Opinio Juris

The June 2008 issue of Esquire magazine has a feature piece on John Yoo by John H. Richardson, plus an on-line transcript of part of Richardson's interview and an autobiographical sketch by Yoo himself. Although framed as a cautionary tale, the article clearly seeks to humanize Yoo. The reader gets a view of Yoo the professor, questioning students on what "war" is in an elegant blue suit offset by a shiny tie (sorry, unlike many Esquire articles there's no brand name given or price tag). We learn about his personal interests, including classical music, bands like the Who and U2, and the anime Ghost in the Shell. Among the piece's stranger quotes, Yoo explains his affinity for Berkeley, "Liberals from the sixties do a great job of creating all the comforts of life--gourmet food, speciality jams, the best environmentally conscious waters." More substantively, Yoo describes how his parents thought Truman saved Korea by going in without Congressional backing, a point that Richardson uses to explain the origins of Yoo's views on Presidential Power. Of course, Lincoln is also brought up in Yoo's defense (e.g., the Emancipation Proclamation and suspension of habeas).

In terms of what Yoo's become famous for--his work on the Geneva Conventions and torture--the article offers some balance; noting the overwhelmingly negative reaction it's received and the subsequent hostility to Yoo and his opinions. But, on the whole, the piece tries to explain (and to some extent defend) Yoo through multiple lenses.

First, the article explains Yoo's memos as a function of the time and circumstances, whether in the aftermath of 9/11 with the Pentagon still in flames or in capturing Abu Zubadaydah who was said to have "details of attack plans that could include nuclear weapons" but who "was an expert in interrogation and how to resist interrogation." Richardson even invokes the ticking time bomb for Zubadaydah--"If it wasn't exactly the famous "ticking bomb scenario come to life . . . it was close enough." I'm not persuaded by these arguments, however, particularly where the on-line interview makes clear Yoo's memos weren't turned around in a day or two, but were the product of weeks of work (i.e., the Geneva Conventions debate occurred in January and February 2002, months after 9/11 and the "Torture Memo" came out in August 2002, months after Zubadahdah's March 2002 capture).

Second, Yoo is allowed to explain how the scope of his opinions was not as broad as many assume. For starters, he was only writing legal opinions, not policy ones. And so, he says on the Geneva Conventions:

Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy. . . . There’s a balance. Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It’s a very difficult trade off. And then it’s harder and harder because there’s the question that if you don’t give them full Geneva Convention protection, what are you going to give them? That’s a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It’s not my job to say what they should do.

In the article though Yoo is reported to have admitted his arguments about Afghanistan as a failed state so as to exclude the Geneva Conventions may have "been pushing it" (a retreat I'm happy to hear, since that issue was something I worked on for the State Department during my time there). Moreover, I take issue with how the article--it's not clear if it's Richardson or Yoo's characterization--portrays Bush's decision on the Geneva Conventions, denying their application to Al-Qaeda but extending them to the Taliban. Although literally true, this version ignores the President's decision that none of the Taliban qualified for protection under the Geneva Convention because they were illegal combatants, which put them functionally in the same boat as Al Qaeda in the end.

On torture, moreover, Yoo emphasizes his distaste for the use of his memo beyond CIA circles, and in the process the article suggests he should get credit for trying to draw some lines:

Yoo . . . says he thought he was writing a memo for exceptional cases, for the highly trained specialists of the CIA. "I never thought it would be a good idea for the Army to do it, to put it into the hands of eighteen-year old kids. But it would be inappropriate if I had that worry and it changed the way I interpreted the law." So he buckled down to one of the world's most thankless jobs, defining the limits of acceptable pain. He knew it would be easy to draw a vague standard that sounded good and then give the CIA a meaningful wink. But that wouldn't be fair to the officers in the field. He wanted to draw a clear line.

Third, the article's humanization theme culminates around the idea that readers shouldn't dehumanize John Yoo unless they can say what they would have done. Thus, the only critic who gets featured prominently in the article--Padilla's lawyer Jonathan Freiman--gets knocked for refusing to draw the torture line, despite Richardson asking him to do so three times. Yoo's on-line interview takes a swing at Jack Goldsmith on the same point, given Goldsmith's critique of Yoo's memo:

I think that’s unfair, first because Goldsmith never issued an opinion of his own. He’s certainly free to criticize. It goes back to unless you’ve actually made the hard decision yourself, then you don’t really know how you think it through, what you would do. So he says “slapdash opinion,” but we have no idea what he would have done, because he left. Second thing is, it went through the normal process opinions go through in the Justice Department. It was primarily worked on by career staff people, and then went through a process of editing and review by different offices within the department, no different than any other.

The article closes by saying we can't think of Yoo as a "monster" because "that just means we don't have to think about why he did what he did. Grant him his good intentions, entertain the possibility that he did it to save lives, recognize the honor in his refusal to hide, and his story becomes a cautionary tale about the incremental steps that can lead a nation to disaster."

On the whole, the article is a further testament to how much government lawyering has become part of our popular culture, with John Yoo as the face of the current Administration's efforts. In the end, I'm not sure I agree that Yoo's as deserving of a defense as Richardson gives him. But I do agree that the questions he asks--Why did John Yoo do what he did and what would you have done differently if you were him--are entirely fair game. I know where I stood on the Geneva Conventions at the time, and would like to think I'd have answered the torture question differently than Yoo if I'd been asked about it while at State (so far as I know though, State was never asked for its views). What about you?

Update: Esquire let me know that it has now put up on-line the complete transcript from Richardson's interview of John Yoo. Richardson's questions, however, do not appear, so one has to make a few inferences to read it coherently. Still, it's 10 web-pages of material, so I'm sure some will find it of great interest.