John Yoo

Following the Supreme Court decision preventing the immediate repeal of DACA, Yoo argued that it could paradoxically allow a president to create unilateral policies that were very difficult to remove quickly, even when based on a questionable interpretation of executive authority. Donald Trump and his advisers took an interest in this theory, and Yoo discussed it with the President and White House officials.

State of the evidence

Documented

Attribution

Close aide

José Padilla, an American citizen detained as an 'enemy combatant', sued Yoo, claiming that his legal opinions had contributed to his detention and treatment that he characterised as torture. In 2012, the Ninth Circuit Court of Appeals dismissed the claims against Yoo on qualified immunity grounds.

State of the evidence

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Accused

The DOJ's Office of Professional Responsibility investigated Yoo and Jay Bybee's conduct in drafting the interrogation memoranda over several years. The OPR had concluded that professional misconduct had occurred, but senior career official David Margolis rejected that disciplinary classification and concluded that the authors had exercised 'poor judgment', conduct markedly different from what the Department expected of a lawyer exercising sound judgement.

In a memo dated 23 October 2001, Yoo and Robert Delahunty argued for very broad presidential powers to use military force against terrorist activities on American territory, with analyses minimising the ordinary application of constitutional protections in certain circumstances. In 2008, the OLC formally warned that several propositions in the memo should no longer be regarded as authoritative.

State of the evidence

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Directly implicated

In a secret memorandum to the Department of Defense dated 14 March 2003, Yoo argued that several federal criminal laws should not be interpreted as restricting the interrogation of enemy combatants where they encroached on the President's prerogatives as Commander-in-Chief. The document expressed an exceptionally broad interpretation of executive power.

Attribution

Directly implicated

Yoo drafted the first series of legal memoranda supporting the President's Surveillance Program, which authorised forms of electronic surveillance after 9/11 outside the ordinary FISA framework. The joint inspectors general report noted that it was extraordinary and inappropriate for only one OLC lawyer to be responsible for the initial analysis and found that restrictions on access had contributed to a legal analysis that was, at a minimum, factually flawed.

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Directly implicated

Yoo participated in a series of OLC opinions on the application of the Geneva Conventions to people captured in Afghanistan. These analyses contributed to a legal framework in which Al-Qaeda was regarded as falling outside prisoner-of-war status and the Taliban as not meeting the conditions for that status. This legal framework was strongly challenged by legal scholars, military personnel and human rights advocates.

State of the evidence

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Close aide

Yoo played a central role in drafting the 1 August 2002 opinion addressed to Alberto Gonzales, commonly known as the 'torture memo'. The text adopted a highly restrictive definition of the physical or mental pain required to constitute torture and developed a theory under which the Commander-in-Chief's powers could limit the application of certain criminal prohibitions to wartime interrogation. The memo provided the legal basis for authorising enhanced interrogation techniques.

Attribution

Directly implicated

In an Office of Legal Counsel opinion signed on 25 September 2001, John Yoo defended an exceptionally broad interpretation of the President's constitutional authority to use military force against terrorists and states supporting them. The text notably asserted that presidential decisions concerning the threat, the amount of force and the form of response could not be limited by Congress and, under this interpretation, were essentially matters for the President.

State of the evidence

Documented

Attribution

Directly implicated