by Alex Kingsbury

John Yoo's book Crisis and Command: A History of Executive Power from George Washington to George W. Bush is getting good reviews from historians. But Yoo is perhaps more accustomed to criticism, given that he coauthored some of the controversial Bush administration memos regarding the use of torture to interrogate suspected terrorists when he served as a deputy assistant attorney general in the Office of Legal Counsel from 2001 to 2003. Yoo, currently a professor at the University of California-Berkeley law school, spoke with U.S. News about the history of presidential power, the "supersized executive," and how the government should handle suspected terrorists. Excerpts:

Before we get into the book, let's talk about your work with the OLC. Do you regret the work you did there?

No. What I regret is that we as a country had to confront these questions. That was because of the 9-11 attack. We had to fight effectively a new type of war where intelligence was going to be a primary factor in deciding who wins. Our government had to deal with the fact that getting information out of al Qaeda members was going to be the thing that decided if we were able to win the conflict. I don't regret the answers we had to give. I would give pretty much the same answers now.

In Oct. 2008, the DOJ wrote a memo addressing some of your 2001 writings for OLC, saying several propositions are either "incorrect or highly questionable." What do you say to that conclusion?

Unfortunately, that was a product of appealing to public perception. If you look at the original memos closely, I struggle to think what the alternative, sensible conclusions should be. The memos they are talking about describe what would happen if al Qaeda was able to carry out Mumbai-style attacks in the U.S. and military force was used to fight them.

But what concerned critics was the fact that your memos also talked about the suspension of Posse Comitatus and suspension of the Fourth Amendment.

It is easy for people to say that they don't like the reasoning behind those opinions, but its also incumbent upon those people to say what they would do in the exact situation. I haven't seen any memos to say what other alternatives there are if such an attack happened. What would they do, send out the FBI to stop that type of attack? I have a hard time believing that. The Obama administration was so intent on being the opposition party, that when the time came with the Christmas Day bomber, they didn't even think if their course was the best way to protect the American people.

Do you think that the Bush administration did enough to explain and defend in public the answers that you arrived at in the OLC memos?

No and you've really hit on a sore spot there. The last administration was very poor at explaining to the American people the situations in which we were asked to make the decisions we did and why we made the decisions we did. In the case of Guantanamo Bay, the administration just really wanted to run and hide. It would have been better served if it had come out more forthrightly and walked the American people through what the choices were and what the benefits were for the choices we made. The American people would have thought differently about our opinions if they had known about the al Qaeda plots that were disrupted and the people who were captured, information that could only have been gathered through interrogation.

While you've said you don't support civilian trials for people like Khalid Sheikh Mohammed, would you support a public discussion in a trial of the legality of so-called enhanced interrogation techniques, which most international law experts call torture -- to which KSM was subjected?

My book, War by Other Means, explains at great length why I think that those techniques which were chosen are legal. Now that the memos are public, I don't think there's a harm in the context of a public trial to explaining what interrogations were used and how they were arrived at.

Why isn't a public trial the right place for KSM to face justice?

The KSM trial will be an intelligence coup for the other side. One of the things that any criminal defendant is going to demand is all the information that the government has about him, including all the intelligence sources and methods. The second problem it will create will be the incentive put on our people in the field, to have to conform to the standards that a police officer adheres to rather than performing their missions. Do we want our troops to have to carry around little plastic baggies for collecting evidence? A good example of this is the Christmas Day bomber, who was charged as a civilian right from the start. Only then, did the administration think about the issues involved.

Yet the Bush administration changed venues from military to civilian in several cases. And there were hundreds of civilian prosecutions for terrorism.

Sure, I'm not saying every suspected terrorist belongs in a military commission. I'm just opposed to the automatic decision that all terrorists are civilian criminals. That's a mistake.

What about the legal actions against you by a court in Spain and the DOJs ongoing ethics investigation?

I can't comment in any specifics on either of those cases. I was asked these questions as a professional and had to give the best answer I could at the time. It's part of my responsibility to explain in public why I thought that those answers were correct. One thing that disappoints me is to see other people with which I served not doing that, hiding away rather than explaining these very important decision that they had to make.

Fair enough. On to your new book about the power of the presidency. What makes a great president?

We've had great presidents because we've had presidents in times of emergency and war. But some presidents became our most successful chief executives by reacting to these situations by reading their powers broadly and using the full powers of their office to bring the country through. The best example is to compare James Buchanan, one of our worst presidents, and Abraham Lincoln, one of our best. Buchanan, who was president just before Lincoln, thought that the Constitution gave the president no powers to stop secession. Lincoln, one of our three great presidents along with FDR and Washington, thought that secession was unconstitutional and also thought that the president had the power to stop the division.

We've had good presidents who used their powers broadly, and we've had presidents who've used their powers broadly who have not been good. It does depend on the circumstances. Presidents can use their powers inappropriately because it's the wrong time. Richard Nixon is the prime example, who took the powers of his office for national security and turned them against his political enemies.

Is presidential inaction just as dangerous?

Sure. James Madison was one of our great political thinkers, but he was a troubled president because he didn't stop the Congress from drawing us into the War of 1812. Congress wanted to take over Canada, and Madison didn't do anything to stop them. In the war, the British invaded and burned our capitol. We barely escaped British plans to split the country up.

Once military force is authorized, does Congress have checks on presidential power?

Even in these periods of war and emergency where you see a supersized executive, Congress still has the power of the purse, which can be used to adjust the size of the Army. They have used that power, for instance, in the end of the Vietnam War. The Mexican-American War ended similarly, because President [James] Polk was contemplating annexing more of Mexico but Congress voted to end funding for war operations and halt those goals. Now we're in a period where Congress still has the power to check the actions of the president; they just don't want to use it. I worry that often in talking about these issues we mistake a lack of congressional will for a defect in the Constitution.

Isn't legislation also a check to the executive? Congress shouldn't have to defund the Army to stop the abuse of prisoners if they have already passed laws against doing so.

In general, you're right. One of the roles of Congress is to pass legislation to regulate private citizens and the government. But it can't go so far as to take away presidential power completely. I don't think Congress could have passed a law during World War II banning the invasion of Normandy and insisting on an invasion of Italy instead. Those are legitimate decisions for the president as commander in chief. But the Congress can affect those decisions by choosing to build more landing craft. When it comes to the military treatment of prisoners, the president should be able to decide where the detention facility is going to be and how the prisoners are going to be treated. But if the Congress doesn't appropriate funds for Guantánamo Bay, then it doesn't matter what the president thinks.

Do you believe that the branches are equal?

Yes, but they have different functions and powers. In the case of the War of 1812, Congress was the more warlike branch. In that instance, President Madison should have used his presidential powers to try to check the populism of Congress, but he didn't do so. In the last few decades, we've had a period where the executive branch has been in the leadership position. It's not inevitable.

 

Available at Amazon.com: Crisis and Command: A History of Executive Power from George Washington to George W. Bush

The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House

 

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John Yoo Defends 'Torture Memo' - Blasts Bush Administration | Alex Kingsbury

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