Presented with the kind permission of Hoover Institution
December 18 2009: John Yoo is a professor of law at the University of California at Berkeley 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 Counsel in the Justice Department of President George W. Bush.
Professor Yoo is the author, most recently, of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.
Yoo, who played a significant role in developing a legal justification for the Bush administration’s policy in the War on Terror, reflects on the controversial legal and policy positions taken by the Bush administration on interrogating captured terrorists after 9/11.
Beginning with a discussion of the war powers of the executive branch, Yoo asserts, “Today’s conflict over presidential power does not truly arise over whether the authorities in question exist, but whether now is the right time to exercise them,” addressing the fundamental questions at the heart of the debate over “enhanced interrogation techniques.”
As a strictly legal matter, does water boarding amount to torture, as the current Justice Department regards it? And are we safer because the Bush administration made use of enhanced interrogation?
Finally, Yoo challenges the wisdom of the Obama administration’s decision to try Khalid Sheikh Mohammed in a federal court in New York City.
On 13 November 2009 US Attorney General Eric Holder announced that Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi will all be transferred to the U.S. District Court for the Southern District of New York for trial. He also expressed confidence that an impartial jury would be found “to ensure a fair trial in New York.”
On 21 January 2010 all charges have been withdrawn in the military commissions against the five suspects in the Sept. 11, 2001 terror attacks being held at Guantanamo Bay. The charges were dropped “without prejudice” – a procedural move that allows federal officials to transfer the men to trial in a civilian court and also leaves the door open, if necessary, to bring charges again in military commissions.
In February 2010 Fox News reported that the legal counsel of Khalid Sheikh Mohammed, and the legal counsel of several other captives, was halted without warning. The attorneys had made the trip to Guantanamo in the usual manner—a trip that requires advising authorities of the purpose of their trip.
However, upon their arrival in Guantanamo, they were informed they were no longer allowed to see their clients. They were told that letters to their clients, telling them that they had travelled to Cuba, to see them, could not be delivered, as they were no longer authorized to write to their clients. Camp authorities told them that since the charges against their clients had been dropped, while the Department of Justice figured out where to charge them, they no longer needed legal counsel. Camp authorities told them that, henceforward, all access to the captives had to be approved by Jay Johnson, the Department of Defense’s General Counsel. Fox reported that during earlier periods when the charges had been dropped the captives had still been allowed to see their attorneys. Fox claimed that questions they asked camp authorities lead to the captives’ access to their attorneys being restored.
On 1 February 2010 White House spokesman Robert Gibbs told CNN that “Khalid Sheikh Mohammed is going to meet justice and he’s going to meet his maker. He will be brought to justice and he’s likely to be executed for the heinous crimes he committed”.
The White House spokesperson’s statement has been criticized as violating the principle of the presumption of innocence and has been characterized as egregious by an attorney of Guantanamo Bay detainees