The author of the "torture memos" loves a good fight way more than a good debate.

The author of the "torture memos" loves a good fight way more than a good debate.

The author of the "torture memos" loves a good fight way more than a good debate.

The law, lawyers, and the court.
March 19 2010 7:46 PM

It's Not Me. It's Yoo.

The author of the "torture memos" loves a good fight way more than a good debate.

John Yoo. Click image to expand.
John Yoo

CHARLOTTESVILLE, Va.—John Yoo wants you to hate him. That's kind of his whole point. When he writes op-eds like this one —suggesting President Obama should thank him for enhancing executive power in wartime—what he really wants to do is make you grind your molars into powder. When he tells a room full of undergrads today that for some prisoners locked up at Guantanamo Bay "it's the first time these people have had medical or dental care in their lives"—perhaps so that they can have pretty teeth before you hurl them into a wall —he's doing it to be provoking. It's an old trick. Focus attention on the witch and the witch hunt, and away from the facts. Unfortunately for everyone, Yoo has been so terrific at making himself the witch in this hunt, he's made himself the issue. The same screaming masses he says are out to get him won't let him get a word in edgewise.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Yoo is at the University of Virginia today, giving a pair of speeches to promote his new book,   Crisis and Command: A History of Executive Power From George Washington to George W. Bush. What's immediately clear is that there is really no point in hating John Yoo. As he has proved time and again, he is unfailingly polite, self-effacing, and willing to stand by grinning while protesters scream at him. Moreover, while he is adamant that he is the issue, he is equally insistent that he was just a midlevel attorney at the Justice Department, that he never even met Dick Cheney, and that the advice he offered in his infamous Bush-era "torture memos" was just of a "legal" nature." It was others who made the policy. Hating John Yoo is like hating a rodeo clown. But that doesn't stop his opponents from becoming precisely the sort of angry mob he loves to hate right back.

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At his first stop this morning, at the University of Virginia's Miller Center of Public Affairs, it's immediately clear that there is no such thing as the law. Now there's just your law and my law. The winner is whoever screams loudest. If you believe we are holding "terrorists" at Guantanamo, Yoo is your hero.  If you believe he's responsible for the abuse of innocents, he's a war criminal.

At most Miller Center events, the average age of the audience is about 78. (The University Village "Luxury Condominiums for Active Adults" is right down the street.) Today is no different. Yet today's event is an exercise in the Elderly Gone Wild. Even before Yoo can begin to speak, the entire event degenerates into an ugly spectacle wherein protesters and Yoo fans act out a ridiculous a meta-fight over a) whose free speech rights count more—theirs to protest or Yoo's to speak— b) whether the Miller Center should have invited him to speak in the first place; and c) whether the physical removal of protesters from the hall should be done by gentle or enhanced measures. All the while, distinguished spectators are angrily screaming back and forth at one another to "sit down and shut up" and advising the overworked police as to whom should be removed next. Audience members hold up signs accusing Yoo of being a war criminal and accuse him of "filibustering" when he tries to describe his book, ostensibly the reason he is here. They trade insults with one another over who is smarter, ruder, and more outraged by the general sense of outrage. And as several protesters are dragged from the room, they earnestly upbraid the rest of us for condoning the same event they condoned until they were dragged out screaming. An angry spectator uses his own piece of paper to strike another spectator protesting Yoo with a piece of paper. The organizers try desperately to regain some measure of control.

George Gilliam, assistant director of public programs at the center, introduces Yoo with the story of a former professor of Yoo's, Brian Balogh, on the faculty of the Miller Center, who apparently once told Yoo that he would someday run the world, although Balogh would not want to live in it. When it's his turn to speak, Yoo responds by quipping that despite the events of recent years, Balogh "hasn't yet left the country." Yoo is a fascinating blend of arrogance and aggression. In his second speech of the day, to a smaller crowd comprised mainly of students, he will again correct the faculty member who introduces him for not getting the cute anecdote about him quite right either.

At both events, Yoo compares UVA to Berkeley, which has "raised protesting to a fine, fine art," and opens by bragging that despite being warned by "all his conservative friends" to avoid doing the Daily Show, he "beat Jon Stewart" on the "leading liberal show" because as a professor he is well accustomed to students who "do no reading or preparation for class." Then Yoo launches into what he does best, defending the counterintuitive thesis of his book. His argument is that all the "best presidents," as measured by various public polls including one done in Parade, were the ones who interpreted their own constitutional powers most broadly in times of war and crisis. The upshot being that all presidents should hope and pray that history throws them a major national security crisis so they can arrogate vast extralegal authority to themselves and score real high in public polling. This is, by the way, not an indefensible historical proposition, although it's a slightly terrifying one, and serious scholars have done a serious job of analyzing it. The problem is that Yoo is here to discuss his new book, and nobody really cares. This is why protesters are dragged from the room, demanding that he defend the torture memos, and this is why Yoo, who flings a funny zinger at them all as they are hauled out, is having such a fantastic time.

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A question is asked about the Justice Department's OPR Report, which concluded, after much internal wrangling, that Yoo's "loyalty to his own ideology and convictions clouded his view of his obligations to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client." Yoo replies that, well, "lawyers are going to differ." He explains that this is why "we have majority and dissenting opinions" at the Supreme Court and that the "poor judgment" he is found to have demonstrated in the ethics report is nothing compared to the extreme legal differences between Supreme Court justices.

In both speeches Yoo takes pains to say that not every expansion of presidential power is a good thing. Then he talks about Nixon. In both speeches he notes that Obama may just be remembered as a great president someday for embracing the expanded executive powers adopted by the previous administrations. Again today he repeats the claim that the enhanced-ly interrogated Abu Zubayda was the "No. 3 in al-Qaida," which is simply not true, and that as part of their training, 20,000 American soldiers underwent water-boarding with no lasting physical harm. He says he was forced, in a crisis, to make decisions "where there was no case law and no precedent." It seems President Bush wasn't merely lucky enough to find himself in the middle of a war.  He also found himself in a war in which none of the rules of war actually applied.

When a protester shouts that prisoners are still being abused today because of Yoo's legal conclusions, he retorts "I left government seven years ago. To the extent anyone is being tortured now, I doubt it's as a result of my orders." And on it goes, until your molars are so obliterated, you can only aspire to the Guantanamo Bay dental plan. Yoo never tires of pointing out that, unlike his colleagues at the Justice Departments who slunk off to "hide out," he wants to be on the record to tell the story and "engage his critics." I think it's safe to say that at no point today did anyone engage their critics. There was shouting. There was something akin to a free-speech-off. There were even John Yoo puppets. But how the national debate over torture turned into its own form of torture is a mystery that may never be resolved.

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