John Yoo's book Crisis and Command: A History of Executive Power is getting good reviews from historians. But Yoo is perhaps more accustomed to criticism, given that he coauthored some of the controversial Bush administration memos regarding the use of torture to interrogate suspected terrorists when he served as a deputy assistant attorney general in the Office of Legal Counsel from 2001 to 2003. Yoo, currently a professor at the University of California-Berkeley law school, spoke with U.S. News about the history of presidential power, the "supersized executive," and how the government should handle suspected terrorists. Excerpts:
Before we get into the book, let's talk about your work with the OLC. Do you regret the work you did there?
No. What I regret is that we as a country had to confront these questions. That was because of the 9-11 attack. We had to fight effectively a new type of war where intelligence was going to be a primary factor in deciding who wins. Our government had to deal with the fact that getting information out of al Qaeda members was going to be the thing that decided if we were able to win the conflict. I don't regret the answers we had to give. I would give pretty much the same answers now.
In Oct. 2008, the DOJ wrote a memo addressing some of your 2001 writings for OLC, saying several propositions are either "incorrect or highly questionable." What do you say to that conclusion?
Unfortunately, that was a product of appealing to public perception. If you look at the original memos closely, I struggle to think what the alternative, sensible conclusions should be. The memos they are talking about describe what would happen if al Qaeda was able to carry out Mumbai-style attacks in the U.S. and military force was used to fight them.
But what concerned critics was the fact that your memos also talked about the suspension of Posse Comitatus and suspension of the Fourth Amendment.
It is easy for people to say that they don't like the reasoning behind those opinions, but its also incumbent upon those people to say what they would do in the exact situation. I haven't seen any memos to say what other alternatives there are if such an attack happened. What would they do, send out the FBI to stop that type of attack? I have a hard time believing that. The Obama administration was so intent on being the opposition party, that when the time came with the Christmas Day bomber, they didn't even think if their course was the best way to protect the American people.
Do you think that the Bush administration did enough to explain and defend in public the answers that you arrived at in the OLC memos?
No and you've really hit on a sore spot there. The last administration was very poor at explaining to the American people the situations in which we were asked to make the decisions we did and why we made the decisions we did. In the case of Guantanamo Bay, the administration just really wanted to run and hide. It would have been better served if it had come out more forthrightly and walked the American people through what the choices were and what the benefits were for the choices we made. The American people would have thought differently about our opinions if they had known about the al Qaeda plots that were disrupted and the people who were captured, information that could only have been gathered through interrogation.
While you've said you don't support civilian trials for people like Khalid Sheikh Mohammed, would you support a public discussion in a trial of the legality of so-called enhanced interrogation techniques, which most international law experts call torture-- to which KSM was subjected?
My book, War by Other Means, explains at great length why I think that those techniques which were chosen are legal. Now that the memos are public, I don't think there's a harm in the context of a public trial to explaining what interrogations were used and how they were arrived at.
Why isn't a public trial the right place for KSM to face justice?
The KSM trial will be an intelligence coup for the other side. One of the things that any criminal defendant is going to demand is all the information that the government has about him, including all the intelligence sources and methods. The second problem it will create will be the incentive put on our people in the field, to have to conform to the standards that a police officer adheres to rather than performing their missions. Do we want our troops to have to carry around little plastic baggies for collecting evidence? A good example of this is the Christmas Day bomber, who was charged as a civilian right from the start. Only then, did the administration think about the issues involved.