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Yoo Said Bush Could Order Civilians 'Massacred'

Saturday, 20 February 2010 11:02
John Yoo and David Cole join a panel discussion on privacy rights, 04/15/08. (photo: Laura Arnold)

John Yoo and David Cole join a panel discussion on privacy rights, 04/15/08. (photo: Laura Arnold)

he 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. your social media marketing partner


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+36 # Guest 2010-02-20 12:37
Now, John Yoo is a law professor at Berkeley and Jay Bybee is federal judge! With the next Republican administration they may be candidates for the Supreme Court. What hope is there for this Nation?

We are in deep trouble when our laws are no longer just and our leaders can't tell the difference or could care less, when basic human rights and values are violated, when our highest legal and intelligence officials don't discern the distinction between torture, to obtain confessions, and interrogation, to obtain information.
+15 # Guest 2010-02-20 16:03
i honestly cannot comprehend why there's been no bill of impeachment of bybee. he lied to congress under oath.
+9 # Guest 2010-02-20 18:27
The GOP will not stand for any Republicans being impeached. They still feel that Nixon's egregious abuse of the law was entirely permissible and that he should not have been forced to resign.
+9 # Guest 2010-02-20 23:09
Quoting Isa Kocher:
i honestly cannot comprehend why there's been no bill of impeachment of bybee. he lied to congress under oath.

Why was there no impeachment of BUsh/Cheny--ore even charges brought against them? Clinton was impeaced for cheating on his wife--hardly any of the public's business--and the Cheney Administration is gettting away with unlawful, unconstitutiona l wars against humanity, theft, torture, murder, massacre, genocide, infanticide, lies, lies, lies, warmongering, terrorist activities, terrorizing American public, lies, and more lies...the American government is NOT of or by the people--it is a fascist corporateocracy . And you ar just a number, a pawn, nothing. you are not a citizen, you are a consumer and very expendable.
+7 # Guest 2010-02-20 16:53
as I was reading this I thoght the same thing you did about becoming a supreme court justice ... This I would save the FILLIBUTER rule for. I would like to add this rememberence of mine.
once while selling homes, a Russian immigrant became a buyer. I was interested in his reasons for comming here, and it turned out to be political persecution. I asked him if in Russia there was not a constitution that would protect him from his persecution. He said that indeed there was a constitution in Russia. He said the Constitution was what GORBECHEV said it was ! SAME HERE MR YOO AND CHENEY FOLKS !
+17 # Guest 2010-02-20 13:21
I always knew these people existed but I considered them fringe elements. As I talk to people today, it's frightening to realize that their viewpoints have become acceptable and "mainstream" to many.
+18 # Guest 2010-02-20 13:29
Is this not what Hitler did? Take out whom ever does not comply with what the then Bush administration wanted, then is set free by Holder whom was in the Bush Administration. Wrong is wrong and guilty is guilty. They are guilty. But if they or any one else falls then so will every one else whom was involved in this illegal activity. They send a young man to prison for selling a nickle bag of pot. But say these criminals just made a bad judgment. Where is there Justice here?
+10 # Guest 2010-02-20 14:18
Yes you see the doublestandard this country operates on.When others do it ,it is wrong but when the US goverment does it, it is RIGHT. No wonder we create more terrorists than making friends in this world. All this big talk about LIBERTY and JUSTICE for ALL is just probaganda Speeches. Screeming USA,USA and USA is not going to do us any good if we cannot treat people and NATIONS fair and with JUSTICE!
+8 # Guest 2010-02-20 13:50
so what's to be done about it. NOTHING..... this is just all "poor judgement" and the perpatratures will never be held accountable because Obama says we are not going to re-litigate the remember that when some thug knocks off your local bank or 7/11
+17 # Guest 2010-02-20 13:53
Waterboarding someone 75 times in one day "is not torture", when the world says it is, and "destroying an entire village" is within the power of the president and hence excusable,when the world sees it as criminal--well to me this just takes pride in our country and puts it in a sewer.
+8 # Guest 2010-02-20 19:32
Couldn't agree with you more.

"Should any American soldier be so base and infamous as to injure any [prisoner]... I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause... for by such conduct they bring shame, disgrace and ruin to themselves and their country." - George Washington, charge to the Northern Expeditionary Force, Sept. 14, 1775

What happened to us? Did 9/11 change who and what we are? How are we to have any respect for the law when it isn't applied to everyone?
+1 # fempatriot 2010-02-21 12:50
I'm not sure 9/11 changed us all that much. Americans have been successfully bombarded with propaganda for decades now--witness all the "righteous" wars we have waged. When in truth, they were not for "freedom and justice for all" but for colonization and exploitation by the USA. We have over 100 military bases all over the world--most of which were there before 9/11.
0 # Guest 2010-02-22 10:25
Should be the inscription on Cheny's
0 # Guest 2010-02-26 20:39
Very eloquently put. I couldn't agree more. It is frightening what some people believe. What is more frightening is that those people who believe those things have the power to bring them to fruition. There is I feel, no hope for humanity. We seem to have lost ours. I do believe we need to overthrow our own government. There was one past president who stated if we were dissatisfied, it was our duty to do so.
+3 # Guest 2010-02-20 13:54
+7 # Guest 2010-02-20 15:30
Hey guys, better be careful! CIA and NSA are reading these. Just a matter of time before they come knocking at the door. Feel like being disappeared? Think it doesn't happen here?
+6 # Guest 2010-02-20 15:30
you can write to John Yoo at

here is what I wrote:

Hi John,

I would like you to know that I am sick and ashamed of you and what you have done to the people of the United States and the innocent of the world. I hope that you are someday tortured so that you know what it is like. And I will be writing to everyone that I can at the sorry university that feeds you to see if they can try you for treason and war crimes as an appropriate exercise in the legal process. The world would be a better place without the likes of you, yoo.
+8 # Guest 2010-02-20 15:36
If don't litigate the past why did we have the World War Trials in Nuremberg?
+1 # fempatriot 2010-02-21 13:01
Excellent point. The Israelis (and world Jewry) are still routing out suspects and demanding reparations from nations the world over for what they claim happened to them during World War II. Poor old John Demjanjuk (an 89 year old Ukranian prisoner of war) is being tried in Germany as a "war criminal" even though years ago an Israeli court found him innocent of that charge.
+10 # Guest 2010-02-20 16:08
If Bush could not persecuted for war crimes why then Nuremberg?
+12 # minderbinder 2010-02-20 16:10
We are now, with absolutely no question, a "rogue state" that officially tortures its own citizens as well as kidnaps people off the streets of foreign countries and tortures them to death, and then absolves all those responsible. The United States should be kicked out of every international organization, barred from the Olympics and the OECD, and treated as South Africa was in the seventies. We have no claim to even be considered civilized any more, let alone to the "American exceptionalism" stance that pretends we are morally superior to other states. We are the new Mongol Empire, only without the humanitarianism of Genghis Khan.
+7 # Guest 2010-02-20 16:21
There is one problem with Yoo's thinking. Who had the United States issued a formal declaration of war against? Certainly not Afghanistan. Certainly not Iraq.
As Commander in Chief, George W Bush is guilty of war crimes. Nobody has the right to invade a sovereign foreign power without declaring a state of war. Even the UN is complicit for not sanctioning the US.
+6 # Guest 2010-02-20 16:22
This decision practically dissolves any judgments, edicts, or laws derived from the trials in Nuremberg, and lays waste to any semblance of jurisprudence which seeks redress for war crimes. This last decade has borne witness to the worst forms of systemic abuse in history.

Yet, the machine rolls on.
+3 # Guest 2010-02-20 16:24
I cannot help but be reminded that George Washington was once offered a crown by a group of businessmen at the founding of the United States. Is this impulse towards absolute power, that exceeds the Constitution and knows no restraint, still alive in the psyche of those occupying elite positions within the US?
+5 # Guest 2010-02-20 17:35
One of the above comments mentioned how torture is now "mainstream". My guess is that was part of the plan from the start. Turn the US into a country that condones torture. First we torture our foreign enemies. Next we torture the domestic ones. What will it take for a citizen to become an enemy of the state? Attempting to use our Constitutional rights when the political class decides the Constitution is just a piece of paper?
+6 # Guest 2010-02-20 17:50
Most of these concepts writtn by Mr Yoo and Mr Bybee and Mr Additon are knowm to be illegal, and yes there isn't anyone charged with a crime. These gentlemen and many other Bush Administration should be on trial for the violatons of American Law, International treaties, and at least the violations of the Geneve accords. We should start at the bottom of the World Criminals, but at the top, meaning Bush and Cheney.
+6 # Guest 2010-02-20 18:29
Laws For Yoo….Not For You !!!

Ive beem trying to tell people for years there are two sets of laws. One for royalty and one for the common folk, just what the founders were trying to avoid.
+4 # Guest 2010-02-20 18:34
...and the world was astonished in 1945 when the death camps were opened and all could see what happened when they looked the other way.

Now, it is more than 69 years later and even this American administration, the one which was to bring about a new America, is looking the other way.
+4 # Guest 2010-02-20 18:53
The Bush administration was channeling Nixon: "When the President does it, that means it's not illegal."

It sickens me that Obama agrees.
+1 # Guest 2010-02-20 19:17
It seems that "legally" and "morally" are being used too interchangeably by too many people here.

It doesn't seem too shocking to me that the law allows for a massacre to occur or that it falls within a president's powers.

To compare, is this attack on civilians much different from dropping an atomic bomb on Hiroshima and Nagasaki?

A president had the power to do that, didn't he? It seems that the bigger concern is to amend the Constitution, if such broad power is to be limited.
+4 # Guest 2010-02-20 20:00
V for Vendetta. This is the only answer to the corruption that is consuming the Government of the United States of America and many other Countries in our World.
Until the populations get together in a majority and protest the crimes of our Government officials - we will not have any resolve.
0 # Guest 2010-02-22 09:18
Quoting Margie948:
Until the populations get together in a majority and protest the crimes of our Government officials - we will not have any resol[ution].

I think you're right. I also think this country is too big, and too media-paralyzed , to get such a majority all motivated at once. American devolution may be the only solution.
+2 # Guest 2010-02-20 20:52
I feel in many respects that we have slipped from being a Democracy to that of being more of a Corporotacracy, as was the case in Germany before WWII. Are now Nazi/Americans? The "Supreme" Court has now given the go ahead for corporations to bribe whomever they want with unlimited funds, NO OVERSIGHT (!!!!!!!!!!)FOR MORE TOTAL CONTROL OVER AMERICA!!!! Seriously, fellow AMERICANS (i.e.-THE PEOPLE), is this what we want for our country??
+1 # Guest 2010-02-20 21:45
Something stinks in this country.
+1 # Guest 2010-02-20 21:54
"rough tactics"... the way they won't
say torture is disgusting.
+1 # Guest 2010-02-20 22:32
Let's not forget that the Constitution gives (sole, of course) authority to the Congress to set the rules for how the military is to conduct itself.

Let's not forget the Constitution.

We can also go back and read The Federalist to see why the Founding Fathers intentionally limited the war-making powers of the President.
+2 # Guest 2010-02-20 22:37
Also, check AR 190-8, on the treatment of prisoners captured/held by the military. Torture isn't forbidden - it's far more robust: humane treatment is mandated. Look at what the regulation says about interrogation tactics even when information potentially obtainable might save lives on the battlefield.

Bush shopped around to find "guard-house lawyers" to approve the evil he wanted to have done. He couldn't find such lawyers in the military so he went to civilians. Bush, like many in power, wanted to have a government of men, not a government of law. Yoo was willing to subvert the Constitution and all that this country stands for.
+1 # Guest 2010-02-20 23:32
Hey dummies. Yoo apparently issued an OLC opinion that the Executive could veto Congressional call of an Article V amendment convention. Read Article V, which makes no mention of the Executive, only the mandates for Congress (to call). This guy has been accorded the status of professor at UC? Funny how that memo/opinion disappeared suddenly.
+1 # Guest 2010-02-20 23:43
Margolis, apparently having concluded that "Don't pretend you can commit crimes against humanity with impunity" is somehow less a self-evident standard than, say, "Don't intentionally run over pedestrians," is now overturning the sober consideration of career staff and claiming no harm, no foul. And we're all just supposed to nod and say "OK" and move on to other things.

Well, hell, no.

Mr. Margolis, from where I sit, you've just made yourself an accessory to torture and murder as well as another candidate for disbarment. Sanctioning an argument that the president has the legal right to order another Lidice isn't just poor judgment, it isn't just intentional professional misconduct, it's also criminal lunacy and its perpetrator is a menace to humanity.
0 # Guest 2010-02-20 23:58
Is Yoo a Moonie? He certainly appears to want to ruin the USA as much as Sun Myung Moon wants to destroy it. The question is asked often. What is the answer? Is Yoo a Moonie?
+2 # Guest 2010-02-21 00:02
I believe in the Constitution. I believe in the rule of law. I believe in justice, fairness, duty, service to country. I believe that justice prevailed at Nuremburg. I am a patriot. I love my country and have served it d I believe the Bush Administration was a criminal enterprise from the get go and every member of congress that supported him regardless of party affiliation is complicit in criminal conspiracy and this criminal enterprise and I believe that because the current administration refuses to bring to account everyone who participated... even if it ultimately means themselves, makes them no better than the scum we lived under before.
I believe that our country has been disgraced and has become disgraceful in it's acquiesence. I still believe in justice and more's the pity. We have a debt to pay and it will be dear. In our hubris we think that we are even bigger than history. The bigger they get, the harder they when might makes right. God help us.
+3 # Guest 2010-02-21 00:13
In what vice and squeezed by whom is Obama's head that he refuses to address this?? Perhaps naively, I still do believe in the sincerity of Obama's intentions to "restore" our country to the idealistic, democratic state we were taught it used to be in. This leads me to the uncomfortable notion that he is perhaps not in charge of the country, nor even of the executive branch, and that he must publicly say that he chooses not to right the wrongs, lest his lack of power to right them be exposed.
0 # Guest 2010-02-22 09:16
Quoting Jill:
In what vice and squeezed by whom is Obama's head that he refuses to address this?? [...] he is perhaps not in charge of the country, nor even of the executive branch, and that he must publicly say that he chooses not to right the wrongs, lest his lack of power to right them be exposed.

I suspect you're right, and while I don't have links handy to the relevant comments, I've seen other people speculating that, if he took real steps to actually reverse the decline of our moral and legal standards, he would suffer what Dave Barry once referred to as "an unfortunate shaving accident involving the loss of his head."
+1 # Guest 2010-02-21 01:10
I have placed these reports on scribd for anyone to use. - dcm

The inimitable Digby offers this:

Balkinization's analysis is here:

...Not that public knowledge of any high crimes will make a difference. DOJ just said it won't.

God save the United States of America.
+2 # Guest 2010-02-21 01:38
The Democrats are fearful of the voters turning on them for bringing war criminals and their abettors to justice. They don't understand that the only way to make it clear what crimes were committed is to bring them to justice. The standard set by the trials at Nuremburg and the Geneva Conventions are being dismantled by DOJ fiat. Our DOJ has a legal responsibility under the Geneva Conventions to enforce the standing treaties which our nation has ratified. It has now become an abettor after the fact to the crimes. The hope is that the Spanish prosecutors will continue to pursue justice as they have the right to do.
+1 # Guest 2010-02-21 10:19
Lie as you want, kill as you want, torture as you want but dont get caught" seems to be the law of that land now a days. Justice has become a laughable matter.
+1 # minderbinder 2010-02-21 10:52
Sorry, but the Spanish government just repealed the "universal jurisdiction" clause, so that the prosecutors and judges no longer have the power to indict non-Spaniards for crimes against humanity and genocide.
+1 # Guest 2010-02-21 10:54
Guilty only of "poor judgement?" What is lacking here is an understanding of our constitution. What is needed is a reading lesson. The values to unite us are in the first sentence, the one so these days overlooked by people searching for the loop holes. There, in the notorious preamble are a host of values, values to protect us. Government actions, to be constitutional, must not value one but violate another. Such is like feeding a child but giving it no sleep. Neocon Priorities are being used to undermine, weaken and subvert these tenets of constitutional democracy. Until we start seeing this for what it is, people like John Woo will continue to corrupt the nation, leading us from the policy that actually protects and benefits us, giving license to what in a civilized world are unthinkable practices, with impunity.
+1 # Guest 2010-02-21 11:53
Our nation, for some time, has been run by corporations. Now that five Supreme Court Justices, all of them right-wing idealogues, have sanctioned loads of cash to be funnelled into our representative process, and labeled it "speech", this will only get much worse. We are on the edge of the abyss, and looking at the coming of complete corporate fascism. When our government sanctions torture in other countries, and our nation refuses to recognize it as a crime, (Worse yet, writes the convoluted justification for it.) we are but one short step from U.S. citizens being tortured. The American voter, citizen, and taxpayer, has been asleep for too long. We must now awake from our slumber, apathy, and delusionment, to restore power back into the hands of "The People". When our elected representatives refuse to regulate the billionaires, and favor their well-being over the greater good of the mass of citizens, The task rests on us to right this wrong.
0 # Guest 2010-02-21 12:17
I remember My Lai (sp) and the punishment of William Calley (sp. Now our, so called, legal scholars such as Yoo, conclude that a President can direct the same atrocity by right. My how it stinks here.
Others cite that decision to use atomic weapons on Japan. To this day it is unfashonable to question that decision. I'd lived in Japan as a US employee for years and learned just how weakened the country was toward the end of that war, which I am glad we won by the way. But in hindsight it was surely a mistake. We could have picked less lethal targets and achieved the same result and alas, hindsight is usually 20/20.
The point is simply this: we deplore the very tactics that we are all too willing to use to oppose them thus a race to the very bottom occurs. Who is to win the contest to see who can be the most barbaric is the service of dubious interests? Is winning that contest worth it? When, in fact, might makes right, we all lose, and by that standard we are losing miserably.
0 # Guest 2010-02-21 18:20
+1 # Guest 2010-02-21 19:35
Since 9/11 was a controlled demolition, here's a disturbing thought : Is it possible that Bush "legally" massacred nearly 3000 citizens on 9/11?
0 # Guest 2010-02-22 07:13
Look out the window. Rome isn't burning. It's burnt.
0 # Guest 2010-02-22 10:10
Too bad he wasn't in the DOJ when Lt. Calley was in Vietnam. How the F@@k did yoo pass the bar? And he is teaching?
0 # Hexalpa 2010-02-22 14:47
I cannot help but to be reminded of George Orwell ("1984", "Brave New World"), and his prediction of NewSpeak.

NewSpeak has arrived.
(1) The U.S. Doesn't torture prisoners
(2) The U.S. water-boarded prisoners
(3) Therefore Water-boarding is not torture.

How utterly convenient, this hypocrisy.

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