Former Justice Department lawyer, John Yoo, the extremely controversial author of the legal framework that allowed the Bush administration to use extreme interrogation techniques like waterboarding in the wake of 9/11, visited the law school on March 27 to talk about the “Executive Power and the Presidency.” Adjunct Professor Harvey Rishikof, former legal counsel to the FBI and former administrative assistant to the chief justice of the U.S. Supreme Court, moderated the discussion organized by students from the Law and National Security Society, the Drexel Law Veterans Association and the Federalist Society.
Yoo, now a law professor at University of California-Berkeley, began by offering an interpretation of the Constitution that gives the president vast discretion over military and foreign affairs, claiming that Congress is incapable of acting quickly.
“There must be a part of government that can respond swiftly and decisively to emergencies,” Yoo said, adding that the legal memoranda he wrote were crafted under circumstances where time was of enormous consequence. After 9/11, he said, al-Qaeda operatives with critical knowledge were in the hands of the CIA, and the intelligence community sought legal counsel on how to penetrate their ability to resist interrogation.
“If you had years to figure it out, maybe you would have done it differently,” Yoo said, “but I do stand by the line we drew.”
Until 9/11, war on a person or organization, such as al-Qaeda, was unprecedented, Yoo said. Thus, at the time he wrote the so-called “torture memos” and drafted the president’s authorization of use of military force (commonly known as AUMF) - which Congress later approved - Yoo said he had to establish the legal boundaries of what the executive and military can do in an area where there was no legal precedent. “There was no case law on stuff like this,” Yoo said, adding that he was forced to look back to the actions of Abraham Lincoln during the Civil War to craft legal definitions for things such as “enemy combatants.“
Pressed by Rishikof on the use of waterboarding, Yoo said that in war,“there are things that the government sometimes has to do that are awful” but Yoo believed it was not the job of an attorney in his position at the time to make moral or policy decisions, it was his job only to strictly define what was legal with little judicial precedent to rely on, he argued. It is up to elected officials, who are accountable to voters, to make the moral judgments, he said.
Yoo’s remarks prompted polite but challenging questions from the audience.
Dean Roger Dennis, whose career featured a four-year stint with the U.S. Department of Justice, said agency attorneys must provide “corner office judgment to the president of the United States,” and that they are not paid to offer purely technical legal advice.
Yoo said that the Department of Justice did offer an opinion that the Geneva Conventions should be applied, but that the president was not legally obligated to do so.
“You shouldn’t put it in the memo as part of the legal analysis,” Yoo said.
Student Adam Bethke, who was formerly a criminal investigation command specialist in the U.S. Army and investigated the deaths of detainees, asked Yoo if he’d given consideration to the ways in which his memos would be interpreted at the lower end of the military chain of command.
Yoo responded that this was a decision for the Defense Department to make.
“The memos wouldn’t tell you what the orders to the troops (would be,) Yoo said, adding that those in the intelligence community are better suited than young soldiers to perform the interrogations. “I am no expert on how to craft military directives.”
The discussion also explored Yoo’s involvement with the National Security Agency’s use of surveillance techniques and questioned whether the NSA is overstepping the boundaries of Fourth Amendment search and seizure protections.
Yoo again cited the unique circumstances the Justice Department faced. When spying on individuals abroad, the NSA traditionally had carte blanche, Yoo said. However, post-9/11, the novel question arose whether the U.S. could continue to surveil the same individuals when they crossed into American soil.
Ultimately, Yoo said, a lawyer’s role is to interpret the law, while policy makers and members of Congress must legislate around the distinctions between privacy and security. One cannot expect the Justice Department to manage the constantly evolving array of surveillance technology, Yoo concluded, the agency can only interpret the law and hope that Congress will legislate on how information is gathered and used.
The event was covered by the Philadelphia Inquirer.