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Profile: John C. Yoo


Positions that John C. Yoo has held:

  • Attorney at US Department of Justice's Office of Legal Counsel




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John C. Yoo actively participated in the following events:


September 2001      Torture in Iraq, Afghanistan and elsewhere

       In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’ ” [New York Times, 10/24/2004] This attitude is seemingly in line with the president's thinking. Richard C. Clarke, the White House chief of counter-terrorism, will later recall President George W. Bush saying, “I don't care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.)). [Clarke, 2004, pp 23-24] At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. [New York Times, 12/19/2004] They will find a helpful hand in the Justice Department's Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee [Los Angeles Times, 6/10/2004] and his deputies John C. Yoo [New York Times, 8/15/2004] and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. [New York Times, 10/24/2004] Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. [Inter Press Service, 2/06/2004]
People and organizations involved: Patrick F. Philbin, John C. Yoo, Alberto R. Gonzales, Joan Claybrook, Bradford Berenson, Alan M. Dershowitz, Richard A. Clarke, Rena Steinzor, Jay S. Bybee

September 21, 2001      Torture in Iraq, Afghanistan and elsewhere

       In a memo, responding to a request from Deputy White House Counsel Timothy E. Flanigan, John C. Yoo provides legal advice on “the legality of the use of military force to prevent or deter terrorist activity inside the United States.” He addresses the question of how the Fourth Amendment to the American Constitution applies to the use of “deadly force” by the military “in a manner that endangered the lives of United States citizens.” The Fourth Amendment requires the government to have some objective suspicion of criminal activity before it can infringe on an individual's liberties, such as the right to privacy or the freedom of movement. Yoo writes that in light of highly destructive terrorist attacks, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” If the president determines the threat of terrorism high enough to deploy the military inside US territory, then, Yoo writes, “we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.” [New York Times, 10/24/2004]
People and organizations involved: John C. Yoo, Timothy E. Flanigan

September 25, 2001      Torture in Iraq, Afghanistan and elsewhere, Events Leading to Iraq Invasion

       In a secret 15-page memo to Deputy White House Counsel Timothy Flanigan, Justice Department lawyer John Yoo reasons that it is “beyond question that the president has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks” of 9/11. Those actions can be extensive. “Force can be used,” Yoo writes, “both to retaliate for those attacks, and to prevent and deter future assaults on the nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon.” This power of the president, Yoo states, rests both on the US Congress' Joint Resolution of September 14 and on the War Powers Resolution of 1973. “Neither statute, however, can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” He argues further that the September 14 resolution does not represent the limits to the president's authority. “It should be noted here that the Joint Resolution is somewhat narrower than the president's constitutional authority,” as it “does not reach other terrorist individuals, groups or states which cannot be determined to have links to the September 11 attacks.” the president's broad power can be used against selected individuals suspected of posing a danger to the US, even though it may be “difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States.” Yoo concludes: “[W]e do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the president from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the president's decisions are for him alone and are unreviewable.” [Sources: Memo: The President's Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them] The contents of this memo are not disclosed until mid-December 2004. [Newsweek, 12/27/2004; Newsweek, 12/18/2004]
People and organizations involved: John C. Yoo, Timothy E. Flanigan

January 9, 2002      Torture in Iraq, Afghanistan and elsewhere

       John Yoo of the Department of Justice's Office of Legal Counsel and Justice Department special counsel Robert J. Delahunty prepare a 42-page draft memo addressed to Pentagon legal counsel William Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” It declares that the laws of war, including the Geneva Conventions, do not apply to the conflict in Afghanistan, as Yoo's colleague Philbin already suggested in his memo of November 6, 2001 (see November 6, 2001). Furthermore, according to the memo, the president has seemingly unrestricted powers with regard to military operations. “Restricting the president's plenary power over military operations (including the treatment of prisoners),” the memo says, would be “constitutionally dubious.” Lawyers from the Army Judge Advocate General's office and the State Department are not consulted. When the State Department's lawyers read the memo, they are “horrified” (see January 11, 2002). [Newsweek, 5/24/2004; New York Times, 5/21/2004 Sources: DOJ Memo, Application of Treaties and Laws to al Qaeda and Taliban Detainees, June 9, 2002]
People and organizations involved: William J. Haynes, Robert J. Delahunty, John C. Yoo

January 11, 2002      Torture in Iraq, Afghanistan and elsewhere

       William Howard Taft IV, the State Department's chief legal adviser, responds to John Yoo's January 9 memo (see January 9, 2002) saying that Yoo's analysis is “seriously flawed.” Taft writes: “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” [Newsweek, 5/24/2004] Applying the Geneva Conventions, according to Taft, would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Taft ends with a scorching criticism. “Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let's talk.” [Le Monde, 10/25/2004]
People and organizations involved: John C. Yoo, William Howard Taft IV

December 18, 2003      Torture in Iraq, Afghanistan and elsewhere

       A three-judge panel of the 2 US Circuit Court of Appeals in New York votes 2 to 1 that the military must release Jose Padilla within 30 days. [Knight Ridder Newspapers, 12/29/2003] “The government,” the court says, “can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him.” Until now, no court in the US has ruled against the government's contention that even American citizens arrested on US soil can be held indefinitely based on wartime government prerogatives. “So far,” Office of Legal Counsel lawyer John Yoo comments, “the 2nd Circuit is the only court that has rejected the idea that the war on terrorism is, in fact, a war.” [Knight Ridder Newspapers, 12/29/2003]
People and organizations involved: John C. Yoo, Jose Padilla

May 21, 2004      Torture in Iraq, Afghanistan and elsewhere

       Newsweek reveals the existence of the January 9, 2002 draft memo (see January 9, 2002) written by Justice Department lawyers John C. Yoo and Robert J. Delahunty. [Newsweek, 5/21/2004]
People and organizations involved: John C. Yoo, Robert J. Delahunty

December 30, 2004      Torture in Iraq, Afghanistan and elsewhere

       The Justice Department issues a 17-page memo which officially replaces the August 2002 memorandum (see August 1, 2002), written by Jay S. Bybee, head of Office of Legal Counsel (OLC), and co-authored by John C. Yoo, a deputy assistant attorney general. The controversial memo had asserted that the president's wartime powers superseded international anti-torture laws and treaties. It had also considered legal arguments that US officials and other personnel could use if ever faced with criminal charges. Additionally, the memo put forth a very narrow definition of torture, describing it is as a tactic that produces pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The new memo, authored by acting chief of the OLC and Acting Assistant Attorney General Daniel Levin, is ostensibly meant to deflect criticisms that the Bush administration condones torture. In fact, the very first sentence reads, “Torture is abhorrent both to American law and values and to international norms.” But the White House insists that the new memo does not represent a change in policy because the administration has always respected international laws prohibiting the mistreatment of prisoners. The primary concern of the new memo is to broaden the narrow definition of torture that had been used in the August memo. Levin adopts the definition of torture used in congressional anti-torture laws which says that torture is the infliction of physical suffering “even if it does not involve severe physical pain.” But the pain must still be more than “mild and transitory,” the memo says. Like the original memo, Levin says that torture may include mental suffering. But to be considered so it would not have to last for months or years, as Bybee and Yoo had asserted two years earlier. The most contested conclusions of the August 2002 memo—concerning the president's wartime powers and potential legal defense for US personnel charged with war crimes—are not addressed in the Levin memo. “Consideration of the bounds of any such authority would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture,” the memo says. [Associated Press, 12/31/2004 Sources: (Acting Assistant Attorney General), Memorandum for James B. Comey, Deputy Attorney General, 12/30/2004] The memo also attempts to quell concerns that the administration believes national security may be used as justification for tactics that could be considered as torture. The memo states: “[A] defendant's motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” [Sources: (Acting Assistant Attorney General), Memorandum for James B. Comey, Deputy Attorney General, 12/30/2004]
People and organizations involved: Daniel Levin, Bush administration, John C. Yoo, Jay S. Bybee

'Passive' participant in the following events:

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