Architect of the `9/11 Constitution'

Profile // John Yoo

September 24, 2006|By Larry Williams | Larry Williams,Ideas Editor

Last week, as President Bush haggled with rebellious Senate Republicans over proposed refinement of legislation setting terms for the interrogation and trial of suspects in the war on terrorism, John Yoo, the man who helped ignite a fierce debate over the legal limits of the terror war, was preparing to begin a national tour to sell his book War by Other Means and his theories arguing for enhancement of presidential power.

A leading legal architect of the Bush administration's post-Sept. 11 strategies, Yoo has been described as the theorist of the "9/11 Constitution" by The New Republic.

In the weeks and months after the Sept. 11 attacks, Yoo issued a series of legal opinions from the Justice Department's Office of Legal Counsel that argued that the Geneva Conventions did not apply to the treatment of terror suspects and that highly coercive interrogation methods used on terror suspects would not necessarily be illegal.

He also wrote a secret 2002 memorandum that provided legal justification for the Bush administration's secret program to eavesdrop on the international communications of Americans and others in this country without federal warrants.

To many, Yoo's views represent a frontal assault on the basic principles of American government - that Congress enacts the laws, the courts interpret them and the president enforces them, each providing a check on the potentially unbounded powers of the others.

But to Yoo , expansive presidential powers are a wartime necessity.

"To his critics, Mr. Bush is a `King George' bent on an `imperial presidency,' Yoo wrote recently. "But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive. Harry Truman sent troops to fight in Korea without congressional authority. George H. W. Bush did not have the consent of Congress when he invaded Panama to apprehend Manuel Noriega. Nor did Bill Clinton when he initiated NATO's air war over Kosovo. ...

"A reinvigorated presidency enrages President Bush's critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. But the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress."

Yoo is not alone. A growing number of conservative theorists are working to reshape our understanding of the constitutional and legislative foundations of the American legal system.

Their views on executive power, collectively termed the "unitary executive" theory, are controversial since they suggest that the president's war powers place him above any law.

They are, thus far, a minority in the legal fraternity, with most experts in government and academia supporting the view that Congress and the courts have substantial powers to limit the president's actions.

Yoo, who is 40, emigrated as an infant with his parents from South Korea. He grew up in Philadelphia and graduated from Harvard University in 1989 and Yale Law School in 1992.

Mentored by friends in the conservative Federalist Society, he clerked for U.S. Supreme Court Justice Clarence Thomas and Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit. From 1995 to 1996 he was general counsel for the Senate Judiciary Committee. Since 1993 he has been a professor at the University of California, Berkeley School of Law.

Yoo contends that the president, not Congress or the courts, has sole authority to interpret international treaties such as the Geneva Conventions "because treaty interpretation is a key feature of the conduct of foreign affairs."

He argues that the founding fathers intended to give the president sweeping powers to manage foreign affairs and, as commander in chief, to conduct war as he sees fit. Yoo notes that through more than 200 years of American history presidents have done whatever they felt was necessary to win wars, regularly disregarding theoretical legal restraints.

The professor pushes his argument a step further with the contention that in a post-Sept. 11 era, the extraordinary dangers of terrorism and weapons of mass destruction absolutely require that the president be given even more leeway to protect his management of foreign policy from meddling by Congress and the constraints of international law.

Not surprisingly, Yoo's provocative views have drawn a storm of critical reaction.

"A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Supreme Court Justice Sandra Day O'Connor wrote in a critique of his views.

Georgetown University constitutional scholar David Cole has argued that Yoo's prominent role in helping to sketch the Bush administration's legal vision was something of a happy accident.

"Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, `You can do what you want,' " said Cole.

But other experts, including some with sharply differing views, see Yoo in a more favorable light. University of Chicago law professor Cass Sunstein has called him "a very interesting and provocative scholar."

Yoo says in his book and elsewhere that his many critics should understand that with his memos he was simply offering legal advice, not making policy. Whether history will make that distinction, remains to be seen.

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