John Yoo Tortures History and Law to Defend Donald Trump
By Stephen RohdeNovember 1, 2020
Defender in Chief by John Yoo
Yoo first came to public attention while serving in George W. Bush’s Department of Justice’s Office of Legal Counsel (OLC), when he wrote the infamous — and now discredited — “Torture Memos” in which he justified the use of torture, including waterboarding, and ignored the rights of detainees under the Geneva Conventions. Yoo’s advocacy of sweeping, authoritarian, and unreviewable presidential power gained notoriety when he employed his “unitary executive” theory to provide cover for Bush’s War on Terror.
Yoo’s “unitary executive” theory simply and sweepingly proposes that the “president alone bears the constitutional duty to execute federal law.” The theory thus becomes a springboard to justify Trump’s authoritarian policies on war, immigration, deregulation, executive branch appointments, pardons, and the supervision of Justice Department investigations. By giving these policies a patina of constitutional authority, Yoo can pretend that Trump has dedicated his presidency to selflessly defending the Constitution.
Yoo claims that all presidents have “the right to wage war unilaterally” and may use the powers of “commander-in-chief” without waiting for a declaration of war, despite the fact that the Constitution in Article I, Section 8 explicitly grants to Congress the exclusive power to “declare war.” He labors mightily to justify his position with obscure and sophistic arguments, claiming that when the Constitution was written “beginning hostilities and declaring war were not the same thing” or that Congress only had the power “to recognize or declare the legal status and consequences of certain wartime actions and not the power to authorize those actions.” But he never explains why, if his claim is correct, the Framers didn’t simply provide that “the President shall have the sole and exclusive authority to declare, make, and levy war.” The reason, of course, is clear: the Framers did not intend for the president to have the power to declare war, as constitutional historians Bruce Ackerman and Harold Koh confirmed when they concluded that Congress’s power to declare war gave it the exclusive right to decide whether to initiate military hostilities abroad, leaving the president only a small exception for self-defense.
Yoo’s expansive interpretation of Trump war-making powers is a prelude to his equally exaggerated interpretation of the president’s authority over foreign policy in general. And that is the linchpin of Yoo’s frontal attack on Trump’s impeachment by the House of Representatives over his “quid pro quo” telephone conversation on July 25, 2019, with Ukrainian president Volodymyr Zelensky, which is at the center of Yoo’s book.
Remarkably, Yoo argues it was the Democrats, not the president, who were abusing the Constitution and “interfering” with the president by having the audacity to investigate Trump pursuant to Congress’s impeachment authority under Article I, Sections 2 and 3, and Article II, Section 4 of the Constitution. Yoo claims “House leaders ignored the constitutional dangers of interfering with the president’s conduct of foreign policy.” As Yoo sees it, “[a]llowing Congress to interfere with presidential conversations with foreign leaders would violate Article II’s vesting of these powers in a single person. Under the Constitution and long practice, the president alone conducts foreign relations.” In his attempt to make Congress the bad guy, Yoo totally ignores the fact that in seeking a “quid pro quo,” Trump was not conducting American foreign policy but instead was seeking to manipulate a foreign leader for the sake of gaining a partisan political advantage in his upcoming reelection campaign. “If Congress could interfere with communications with foreign leaders, presidents would stop making calls or would speak less candidly,” Yoo writes. In his world, there is nothing wrong with a president demanding that a foreign leader investigate a political opponent in exchange for the release of congressionally approved military aid; he just shouldn’t do it in an official telephone call that will be transcribed, or he should just “speak less candidly.”
Yoo’s attempt to dress up his opposition to Trump’s impeachment by examining the constitutional grounds for impeachment backfires badly. Article II, Section 4 provides that a president “shall be removed” for “Treason, Bribery, or other high Crimes and Misdemeanors.” Initially, Yoo makes the unremarkable point that mere “policy differences” between Congress and a president do not justify impeachment. To support that hypothetical position — Congress didn’t impeach Trump over “policy differences” — Yoo cites what prominent Framers had to say about the meaning of the impeachment clause. In Federalist No. 65, Alexander Hamilton explained that impeachment exists for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Hamilton added that impeachable offenses “are of a nature which may with particular propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” James Madison supported Congress having the power of impeachment because a president “might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Edmund Randolph agreed, because the “Executive will have great opportunities of abusing his power” especially when “the public money will be in his hands.” The views of the Founders look like they had Trump squarely in mind. “The abuse or violation of some public trust,” causing “injuries done immediately to the society itself” by a president who “might betray his trust to foreign powers” when “the public money will be in his hands.” Fits like a glove.
But Yoo tries to have it both ways. He claims that Democrats failed to prove Trump acted with corrupt motives, yet elsewhere he writes that “[r]egardless of Trump’s motives, his struggle with the national security and diplomatic establishment defended the original Constitution.” The lengths to which Yoo goes to defend Trump have no limits. “Even if the allegations against Trump were true, and he delayed $400 million in aid until Ukraine launched an investigation against the Bidens,” Yoo writes, “the matter would best be settled by election.” So even if Trump did what he’s accused of doing and even if that fell within the kind of abuse of power contemplated by the Framers, Trump should get a free pass and be allowed to run for reelection.
Remarkably, however, right before our eyes, Yoo’s own review of constitutional history alters his view on Trump’s impeachment. In the concluding section of the concluding chapter, Yoo admits, “the type of conduct at issue involving President Trump and Ukraine could provide the grounds for impeachment.” After having struggled to defend the indefensible, Yoo awkwardly announces that “Democrats would have had more success in arguing that Trump’s conduct qualified as a ‘high crime or misdemeanor,’” because the “Framers openly worried about a president who might use his foreign affairs powers for personal or political gain.” That’s on page 263 of a 274-page book. Case closed.
But the lengths to which Yoo goes to distort the record in order to portray Trump as a defender, rather than a violator, of the Constitution are not confined to Trump’s impeachment. Yoo is equally duplicitous in his attack on the investigation conducted by Special Counsel Robert Mueller. Calling it “the revolt of the FBI,” Yoo argues that Director James Comey “orchestrated” an investigation into the ties between the Trump election campaign and Russia interference in the 2016 election. Yoo claims the FBI attempted to “gin up” a “specious” investigation and asserts categorically that in his report Mueller “found no evidence at all” of a conspiracy, thereby “definitely clearing” Trump.
The facts belie Yoo’s claim. While Mueller did conclude that under federal criminal law prosecutors could not prove conspiracy or coordination beyond a reasonable doubt, the Mueller Report makes clear that a “statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” Indeed, the investigation “established that several individuals associated with the Trump campaign lied [to prosecutors] and to Congress, about their interactions with Russian-affiliated individuals and related matters” and that those “lies materially impaired the investigation of Russian election interference.”
In connection with the finding that the Russian government interfered in the 2016 presidential election in a “sweeping and systematic fashion,” the Report documents more than 100 in-person meetings, phone calls, text messages, emails, and private messages between more than two dozen Russian nationals, WikiLeaks, and intermediaries on the one side, and Trump and at least 18 of his election campaign officials and advisors on the other side. Yoo ignores all of this evidence. Yoo also ignores the fact that “the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from the information stolen and released through Russian efforts.”
Yoo’s defense of Trump glosses over Volume II of the Mueller Report on obstruction of justice, and one can see why. Mueller concluded that:
[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
Yoo only addresses one of the 10 allegations of obstruction of justice documented in the Report. He argues that “Trump could not have committed obstruction of justice by exercising his constitutional authority to fire Comey.” In general, standing alone, a president does have the authority to fire executive branch appointees. But firing Comey did not stand alone nor was it Trump’s only act of obstruction. Before he fired Comey, Trump tried to extract a promise of “loyalty” from him, and after firing him Trump admitted to NBC’s Lester Holt that when he decided to fire Comey, he had “this Russia thing with Trump” on his mind. Having the authority to do something is one thing; exercising that authority for the corrupt motive of interfering with an investigation of one’s own conduct is far different.
Based on extensive sworn testimony from firsthand witnesses and contemporary documentary evidence, the Mueller Report reveals a shocking pattern of presidential abuse of power that Yoo totally ignores. These pages of the report reek of corruption and villainy. In addition to firing Comey, the Report describes at least nine occasions on which Trump personally attempted to interfere with and obstruct the investigation and cover up activities he may have believed were politically and legally damaging or harmful to his election, including demanding personal loyalty from government officials; asking that criminal charges against Michael Flynn be dropped; misrepresenting to the American people why he fired the FBI director; asking intelligence officials to clear him of any wrongdoing; trying to limit the scope of the investigation into Russia and his campaign; asking Attorney General Sessions to “unrecuse” himself and investigate Hillary Clinton; threatening to fire Sessions; dictating a misleading statement about a key meeting at Trump Tower between Russians and members of his campaign; ordering his legal counsel to fire Mueller and then demanding his counsel fabricate a record denying the original order; telling Manafort, Flynn, and Cohen to “stay strong” and promising — through his lawyers — they would be “taken care of” unless they “went rogue”; and threatening Cohen by suggesting his father-in-law might be at risk.
Yoo’s misjudgments and faulty legal opinions about Trump need to be considered in light of what we now know about the deeply flawed and misleading advice he gave President Bush. Only two weeks after the attacks of September 11, 2001, Yoo, as deputy assistant attorney general in the Office of Legal Counsel in the Department of Justice from July 2001 to June 2003, issued a memo which made the astonishing claim that in “the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.” Yoo’s memo ignored the key Supreme Court decision that explicitly limited executive war powers, Youngstown Sheet & Tube Co. v. Sawyer. In a famous concurring opinion in that case, Justice Robert Jackson wrote that the president’s powers as commander in chief are “subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress.” Justice Jackson, who had recently served as chief prosecutor at the Nuremberg war crimes trials, pointed out that the president had “no monopoly of ‘war powers.’”
On January 9, 2002, Yoo issued another controversial memo advising the president that the Geneva Conventions do not apply to the Taliban or al-Qaeda, arguing that while Afghanistan was a party to the Geneva Conventions, the country should now be treated as a “failed state” that could not fulfill its Geneva obligations. But a January 11, 2002, State Department memo to Yoo from counsel William Taft IV stated: “[T]he most important factual assumptions on which [the memo] […] is based and its legal analysis are seriously flawed.” Taft concluded that a US refusal to abide by the Geneva Conventions could constitute a “grave breach.” In fact, Taft warned Yoo that
criminal responsibility attaches to the commission of grave breaches of the Convention, including by operation of fundamental principles of command responsibility. If a court or other U.S. body were to find that the [Geneva Convention III on the Treatment of Prisoners of War] does apply, and that U.S. treatment of such persons fell below such standards as to be considered grave breaches, persons responsible may be held accountable.
Yoo also argued that even if Afghanistan is still a party to the Conventions, the president had the unilateral authority to “suspend” the Conventions either because the Taliban had allegedly breached the laws of war or because Afghanistan “lacked the capacity to fulfill its treaty obligations.” But Yoo failed to note that the Vienna Convention on the Law of Treaties expressly provides that “provisions relating to the protection of the human person in a treaty of a ‘humanitarian character’ [i.e. the Geneva Conventions] cannot be suspended.”
Relying on Yoo’s questionable legal opinions, the Bush administration concluded that the conflict with al-Qaeda was not governed by the Geneva Conventions and that its members were not legally entitled to prisoner of war status. (In 2006, the Supreme Court, in Hamdan v. Rumsfeld, would disagree.) By ignoring Common Article 3 of the Geneva Conventions, Yoo gave the president faulty and incomplete advice. Under the Conventions, persons seized in an armed conflict are presumed to be POWs unless and until their status is determined by a “competent tribunal.” Instead, based at least in part on Yoo’s memos, for several years the United States interrogated all the prisoners at Guantanamo (and elsewhere) without convening any tribunals.
Yoo issued his most infamous memo on August 1, 2002, after CIA officials voiced concern over their criminal liability for the harsh methods, such as waterboarding, they were already using to interrogate high-level al-Qaeda prisoners. In response, Yoo narrowly defined torture as pain “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” He overlooked the fact that interrogation methods need not reach the level of torture to be prohibited by US and international law. For example, short of torture, the Geneva Conventions prohibit “cruel treatment” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Secretary of State Colin Powell strongly opposed what he saw as an invalidation of the Geneva Conventions, and US Navy general counsel Alberto Mora campaigned internally against what he saw as the “catastrophically poor legal reasoning” and the dangerous extremism of Yoo’s opinions. In December 2003, the OLC repudiated Yoo’s memo on permissible interrogation techniques as legally unsound.
In December 2005, Doug Cassel, a law professor at the University of Notre Dame, asked Yoo, “If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?” Yoo replied, “No treaty.” Cassel pressed on: “Also no law by Congress. That is what you wrote in the August 2002 memo.” Yoo responded, “I think it depends on why the president thinks he needs to do that.” That Yoo could suggest that there is some conceivable circumstance which would justify such an abominable act is appalling.
In July 2009, the DOJ Office of Professional Responsibility (OPR) released a 261-page report which concluded, among other things, that in his legal memos on torture and presidential power, Yoo had “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” However, a senior Justice Department official, while acknowledging that he had not reviewed all the documents available to the OPR, and while finding that Yoo exercised “poor judgment” and in various respects Yoo’s memos were “flawed,” “one-sided and conclusory,” and “wrong,” declined to accept the Report or to refer Yoo for disciplinary action, leaving that up to the state bars themselves. Although stopping short of referring Yoo for disciplinary action, the DOJ official concluded:
[Yoo’s] memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions which reflected his own extreme, although sincerely held, views of executive power while speaking for an institutional client.
Instead of condoning barbarous interrogation techniques, Yoo should have advised Bush and the CIA that torture is expressly prohibited by federal statute and that under the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT), torture means “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
Yoo should have advised Bush and the CIA that “the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens.” (Siderman de Blake v. Republic of Argentina, 965 F. 2d 699, 717 [9th Cir.], cert denied, 507 U.S. 1017 .)
Yoo should have advised Bush and the CIA that under Article 2(2) of CAT, “[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Yoo should have advised Bush and the CIA that the US government has historically condemned water torture and has punished those who used it, including Japanese soldiers in World War II and American soldiers during the American occupation of the Philippines after the 1898 Spanish-American War. In the litigation against Philippine President Ferdinand Marcos, the “water cure” was found to be both “a human rights violation” and a “form of torture.” In United States v. Carl Lee, 744 F.2d 1124 (5th Cir. 1984), four Texas police officers were convicted of civil rights violations for coercing confessions from prisoners by use of “water torture.”
Before he wrote a book defending Trump, Yoo should have humbly admitted that the lessons of history as reflected in the development of American law have taught us time and again that our nation is most shamed when, in times of crisis, foreign and domestic, those who knew better were driven by fear, ambition, or currying favor with those in authority to shape their judgments to fit immediate political imperatives regardless of the dictates of the law.
Journalist Glenn Greenwald has argued that Yoo could potentially be indicted for crimes against the laws and customs of war, the crime of torture, and/or crimes against humanity. In fact, Yoo has been the subject of a criminal investigation in Spain and the subject of a complaint filed with the attorney general of Germany for his alleged complicity in torture and other crimes against humanity at Abu Ghraib and Guantanamo Bay; furthermore, on May 12, 2012, the Kuala Lumpur War Crimes Commission found Yoo, along with Bush, Dick Cheney, and several other senior members of the Bush administration, guilty of war crimes in absentia.
This review of Defender in Chief: Donald Trump’s Fight for Presidential Power has spent considerable space examining the history of Yoo’s legal career and the extent to which his judgment and the caliber of his legal analysis has been independently scrutinized and found to be seriously flawed. By all accounts, Yoo’s clients — Bush and the American people — had a valid claim for legal malpractice which was never pursued. The fact that Kuala Lumpur has done more than the United States to hold American officials, including Yoo, accountable who were complicit in war crimes and violations of US and international law during the War on Terror is a measure of the abject failure of the Obama administration and our legal system in general to uphold the rule of law.
Instead, undaunted, Yoo and the others walk free with impunity, writing books, earning royalties, and purporting to dispense legal opinions on the latest Lawbreaker in Chief. If Yoo chooses to continue to inject himself into the public square, the only remedy we have is the court of public opinion to expose, in the words of the Department of Justice, how Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice”; how he exercised “poor judgment”; how his legal work was “flawed,” “one-sided and conclusory,” and “wrong”; and how his “loyalty to his own ideology and convictions clouded” his higher obligations to the law.
On October 18, The New York Times published an extraordinary 10-page Sunday Review entitled “The Case Against Donald Trump.” Calling Trump “the worst American president in modern history,” whose “re-election campaign poses the greatest threat to American democracy since the Second World War,” the Times described how Trump “abused the power of his office,” “subsumed the public interest to the profitability of his business and political interests,” and “shown a breathtaking disregard for the lives and liberties of Americans.” The Times identifies Trump as “a racist demagogue” who has flooded the public square with “lies, disinformation and propaganda.” He has “resisted lawful oversight by the other branches of the federal government,” and “flouted the rule of law.” The Times concludes that Trump “has repeatedly violated his oath to preserve, protect and defend the Constitution of the United States.”
But Trump didn’t do it alone. Unlike the free pass that Yoo, Bush, Cheney, and the others got earlier this century, will those who have enabled and collaborated with Donald Trump be named and shamed, and will those who have already begun the project of whitewashing, expunging, and rehabilitating Donald Trump’s record be exposed and repudiated?
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.
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