The Puzzling Persistence of John Yoo
Eleven years after our nation was attacked on September 11, 2001, Osama bin Laden is dead and al-Qaeda is in disarray – scattered and fearful of drone attacks and SEAL raids. Not only do leaders of both parties agree that President Obama has proven a strong leader in protecting the country against terrorist attacks, but a vast majority of the American people believe it as well. Yet John Yoo – author of the infamous “torture memos,” whose work for the Bush Administration was so sloppy he was formally rebuked by the Department of Justice – still cannot seem to help himself from using 9/11 as a soapbox to slander the President’s national security record.
Yoo’s claims that President Obama has been “soft” on terrorism, written last week to coincide with the anniversary of the 9/11 attacks, are based on outright factual misrepresentations coupled with a warped logic that views our Constitution as an obstacle to our security rather than the source of our strength. In that sense, his recent writing resembles his work at the Bush Administration’s Office of Legal Counsel, for which he was found by the Justice Department’s Office of Professional Responsibility to have “violated his duty to exercise independent legal judgment and render thorough, objective” advice. (That finding was later downgraded from intentional skewing of the facts to mere incompetence.)
Perhaps the greatest falsehood, featured prominently in Yoo’s argument, is that President Obama would prefer to treat terrorist attacks as mere criminal matters. To begin with, Mr. Yoo’s statement that the President has “populated his administration with officials who argue that the attacks did not begin a state of war” is verifiably false. The reason we know it’s false is that three days after 9/11, Congress passed the Authorization for Use of Military Force, which gave the President authority “to use all necessary and appropriate force against those nations, organizations, or persons” involved in the attacks. The AUMF passed with the votes of then-Senators Joe Biden and Hillary Clinton. So who are the people “populating” the Obama Administration who don’t believe the 9/11 attacks were an act of war? Yoo, of course, cannot say.
What he does say is that the President deserves our scorn for prosecuting terrorists in our courts. That would have come as a surprise to the Bush Administration, which by its own accounts successfully prosecuted over 300 terrorism or terrorism-related cases in federal courts. At bottom, Yoo’s argument rests on the fantasy that terrorism prosecutions are somehow not “serious” unless the people in the courtrooms are wearing military uniforms. The Bush Administration certainly disagreed, securing life sentences in federal courts for (among others) “shoe bomber” Richard Reid and 9/11 conspirator Zacarias Moussaoui. And while military commissions may be appropriate in certain instances, they offer fewer options for prosecutors, are riddled with legal uncertainties, and in some cases produce shorter sentences. But from John Yoo’s perspective, anyone who thinks terrorists should be prosecuted in federal courts when feasible is “weak,” and only those who would eliminate our time-tested legal system from the equation are “strong.” It should come as no surprise that both Republican and Democratic presidential administrations have disagreed, as has the Department of Defense, which oversees military commissions.
Mr. Yoo also continues to claim that torture and “enhanced interrogation techniques” are “critical” to getting information from terrorists. He of course does not point to any evidence, probably because most credible experts disagree. Ali Soufan, a former FBI agent who personally interrogated numerous al-Qaeda terrorists and helped secure several lifetimes’ worth of prison sentences, has stated that such techniques produced little to no useful information and have “backfired on more than a few occasions.” A probe by the Senate Intelligence Committee, though it has not yet been released, reportedly has reached the same conclusions.
But how to handle the fact that President Obama has systematically eliminated al-Qaeda’s leadership, including Osama bin Laden himself? Conveniently, Yoo attributes all this either to Obama learning the “demands of the real world” while in office or to the Bush Administration. But the President has never minced words when it comes to taking out al-Qaeda’s leaders. He stated from the outset of his 2008 campaign that he would not hesitate to go after bin Laden through a targeted strike in Pakistan (a claim for which he took flak from politicians on the left and on the right), which of course is exactly what he did. By focusing specifically on those who attacked us on 9/11, President Obama has proven his dedication to bringing justice to those who murdered thousands of Americans eleven years ago. At the same time, the Administration has used all of the tools at its disposal to prevent future attacks: the FBI has disrupted multiple plots before they have hatched; and, where necessary, our military and intelligence agencies have killed men like Anwar Awlaki who have plotted against us from abroad. In short, Mr. Yoo’s charge that the President has neglected his duty to protect the nation against attack is untethered from this administration’s ruthless prosecution of the fight against al-Qaeda.
That brings us back to the Justice Department’s findings about Yoo. While the DOJ ultimately downgraded its verdict from intentional misconduct to “poor judgment,” that should still raise serious flags about Yoo’s credibility when it comes to discussing these issues. A body of expert, non-partisan lawyers has found that, when asked crucial questions about the rule of law and national security, Yoo gave objectively sloppy answers. That was the same conclusion reached by Jack Goldsmith, who later took over as head of the Office of Legal Counsel under President Bush and took the unusual step of revoking Yoo’s memos because they were so badly flawed. Yoo isn’t simply “controversial” or extreme; he’s also just not a very good lawyer. So it’s puzzling that he continues to have a voice at institutions like the American Enterprise Institute and on the op-ed pages of the Washington Times and the Wall Street Journal. Just as the accountants for Enron shouldn’t get to tell us about how to run a business, John Yoo has no place calling himself an expert on national security law – and he certainly has no place, on September 11, telling us what would and would not make us safer.
Sophia Brill is a member of the Truman National Security Project’s policy team.