John Yoo

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After law school, Yoo clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit from 1992 to 1993 and for Justice Clarence Thomas of the U.S. Supreme Court from 1994 to 1995. He served as general counsel of the Senate Judiciary Committee from 1995 to 1996.

Yoo has been a professor at the University of California, Berkeley, School of Law since 1993, where he is Emanuel S. Heller Professor of Law. He has written multiple books on presidential power and the war on terrorism, and many articles in scholarly journals and newspapers. He has held the Fulbright Distinguished Chair in Law at the University of Trento and has been a visiting law professor at the Free University of Amsterdam, the University of Chicago, and Chapman University School of Law. Since 2003, Yoo has also been a visiting scholar at the American Enterprise Institute, a conservative think tank in Washington. He wrote a monthly column, "Closing Arguments", for The Philadelphia Inquirer. He has written academic books including Crisis and Command.

Yoo has been principally associated with his work from 2001 to 2003 in the Department of Justice's Office of Legal Counsel (OLC) under Attorney General John Ashcroft during the George W. Bush Administration. Yoo's expansive view of presidential power led to a close relationship with Vice President Dick Cheney's office. He played an important role in developing a legal justification for the Bush administration's policy in the war on terrorism, arguing that prisoner of war status under the Geneva Conventions does not apply to "enemy combatants" captured during the war in Afghanistan and held at the Guantánamo Bay detention camp.

In what was known as the Bybee memo, Yoo asserted that executive authority during wartime allows waterboarding and other forms of torture, which were euphemistically referred to as "enhanced interrogation techniques". Yoo's memos narrowly defined torture and American habeas corpus obligations. They authorized what were called "enhanced interrogation techniques" and were issued to the CIA. Yoo argued in his legal opinion that the president was not bound by the American War Crimes Act of 1996. Yoo's legal opinions were not shared by everyone within the Bush Administration. Secretary of State Colin Powell strongly opposed what he saw as an invalidation of the Geneva Conventions, while U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's opinions. In December 2003, Yoo's memo on permissible interrogation techniques, also known as the Bybee memo, was repudiated as legally unsound by the OLC, then under the direction of Jack Goldsmith.

In June 2004, another of Yoo's memos on interrogation techniques was leaked to the press, after which it was repudiated by Goldsmith and the OLC. On March 14, 2003, Yoo wrote a legal opinion memo in response to the General Counsel of the Department of Defense, in which he concluded that torture not allowed by federal law could be used by interrogators in overseas areas. Yoo cited an 1873 Supreme Court ruling, on the Modoc Indian Prisoners, where the Supreme Court had ruled that Modoc Indians were not lawful combatants, so they could be shot, on sight, to justify his assertion that individuals apprehended in Afghanistan could be tortured.

Yoo's contribution to these memos has remained a source of controversy following his departure from the Justice Department; he was called to testify before the House Judiciary Committee in 2008 in defense of his role. The Justice Department's Office of Professional Responsibility (OPR) began investigating Yoo's work in 2004 and in July 2009 completed a report that was sharply critical of his legal justification for waterboarding and other interrogation techniques. The OPR report cites testimony Yoo gave to Justice Department investigators in which he claims that the "president's war-making authority was so broad that he had the constitutional power to order a village to be 'massacred.'" The OPR report concluded that Yoo had "committed 'intentional professional misconduct' when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects," although the recommendation that he be referred to his state bar association for possible disciplinary proceedings was overruled by David Margolis, another senior Justice department lawyer.

In 2009, President Barack Obama issued Executive Order 13491, rescinding the legal guidance on interrogation authored by Yoo and his successors in the Office of Legal Counsel.

In December 2005, Doug Cassel, a law professor from the University of Notre Dame, asked Yoo, "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied, "No treaty." Cassel followed up with "Also no law by Congress—that is what you wrote in the August 2002 memo," to which Yoo replied, "I think it depends on why the President thinks he needs to do that."

Glenn Greenwald has argued that Yoo could potentially be indicted for crimes against the laws and customs of war, the crime of torture, and/or crimes against humanity. Criminal proceedings to this end have begun in Spain: in a move that could have led to an extradition request, Judge Baltasar Garzón in March 2009 referred a case against Yoo to the chief prosecutor. The Spanish Attorney General recommended against pursuing the case.

On November 14, 2006, invoking the principle of command responsibility, the German attorney Wolfgang Kaleck filed a complaint with the Attorney General of Germany (Generalbundesanwalt) against Yoo, along with 13 others, for his alleged complicity in torture and other crimes against humanity at Abu Ghraib in Iraq and Guantánamo Bay. Kaleck acted on behalf of 11 alleged victims of torture and other human rights abuses, as well as about 30 human rights activists and organizations. The co-plaintiffs to the war crimes prosecution included Adolfo Pérez Esquivel, Martín Almada, Theo van Boven, Sister Dianna Ortiz, and Veterans for Peace. Responding to the so-called "torture memoranda," Scott Horton noted

Legal scholars speculated shortly thereafter that the case has little chance of successfully making it through the German court system.

Jordan Paust of the University of Houston Law Center concurred with supporters of prosecution and in early 2008 criticized the US Attorney General Michael Mukasey's refusal to investigate and/or prosecute anyone who relied on these legal opinions:

In 2009, the Spanish Judge Baltasar Garzón Real launched an investigation of Yoo and five others (known as the Bush Six) for war crimes.

On April 13, 2013, the Russian Federation banned Yoo and several others from entering the country because of alleged human rights violations. The list was a direct response to the so-called Magnitsky list revealed by the United States the day before. Russia stated that Yoo was among those responsible for "the legalization of torture" and "unlimited detention".

After the December 2014 release of the executive summary of the Senate Intelligence Committee report on CIA torture, Erwin Chemerinsky, then the dean of the University of California, Irvine School of Law, called for the prosecution of Yoo for his role in authoring the Torture Memos as "conspiracy to violate a federal statute".

On May 12, 2012, the Kuala Lumpur War Crimes Commission found Yoo, along with former President Bush, former Vice President Cheney, and several other senior members of the Bush administration, guilty of war crimes in absentia. The trial heard "harrowing witness accounts from victims of torture who suffered at the hands of US soldiers and contractors in Iraq and Afghanistan".

Yoo provided a legal opinion backing the Bush Administration's warrantless wiretapping program. Yoo authored the October 23, 2001 memo asserting that the President had sufficient power to allow the NSA to monitor the communications of US citizens on US soil without a warrant (known as the warrantless wiretap program) because the Fourth Amendment does not apply. As another memo says in a footnote, "Our office recently concluded that the Fourth Amendment had no application to domestic military operations." That interpretation is used to assert that the normal mandatory requirement of a warrant, under the Foreign Intelligence Surveillance Act, could be ignored.

In a 2006 book and a 2007 law review article, Yoo defended President Bush's terrorist surveillance program, arguing that "the TSP represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during wartime". He claimed that critics of the program misunderstand the separation of powers between the President and Congress in wartime because of a failure to understand the differences between war and crime, and a difficulty in understanding the new challenges presented by a networked, dynamic enemy such as Al Qaeda. "Because the United States is at war with Al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." In a Wall Street Journal opinion piece in July 2009, Yoo wrote it was "absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States."

In December 2020, President Donald Trump appointed Yoo to a four-year term on the National Board for Education Sciences, which advises the Department of Education on scientific research and investments.

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