By Jason Leopold
John Yoo, the former Deputy Attorney General at the agency’s Office of Legal Counsel, who drafted the infamous “torture memos” that gave former President George W. Bush and CIA interrogators the legal cover they needed to torture suspected terrorist detainees, offered some clues behind the genesis of the August 2002 legal opinions.
Yoo suggested in no uncertain terms that Bush administration officials sought to legalize torture and that he and his boss, Jay Bybee, fixed the law around the Bush administration’s policy.
Yoo, who is now a visiting law professor at Chapman University in Orange, Calif., and a tenured professor at the University of California at Berkeley, insisted that he only drafted the legal memos and that other officials decided what interrogation techniques were permissible.
“Decisions about interrogation methods at Guantanamo Bay were made by the Defense Department,” said Yoo in testimony before the House Judiciary subcommittee on the Constitution last year.
But Yoo appears to be splitting hairs. While it is true that higher-ups in the Bush administration had greater responsibility for approving the techniques, indeed, Yoo admitted in an editorial published in the Wall Street Journal that George W. Bush authorized waterboarding “three times in the years after 9/11,” Yoo was not just the detached legal scholar that he has portrayed.
Yoo still staunchly defends the torture memos he wrote despite the fact that Susan Crawford, the retired judge who heads military commissions at Guantanamo, said she would not allow a war crimes tribunal against one detainee to proceed because his interrogation met the legal definition of torture.
Moreover, Jack Goldsmith, who succeeded Bybee at the OLC in October 2003 quickly determined that Yoo’s Aug. 1, 2002, memo was “sloppily written” and “legally flawed.”
The DOJ’s Office of Professional Responsibility investigated whether “the legal advice contained in those memoranda [written by Yoo and Bybee] was consistent with the professional standards that apply to Department of Justice attorneys.”
The results of the investigation are expected to be released soon and is said to have reached the conclusion that Yoo and Bybee did in fact violate professional standards by acting as advocates for Bush administration policy as Yoo has acknowledged in several pieces of commentary published this year.
Many people are unaware that Yoo wrote a book in 2006, War by Other Means: An Insider’s Account on the War On Terror, where he admitted that he acted as an advocate for White House policy in what would appear to be a violation of Justice Department guidelines on issues such as torture and domestic surveillance. On torture, Yoo described his participation in meetings that helped develop the controversial policies for the treatment of detainees.
For instance, Yoo wrote about a trip he took to Guantanamo Bay, Cuba, with other senior administration officials to observe interrogations and to join in discussions about specific interrogation methods. In other words, Yoo was not acting as an independent attorney providing the White House with unbiased legal advice but was more of an advocate for administration policy.
In his book, Yoo wrote that in December 2001 “senior lawyers from the Attorney General’s office, the White House counsel’s office, the Department’s of State and Defense, and the [National Security Council] met to discuss the work on our opinion” regarding whether the Geneva Convention applied to members of al-Qaeda and the Taliban.
“This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism,” Yoo wrote. “Meetings were usually chaired by [former White House counsel] Alberto Gonzales…his deputy, Timothy Flanigan, usually played the role of inquisitor, pressing different agencies to explain their legal reasoning to justify their policy recommendations.”
Yoo wrote that the Defense Department was represented by its general counsel William “Jim” Haynes, the State Department by legal adviser William House Taft IV, and the NSC by John Bellinger, that agency’s legal adviser.
The meetings that Yoo described appear similar to those disclosed by ABC News last April.
“The most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al-Qaeda suspects would be interrogated by the CIA,” ABC News reported, citing unnamed sources.
“The high-level discussions about these ‘enhanced interrogation techniques’ were so detailed, these sources said, some of the interrogation sessions were almost choreographed – down to the number of times CIA agents could use a specific tactic.
“These top advisers signed off on how the CIA would interrogate top al-Qaeda suspects – whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding, sources told ABC News.”
Resistance on Torture
Yoo wrote that the Justice Department’s Office of Legal Counsel (OLC) often clashed with the State Department over international laws banning torture.
“In our arguments, State would authoritatively pronounce what the international law was,” Yoo wrote. “OLC usually responded ‘Why?’-as in why do you believe that, why should we follow Europe’s view of international law, why should we not fall back on our traditions and historical state practices?”
Yoo wrote that the policies he and other senior administration officials recommended, that al-Qaeda and the Taliban were not entitled to the protections of the Geneva Convention, also rankled military lawyers.
“Judge Advocates General [JAG's] worried that if the United States did not follow the Geneva Conventions, our enemies might take it as justification to abuse American POW’s in the future,” Yoo wrote. “From what I saw the military had a fair opportunity to make it’s views known. Representatives from the Joint Chiefs of Staff, including uniformed lawyers, were present at important meetings on the Geneva question and fully aired their arguments.”
The consensus among the officials who participated in the December 2001 meetings formed the basis of a legal memo sent to Gonzales that advised the White House that al-Qaeda and Taliban prisoners were not entitled to the protections of prisoner of war status or the Geneva Convention.
Bush accepted that legal opinion verbally on Jan. 18, 2002.
“The only way to prevent future September 11s will be by acquiring intelligence,” Yoo wrote. “The main way of doing that is by interrogating captured al-Qaeda leaders or breaking into their communications…. In an opinion eventually issued on Jan. 22, 2002, OLC concluded that al-Qaeda could not claim the benefits of the Geneva Conventions.”
Yoo also wrote that in January 2002 he and the other administration officials who participated in the December 2001 meetings took a trip to Guantanamo Bay to observe the interrogations of several detainees
The trip took place seven months before he drafted the first of two legal opinions that were later withdrawn.
“A gust of warm, humid air embraced us as we disembarked at the U.S. Naval Base at Guantanamo Bay,” Yoo wrote in his book. “I was the junior person on the flight among the senior lawyers there from the White House, Departments of Defense, State and Justice.
“The group of us who landed that day had no idea that the ‘front’ in the war on terrorism would soon move from the battlefields of Afghanistan to the cells of Gitmo.”
In the context of explaining why the prisoners were not entitled to the benefits of the Geneva Convention or prisoner of war status, Yoo wrote:
“When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards and other Americans. …
“Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights…is infeasible.”
Yoo’s argument that only quiet POWs “in a state of calm surrender” should qualify for Geneva protections might be news to many former U.S. POWs, including Sen. John McCain, who have boasted about their various forms of resistance to their captors.
Yoo added that a few weeks after he returned from Guantanamo “the lawyers met again in the White House Situation Room to finally resolve the issue for presidential decision.”
“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders,” Yoo wrote. “We would be able to ask Osama bin Laden loud questions and nothing more. Geneva rules were designed for mass armies, not conspirators, terrorists or spies.”
However, consensus eluded the group, according to Yoo.
“Gonzales had the unenviable task of summarizing the different positions for President Bush and attempting to forge a consensus,” Yoo wrote. “[Gonzales recommended that the President find that neither al-Qaeda nor the Taliban were covered by Geneva.”
However, Secretary of State Colin Powell urged President Bush to reconsider, according to Yoo.
On Feb. 7, 2002, Bush sent a memo to then-Vice President Dick Cheney, Secretary of State Colin Powell, National Security Adviser Condoleezza Rice, Bush’s Chief of Staff Andrew Card, Defense Secretary Donald Rumsfeld, CIA Director George Tenet, Attorney General John Ashcroft, General Richard Myers of the Joint Chiefs of Staff, which said, “the Geneva Conventions only applied to conflicts involving states fighting with regular armed forces,” according to Yoo’s book.
A bipartisan report released earlier this year by the Senate Armed Services Committee concluded that Bush’s Feb. 7, 2002 memorandum, which Yoo helped draft, was directly responsible for the systematic abuse of prisoners at Abu Ghraib prison in Iraq.