Crisis and Command with John Yoo

Uploaded by HooverInstitution on 15.01.2010

Peter Robinson: I am Peter Robinson. Be sure to follow us on Twitter at
John Yoo is a Professor of Law at the University of California at Berkley and a visiting scholar
at the American Enterprise Institute. From 2001 to 2003 he served as Deputy Assistant
Attorney General in the Office of Legal Council in the Justice Department of President George
W. Bush. Professor Yoo is the author of a number of books, most recently of Crisis and
Command: A History of Executive Power, From George Washington to George W. Bush. John,
we will come back to the subject, as we must, but right now, briefly, at the top of our
conversation; two years in the Bush White House that proved intensely controversial,
do you regret any aspect of it? John Yoo: No, I don’t.
Peter Robinson: All right, thank you. Segment one: Crisis and Command. Let’s deal with
command. I am quoting from your book John, “when the delegates to the constitutional
convention met in the summer of 1787, the only thing that made them more uncomfortable
than the Philadelphia heat was the topic of the executive”, how come?
John Yoo: Well it is commonly said, which is true, that the colonists rebelled against
England because they were upset with King George III and so people commonly think “oh
well that must mean the constitution is an anti-executive document, but it wasn’t because
in the period between the Revolution and the writing of our constitution our states enacted
these terrible state constitutions that tried to weaken the executive. The most famous example
comes from my original home state Pennsylvania which had twelve member governorships with
each of those twelve people re-elected annually. They tried to destroy executive power by weakening
it and making it non-unitary and making it subject. They were all elected by legislature.
Peter Robinson: So this kind of lingering example that New Hampshire, where there is
a Governor, but, who has to submit to a Governor’s Council, as I recall.
John Yoo: Yes, exactly. A number of states still have these Governor’s Councils in
admission which are kind of like a super powered senate and have to give their advice and consent
to a lot of the Governor’s decisions and a lot of those people were not accountable
to the Governor. So, at the time in Philadelphia in 1787, the people who came, the delegates
throughout the constitution were not reacting as King George anymore, they were reacting
against all the problems in the States and especially one of those being the fragmentation,
the weakening of the executive, but at the same time, they did not want to put a monarchy
back in place either. So they had to undertake this new thing, which was how to create a
Republican Executive. Peter Robinson: So they had before them two
negative models. The very strong executive of the King of England acting through his…in
those days there was quite a tight relationship between the King and the Ministry, and a weak
executive in a number of States which had enacted something like that. It just did not
work. John Yoo: Exactly.
Peter Robinson: They had no positive models that roughly…
John Yoo: Well the only real example they had to follow was the Governor of New York
who had been very successful and many people, including Alexander Hamilton thought of…who
himself was from New York, thought of the Governor of New York as being a kind of a
model. The Governor of New York was independently elected. He was not chosen by a legislature
and he wielded very broad powers, especially since the State of New York and the City of
New York were occupied for most of the revolutionary war itself. So the Governor, a fellow named,
oddly enough, Clinton, Governor Clinton was a very admired but a very activist Governor.
So that was the only real model they had of a successful Republican executive.
Peter Robinson: And that is more or less what they end up with. Article two gives us a President
who is independent of both the judiciary and in legislature and who is elected by all the
people. Okay, so let me quote again, Crisis and Command: “The executive power had been
established”, you are talking about the constitutional convention, “so as to allow
future occupants of the presidency to claim inherent powers”, inherent authorities,
rather, “among them the conduct of foreign policy and the protection of the National
I feel the impulse to say, “now you are sure of that Professor Yoo?” because so
much of the rest of the document is occupied with carefully enumerating powers, yet you
are saying that in Article two you have got inherent powers and that is the way they wanted
it? John Yoo: Well first let me compliment you
on being a close reader of the Constitution. You have got a good grasp of its text. Oh
most of the constit…I don’t know if that would get you an A at Berkley but it would
at Stanford. So, most of the document… Peter Robinson: Fighting words.
John Yoo: Most of the document, when it talks about congress is a careful list of the powers
of the legislature, some of which, you know, congress today I would think today actually
has gone beyond. But none-the-less it has careful lists and compares that to the executive
where the executive power is just granted to the President without a list of what it
means. So the list in commerce says the powers herein listed essentially are granted to congress
but with article two, as you mentioned, it just says the executive powers given to the
President but it is not carefully defined the way it is with congresses powers and so
two things I try to do it is, one, what did executives at the time do. What were there
powers? The second is, clearly this is meant to be somewhat elastic and particularly meant
to be elastic in response to challenges, emergencies, crisis and ultimately war.
Peter Robinson: And that John Yoo is where I thought to myself, I cannot believe what
I am reading. John Yoo is subscribing to the doctrine of the living constitution.
John Yoo: Well when the framers wanted a part of the constitution to be flexible, I think
we have to honour that original intention. I don’t think the framers want every part
of the constitution necessarily to be frozen. Let me also say though, they did not think
it would be a one way ratchet. They did not think that the President’s powers would
grow and then just stay there. I think the President’s powers were meant to fluctuate.
Expand during emergencies and then during peace time would retract back to a smaller
state, which is I think the way the presidency has operated for most of our history.
Peter Robinson: Segment Two, the two Georges. I would like to spend most of this segment
on George W. No surprise to you, but give me an…you begin with executive power and
George Washington. How did he make use of these latent or inherent authorities, briefly?
John Yoo: Well one thing is Washington decided right away that he was not going to be a prime
minister; he was going to be a president. He did not think he worked for congress. He
did not think he represented a majority party in congress. He in fact hated political parties.
He wanted to maintain the independent stature of his office. So for example, one of the
famous examples is the senate has the power to give advice and consent to treaties. Washington
went once, at the very beginning of his administration to actually ask the senate what it thought.
Peter Robinson: What is your advice, fellas? John Yoo: What do you think? He said I want
to make a treaty with the Indians. What do you guys think, before he would negotiate
it? He thought it was such a terrible experience that he said…he stormed out of his senate
chamber and he said I will be damned if I ever show up there again and that is the last
time…the first time and the last time a President has ever gone to the senate in person
to talk about advice and consent. Peter Robinson: All right, George W. Bush.
After 9/11 you note in Crisis and Command, President Bush received from Congress an authorization
to use military force. I am quoting from your book, “it was sweeping, perhaps the broadest
grant of war power by Congress since World War II. It authorized the President”, and
now you are quoting from the authorization, “to use all necessary and appropriate force
against those nations, organizations or persons he determines, planned, authorized, committed
or aided the terrorist attacks”. Several questions. Number one, for a layman, why did
the President request and Congress grant an authorization to use military force instead
of his requesting and their enacting a declaration of war, which is the language of the constitution.
It is what FDR requested after Pearl Harbour. Why?
John Yoo: First let me also make clear that I was one of the people who worked on the
authorization when I was in the Bush administration. Peter Robinson: So you are quoting yourself,
cleverly. John Yoo: Well the senate and the house passed
it. Peter Robinson: All right, all right.
John Yoo: But I did work on it and I did help with the executive branch congressional negotiations.
But the first thing is the United States just does not declare war anymore. It has not declared
war since 1945 and instead it passes these authorizations for force or to use force instead.
So Korea, and… Peter Robinson: So you and the President were
simply accepting political reality. Would it have been cleaner if you had had your way,
if you had sought a declaration of war? John Yoo: Well the other thing is it is not
clear to me that a declaration of war was necessary when we are fighting a non-state.
We were fighting Al Qaeda terrorist organization, which is not a nation and so it seemed to
me, in part, declarations of war are for the very purpose of notifying another country;
one that obeys the rules of war itself. Here we are fighting a group that is more like
pirates. You know, these are not people who follow any of the rules of war. They are not
nations, really negotiate with them, they don’t follow any of the civilized world,
so it is not clear to me that a declaration of war is even appropriate for them.
Peter Robinson: Was the authorization itself necessary or on your reading of the constitution,
did the President already possess the authority to go after these bandit like terrorists.
Was he merely engaging in a gesture or paying congress a courtesy?
John Yoo: I think the President already had the authority under the constitution to react
to a direct attack on the United States, but the authorization was a way to build political
support, right, to make sure that everyone knew, in the country and abroad, that the
President and Congress united in their agreement to attack Al Qaeda, take all necessary measures.
Peter Robinson: So it was merely a political instrument rather than a constitutional necessity?
John Yoo: I think so, yes. Peter Robinson: All right, now, before going
into Iraq President Bush seeks a second authorization to use military force and this authorization
enabled the President, A, “defend the United States against the continuing threat posed
by Iraq”, and B, “enforce all relevant United Nation Security Council resolutions
regarding Iraq”. A, defending us against the continuing threat posed by Iraq gets taken
care of the moment we realize there are no weapons of mass destruction, right and B,
enforcing United Nations Security Council resolutions, that is taken care of the moment,
three weeks into the invasion, Saddam Hussein’s government is toppled. So we have got an authorization
to use force that pretty clearly, on a layman’s reading, authorizes the first three weeks
of the war, which then goes on for years. Okay, so, so, so, so?
John Yoo: Well first, congress never took the authorization back. It still exists and
is enforced now because it is commonly thought part of war is also occupying the enemy’s
territory and restoring the government and that is more what we are doing. As you say
we have combat operations against Saddam Hussein’s regime, ended very quickly and in fairly short
order it was discovered there were no weapons of mass destruction.
Peter Robinson: Right. John Yoo: But there is still the continuing
obligation to occupy the country, restore it to some amount of order and put in some
kind of regime. Peter Robinson: Would you have liked…so
I guess there are several possibilities there. One is the President did not really need an
authorization in the first place so once the specific tasks he had been authorized to accomplish
were accomplished he was still authorized by his inherent powers to remain in Iraq and
do what he considered necessary to defend our country and put that one back together.
Is that your argument? Would you have preferred it at the time or in retrospect if the President
had gone back and gotten another authorization once events had change? How do you think about
that? The long period when the President seemed to be waging that war, obviously this was
not the case, he had support amongst the military, a large sect… but the press, many members
of congress accused him of waging that war on his own. There was a unilateral quality
about it, the other side asserted. John Yoo: Right, right. Well first I…constitutionally
I think he could have used force there on his own and as I point out in the book, Presidents
have done that before, but I think as a political matter it was a smart move to get congressional
authorization. I think Presidents are wise, generally, to get them when they can, because
it makes sure that congressmen won’t jump off the ship when the going gets tough, which
they have almost bred into their DNA. I mean, you have people who have voted for the authorization
to go into Iraq attacking the war a mere year or two later just because they did not like
the way it had been going and so if… I think politically, if the President hadn’t got
those senators and congressman to vote for it the eventual serge and sort of victory
in Iraq, which I think we are approaching, would have been almost politically impossible.
Peter Robinson: Okay. I will put this one to you briefly if that is not a dirty trick.
You write in Crisis and Command, “Bush’s reputation will depend on whether future historians
judge his exercise of Presidential power to have been justified by the circumstances”.
You are confident they will do so? John Yoo: I am not sure. I think I had a lot
of questions myself about the Iraq war in terms of strategically whether it made sense
to go in, I did not know, but also the re-construction of Iraq. I personally favoured splitting the
country up into three pieces and leaving faster. Peter Robinson: The Peter Galbraith…
John Yoo: I thought of it first though, but I think that that had a lot of attractions
to me, you know, and the administration chose to keep the country whole and to spend more
time there. That may end up being the better course of action. I don’t know. I think
it is way to early to tell. Peter Robinson: So there are close and difficult
questions there. Even in your mind. You who participated in the administration.
John Yoo: Oh yes. Peter Robinson: Segment three. Enhanced interrogation.
Quoting from a Whitehouse Press Conference that took place in April. Question, “Mr.
President, do you believe that the previous administration, that is the administration
of George W. Bush, sanctioned torture. President Obama, what I have said, and I will repeat,
is that waterboarding violates our ideals and our values. I do believe that it is torture”.
Strictly as a legal matter, was President Obama correct, that waterboarding is torture?
John Yoo: I would say, I think, under the previous administration it was the view of
the government and the justice department that it was not and that was a view, I think,
consistently… Peter Robinson: I recognize the obvious problem
for a layman; it is a horrible, gruesome procedure. How do you as a legal matter, draw the line?
Draw the distinctions between what is torture and therefore legally impermissible and what
is not? John Yoo: It is hard for a lawyer or a layman.
I mean, the problem is that congress passed a law prohibiting torture and all it did was
say that torture is the intentional infliction of severe physical pain or suffering, that
was it. It did not list anything about what qualified as torture and what was not torture.
There are some people who think, in the human rights community, that keeping someone in
solitary confinement is torture. There are some people who think that physical abuse
is torture. You see, the hard thing for a lawyer is to figure out, well, what is inside
and what is outside the line and I think reasonable people can have differences about it and this
is before you even get to the question of whether it is even a good idea as a matter
of policy, just whether it is legal. I think waterboarding is very close to the line and
I think the administration really struggled with the…the previous administration really
struggled with the question. Peter Robinson: What did you, as a lawyer,
when you were attempting to decide that question…when you were deciding that question, we know that
courts in Israel have grappled with these questions for several decades, right? What
are the… what do you reach for, what do you read, where do you go to?
John Yoo: This is a good question. This is a problem because this statute had never been
interpreted by the courts. Peter Robinson: The statute dates from?
John Yoo: The early nineties. Peter Robinson: All right.
John Yoo: The statute had never been interpreted by the courts. The justice department had
not prosecuted anyone under it. So there was none of the books off the shelf where you
could open up a case or a definition and say oh, this is what congress meant. So we looked
at everything. We looked at, as you said, the Israeli experience, the British experience.
Analogous cases in the United States and made up a list of the different kinds of cases
and what other countries or other contexts people had thought to be torture or not and
I think we did our best under the circumstances. Remember, we are only one year into 9/11 when
our intelligence agency score the coups of capturing the number three person in Al Qaeda
and everyone thought there were still follow on attacks planned and I think if you talked
to people who lived in New York City after 9/11 and everyone would have thought there
were going to be more attacks. I think the pressure on the government was enormous as
they tried to get as much actionable intelligence as possible to stop another 9/11 attack.
Peter Robinson: Okay, let me continue to quote from that press conference in April. Question,
“Sir did you read the documents recently referred to by former Vice President Chaney
saying that the use of so-called enhanced interrogation techniques not only protected
the nation but saved lives. President Obama, I have read the documents that we got information
from these individuals that were subjected to these techniques does not answer the core
question which is, could we have gotten the same information without resorting to these
techniques and it does not answer the broader question, are we safer as a consequence of
having used these techniques.” What do you think? Could we have gotten information short
of the so-called enhanced interrogation techniques? John Yoo: You know, first of all, you have
to rely on what the people who actually had the intelligence at the time knew. People
like the CIA director. People like the President and the Vice President and National Security
Advisor. They all have said, I think in public that this information was important and it
did save lives and did stop attacks. Peter Robinson: Don’t you, at some level
want to just say “President Obama, you are being silly. The security of the nation was
directly at risk and we had people in custody who knew things. If we could get the information
it could save lives”. The notion that we had to work our way up some gradual scale
and that some set of techniques, which we had already construed as legal could only
be used as a very last…just ridiculous, you are being silly. Don’t you want to say
that John, or not? John Yoo: I would not say silly, I would say
naïve. I think it is naïve to say “oh, well maybe we could have gotten it some other
way”. I mean you could always say that. You could say well if Lincoln had not gone
after the South, maybe slavery would have ended on its own and the country would have
re-unified in twenty or thirty years. I mean, who…it is impossible to answer a counter
factual like that. The second thing is we certainly have not got a lot of intelligence
from operative who we arrested, brought back to the United States and put on trial in our
federal courts. I mean, look at what happened to the people responsible for the first World
Trade Center bombing. They are still, you know, preaching hatred.
Peter Robinson: The so-called Blind Sheikh. John Yoo: Yes, the Blind Sheikh and his followers.
We did not get a lot of intelligence out of them. So I think if you try to do what I think
this administration is moving towards which is give people Miranda warnings, give them
a lawyer, bring them back to the United States and put them in trial in New York City, you
are not going to get any intelligence that is going to be of great value. In terms of
an ongoing war, I don’t think it is a bad idea to do all of that stuff when the war
is over, but when you are in the middle of a conflict all that intelligence that you
can get, anything that comes out in public is an enormous value.
Peter Robinson: So, final question – this segment. Would you…would it be all right
with you if President Obama had said something like this, “my position is no waterboarding,
nothing that a layman would construe as torture, now that the threat no longer seems imminent,
but as chief executive, I reserve the right to revisit the situation if the defence of
this nation comes under direct threat once again”, would that comport with your notion
that there is a certain flexibility here? John Yoo: Yeah, I think that would actually
be the more mature, sensible policy, would be to say, “we may do things differently
than this administration…the last one, that is because we think the threat is reduced,
but if the threat grows again to the point where they can launch another direct attack
on the United States, we need to have at least the option of doing these kinds of things
again and I think there are probably people in this administration who think that is what
their position is. Peter Robinson: I see, all right. Segment
four – this is touchy John; the case against John Yoo. I want to understand the case and
the effect it has had on you. January 2008, convicted terrorist Jose Padilla files suit
claiming he has been tortured in custody and he names you personally for claiming that
you had authorised methods to which he had been subjected and arguing that you, therefore,
were implicated in a violation of his constitutional rights. Is that a fair summary? When that
happened in 2008, what was your reaction? Laugh it off because it is such a ridiculous
assertion or…? John Yoo: Well you know, first I can’t get
into the direct merits of the case, it is still on appeal, but it is not a surprise
that as we have seen, almost from the first year of 9/11 that captured numbers of Al Qaeda
are using our legal system against us. I mean, they are almost…some people in the defence
department call it lawfare. They have been filing suits against American officials, not
just here but all over the world. They have been using Habeas Corpus proceedings in their
own trials to force the government to release secrets about what the government knows about
them, which is of great value to them and I think our country still has not figured
out how to balance our commitment to fair and open trials and legal proceedings with
protecting valuable secrets while war is still going on.
Peter Robinson: Okay, let me ask a few questions then you engage in a lawyer and tell me which
questions are permissible and which are not, because the case is still on appeal.
John Yoo: Sure. Peter Robinson: So you said that terrorists
are using our legal system? It is Jose Padilla’s lawyer who came up with this one I presume.
So the question would be, is it lawyers who actually sympathize with the aims of the terrorists
or is it good defence lawyers who look at what the legal system makes available to them
and says “I am going to take the most aggressive route I can, and I am even going to sue John
Yoo”, in other words, is it the current state of the legal system itself that all
but invites this kind of activity or do you really have to be a believer in the terrorist
cause… John Yoo: I would not personally say that
the lawyers who were representing terrorists, convicted or the ones Guantanamo but themselves
agree with what the terrorists believe any more than I would think a criminal defence
lawyer who is defending a murderer believes that his defendant ought to have murdered
someone. I think their lawyers are certainly entitled to use all the available options
that the legal system offers. I do think though that the legal system…our legal system used
to and should continue to foreclose these kinds of lawsuits. I mean the biggest problem
is that you don’t want our officials to be worrying about being sued when they have
to make these very difficult decisions about protecting the national security.
Peter Robinson: On December 7 the justice department, now the Obama Justice Department
asked the 9th US Circuit Court of Appeals in San Francisco to dismiss Padilla’s case.
Should it have to be the executive branch that asks the judiciary to dismiss a case
like that? Shouldn’t the judiciary…what, it got to appeal the 9th Circuit, let that
thing go forward. John Yoo: Well, I actually think that the
government here is doing the right thing. I mean they don’t have to enter…
Peter Robinson: The justice department is doing the right thing, it is the 9th Circuit.
John Yoo: Yeah, I mean, part of what concerns me about these kinds of cases in general against
the former officials in the Bush Administration is that the courts, if they allow these suits
to go forward will get into the business of trying to second guess or review the wartime
decisions that people are making while the conflict is still going on and in the course
of doing that they will have to produce information in public that could still be harmful to our
security. But the second thing is judges, you know, if there is this idea that judges
are going to reveal your decisions and impose liability on you, people are not going to
have a full threaded debate you want inside the government. They are not going to make
decisions, perhaps fully in the national interest if they are worrying about their personal
interests. So you are going to have a risk-averse government and that is, if you think about
it, the kind of mindset we were in about terrorism before 9/11.
Peter Robinson: So, I want to bring you back to the argument in Crisis and Command. Does
your experience, being sued, and the case is still on appeal, for decisions you made
in good faith as a government lawyer way back in 2002 – 2003. What does that tell us about
the current state of article two and the inherent strength of the executive? Is it the case
that the executive just is too weak to wage, despite all the attacks on George Bush for
unilateral…the fact is that you can’t even have lawyers give you an honest opinion
without worrying about prosecution in coming years. Is the executive too weak? Is it the
case that this current chief executive simply giving away too much of his powers by failing…of
the executive’s powers, by failing to preserve president? What does your experience tell
us about article two? John Yoo: Well first I think it shows that
the idea that we have, this imperial presidency who sort of over dominates everything and
that this is unconstitutional, I just think is quite wrong. I think that these kinds of
lawsuits, everything that congress has been doing for the last eight years shows that
the other branches can easily check the President and executive if they want to. Congress for
example, often does not want to because they don’t want to take the responsibility for
tough decisions. I think the judiciary for most of our history restrained itself too
because I realize these are not the kinds of decisions that they want to second guess.
That they don’t have the confidence to do it and they don’t want to have people looking
over their shoulders when they have to make these difficult decisions.
Peter Robinson: Last question in this segment. This comes from someone who submitted a question
for you by Twitter. Id Marchitect? Idm Architect? Anyway, it is a Twitter person. Mr. Yoo, in
making your arguments, did you give thought to recriminations or prosecutions by future
administrations? Was that in your mind at all back in 2001 to 2003 when you were at
justice. John Yoo: When I thought about these questions,
I knew they were controversial, obviously, and that someday there were obviously going
to be people who were going to disagree with them and who knows what they might do, but
I tried to reach the best answers I could without worrying about…
Peter Robinson: Did it cross your mind that suit might be brought against you personally?
John Yoo: I mean, I understand the possibility was always there. I would think the legal
rules as I understood them would foreclose those kinds of suits, that certainly does
not prevent people from suing. Peter Robinson: Does what has happened to
you mean everybody at the justice department now is thinking about that in a more concerted…
John Yoo: Yeah, I worry about that. I mean I think I would not be…I mean if they weren’t…
Peter Robinson: So you were there in 2002. Now it is 2009. In seven years we have lost
ground. The executive has lost ground. John Yoo: I think so, and I think. I mean
this administration; I am sure the people who are working there, some of whom were lawyers
representing members of Al Qaeda and Guantanamo Bay. Of course they are certainly going to
be worrying about this and I think that will lead them to be more risk-averse than perhaps
be in the nation’s interest. Peter Robinson: Okay, Segment five. Trying
KSM. On November 13 Attorney General Eric Holder announced that instead of appearing
before military tribunals, five suspected terrorists, then held in Guantanamo, I guess
as we shoot this they are still I Guantanamo, will be tried in an ordinary Federal Court
in New York City. One of the five is Khalid Sheikh Mohammed, by his own admission, the
mastermind behind the planning of the 9/11 attacks. I quote John Yoo in an article he
published in the Wall Street Journal; “trying Khalid Sheikh Mohammed in civilian court will
be an intelligence bonanza for Al Qaeda and the hostile nations that will view the US
Intelligence methods and sources that such a trial will reveal”, explain.
John Yoo: Well the constitution requires that we have an open public trial for any criminal
defendant tried by our government and one of the rights that every defendant has is
to force a government to open up its files and provide all the information it has on
the defendant. So this is not an uncommon tactic. People like Aldrich Ames and Hanson,
other Al Qaeda members, the 9/11, I’m sorry, the first bombers of the World Trade Center,
they will all ask the government to put all that information in the public. This is going
to be terrible for our efforts against Al Qaida because we will have to explain, for
example, how do we know where Khalid Sheikh Mohammed was. Were we able to intercept his
cell phones, were we able to read his e-mails, how did we capture him? All of that is going
to have to be made public. Al Qaeda will then have great insight into how we are able to
keep track of him and how we are able to fight them.
Peter Robinson: Jim Comey and your former justice department Jack Goldsmith in the Washington
Post quote “in terrorist trials over the past fifteen years, federal prosecutors and
judges have gained extensive experience at protecting intelligent sources and methods”.
In other words, John, you relax. Limiting a defendant’s ability to raise irrelevant
issues and tightly controlling the courtroom”. Layman Robinson says you say this but a couple
of other lawyers say relax, don’t worry about it.
John Yoo: I think the problem is they don’t have examples on their side. I can point you
to two. The first is the trial of the Blind Sheikh. So…
Peter Robinson: Which was ’94, ’95 roughly? John Yoo: It was in the nineties. In the trial
of Blind Sheikh, the government had to turn over…
Peter Robinson: He masterminded the first bombing attack on the World Trade Center.
The bomb that blew up in the parking lot, okay, go ahead.
John Yoo: Right, and in normal process we had…the government had to provide to the
defence a list of all the co-conspirators, the people who we think were helping or conspiring
with the defendants to advance their plot. It was a list of some hundred some people,
hundred seventy-five, I think and if you look at it, it was essentially all the people we
thought were members of Al Qaeda and that list was found in Osama Bin Laden’s safe
house. It was apparently faxed to him just a few weeks later. Think about what an amazing
advantage that is for Al Qaeda, to look at the list of everyone we think is a member.
Peter Robinson: All these covers have been blown and now Osama knows it.
John Yoo: Exactly and it also tells them who we have not found yet, either. Tells them
what the plots are ahead. And the second, even better example is after 9/11, we captured
this guy named Zacarias Moussaoui. The fellow who wanted to learn how to take off in an
airplane but didn’t care about learning how to land them and so our FBI, sharp as
it is identified that guy as a problem. He… Peter Robinson: And we now know he would have
been the twenty-fifth high-jacker but for some logistical mix-up or something.
John Yoo: Right, he was not able to get to the train and get going to the plane. Moussaoui
trial went on for four to five years. Never saw a single proceeding before a jury because
he spent all those years just asking, “I want to see all the evidence you have on me,
I want to see how you even know I am a member of Al Qaeda?” and he wrapped that court
in knots. The only reason the trial ended was because he changed his mind and said,
“oh, I have decided to plead guilty. There was never any resolution of any of those questions
about whether the government could actually try him without having to open up its intelligence
files and I think ultimately they would have had to. John Walker Lind from just across
the bay here did the exact same thing and because of that the government had to reach
a plea bargain with him. So I don’t think there is any great track record where the
government has been able to try actual members of Al Qaeda in our courts.
Peter Robinson: So what the Goldsmith argument reduces to is “give us a little time, we’re
experiment…we’re learning as we go along” the correct answer to which is, “you learn
on somebody else’s time. Don’t put the defence of this nation at risk.
John Yoo: Especially when there is an alternate system, the Military Commissions Systems.
Peter Robinson: Let me give you another quotation from the Comey and Goldsmith article in the
Washington Post “in deciding to use federal court, the Attorney General, Holder, probably
considered the record of the Military Commission System that was established in November 2001.
One reason Commissions have not worked well is that changes in constitution under national
military law since they were last used during World War II have produced great uncertainty
about the Commissions validity.” What do you make of that?
John Yoo: Well I think the problem is that our current federal courts and litigation
against them won’t let any of these military commissions actually go forward and try someone
all the way to judgement. I am confident once that happens that people will see that it
is… Peter Robinson: Once what happens? Once the
federal courts… John Yoo: Yeah, yeah, let a military commission
actually hold a real trial. They actually have not been able to hold a real open trial
because of the federal courts have been trying to block them or…
Peter Robinson: So what is needed to break that deadlock in the federal batch. Is there
a Supreme Court case that somebody could bring in that would just decide it cleanly with
this court? John Yoo: Well, now I think what the Obama
Administration has to do is let the prosecutors go forward. I think the Supreme Court has
said you can now proceed. Congress authorized the commission trials and passed the rules
of procedure and evidence so it can go forward now but then the Obama Administration by moving
KSM and his fellow leaders out of that system after hundreds of thousands of dollars and
thousands of man-hours have been put into those cases transferring them out loses even
more time. I think that Commissions would show that the military justice system is entirely
fair; in some ways fairer than our civilian system.
Peter Robinson: All right, John, you conclude Crisis and Command with sentences that I find
surprising. I will quote them, “If Obama wishes to guide the nation successfully through
its period of economic crash and foreign threat he must draw on the main spring of presidential
power as deeply as his greatest predecessors, Lincoln, Washington, so far” John Yoo writes,
“Obama shows early signs that he has learned this lesson well”. After all that you say
John, you support the Obama Administration? John Yoo: I think that they are coming to
their senses in foreign affairs. I think what President Obama said in Oslo in winning the
Peace Prize about defending Americas right to defend itself, I thought that was a big
change from what we had seen earlier. Peter Robinson: He is being mugged by reality…
John Yoo: Exactly, exactly. I thing the administration came in with some naiveté about national
security. I think they are getting better at it. I think the decision to send thirty
thousand more troops to Afghanistan was a wise decision on his part when his base is
screaming to pull out of Afghanistan and to pull out of Iraq as fast as possible. He rejected
the idea that Afghanistan would be another Vietnam. So I think that in order to achieve
success…I actually think that the great irony of the Obama Administration will be
their cratering on domestic policy, right now the newest polls show that less than 50%
of the people approve of his job performance. The thing that is going to save his presidency
is success, victory in Afghanistan and it would be ironic to say the least wouldn’t
it if the great saviour of his presidency is the energetic, vigorous presidency exercising
national security powers and war powers abroad which is what Afghanistan is.
Peter Robinson: John, we will FedEx this segment directly to the West Wing.
John Yoo: I am sure it will be watched over and over again, too.
Peter Robinson: John Yoo, author of Crisis and Command. thank you very much.
John Yoo: Thanks for having me. Peter Robinson: Again, be sure to follow Uncommon
Knowledge on Twitter at For Uncommon Knowledge, I’m Peter Robinson,
thanks for joining us. John Yoo transcript
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