In wartime, this lawyer has got Bush’s back

To his shrillest student critics, UC Berkeley law professor John Yoo -- a mild-mannered, cherubically baby-faced academic who gravitates toward the driest of legal treatises and the sharpest of suits -- incarnates the banality of evil. Yoo has been accused of being a war criminal. Cursed out in public. Escorted by security from a UC Irvine auditorium. Warned by Berkeley police, last spring, that it might not be safe to appear on a law school panel.

“That was pretty wild,” acknowledged Yoo, the author of a new book, “The Powers of War and Peace.” “That was the most out-of-control thing that ever happened to me.”

As Secretary of State Condoleezza Rice attempts to lessen anger in Europe over reports that the CIA has operated secret prisons in European countries, it might not be the best time for Yoo to argue his contention that the Bush administration has the right to hold “enemy combatants” indefinitely without charges, and question them without a lawyer present, in wartime. Although even Rice seemed to reverse her administration’s contention that the prohibition on cruel or inhumane prisoner interrogations didn’t apply overseas, Yoo is still ardently opposed to such a ban, saying it could cripple the effectiveness of coercive interrogations abroad.

And even some of Yoo’s fellow conservative intellectuals are disturbed by his contention that President Bush has the constitutional power to unilaterally start a war. Yoo has been in perpetual hot water since the revelation that he helped draft a controversial memo in 2002 -- he was a deputy assistant U.S. attorney general at the time -- that narrowly defined torture as suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

But if being a flak-catcher for the Bush administration’s most-criticized wartime practices has unnerved Yoo, it’s not apparent when he touts his new book, which was released this fall. If he ends up with more critics than readers, so be it.

Yoo doesn’t employ the usual rationale for a strong Bush presidency. He says in his book that it is not the 9/11 terrorist attacks that justify the extraordinary presidential powers he advocates. In Yoo’s view, the constitution itself gives the president lots of leeway, allowing him to invade Iraq without congressional permission and to disregard such treaties as the Geneva Convention, which governs the moral code of conduct of war.

“I’m pretty sure that’s an argument no one has ever made before,” Yoo, 38, said recently with evident pride. Most people, he said, “say the world’s too dangerous and the Constitution’s obsolete.”

Michael Glennon, a professor of international law at Tufts University, believes that Yoo “sees the president essentially as an elected king.”

“It strains the imagination to believe that those who wrote our Constitution could so quickly forget the danger that flows from unlimited power,” Glennon said. “If the framers truly intended to create a Sun King, why did they explicitly assign so many powers to the Congress?”

To answer this question, Yoo relies partly on the dictionary. Although the Constitution gives Congress the exclusive power to “declare” war, that wording doesn’t mean the president needs to consult Congress to “make war” or “commence war,” Yoo’s book says.

Yoo’s critics say this relegates Congress to the role of an ambassador making a courtesy call: Excuse me, in case you hadn’t noticed, we’re bombing you to smithereens.

“I like John Yoo, but I disagree with many of the things he says about the inherent powers of the president,” said Abraham Sofaer, a legal advisor to the State Department under the Reagan administration, who has argued for years for a more aggressive approach against terrorism.

“What Yoo seems to be saying is that the president has this whole set of powers in matters of defense that Congress cannot override,” said Sofaer, now a senior fellow at Stanford’s Hoover Institution. “I don’t believe there are any powers that the president has that Congress cannot override.”

What most concerns him, Sofaer said, are Yoo’s views on the treatment of detainees.

“The torture convention is written specifically for people who think their emergency is different than any other emergency in human history,” Sofaer said. “You can’t just say that because you happen to be governing the United States during an attack unprecedented since Pearl Harbor, that all the conventions governing the rules of war go out the window.”

As criticism grows, some of Yoo’s positions seem to be getting lonelier.

Yoo opposed the amendment by Arizona Republican Sen. John McCain that would ban “cruel, inhumane or degrading treatment.” The Senate passed the amendment 90-9, with the backing of, among others, former CIA Director Stansfield Turner and former CIA Counterterrorism Center Director Vincent Cannistraro.

That doesn’t dissuade Yoo. “In the war against Al Qaeda, the Geneva Convention doesn’t apply,” Yoo explained in November on C-Span. “Al Qaeda is not a nation. Under the McCain amendment, all we could do is question people.... The real effect of the McCain amendment would be to shut down coercive interrogation.”

To Yoo, it is crystal clear who gets to decide the difference between coercive interrogation and torture abroad.

“Outside the United States it would be the president,” Yoo said. “If the president thinks that because of an extraordinary need to protect the country, he needs to order an interrogation, he needs to be able to do that.

“There’s torture, and then there’s cruel, inhumane and degrading treatment -- conduct below torture. It’s a broad term. I think [the McCain bill] would prevent anything beyond oral questioning.”

The White House had threatened to veto the McCain amendment. However, last week, Rice, scalded by scrutiny in Europe, said in Kiev, Ukraine, that the United States has barred its personnel -- at home and abroad -- from cruel or inhumane interrogation techniques, a ban the Bush administration has previously said did not apply overseas. Though the White House said Rice was merely articulating policy that was already in place, not voicing a shift, analysts found her statements significant. What does Yoo think?

“Uh, I’m not really following her trip,” Yoo demurred, speaking on a cellphone from a Starbucks in San Francisco.

Yoo’s views on presidential powers stand out -- and not just in ultra-liberal Northern California. He believes, for example, that Bush has the final say on treaties.

“It’s up to the president to decide how to interpret international law and apply it,” Yoo said. “President Bush has the sole power to decide whether to pull the United States out of treaties, break treaties, terminate treaties.”

Or that the real check and balance held by Congress in wartime is budgetary.

“That’s the primary check,” Yoo said. “If [Sen. John] Kerry wanted to stop the war, all he had to do was convince his colleagues to not pay for it.”

As a conversationalist, Yoo is impeccably courteous, dispassionately affable, unfailingly polite. His prose too is measured. Even bland. Which is precisely what inflames his critics.

“This hyper-technical legal analyses detached from underlying moral and pragmatic considerations ... is a consequence of the law of war becoming ‘overlawyered,’ wrote retired U.S. Army Lt. Col. Geoffrey S. Corn, the former special assistant to the judge advocate general for law of war matters, in a guest column for Jurist, the online legal news service of the University of Pittsburg School of Law.

“Unlike his chief antagonist, Senator John McCain, Yoo has never worn a uniform,” wrote Corn, now a professor at South Texas College of Law.

Yoo does have his fans, to be sure. Conservative legal scholar Robert H. Bork called the book a “brilliant and pathbreaking analysis.” Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit -- Yoo clerked for him and for Supreme Court Justice Clarence Thomas -- called it “comprehensive,” “thoughtful,” “provocative.”

Even some who ardently disagree with him praise his personal qualities. Tuft’s Glennon considers Yoo a friend.

“He’s a very gentle soul. He’s a teddy bear,” Glennon said. “He’s extremely courteous in dealing with intellectual adversaries. He’s a creative and original scholar.”

However, he added, “I think his book is just 180 degrees off the mark.”