Yoo fights back

The Mumbai attacks are cited by John Yoo in a WSJ op-ed today that pushes back against the widespread condemnation that has occurred this week in the wake of the disclosure of the legal memorandums he authored attributing sweeping powers to the President in the wake of 9/11. Yoo is claiming his memos have been distorted and made to seem overly broad by media reporting this week. In particular, he pushes back against over generalizing his statement on suppression of first amendment rights. Yet his memo spoke for itself:

"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

Such justifications in the hands of the Bush administration were likely what led to warrantless surveillance of American journalists, for example.

Yoo also criticizes the Obama administration for releasing the memos:

In releasing these memos, the Obama administration may be attempting to appease its antiwar base -- which won't bother to read the memos in full -- or trying to look good for the chattering classes.

But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

Yoo, however, is actually being given the benefit of backing in the Padilla case by the Obama administration, not because it agrees with his reasoning or performance in authoring such memos but on the grounds of the employment relationship:

"This administration has made no secret of the fact that it disagrees with the previous administration's approach to many legal issues in the national security arena," Matthew Miller, spokesman for the Justice Department, said in a written statement. "Nevertheless, the Department of Justice generally defends employees and former employees in lawsuits that are filed in connection to their official duties."

Justice Department attorney Mary Mason said something similar at the hearing, stating that "we're not saying we condone torture."

But she argued that recourse against a government lawyer such as Yoo -- who worked for the Justice Department's Office of Legal Counsel -- "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said.

Citing the Mumbai attacks for retroactive justification for years of such abuses is clearly disingenuous at this point. No one doubts that such attacks could occur in the U.S., or elsewhere. But Yoo's October 2001 memo setting out sweeping and virtually unending powers to deal with such threats has been disavowed by the Department of Justice. And Yoo is the subject of a coming Justice Department ethics investigation that by reports is said to be disfavourable to Yoo and his colleagues who wrote such memorandums. Yoo's piece reads like just a little bit more of the fear mongering and portrayal of emergency circumstances as justification for overly broad presidential power grabs, thinking that has largely been discredited.

Update (Sun 4:45): Dave at Galloping Beaver weighs in on Yoo's piece, with much more perspective on the implications of Yoo's work.