Last Chance to Get the Bushies

Melissa Golden / Getty Images A new Justice Department report could contain a bombshell that would spell fresh legal trouble for top Bush officials. The report may link controversial memos on civil liberties and torture—written by Justice Department lawyer John Yoo—directly to the White House, putting Yoo and other Bushies in the crosshairs of criminal prosecution.

John C. Yoo is a study in contrasts. He’s a soft-spoken legal scholar viewed by his colleagues at the University of California at Berkeley as a model of civility. But he’s also emerged as the public face of Bush-era torture policy, the author of a series of radical legal documents described by Yale Law School’s Jack Balkin as a “theory of presidential dictatorship.”

In law-school classrooms around the country, Yoo’s name is invoked as an example of a lawyer who, stirred by political calculus, acts unethically or at least unwisely. His appearances often draw crowds of angry protestors who shower him with epithets like “war criminal” and tie him personally to the torture and death of prisoners in the war on terror. Now, under advice of counsel, Yoo has stopped booking appearances. There is a distinct chill in the air.

John Yoo authored the Bush memos on torture and suspending civil liberties. But an upcoming Justice Department report could contain new revelations—perhaps that the memos were written to provide legal cover for programs already in place. Will Yoo’s fate decide that of top Bush officials?

In one of the memoranda the Obama Justice Department released last Monday, Yoo, then deputy assistant in the Justice Department’s Office of Legal Counsel, argued that President Bush was free to use the U.S. military domestically in counterterrorism operations and needn’t be bothered by the Fourth or First amendments. In an op-ed published last week in the Wall Street Journal, Yoo explained that fears about the Bill of Rights are misplaced—it was all just an exercise in justifying self-defense against a Mumbai-style attack and the references to the First Amendment are gratuitous.

But Yoo offers no clear explanation about the circumstances that led to his writing the memo nor do we know how it was used. The memo could have been written to authorize a sweeping domestic-surveillance operation put in place by military intelligence agencies, which former National Security Agency employees have now explained was actually in place and being tinkered with as Yoo was crafting his memorandum. No doubt Congress will soon give Yoo an opportunity to answer questions about the memo under oath.

One part of John Yoo seems to enjoy the public controversy and approaches debate with zeal, while another part of him must feel at least a bit of anxiety. Just as his successors at the Justice Department’s Office of Legal Counsel left behind two memoranda repudiating Yoo’s work in devastating terms—disclosed by the department last week—the Justice Department’s ethics watchdog is now finalizing its own report.

Sources at the department who have examined this report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture.

Former Attorney General Michael Mukasey repeatedly responded to calls for criminal inquiries by stating that administration officials relied on the memos and that they were entitled to do so. Whether this defense even exists for policy makers is a matter of dispute among lawyers; but if it does exist, then the reliance has to be in good faith. Mukasey’s rationale is crumbling away.

John Yoo faces threats on several fronts. Bar associations are already known to be looking into ethics lapses associated with the preparation of the memos he wrote for the Bush White House and the Pentagon. If the internal ethics report concludes with a referral for bar disciplinary action, it would almost certainly produce further action ranging from a reprimand to suspension or disbarment. While Yoo is a tenured professor at Berkeley, and his dean, Chris Edley, has spoken aggressively in his defense, a bar disciplinary measure would press the University of California to review its relationship with him. Edley reportedly breathed a sigh of relief when Yoo informed him last fall that he was taking a leave of absence. Yoo now teaches at Chapman University Law School in Orange, California, where his friend and fellow Clarence Thomas clerk John Eastman is dean. Although Chapman has a conservative reputation (right-wing talk-show host and blogger Hugh Hewitt has an appointment there, for instance), the invitation to Yoo stirred considerable controversy.

Yoo is also the target of a civil lawsuit brought by Jose Padilla, a convicted terrorist, who argues that he was tortured and abused as a result of Yoo’s memoranda. The publication last week of the Yoo memoranda giving guidance for the handling of Padilla furnished substantial ballast to that lawsuit as U.S. District Judge Jeffrey S. White appeared to note in the course of oral argument on Friday. Yoo’s defense rests on highly technical arguments of immunity, directly contradicting the basic position taken by the United States in the London accords of 1945 that a defense of immunity would not be available to officials involved in the abuse of prisoners.

The Bush Justice Department’s repudiation of Yoo’s memoranda certainly hurts him. In fact, the judge seemed puzzled as to just why the Obama Justice Department was appearing to defend Yoo—pressing on several occasions for confirmation that this decision was consciously taken by officials of suitable authority and discretion.

But Yoo faces even broader threats, including some risk of criminal prosecution. Fueled by recent polls showing that more than 70 percent of the U.S. public approves some form of accountability for Bush policies that raise criminal-law issues, Congress is actively considering the appointment of a special commission to look into the Bush-era torture policies.

Yoo would be right in the crosshairs of any such inquiry, and it is unlikely he would be granted transactional immunity for his testimony. Indeed, Republicans like Sen. Arlen Specter and former Reagan-era Justice Department official David Rivkin did Yoo no favors when they argued against the creation of a commission by saying it would get in the way of a prosecutor looking at the same matters.

For the legacy of the Bush administration, John Yoo is the canary in the coalmine. He is the most public face attached to policies he facilitated but did not originate. Yoo’s problems today may well become their problems tomorrow.

Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.