John Yoo, former deputy assistant attorney general in the office of legal counsel of the U.S. Department of Justice during George W. Bush's first term, sat down with me last week prior to his talk before a Manhattan audience of the Federalist Society to promote his new book, Crisis and Command. He told me this interview was his first and only "blogger interview" as part of his book tour.
As Yoo explained last week to Jon Stewart in his appearance on The Daily Show, his book's thesis is that the most successful American presidents, including George Washington, Abraham Lincoln, and Franklin Delano Roosevelt, have exercised the full range of their Constitutional powers with minimal deference to the other branches of government during times of war and national crisis.
During the Bush years, Yoo submitted his legal opinion that the rough interrogation of high level al Qaeda masterminds including Khalid Sheikh Mohammed, the planner of the September 11th attacks and murderer of Daniel Pearl, was legally permissible. (Note to readers: water boarding, a controversial interrogation technique some have labeled torture, was used by the U.S. during the Bush years on only three top-level al Qaeda terror masterminds).
For helping to provide the legal framework for the waterboarding of KSM, Abu Zubaydah and Abd al-Rahim Nashiri, Yoo has been vilified by the hard left as author of the "torture memos."
The interrogation of Mohammed in particular yielded "intelligence riches" on the structure of al Qaeda, according to the New York Times. Mohammed's interrogation also led to the discovery--and pre-emption-of a detailed plot to blow up the Brooklyn Bridge, and numerous other terror plots.
Below is the transcript of my interview with John Yoo.
HR: I understand the premise of your book, Crisis and Command is that the presidents we most admire--like Washington, Lincoln, and FDR-are those who exercised the full range of their executive powers during wartime. Do you see George W. Bush as heir to that tradition, and if so, in what way did his Presidency reflect this dynamic of bold executive action in a time of war?
John Yoo: September 11th was an attack on our country like no other because we were attacked by a non-state, something we'd never faced. Others had, Great Britain had and Israel had. Our Constitution created the Presidency for the purpose of responding to unforeseen emergencies and threats. In the days following September 11th, [we had to assess] how are we going to adapt the rules created for fighting other nation states to [our conflict with] this enemy? Washington, Lincoln, FDR acted first [ahead of the other branches of government]. If they felt national security required it, they acted on their own.
HR: Can you give me some examples?
John Yoo: FDR saw the threat of Nazi Germany long before [the American public and Congress] did...In the 1940's he fought an undeclared naval war ...[he also] declared oil and steel embargoes on Japan. Some think he was painting Japan into a corner. Imagine if FDR had followed the isolationist sentiment of Congress...Lincoln, too, had [a broad] view of Presidential power. If Lincoln had had a narrow view of Presidential power, then the United States would be two separate countries. Buchanan, [whose Presidency preceded Lincoln's,] also thought secession was unconstitutional, but he wanted Congress to deal with it. If Lincoln had not had a broad view of Presidential power in crisis, we would not have had the Emancipation Proclamation, which was authorized by Lincoln without the approval of Congress.
HR: Do you see President Obama as heir in any way to this Presidential tradition?
Yoo: President Obama in some ways has upended the framers' vision for the Presidency. They thought it would be a modest office in peacetime and it would expand during war to meet the crisis, and once the crisis has passed the [President's] powers would retract....Obama's vision [of the Presidency] seems to be expansive on domestic affairs and narrow on foreign affairs and the framers had the opposite vision.
HR: Do you think the Bush administration's--and your--most vocal critics have any misconceptions?
John Yoo: People tend to [look at Presidential decision-making during times of crisis and] think, 'If the President is exercising his power so broadly, it's not in the Constitution.' In reality, it's more that we don't have big wars that often. The Constitution is designed so that the power of the President can expand during wartime and contract during peacetime.
People think if individuals like Khalid Sheikh Mohammed are not being treated as civilians, there are no rules [with respect to treating them]. But people are not familiar with our military system of justice, a system of rules for dealing with those we are at war with. This idea that there are no rules with regard to handling a terrorist enemy unless you treat them like American citizens is false.
HR: Right now there is much debate over whether to try terror suspects like KSM and, more recently, the underwear bomber, in U.S. civilian courts. Do you believe that is appropriate from a legal standpoint, and why or why not?
John Yoo: Al Qaeda wants us to think of terrorism in this confused way; if we treat them like common criminals they benefit. [In bringing them to civilian trial,] we give them a free platform to make speeches and demand that our government produce all the intelligence it can on al Qaeda and make it public.
HR: To be the devil's advocate, we've successfully convicted plenty of terrorists in the U.S. court system, including Ramzi Youssef, the 1993 World Trade Center bomber, who's in a maximum security prison. So why not give these guys a trial?
John Yoo: [Bringing terror suspects to civilian trial] is a terrible idea because it threatens this country's ability to carry out the war effectively. In a war against a covert enemy, intelligence is the main commodity. A trial forces us to stop asking them questions; once you are in the U.S. criminal justice system, you have the right to remain silent. And a trial will force us to reveal in public what we know about them.
HR: But in terms of fears that they will be released, that's not the principal concern?
John Yoo: The real problem is interference with our intelligence activities. Trial forces us to give up secrets that could harm our national security. Trials are an enormous intelligence boon to al Qaeda.
HR: January 22nd is the one year anniversary of President Obama's pledge to close Gitmo within a year. Obviously that's not going to happen within the next ten days. What are the complications with closing Gitmo? Also, is it possible that shutting the facility and trying terror suspects in civilian courts might highlight the virtues of our legal system and win hearts and minds in this long war?
John Yoo: [There may be] some truth to the idea that it will improve our image in the world to close Guantanamo but you have to balance that against the cost ... [That cost includes] possibly releasing people who otherwise wouldn't be released, giving them access to federal court where they can cause mayhem, and enormous expense, despite the fact that we have a perfectly good facility at Guantanamo. I think the argument that Guantanamo helps al Qaeda recruit is kind of silly. Al Qaeda recruited before September 11th, before Guantanamo, and they'll do it after Guantanamo closes.
HR: When people on the hard left refer to you as author of the "torture memos" and call for your prosecution, does it bother you? Has it affected your personal life at all?
John Yoo: Not really. I had a job to do and I think what I did was right.