Vindicated! My Favorite Law Professor

After the first World Trade Center attack and the attack on the USS Cole (shown), the Bill Clinton administration jury-rigged its war on crime model in an attempt to make it work against international terrorism. It didn’t. After the horror of 9-11, George W. Bush got his experts together and heeded the advice that an entirely different approach to asymmetrical warfare and terrorism was needed. One of those advisers was my legal hero, UC Berkeley Law Professor John Yoo.

Yoo was given the job of evaluating both the failed war on crime model and the partially-fleshed out doctrine of active defense developed during the Ronald Reagan era. That model was largely the result of Reagan adviser George Schultz’s policy of “active prevention, preemption, retaliation, and deterrence. Yoo was asked to use his experience and constitutional brilliance to determine how the war on terror could be conducted within the international rules of war, the Constitution and American law.

Yoo offered his opinion on preemptive strikes, international cooperation, clandestine activities, use of the CIA in war zones, military black ops, and most controversial of all, enhanced interrogation. For deeper background, you can go to my July 2009 article and Professor Yoo’s own war with the Obama administration: Yoo Hoo? Barack Hussein Obama came into office promising to wave his hand and bring peace on earth, end all war by making nice-nice with Islamic terrorists and Middle East dictators, closing Guantanamo, and quickly terminating the wars in Iraq and Afghanistan by the sheer force of his toothy grin.

Part of Obama’s agenda for election and subsequent foreign policy was to damn pretty much everything Bush had accomplished, including obtaining vital intelligence by less-than-pretty interrogation techniques. As the face of legal justification for the Bush actions, John Yoo found himself in the crosshairs of the Obama politicization of war, the Eric Holder Justice Department back-to-the-war-on-crime-model legal philosophy, and the entire antiwar anti-American left. Yoo was investigated for having provided “inhumane” advice to the President, and finally sued by (of all people) shoe-bomber Jose Padilla.

Padilla claimed that Yoo’s advice resulted in his torture at the hands of military and civilian interrogators. In order to advance his own liberal agenda, Obama not only had the DOJ conduct extensive investigations on Yoo’s activities while a Bush adviser, but also pointedly nominated a far-left law professor from Yoo’s own law school to the Ninth Circuit Court of Appeal. The Senate rejected Yoo’s nemesis, twice, for being far outside the mainstream of American jurisprudence. For some background on that nominee, you can go to Perfect Nominee.

That same Ninth Circuit Court heard arguments from the trial courts which had placed Yoo and the Bush doctrine in legal jeopardy. The case hinged on two principles: Were the techniques used on Padilla legal and constitutional as defined by law at the time of the alleged torture, and was Yoo immune from prosecution for giving the president advice on interrogation techniques? And amazingly, on May 2 the most-reversed and farthest left federal appellate court in the United States found in Yoo’s favor without reservation.

And not only was Yoo vindicated and the suit dismissed, but the justices announced its support of principles which will easily survive any challenge at the current Supreme Court if such a challenge is even launched. First, the court held that government officials are immune from private litigation for their national security advice and decisions. Second, the decision upholds the Reagan-Bush doctrine over the Clinton-Obama doctrine. It clearly states that terrorists are enemy combatants subject to the rules of war not to the civilian courts. The government can choose to treat terrorists as common criminals, but it is not required to do so.

Yoo advised Bush that the Third and Fourth Geneva conventions (upon which the DOJ and Padilla relied) did not address issues related to asymmetrical war and terrorism not officially supported by any recognizable national entity. The scum caught up in the cases Yoo’s advice addressed did not qualify as genuine prisoners of war, since such prisoners under the Conventions must qualify as lawful combatants at the time of capture, be wearing a recognizable uniform, be part of a recognizable chain-of-command, openly bearing arms, and serving in the armed forces of one of the states having signed the Geneva Conventions.

Neither Padilla nor any of the current “Guantanamo Five” come even close to fitting into the category of lawful combatant as defined by the Geneva Conventions. In fact, the Conventions don’t address “terrorism” at all, but the terrorists do fit nicely into the category of unlawful combatants and even “spies.” Yoo said that they were not entitled to any of the traditional protections of prisoners of war. Obama and Holder both wanted to grant them rights nearly tantamount to those of an American citizen charged with a crime committed within the territorial confines of the United States. When Yoo wouldn’t agree with them, they went after him.

Naturally, the biggest issue was the much kicked-around interrogation technique of waterboarding. The court held that the definition of torture can be expanded or contracted by the administration in power. But the court also made it clear that both Congress and the administration at that time had given their imprimatur to the technique. The change in the definition of torture by the Obama administration does not affect activities which went before the change, and if allowed as the basis of a lawsuit would effectively be the equivalent of a constitutionally impermissible ex post facto law.

So I congratulate the Ninth Circuit for making a rare sensible decision which will, if necessary, hold up to scrutiny by the Supreme Court. But more than that, I applaud the vindication of Professor John Yoo. In celebration of Yoo’s victory, I also include a picture of the restored USS Cole. Both prove that you can’t keep a good American down.