[THS] Yoo Said Bush Could Order Civilians to Be Massacred

[Peter Webster]

Yoo Said Bush Could Order Civilians to Be 'Massacred'
By Michael Isikoff, Newsweek
20 February 2010

http://readersupportednews.org/news-section/10-war/1049-yoo-said-bush-could-order-civilians-to-be-massacred


The chief author of the Bush administration's "torture memo" told Justice Department
investigators that the president's war-making authority was so broad that he had the
constitutional power to order a village to be "massacred," according to a report by
released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out
of step with legal precedents that they prompted the Justice Department's internal
watchdog office to conclude last year that he committed "intentional professional
misconduct" when he advised the CIA it could proceed with waterboarding and other
aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at
the time, Jay Bybee, now a federal judge, should be referred to their state bar
associations for possible disciplinary proceedings. But, as first reported by
NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report
and last month overruled its findings on the grounds that there was no clear and
"unambiguous" standard by which OPR was judging the lawyers. Instead, Margolis,
who was the final decision-maker in the inquiry, found that they were guilty of only
"poor judgment."

The report, more than four years in the making, is filled with new details into how a
small group of lawyers at the Justice Department, the CIA, and the White House
crafted the legal arguments that gave the green light to some of the most
controversial tactics in the Bush administration's war on terror.

They also describe how Bush administration officials were so worried about the
prospect that CIA officers might be criminally prosecuted for torture that one senior
official - Attorney General John Ashcroft - even suggested that President Bush issue
"advance pardons" for those engaging in waterboarding, a proposal that he was
quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David
Addington, Vice President Dick Cheney's legal counsel, that the president's wartime
powers were essentially unlimited and included the authority to override laws passed
by Congress, such as a statute banning the use of torture. Pressed on his views in an
interview with OPR investigators, Yoo was asked:

"What about ordering a village of resistants to be massacred? ... Is that a power that
the president could legally -"
"Yeah," Yoo replied, according to a partial transcript included in the report.
"Although, let me say
this: So, certainly, that would fall within the commander-in-chief's power over tactical
decisions."
"To order a village of civilians to be [exterminated]?" the OPR investigator asked
again.
"Sure," said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department
memo that narrowly defined torture and then added sections concluding that, in the
end, it essentially didn't matter what the fine print of the congressionally passed law
said: The president's authority superseded the law and CIA officers who might later
be accused of torture could also argue that were acting in "self defense" in order to
save American lives.

The original torture memo was prompted by concerns by John Rizzo, the CIA's
general counsel, that the agency's officers might be criminally prosecuted if they
proceeded with waterboarding and other rough tactics in their interrogation of Abu
Zubaydah, an allegedly high-level Al Qaeda-linked operative who had been captured
in Pakistan and in the spring of 2002 was transferred to a CIA "black site" prison in
Thailand. Rizzo wanted the Justice Department to provide a blanket letter declining
criminal prosecution, essentially providing immunity for any action engaged in by CIA
officers, a request that Michael Chertoff, then chief of the Justice Department's
criminal division, refused to provide. It was at that point that Yoo began crafting his
opinion, the contents of which he actively reviewed with senior officials at the White
House. "Let's plan on going over [to the White House] at 3:30 to see some other folks
about the bad things opinion," he wrote in a July 12, 2002, e-mail quoted in the OPR
report.

The report describes two meetings at the White House with then-chief counsel
Alberto Gonzales and "possibly Addington." (Addington refused to talk to the OPR
investigators but testified before Congress that he did in fact have at least one
meeting with Yoo in the summer of 2002 to discuss the contents of the torture
opinion.) After the second meeting, on July 16, 2002, Yoo began writing new sections
of his memo that included his controversial views on the president's powers as
commander in chief. When one of his associates, Patrick Philbin, questioned the
inclusion of that section and suggested it be removed, Yoo replied, "They want it in
there," according to an account given by Philbin to OPR investigators. Philbin said he
didn't know who the "they" was but assumed it was whoever it was that requested
the opinion (technically, that was the CIA, although, as the report makes clear, the
White House was also pressing for it).

Yoo provided extensive comments to OPR defending his views of the president's war-
making authority and disputing OPR's take that he slanted them to accommodate the
White House. He did not immediately respond to NEWSWEEK'S request for comment
Friday night.