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John Yoo
February 16, 2013
by J.A. Young
John Yoo: Laying the Foundations of Tyranny
The eight-year reign of Bush II brought unprecedented levels of illegitimate presidential power into the executive branch.   Immediately following 9/11, the self-affirming brain trust inside the White House began an internal campaign to expand their “wartime” capabilities.  This plan implemented various political techniques like signing statements, clandestine memos, and disingenuous legal interpretations as stepping stones in Bush’s power-grab.  Since 2008 this insistent expansion of authority has been broadcast more publicly, and it is now widely acknowledged that people like Dick Cheney, Donald Rumsfeld, and John Ashcroft were guilty of betraying their duties.  Despite this acknowledgement, there are a number of people directly involved with this chicanery that are as yet unknown to the public.

While Bush was the face of the White House, it was a swarm of underlings around him who helped to orchestrate his takeover from the bottom up. These were the carefully selected people who worked tirelessly behind the scenes to do hands-on work.   One person directly involved with the illegal expansion of executive authority is John Yoo, who held the position of Deputy Assistant Attorney General during the Bush administration.  Not surprisingly, Yoo came from a staunchly Conservative-Republican background.   He built an impressive portfolio of work at Yale law school that focused on “muscular assertions of presidential power.”[1]  It was his contention that the majority of Constitutional scholars completely misinterpret the intent of the document, and his catalogue of legal writing openly reflects this idea.

Despite the fact that Yoo’s legal interpretations are disputed by mainstream academics, his credentials and resume from Yale made him a power-player in the Bush administration.  For better or for worse, some people tend to take you seriously when you matriculate from such a university; Yale has earned a reputation that precedes all other concerns.  The unfortunate assumption made by many was that Yoo must be an admirable man of good character; how else could he have such a record of scholarly excellence?  Yoo’s ideas were subsumed by his reputation; he achieved instant credibility in the eyes of others despite the harsh bias of his work.

Officially, Yoo’s title made him an aide to Jay Bybee, who had been appointed as the head of the Office of Legal Counsel.  While it is not well known, the Office of Legal Counsel (OLC) is one of the more important parts of the executive branch.  The agency is comprised of legal experts who advise the President on matters of executive action.  In theory, it is a panel of people that informs the President if he is overstepping Constitutional law, so that he can govern legitimately.  If an executive proposes an action, the OLC has a duty to fairly examine it as constitutional or unconstitutional. The obvious problem is that “this role also gives the OLC attorneys the power to preemptively absolve officials of wrongdoing.”[2]   If the people who run this counsel are in the pocket of the President, then a real problem can develope.  The position has the potential to be bastardized into a dominant force of legal defense.

Due to some tardiness with appointing Bybee as the head of the counsel, the power of the OLC fell to John Yoo.  It was well after 9/11 that Bybee took up his office as head of the OLC, and by that time the “legal team had already established a very aggressive legal framework for dealing with the war on terrorism.”  It was only weeks after the terrorist attacks that Yoo began to draft memos concerning the new war-powers of the executive office.  Even though he was not the appointed head of the counsel, he was the one running the show.[3] 

His opening move was to author a particularly delusional interpretation on the declaration of war.  Anyone who paid the slightest bit of attention in their high school government class knows that Congress has to approve any declaration of war made by the President.  In response to this check on the executive, Yoo glibly claimed that declaration of war was only intended by the founders as a ceremonial gesture and is inconsequential to the powers of the executive.[4]  This interpretation meant that from that point on George Bush would be able to treat anyone suspected of terrorism as an enemy combatant, or worse.

Following his first order of business, Yoo’s focus turned towards dismissing any of the checks and balances placed on the President by the Constitution.  “On September 25, 2001, [Yoo] delivered a confidential memorandum asserting that no statute passed by Congress could limit the war powers of the commander in chief; as authority for this claim, Yoo cited his own academic writings six times...”[5]  This was just one of many memos and clandestine statements that Yoo would disseminate throughout the executive branch over his tenure.  Combined with his staggering view of declaring war, this meant that Bush would be free of all oversight from Congress during the “War on Terror.”  It was the legal guidance of John Yoo that offered a foundation for the salient growth of Bush’s presidential powers.  Everyone from Dick Cheney to Donald Rumsfeld echoed his advice and Constitutional interpretations over the course of the presidency.  Much like Yoo, they reveled in the opportunity to defraud our country’s values in order to achieve tyrannical levels of power.

Yoo used his position of purported legal oversight in order to validate any action that the President deemed necessary.  Any questions regarding his character can be easily answered upon hearing his ideas concerning torture.  In August of 2002, he informed the CIA of the interrogation tactics that they would be able to use on suspected terrorists.  He told them that it was perfectly acceptable to use any violence necessary to obtain information from suspects so long as it was not sadistic in nature.  This meant that as long as the purpose of the coercion was to protect national security, practices of torture could be defended by the OLC.

Another legal scholar from Yale has offered a caveat to the American public in response to the many wrongdoings of the Bush administration.  Jack Balkin has stated that while future presidents may publicly attempt to distance themselves from the presidential tyranny of the Bush years; it is very unlikely that any of them will actually do away with the powers Bush illegally procured during his terms.[6]  This prediction has proven to be exceedingly correct, as we have seen President Obama expand the illegitimate authority bestowed upon him by the previous administration.

Yoo’s legal interpretations and actions during the Bush years were deluded.  He was the one comforting Bush and his cabinet with a big blanket of legal warmth.  Whether they felt it was necessary to illegally wiretap US citizens, or to utilize torturous methods of imprisonment; Yoo had a purported legal justification for doing so.  He dismissed any concern for the separation of powers, throwing away any modicum of real conviction in the process.  While it ended up being those at the top who were condemned for their actions during the “War on Terror,” it is John Yoo who deserves as much criticism as anyone.

[1] Charlie Savage, Takeover: The Return of the Imperial Presidency. (New York: Bay Back Books, 2007), 79.

[2] Ibid, 77.

[3] Ibid, 78.

[4] Ibid, 80.

[5] Ibid, 82.

[6] Ibid, 349.

Savage, Charlie.  Takeover: The Return of the Imperial Presidency.  New York: Bay Back Books, 2007

Office of Legal Counsel-

Informed the CIA-

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