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At the time, Yoo was a top deputy in the Justice Department's Office of Legal Counsel. Although obscure to anyone outside the Beltway, the OLC is one of the most important divisions of the executive branch. Its job is to interpret law and to be the president's official legal opinion writer. As a result, its opinions and memos carry the weight of the law, unless the courts later overturn them. Most important, the OLC opinions legally insulate from criminal prosecution anyone who follows them. As a result, the department's work has a long history of being unbiased, thoroughly researched, and based on sound legal footing, according to Goldsmith, who became head of the office in 2003.
But with Yoo's pen, that all changed. The office suddenly became a rubber stamp for whatever Bush and Cheney wanted. Yoo, according to Goldsmith, "wrote opinion after opinion approving every aspect of the administration's aggressive antiterrorism efforts." Government officials, Goldsmith explained, were deathly worried about a future administration, especially a Democratic one, investigating them for criminal acts. So they wanted — and needed — legal opinions that would inoculate them. They viewed Yoo as "a godsend," Goldsmith said. "The opinions made Yoo enormously valuable to the White House after 9/11 and gave him extraordinary influence within the administration."
Yoo apparently authored one of his first controversial memos in October 2001, about five weeks after 9/11. Some believe the opinion likely formed the basis of the administration's warrantless eavesdropping program. First revealed by The New York Times in 2005, the program allowed government officials, without getting a warrant, to secretly listen to phone conversations of Americans whom they believed had contacts with terrorists. The October 2001 memo, which since has been rescinded but most of which still remains classified, stated boldly that the Fourth Amendment's broad prohibition against search and seizure without a warrant "had no application to domestic military operations" in the war on terror. The existence of the memo was revealed in a footnote in Yoo's second torture memo.
As for the first torture memo, Yoo wrote it in 2002 after the capture of Abu Zubaydah, a man the Bush administration touted as the first high-level al-Qaeda operative to be arrested after 9/11. In an interview with Esquire magazine published last month on its web site, Yoo acknowledged being under "time pressure" to finish the memo because of Zubaydah's arrest. FBI agents had been questioning Zubaydah using traditional law-enforcement interrogation techniques, but CIA officials were reportedly growing impatient and believed that they needed to use much harsher methods to make Zubaydah crack. After working feverishly for weeks, the Berkeley law professor finished the opinion in August 2002. One of the memo's main provisions was that it altered the traditional definition of torture to make it easier for interrogators to use aggressive tactics that previously had been illegal.
Under Yoo's new definition, it wasn't torture unless the interrogator was inflicting pain "associated with a sufficiently serious physical condition or injury, such as death, organ failure, or serious impairment to body functions." Yoo told Esquire that he decided to use this highly technical wording because he believed the traditional definition was too "blurry." "I didn't want the opinion to be vague so that the people who actually have to carry these things out don't have a clear line, because I think that would be very damaging," he said.
But the memo went much farther than moving the bar on torture. Even if the interrogators committed torture under Yoo's new definition, Goldsmith noted that the memo told them "they could still avoid criminal liability by invoking a necessity defense (on the theory that torture may be necessary to prevent a catastrophic harm) or self defense (on the theory that the interrogators were acting to save the country or themselves)." To top it off, Yoo's memo, according to Goldsmith, concluded that existing domestic and international laws against torture, from the Uniform Code of Military Justice to the Geneva Conventions, violate the president's wartime commander-in-chief powers and thus are unconstitutional. In short, Yoo said torture was legally defensible in court, which in effect, meant that it was.
Goldsmith said CIA officers called the memo the "Golden Shield."
In his 2006 book, The One Percent Doctrine, investigative reporter Ron Suskind described Zubaydah's interrogation by the CIA. "According to CIA sources, he was waterboarded, a technique in which a captive's face is covered with a towel as water is poured atop, creating the sensation of drowning," Suskind wrote. "He was beaten ... He was repeatedly threatened, and made certain of his impending death. His medication was withheld. He was bombarded with deafening, continuing noise and harsh lights."
Waterboarding dates to the Spanish Inquisition and has long been considered torture. Indeed, American tribunals prosecuted and convicted Japanese soldiers for waterboarding after World War II. The Bush administration has acknowledged waterboarding Zubaydah, but has maintained that it wasn't torture — apparently in reference to Yoo's new definition.
The president also has contended that under "enhanced interrogation techniques," Zubaydah gave up important intelligence, including helping indentify Khalid Sheikh Mohammed, the self-professed chief planner of the 9/11 attacks. But according to Suskind and reporter David Johnston of The New York Times, the White House's claims about Zubaydah were wildly overblown. It turns out, he was nothing more than a glorified al Qaeda travel agent with severe mental problems who provided almost no vital information. Suskind reported that US officials actually captured Mohammed thanks to a cooperative source who guided CIA agents to his safe house. The US government then paid that tipster a $25 million reward and safely relocated him and his extended family in the United States.
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