the Enron Lawyer Gonzalez.

  • PracticalGirl

    mlloyd:

    I hear your point. But you are ignoring a basic provision of our legal system: vigorous client representation. A lawyer is always an advocate for his client, rarely a judge. That Yoo’s client looked for legal justification to do evil is reprehensible. That Yoo was able to make a legal finding to satisfy both his client and the law means he was damn good.

    Yoo was nothing like an Enron employee who chose to break the law. He was hired by a client, asked to come up with narrow legal findings and did just that. The law, not Yoo independently, allowed him to legitimize evil, as you eleoquently put it. But jail him? As soon as we start jailing lawyers for doing their jobs well because we disagree with them, we are lost as a country.

  • COProgressive

    SDM @ 3 wrote;
    “Unlike many of my blogging peers, I have spend considerable time reading Yoo’s legal memos. They are simply and unalterably junk law (as opposed to junk science), while the horrid consequences of those memos are well known.”

    Thank you. I heard the same from other law scholars as well. Yoo was a “yes man” in way over his head. But I think that was exactly the kind of staffer the Bush maladministration was looking for to justify anything they wanted to do.

    Just because you can get a “permission slip” from a “yes man” to torture people, it doesn’t exonerate you from the guilt.

  • mlloyd

    Thanks for your reply, PracticalGirl. The reason for our disagreement is that the Office of Legal Counsel is not “the president’s attorney.” It is not like mounting a vigorous defense of an accused defendant. The OLC’s job is to say no to the the president. If it has a client, it’s the United States, not the president. Yoo wrote the opinions that they wanted, not the opinions that the law compelled. It’s not a matter of disagreeing, it’s a matter of a lawyer providing fraudulent, unsupportable justification for lawbreaking.

    Yoo’s opinions were legally and procedurally unsupportable. Here’s a link found after a few moments of Googling. His opinions were rejected by the OLC– as soon as they found out about them! http://emptywheel.firedoglake.com/2009/08/25/was-john-yoo-free-lancing-when-he-approved-the-legal-principles/

  • seeker656

    It seems to me that a fundamental flaw in Yoo’s argument is to analogize the existential conflicts faced by Washington, Lincoln, and FDR with the threat posed by the terrorists. As others have noted the terrorists can do us harm but they do not threaten our existence.
    I have serious doubts about whether our declaring ourselves to be in a perpetual state of war is the most effective strategy for minimizing terrorist attacks against our nation. It has been used to justify the perversion of our national values and to provoke fear and anxiety in the nation to our detriment.

  • COProgressive

    sinz54 @ 11
    “maybe we ought to lock up Johnnie Cochran.”

    He’s dead. But OJ’s still alive.

  • SpartacusIsNotDead

    Frum wrote: “[Yoo] tried to do something that the U.S. government had not done before: define the legal limit of the permissible.”

    This is dead wrong. There was plenty of legal precedent (Youngstown Sheet and Tube, as Mlloyd pointed out) that addressed the questions Yoo wrote about in his bogus memo. These were not new questions at all, and any decent lawyer would have recognized this.

    The fact that Yoo may be polite, gentle and even affable is totally irrelevant to whether or not he knowingly aided in a violation of law. It’s also irrelevant that his ultimate motive may have been the protection of the U.S. Given his education and work experience, it’s impossible to argue that Yoo formed his legal conclusions in good faith. More likely, he believed in his heart that the law should permit the acts his memo condoned (at least in those circumstances) and he wrote a sham memo to give the Bush Administration a pretext for torturing people.

  • rectonoverso

    Bull.
    For all his wit and intelligence, Stewart is not a lawyer. To see the “real Yoo” he should be confronted to someone like Glenn Greenwald.

  • indyreader

    “In defense of Yoo … and I really hate saying those words … Yoo held pretty much those positions before the Bush crowd came looking for him.”

    I don’t think this operates as a defense of his conduct. Its one thing to hold an opinion, its another to justify it with legal argument and its yet another to give someone legal advice without actually providing an analysis of the legal principles and authority that apply. Really, his problems come with the latter – something that is not defensible (especially as its effect was not as a legal memo, but as a cover-up for a position that someone already has undertaken or was going to regardless of the legality of the position). I think an argument could be made that by ignoring the precedent, the subsequent position take by the Bush administration was further undermined (i.e. they couldn’t justify it with available precedent, but had to cut opposing authority to get to their position – which is a clearly flawed process and position to take).

    @ practicgal – “But you are ignoring a basic provision of our legal system: vigorous client representation. A lawyer is always an advocate for his client, rarely a judge. That Yoo’s client looked for legal justification to do evil is reprehensible. That Yoo was able to make a legal finding to satisfy both his client and the law means he was damn good.”

    That is true in part but that role comes with its own ethics requirements, including, for example, the requirement that attorneys disclose authority that directly contradicts a point. Moreover, you mis-state what Yoo’s position was – he was not advancing a client’s position, but was reviewing the constitutionality of a clients position. In ignoring clear precedent, not only is the advice flawed, but potentially exposes him to legal penalties.

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  • sinz54

    mlloyd: Yoo wrote the opinions that they wanted, not the opinions that the law compelled. It’s not a matter of disagreeing, it’s a matter of a lawyer providing fraudulent, unsupportable justification for lawbreaking.
    It’s only fraudulent if Yoo knowingly knew he was proposing something illegal.

    I don’t believe that to be the case.

    There are plenty of columnists, pundits, and even lawyers, who believe that waterboarding is both legal and permissible. You can disagree with them. But you haven’t proven they’re all lying.

    I think it’s more plausible that the Bushies went lawyer-shopping. They would have gone through a dozen different lawyers before they found one (Yoo) who agreed with what they were trying to do.

    All we can say is that Yoo appears to have been mistaken. But there’s no evidence that he deliberately tried to defraud either the Bushies or the American people.

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