The Trial of John Yoo


John Yoo

I have just returned from a debate on presidential power at Chapman University Law School.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled “Presidential Power and Success in Times of Crisis,” and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S., and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush — and, by clear implication, Yoo himself — should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration’s policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At Chapman today, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

One response to “The Trial of John Yoo

  1. I also attended the debate, and I agree with your assessment of the debate. I was appalled at the lameness of John Yoo’s opening statement. It seemed like Mr. Yoo was anticipating and hoping for a prolonged period of interruptions from protesters, because as soon as one or two outbursts from protesters died down, Mr. Yoo launched into a disclaimer of how he really didn’t have time to address the issues; and then he basically went into a “run out the clock” routine, where all he did was cite historical instances of the invocation of Presidential powers, none of which resulted in using torture on detainees or prisoners (which is a huge disconnect with Yoo’s culpability). He looked very relieved and pleased with himself when his alloted time ran out and he was able to retreat to his seat on the panel.

    Dean Eastman made a better presentation, but it was almost painful to hear him nit-picking in legalese at the verbiage of various memos describing interrogation techniques and then declaring them as therefore not constituting torture. If those arguments are around which conservatives are circling their wagons, they truly are a sorry, morally bankrupt lot indeed!

    As you say, Ms. Darmer and Mr. Rosenthal made powerful, Rule of Law based arguments while effectively excoriating John Yoo sitting a few feet away. I had flashbacks of Stephen Colbert ripping George W. Bush at the White House Correspondent’s Dinner in 2006 (still the most audacious dressing-down of any public figure I have ever witnessed). Rosenthal’s final rebuttal was especially devastating, as he debunked every argument of Eastman and Yoo’s, while projecting himself as a federal prosecutor in the courtroom. What I really appreciated was the way Ms. Darmer and Mr. Rosenthal’s arguments always carefully referenced back to the U.S. Constitution and related historical Supreme Court rulings, as opposed to the amazingly weak foundational arguments of Yoo and Eastman.

    Conclusion: at the Chapman debate, John Yoo dug himself deeper into the hole in which he exists. His arguments in defense of his now-repudiated memos were incredibly weak for someone who is supposed to be so accomplished, including his tenured position at Boalt Law. That Berkeley still stands behind him is not too surprising, I suppose, since C. Rice is also currently enjoying her return to the faculty at Stanford. But a lot of us look forward to the day when Yoo is disbarred (along with Jay Bybee, for starters), and has his day in court for Conspiracy to Commit Torture.

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