Hydrablog

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/26/AR2009072602348.html
Amid Scrutiny, Yoo Pushes Back
Quietly but Forcefully, Author of Detainee Memos Rebuts Critics
By Carrie Johnson
Washington Post Staff Writer
Monday, July 27, 2009 [attorney John Yoo] [we now know that his direct supervisors, Comey and others, say they were not told when the White House (especially the vice president’s office and David Addington and others) reached down for specific memos from this guy it was not due to his broad-based intelligence or brilliance seen by his cohort] [rather, he was a known wingnut with ideas that were out there: his reading of the Consitution comes down to all the stuff about the legislative and judicial branches is embellishment] [once the commander in chief is activiated—and Yoo seems to think it’s virtally always activated—he has power that no other branch can mitigate or constrain] [it defies the most basic understanding of rule of law!] [it belies an otherwise literal reading (that’s what he does, though quite selectively) of say article I that comes before the executive’s article II and could reasonably be read literally as only when congress declares a war does the president’s war power authority kick in] [he was ideological enough to suit the wingnut contingent that ran amok during the Bush presidency] [the irony of it all is we have President Bush to thank that it didn’t go futher] [e.g., the Lackawanna NY example where President Bush shouted down the Cheney wing on sending in the military contrary to posse comitatus and others] [*]
Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.

The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up. [*]

Last month, a federal judge in California refused to dismiss a lawsuit that accuses Yoo of violating a detainee's constitutional rights. This month, the Justice Department's inspector general described Yoo's legal analysis of the Bush surveillance program as "insufficient" and sometimes inaccurate. [he reads up to a portion then determines plenary power as kicked in beyond which nobody can get a constraining word in edge wise ‘cause the president has become superpowerful (commander in chief) and anything the president says is threatening to the security of the US is, by definition, threatening to the security of the US!] [I find it diffucult to just how obtuse this fellow is and whether it’s intentional or if he’s actually that dim?] [I don’t normally like to think so poorly of my fellow human beings but I really struggle with this man’s extraordinarily narrow terms of reference] [for instance, he appears to fold up the most basic, intuitive understanding (a basic civics course understanding) of “rule of law”—a boyscout understanding] [*] Also expected in coming weeks is a department ethics report that sources have said could renounce Yoo's approval of harsh CIA interrogation practices and recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.

While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president's authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. [*]This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics' arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination." [well, he’s apparently quite willing to take ad hominem swipes at his fellow law cohort so I suppose I shouldn’t be bound by my normal standard of assuming the best about someone until and unless his-her actions demand I must take dimmer view] [*]

The uncompromising rhetoric can be hard to square with a soft-voiced man who easily made friends at Harvard University and Yale Law School, without regard for ideological affiliation. But the blaze of criticism that ignited late in the Bush administration appears to have pushed Yoo, 42, onto a far more assertive path, according to friends and lawyers who have followed his career.

In many ways, Yoo, who declined to comment for this article, has become the face of what critics see as the Bush era's legal overreaching -- all tied to memos written from 2001 to 2003 spelling out his expansive views of interrogation, electronic surveillance and the deployment of soldiers on U.S. soil.

They were ideas born early in his legal career, before stints as a law clerk to Supreme Court Justice Clarence Thomas and Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit. Those positions, which even friends call extreme, endeared him to a Bush White House seeking to adopt a centralized approach to power.

Six months into a new administration, Yoo is a man with little to lose. As a tenured law professor, he has held onto his job despite protesters who have picketed the Berkeley campus and petitioned school leaders for his ouster.

Attorney General Eric H. Holder Jr. has rejected the idea of criminal investigations of Bush lawyers who developed counterterrorism policy. Probes announced by authorities in Spain and Germany could take years, and the five-year statute of limitations for allegations of attorney misconduct in Pennsylvania, where Yoo is licensed to practice law, has expired. That makes it unlikely the state bar will take up an ethics inquiry into his work at the Justice Department, which he left in 2003.

He departed after then-Attorney General John D. Ashcroft, angry over Yoo's back-door conversations with Vice President Richard B. Cheney's office on national security issues, refused to recommend him for the top job at the Justice Department's Office of Legal Counsel.

Now, as Yoo navigates his various legal challenges, he and the Justice Department have once more parted ways.

This month, government lawyers who had been representing Yoo since his departure from the department told a federal judge in San Francisco that "private counsel will be assuming representation of Mr. Yoo" in a case filed by Jose Padilla, a onetime domestic terrorism suspect who was held without criminal charge for more than five years. U.S. District Judge Jeffrey S. White allowed Padilla and his mother to pursue the case, which argued that Yoo had violated Padilla's civil rights by authorizing the government's terrorist-detention policies. [this is an example] [I have seen others who have argued intellectual cases of relatively extensive incarcerations under one provision or another] [but he doesn’t seem compelled to such trivial concerns] [rather, he simply defines away minimal standard on which Western legal tradition have stood since atleast the Magna Carta, habeus petitions as protection against potentially overwrought tyrannical power] [*]

In a single sentence, the judge crystallized the ongoing public debate about Yoo, describing it as a struggle to balance the anti-terrorism effort with "using tactics of terror" to win. [where does he find this Machiavelli dualism in the Constitution?] [if he actually made some far-out intellectual argument I would at least entertain it and possibly defer to his intellectual acumen since I left law school so early!] [but he doesn’t] [instead he seems to be fabricating a facile lier-lier-pants-on-fire standard and little else] [since he thinks the world is a tough place (granted) and in such an environment we in the US mustn’t actually consider the whole of the corpus that constitutes US jurisprudence (Federalist Papers, the Bill of Rights, the actual Constitution, others all in their entirety) but simply generate aphorisms such as in such a hostile environment, the ends may be used to justify the means—on such basic levels it flies in the face of the corpus] [*]

Yoo, who argued that he enjoys immunity from lawsuits because he was acting as a government official, will appeal the decision and is being represented by prominent Supreme Court advocate Miguel Estrada. Estrada will work at the government rate of $200 per hour, reimbursed by taxpayers because Yoo is being sued in connection with his government service.

Department spokeswoman Tracy Schmaler said in a statement that "as this case moves forward, the defendant deserves the opportunity to retain defense counsel that can make any and all arguments available on his behalf."

Lawyers not involved in the case say the shift to private counsel spares new Justice Department leaders from having to defend Yoo's sweeping views of presidential power and his memos. It also liberates Yoo to assert that he was acting at the behest of Cheney, President George W. Bush, adviser David Addington and then-White House counsel Alberto R. Gonzales, an argument legal sources said he may make if the case progresses. [from everthing I have read, I don’t think there is any question but that he was working directly for Vice President Cheney (through Addington, and somewhat surprisingly never through Libby that I’ve read)] [I would support his argument absolutely] [further, it appears to me as if Cheney would willingly through Yoo under the bus and, in the spirit of comity, Yoo ought to reciprocate and may actually be doing so in his arument] [*]

Yoo has broken off ties with some former colleagues who criticized his work at Justice. But he does not shy away from public appearances. He and his wife Elsa, the daughter of former CNN newsman Peter Arnett, still socialize with friends on the West Coast. In addition to teaching, Yoo writes a regular legal-opinion column, dubbed "Closing Arguments," for his hometown newspaper, the Philadelphia Inquirer. Editors were deluged with complaints after the arrangement became public. [*] [like so many conservatives, they have extensive networks to ensure that they have full bank accounts so that they never give up their own (that is, never drop dime on fellow conservatives)] [*]

Jesse Choper, a Berkeley colleague of Yoo's, said he thinks "very highly" of his scholarship, even if they disagree on some issues. "This is not a person who goes around raging or screaming at people -- quite the opposite," Choper said. [I’ve never accused him if ranting] [I’ve never seen him raise his voice even slightly] [he seem a genuinely good-natured fellow] [I wonder if he’s not keeping some of that frustration in too tightly—wrapped too tightly? He is surely bright enough to know that Cheney (et al.) are willing to sacrifice him because they have so many layers between the two groups of people that they have no fear of his demise leading to their; but if he’s as frustrated as I believe he may be, they perhaps should worry a little] [*]

Just last week, Yoo once again drew attention after a video of Australian comedians infiltrating his classroom swept the Web. One comic was dressed in a black garment reminiscent of the garb worn by detainees photographed at the Iraqi prison Abu Ghraib. "How long can I be required to stand here till it counts as torture?" the man asked.

Yoo awkwardly concluded the class, and gently told the comedians that he would give them a few minutes to disperse before he called security.

Yoo's vocal justifications stand in contrast to the muted approach of former Justice Department colleagues also under scrutiny by ethics investigators. Bybee, now a federal appeals court judge in California, led the Office of Legal Counsel while Yoo worked there. Bybee has told students and colleagues that he has regrets about how the controversial memos have been viewed and how they were prepared. [I don’t recall if it was Bybee or one of the others who is a fellow BYU alumnus?] [*]

Steven G. Bradbury, who took over from Bybee but never won Senate confirmation, quietly joined the Dechert law firm in Washington as a partner last week.

To his lasting regret, friends say, Yoo never got a chance to appear at his nomination hearing. Last year, though, Democrats on the House Judiciary Committee summoned him for what became a hostile session on the origins of the interrogation strategies that critics assert are torture.

As former vice presidential aide Addington slouched in his seat, glaring at lawmakers and offering dismissive replies, Yoo scanned a crowd filled with protesters and reporters. His dark eyes widened as he appeared to search for a friendly face. He did not find one. [I actually feel some pitty because I think they have used him as they are wont to do] [*]
© 2009 The Washington Post Company