John Yoo's war powers: The law review and the world

California Law Review

Volumn 100, Issue 2, 2012, Pages 331-364

  Alexander, Janet Cooper ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 84860197382     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (113)

1. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CALIF. L. REV. 167 (1996) [hereinafter Yoo, War Powers].
2. Memorandum from John C. Yoo, Deputy Ass't Att'y Gen., Office of Legal Counsel, to the Deputy Counsel to the President, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) [hereinafter Military Operations Memo], available at http://www.usdoj.gov/olc/warpowers925.htm.
3. Louis Fisher, John Yoo and the Republic, 41 PRESIDENTIAL STUD. Q. 177 (2011) ("With this publication, Yoo attracted attention as a major scholar on the war power and national security law.").
4. See JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR passim (2006);
5. Tim Golden, A Junior Aide Had a Big Role in Terror Policy, N.Y. TIMES, Dec. 23, 2005, at Al.
6. See Memorandum from David J. Barron, Acting Ass't Att'y Gen., Office of Legal Counsel, to Attorneys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions 1 (July 16, 2010), available at http://www.justice. gov/olc/pdf/olc-legal-advice-opinions.pdf ("OLC's core function ⋯ is to provide controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government");
7. Memorandum from Steven G. Bradbury, Principal Deputy Ass't Att'y Gen., Office of Legal Counsel, to Attorneys of the Office, Re: Best Practices for OLC Opinions 1 (May 16, 2005), available at http://www.justice.gov/olc/best- practices-memo.pdf ("OLC opinions are controlling on questions of law within the Executive Branch");
8. Dawn E. Johnson, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV. 1559, 1577 (2007) (same);
9. Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 COLUM. L. REV. 1448, 1464 (2010) (same);
10. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV. 1303 (2000) (same).
11. Yoo is acknowledged to have been "directly responsible for the contents of the 2003 Yoo Memo, the Torture Memo, the Classified Bybee Memo, the July 13 Letter, and the Yoo Letter. See OFFICE OF PROF'L RESPONSIBILITY, DEP'T OF JUSTICE, INVESTIGATION INTO THE OFFICE OF LEGAL COUNSEL'S MEMORANDA CONCERNING ISSUES RELATED TO THE CENTRAL INTELLIGENCE AGENCY'S USE OF "ENHANCED INTERROGATION TECHNIQUES" ON SUSPECTED TERRORISTS 251-52 (July 29, 2009) [hereinafter OPR FINAL REPORT], available at http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf.
12. Memorandum from Jay S. Bybee, Ass't Att'y Gen., Office of Legal Counsel, Dep't of Justice, to Alberto R. Gonzales, Counsel to the President, Standards of Conduct in Interrogation Under 18 U.S.C. §§ 2340-2340A, at 34 (Aug. 1, 2002) [hereinafter Torture Memo], available at http://www.washingtonpost.com/ wp-srv/nanon/documents/dojinterrogationmemo20020801.pdf. This memo has been commonly referred to as "the Torture Memo" or "the Bybee Memo."
13. Torture Memo, supra note 17, at 31; Memorandum from John C. Yoo, Deputy Ass't Att'y Gen., to William J. Haynes, II, Gen. Counsel for the Dep't of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States 13 (Mar. 14, 2003) [hereinafter Yoo Memo], available at http://www.fas.org/irp/agency/doj/olc-interrogation.pdf. This far-reaching memorandum was dated the day after Bybee's appointment to the Ninth Circuit was confirmed.
14. Memorandum from Patrick F. Philbin, Deputy Ass't Att'y Gen. and John C. Yoo, Deputy Ass't Att'y Gen., to William J. Haynes, II, Gen. Counsel, Dep't of Defense, Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (Dec. 28, 2001), available at http://www.torturingdemocracy.org/documents/ 20011228.pdf (stating that federal district court could not exercise habeas jurisdiction over alien held at Guantanamo).
15. Memorandum from John C. Yoo to David J. Bryant, Ass't Att'y Gen., Re: Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens 1 (June 27, 2002), available at http://www.justice.gov/opa/documents/ memodetentionuscitizens06272002.pdf. The memorandum asserts that § 4001(a), passed in connection with repeal of the Emergency Detention Act, which had been used to intern thousands of Japanese-American citizens during World War II, applies "exclusively to the federal civilian prison system." Id. at 7.
16. See also Letter from John C. Yoo, Deputy Ass't Att'y Gen., to William J. Haynes II, Gen. Counsel, Dep't of Defense 9 (Feb. 7, 2003), available at http://www.aclu.org/files/assets/olc-aclu-ii-2-7-03-full-doc-w-cover-sheet.pdf (attaching white paper titled Response to the Preliminary Report of the ABA Task Force on Treatment of Enemy Combatants).
17. Yoo Memo, supra note 19, at 45; see also Letter from John C. Yoo, Deputy Ass't Att'y Gen., Office of Legal Policy, Dep't of Justice, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002) [hereinafter Yoo Letter], available at http://news.findlaw.com/hdocs/docs/doj/bybee801021tr.html; Torture Memo, supra note 17.
18. Memorandum from Jay Bybee, Ass't Att'y Gen., Office of Legal Counsel, Dep't of Justice, to John Rizzo, Acting Gen. Counsel, Central Intelligence Agency, Interrogation of Al Qaeda Operative 2 (Aug. 1, 2002), available at http://s3.amazonaws.com/propublica/assets/missing-memos/OLCfinalRedact-01-08-02. pdf (stating that in this technique the interrogator "firmly pushes" the individual into a "flexible wall made of plywood").
19. Memorandum from Jay S. Bybee, Ass't Att'y Gen., Office of Legal Counsel, Dep't of Justice, to Alberto R. Gonzales, Counsel to the President, Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1959 (Feb. 7, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/020207.pdf;
20. Memorandum from John C. Yoo, Deputy Ass't Att'y Gen. and Robert J. Delahunty, Special Counsel, to William J. Haynes, II, Gen. Counsel, Dep't of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9, 2002) [hereinafter Yoo Treaties and Laws Memo], available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf.
21. Yoo Treaties and Laws Memo, supra note 30; Memorandum from Jay S. Bybee, Ass't Att'y Gen., Office of Legal Counsel, Dep't of Justice, to Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, Gen. Counsel, Dep't of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002), available at http://www.justice.gov/olc/docs/tnemo- laws-taliban-detainees.pdf.
22. Memorandum from Jay S. Bybee, Office of Legal Counsel, to William J. Haynes, II, Gen. Counsel, Dep't of Defense, Re: The President's Power as Commander in Chief to Transfer Captures Terrorists to the Control and Custody of Foreign Nations 1, 6 (Mar. 13, 2002), available at http://www.fas.org/irp/ agency/doj/olc/transfer.pdf (arguing that the President has "plenary power to dispose of the liberty of military detainees").
23. Memorandum from John C. Yoo and Robert J. Delahunty to Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, Gen. Counsel, Dep't of Defense, Authority for Use of Military Force to Combat Terrorist Activities Within the United States 6-7 (Oct 23, 2001) [hereinafter Military Force within the Unted States Memo], available at http://www.justice.gov/olc/ docs/memomilitaryforcecombatusl0232001.pdf (stating that the President's power over the use of military force is "plenary" and "[s]uch unenumerated power includes the authority to use military force, whether at home or abroad, in response to a direct attack upon the United States").
24. Memorandum from John C. Yoo, Deputy Ass't Att'y Gen., to the Att'y Gen., (Nov. 2, 2001), available at https://webspace.utexas.edu/rmc2289/OLC 131.FINAL.PDF. This memorandum opinion as released has been redacted within an inch of its life, but it is clear that it declares that if the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. ch. 36, were read to restrict the President's ability to conduct electronic surveillance for national security purposes it would be unconstitutional; that Congress may not "restrict the President's inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack"; and that "intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures." Id at 9,17.
25. Memorandum from Jay S. Bybee, Head of the Office of Legal Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Defense, Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan (Feb. 26, 2002), available at http://www.gwu.edu/ ~nsarchiv/NSAEBB/NSAEBB127/02.02.26.pdf.
26. Cass R. Sunstein, The 9/11 Constitution, NEW REPUBLIC, Jan. 16, 2006, at 21
27. (reviewing JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11(2005)).
28. Selected Works of John C. Yoo, BERKELEY ELECTRONIC PRESS, http://woiks.bepress.com/johnyoo/23 (last visited Jan. 9,2012).
29. Jeffrey Rosen, The Yoo Presidency, N.Y. TIMES MAG., Dec. 11, 2005, at 106;
30. see also Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1563 (2002) [hereinafter, Textualism] (stating that Yoo provided "the most powerful modern indictment of the conventional academic view" of Congress's war powers).
31. See LITTLE SHOP OF HORRORS (The Filmgroup 1960);
32. ALAN MENKEN & HOWARD ASHMAN, LITTLE SHOP OF HORRORS (Broadway Musical 1982); LITTLE SHOP OF HORRORS (Warner Bros. Pictures 1986). Audrey - technically, Audrey II - was a man-eating monster plant in the play and films.
33. JOHN C. Yoo, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005) [hereinafter YOO, POWERS OF WAR AND PEACE];
34. JOHN C. YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR (2006);
35. JOHN C. YOO, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH (2010) [hereinafter YOO, CRISIS AND COMMAND].
36. See, e.g., Scott Shane & Charlie Savage, Harsh Methods of Questioning Debated Again, N.Y. TIMES, May 3, 2011, at A1 ("[A] closer look at prisoner interrogations suggests that the harsh techniques played a small role at most in identifying Bin Laden's trusted courier and exposing his hideout").
37. John Yoo, Op-Ed, From Guantcmamo to Abbottabad, WALL ST. J., May 4, 2011, http://onlme.wsj.com/article/SB10001424052748703834804576301032595527372.html (killing of bin Laden "vindicate[d]" the "tough interrogations" of Khalid Sheikh Mohammad and Abu Faraj al-Libi; "President George W. Bush, not his successor, constructed the interrogation and warrantless surveillance programs that produced this week's actionable intelligence.");
38. see also Dahlia Lithwick, You Say Torture, I Say Coercive Interrogation, SLATE (Aug. 1, 2011, 6:04 PM), http://www.slate.com/id/2300550 (quoting Yoo at the Aspen Security Forum, July 27, 2011: 'Take a look at how we were able to kill al-Qaida's leader this year. How did we get the intelligence for finding Bin Laden's couriers and ultimately Bin Laden? It was a combination of interrogation methods, sometimes tough or harsh, you can call it torture. I don't call it torture. You can repeat the word torture all the time, I can repeat coercive interrogation all the time.").
39. Andrew Cohen, The Unrepentant John Yoo: "Enhanced Interrogation" Got Us Bin Laden, ATLANTIC, May 5, 2011, http://www.theatlantic.com/politics/archive/2011/05/the-unrepentant-john-yoo- enhanced-interrogation-got-us-bin-laden/238356.
40. This was the only time that "the Founders" assembled in a single room and agreed to adopt a text they had created. See, e.g., CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEANING OF THE FOUNDERS' CONSTITUTION (2005).
41. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (1997);
42. Michael D. Ramsey, Toward a Rule of Law in Foreign Affairs, 106 COLUM. L. REV. 1450, 1451 (2006) [hereinafter Ramsey, Book Review] (reviewing YOO, POWERS OF WAR AND PEACE, supra note 46).
43. Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U. CHI. L. REV. 377, 378 n.2 (2011)
44. (quoting Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, 67 LAW & CONTEMP. PROBS. 169, 171 (2004)).
45. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788 (2010). "War powers" are mentioned on only seven pages of the book, mostly inconsequentially, and the discussions cited in the index of the executive power, the military power of the President, and the President's powers have almost nothing to say about the President's war powers.
46. See Jane E. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 YALE L.J. 845 (1999) (reviewing LOUIS FISHER, PRESIDENTIAL WAR POWER (1995)) ("[H]is account is at odds with the ample evidence that the Framers decided quite deliberately to change the British system by transferring the power to initiate war (and not simply to formally 'declare' it) from the executive to the legislative branch").
47. See FISHER, PRESIDENTIAL WAR POWER, supra note 76, at 8-10;
48. Stephen M. Griffin, Reconcetving the War Powers Debate 18 (Oct. 13, 2011) (Tulane Public Law Research Paper No. 11-06), available at http://ssrn.com/ abstract=1943652.
49. Stuart Stretchier, Mad About Yoo, or Why Worry About the Next Unconstitutional War?, 24 J.L. & POL. 93, 98 (2008) (emphasis removed) (quoting James Madison, Helvidius No. 1 (1845)).
50. Fisher, John Yoo and the Republic, supra note 11, at 180;
51. see also Ramsey, Book Review, supra note 58, at 1460, 1466-67;
52. D.A. Jeremy Telman, A Truism That Isn't True? The Tenth Amendment and Executive War Power, 51 CATH. U. L. REV. 135, 182-87 (2001) (pointing out the same disparity).
53. FISHER, PRESIDENTIAL WAR POWER, supra note 76, at 5. Yoo quotes this statement for the proposition that the Framers understood that "vesting the President with all 'executive powers' would give him the power over war and peace." Yoo, War Powers, supra note 1, at 278. Yoo's claim is diametrically opposed to Wilson's statement, which clearly says that the power "of war & peace" is "of a Legislative nature." Yoo, War Powers, supra note 1, at 286 n.547.
54. FISHER, PRESIDENTIAL WAR POWER, supra note 76, at 5.
55. Fisher, John Yoo and the Republic, supra note 11, at 185.
56. Fisher, John Yoo and the Republic, supra note 11, at 186.
57. Fisher, John Yoo and the Republic, supra note 11, at 180.
58. Fisher, John Yoo and the Republic, supra note 11, at 187 (quoting Washington);
59. Fisher, John Yoo and the Republic, supra note 11, at 185.
60. See Louis Fisher, Unchecked Presidential Wars, 148 U. PA. L. REV. 1637, 1652-54, 1663-64(2000).
61. Abraham D. Sofaer, The Power over War, 50 U. MIAMI L. REV. 33, 50-51 (1995).
62. Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801); United States v. Smith, 27 F. Cas. 1192,1230 (C.C.D.N.Y. 1806) (No. 16,342) ("Does [the President] possess the power of making war? That power is exclusively vested in congress[It is] the exclusive province of congress to change a state of peace into a state of war."). See Fisher, John Yoo and the Republic, supra note 11, at 181 (discussing these cases).
63. See John Fabian Witt, Anglo-American Empire and the Crisis of the Legal Frame (Will the Real British Empire Please Stand Up?), 120 HARV. L. REV. 754, 765-68 (2007).
64. Fisher, John Yoo and the Republic, supra note 11, at 184.
65. David Gray Adler, George Bush and the Abuse of History: The Constitution and Presidential Power in Foreign Affairs, 12 UCLA J. OF INT'L L. & FOREIGN AFF. 75, 76-77, 88-89 (2007); Telman, supra note 87, at 183 ("The Framers flat-out rejected the theory of executive power that Yoo claims they incorporated into the Constitution.").
66. Fisher, John Yoo and the Republic, supra note 11, at 185; Stromseth, supra note 72, at 860 a79 ("Yoo's formalistic reading ⋯ does not square, however, with the powerful evidence that the Founders understood Congress to possess the power to decide whether the United States should initiate or commence war against another state with which the United States was at peace").
67. See generally Jack N. Rakove, Remarks on The American Presidency at War: The Imperial Presidency and the Founding at the University of California, Berkeley, School of Law (Sept 19, 2008) ("[W]hat is the historical story one could tell, that would say, the Framers of our Constitution, once they started thinking about this, would have wound up with a more monarchical position than that that would have been practiced in Britain in the early 1780's? It just, to me, is completely implausible as a matter of what they were thinking, how they were speaking, what they were debating."). Video of Professor Rakove's remarks is available at http://www.youtube.com/watch?v= 4WmtK4dkZik&feature=related and http://www.youtube.com/watch?v=xuxNcl4u8ng. The panel also included John Yoo, Louis Fisher, and Gordon Silverstein.
68. Ramsey, Book Review, supra note 58, at 1451-52.
69. Fisher, John Yoo and the Republic, supra note 11, at 180-81 ("Apparently no capacity existed at the law review to ask pertinent questions and require answers⋯. The students who edited Yoo's article should have independently examined his claim. ⋯ Students at the California Law Review should have insisted on coherence, consistency, and clarity in Yoo's article. No such obvious contradiction would be permitted in a scholarly journal.");
70. see also ROBERT J. SPITZER, SAVING THE CONSTITUTION FROM LAWYERS: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING (2008).
71. See, e.g., Richard A. Posner, Against the Law Reviews, LEGAL AFF., Nov./Dec. 2004, at 57, available at http://legalaffairs.org/issues/November- December-2004/review-posner-novdec04.msp.
72. Yoo's methodology has been praised by some, including some who disagree with his conclusions. See, e.g., Michael D. Ramsey, Text and History in the War Powers Debate: A Reply to Professor Yoo, 69 U. CHI. L. REV. 1685, 1696 (2002) (stating author "has little quarrel with the historical account" in War Powers, though, as a "textual originalist" like Yoo, he finds Yoo's understanding of the meaning of "declare war" to be too narrow);
73. Martin S. Flaherty, History Right? Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land" 99 COLUM. L. REV. 2095, 2098-100 (1999) (Yoo's work on treaties shows "superior rigor" to most "originalist accounts of history" though author disagreed with his conclusions);
74. Jack Rakove, John Yoo on Why the President is King, WASH. POST, Jan. 10, 2010, at B1 (Crisis and Command is a "deeply serious history, of the presidency, sometimes selective in its emphasis").
75. Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367, 372 (2004).
76. See Michele Landis Dauber, The Big Muddy, 57 STAN. L. REV. 1899, 1909-11 (2005) (describing media reactions).
77. 57 STAN. L. REV. 1807 (2005).
78. David L. Shapiro, Ex parte Young and the Uses of History, 67 N.Y.U. ANN. SURV. AM. L. 69,87 (2011). Professor Shapiro observes that we see the past through the prism of our own preferences, especially when we are using the past to support an argument about how to deal with the present. Moreover, I am convinced that this frailty is given strength by the almost inevitable ambiguity of the raw materials themselves, by the almost infinite expansiveness of those materials, and by the difficulty of fully understanding - not just intellectually but emotionally - the context in which the materials had their origin. Id. at 88.
79. See Home, PEER REVIEWED SCHOLARSHIP MARKETPLACE (PRSM), http://legalpeerreview.org/index.php (last visited Jan. 8, 2012). Of course a peer-reviewing service would be more difficult to create than a submission service such as ExpressO, which does not evaluate the submissions.
80. The ExpressO service is described at ExpressO: Express Online Deliveries, BEPRESS, http://law.bepress.com/expresso (last visited Jan. 10,2012).
81. PRSM invites "all members of the legal profession - judges, professors, and practitioners" to apply to become reviewers. Reviewers, PEER REVIEWED SCHOLARSHIP MARKETPLACE (PRSM), http://legalpeerreview.org/ reviewers.php (last visited Jan. 10,2012).
82. One example is the series of articles published in the Harvard Law Review on John Hart Ely's classic work on Erie. See John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693 (1974);
83. Abraham Chayes, Some Further Last Words on Erie - The Bead Game, 87 HARV. L. REV. 741 (1974);
84. Ely, Some Further Last Words on Erie - The Necklace, 87 HARV. L. REV. 753 (1974);
85. Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 HARV. L. REV. 1682 (1974). A recent example is David Shapiro's response to John Harrison's revisionist reading of Ex parte Young, supra note 153.
86. See Clarias batrachus, SMITHSONIAN MARINE STATION AT FT. PIERCE, http://www.sms.si.edu/irlspec/clarias-batachus.htm (last visited Jan. 8,2012).
87. See Fisher, Unchecked Presidential Wars, supra note 105, at 1658-68; Stromseth, supra note 72; Telman, supra note 87.
88. See, e.g., Kevin Drum, FEMA 's Failures, WASH. MONTHLY (Sept. 12, 2005, 1:57 AM), http//www.washingtorrnionthly.com/archives/individual/2005-09/007104. php (noting that neither Joe Allbaugh, appointed to head FEMA in January 2001, nor Michael Brown, who succeeded him in December 2002, had any previous experience in disaster management; disaster specialists on FEMA's top staff were replaced by inexperienced political appointees);
89. SELECT BIPARTISAN COMM. TO INVESTIGATE THE PREPARATION FOR AND RESPONSE TO HURRICANE KATRTNA, U.S. HOUSE OF REPRESENTATIVES, 109TH CONG., A FAILURE OF INITIATIVE: FINAL REPORT (2006), available at http://www.gpoaccess.gov/ katrinareport/fullreport.pdf.
90. See, e.g., Martin Chulov & Helen Pidd, Curveball: How US Was Duped by Iraqi Fantasist Looking to Topple Saddam, THE GUARDIAN, Feb. 15, 2011, http://www.guardian.co.uk/world/2011/feb/15/curveball-iraqi-fantasist-cia- saddam.
91. Thorn Shanker, New Strategy Vindicates Ex-Army Chief Shinseki, N.Y. TIMES, Jan. 12, 2007, at A13.
92. Gen. Peter Pace, Vice Chairman, Joint Chiefs of Staff, Remarks at the Council on Foreign Relations, Washington, D.C. (Feb. 17, 2004) (transcript available at http://www.cfr.org/iraq/conversation-peter-pace/p6785) ("We were not asked for a recommendation or for advice.").
93. See, e.g., NAT'L COMM'N ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 334 (2004) (discussing Richard Clarke's recollection of a discussion with President Bush on September 12, 2001), available at http://www.gpo.gov/fdsys/pkg/GPO911REPORT/pdf/GPO-911REPORT.pdf;
94. The Iraq War, Parti: The U.S. Prepares for Conflict, 2001, NAT'L SEC. ARCHIVE (2010), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB326/index.htm ("On September 11 al-Qaeda struck and George Bush immediately assumed that Saddam Hussein was involved. The same held true for Donald Rumsfeld; famously, within hours of the attacks he directed the Joint Chiefs of Staff to look for evidence to justify attacking Saddam Hussein - National security staff met at the White House on September 12 and ⋯ Rumsfeld and Wolfowitz again argued for attacking Iraq⋯ . Bush endorsed the strategy of overthrowing Iraq's government") (citations omitted).
95. See Glenn Kessler, U.S. Decision on Iraq Has Puzzling Past; Opponents of War Wonder When, How Policy Was Set, WASH. POST, Jan. 12, 2003, at A1.
96. Rebecca Leung, Bush Sought "Way" to Invade Iraq? CBS NEWS (Jan. 9, 2004), http://www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml
97. (reporting on a "60 Minutes" interview of Paul O'Neill by Lesley Stahl; interview segment available at http://www.cbsnews.com/video/watch/ ?id=592691n&tag=contentBody;storyMediaBox);
98. RON SUSKIND, THE PRICE OF LOYALTY: GEORGE W. BUSH, THE WHITE HOUSE, AND THE EDUCATION OF PAUL O'NEILL (2004). In Suskind's book, former Treasury Secretary Paul O'Neill reveals that overthrowing Saddam Hussein was discussed at the first meeting of the National Security Council, of which he was a member, and that two days later the NSC discussed a memo dated January 31, 2001 and titled "Plan for Post-Saddam Iraq." Id.
99. Outside of clerkships and academia, Yoo's only practice experience was as general counsel to the Senate Judiciary Committee in 1995-96. Yoo's biographical information is available in his faculty profile, John Choon Yoo, BERKELEY LAW FACULTY PROFILES, http://www.law.berkeley.edu/php-programs/faculty/ facultyProfile.php?facID=235 (last visited Jan. 10,2012).
100. Memorandum from Alberto J. Mora, Gen. Counsel of the Navy, to Inspector Gen., Dep't of the Navy, Statement for the Record: Office of General Counsel Involvement in Interrogation Issues 17 (July 17, 2004), available at http://www.newyorker.com/images/pdf/2006/02/27/moramemo.pdf.
101. Michael Isikoff reported that in a meeting in early 2002 Yoo raised the possibility that "the political climate could change" and prosecutions could be brought under the War Crimes Act unless the President issued a determination that the Conventions did not apply. Michael Isikoff, Memos Reveal War Crimes Warnings, DAILY BEAST (May 16, 2004, 8:00 PM), http:/www. thedailybeast.com/newsweek/2004/05/16/memos-reveal-war-rimes-warnings.html.
102. See JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS 66 (2008) (reporting that the War Council consisted of David Addington, Alberto Gonzales, William J. Haynes, Timothy Flanigan, and John Yoo);
103. see also Chitra Ragavan, Cheney's Guy, U.S. NEWS & WORLD REP., May 21, 2006, at 6 (recounting one former official's description of them as a "very narrow, tight group").
104. Motivated reasoning is the tendency to seek out and remember information that confirms prior beliefs or expectations and disregard or discredit information that contradicts those beliefs. It is related to "confirmation bias," the tendency to attend more to confirming information than to disconfirming information, and to "cognitive dissonance," the tendency to try to relieve the tension between inconsistent beliefs. See, e.g., Zina Kunda, The Case for Motivated Reasoning, 108 PSYCHOL. BULL. 480 (1990), available at http://www.psych.utoronto.ca/users/peterson/psy430s2001/ KundaZMotivatedReasoningPsychBull1990.pdf;
105. Monica Prasad et al., "There Must Be a Reason": Osama, Saddam, and Inferred Justification, 79 SOC. INQUIRY 142 (2009), available at http://sociology.buffalo.edu/documents/hoffinansocinquiryarticle-000.pdf;
106. Charles G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Discovered Evidence, 37 J. PERSONALITY & SOC. PSYCH. 2098 (1979);
107. see also LEON FESTINGER ET AL., WHEN PROPHECY FAILS (1956) (cognitive dissonance).
108. Kunda, supra note 178. A fascinating study of how such motivated decision making led to the Challenger disaster is found in JAMES SUROWIECKI, THE WISDOM OF CROWDS: WHY THE MANY ARE SMARTER THAN THE FEW AND HOW COLLECTIVE WISDOM SHAPES BUSINESS, ECONOMIES, SOCIETIES, AND NATIONS (2004).
109. Id. at 17; see also Jane Mayer, Annals of the Pentagon: The Memo, NEW YORKER, Feb. 27, 2006, available at http://www.newyorker.com/archive/2006/02/27/ 060227fa-fact (reporting on Mora's efforts).
110. See Memorandum from Colin L. Powell, Sec'y of State, to Counsel to the President and Ass't to the President for Nat'l Sec. Affairs, Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan (Jan. 26, 2002), available at http://www.gwu.edu/ ~nsarchiv/NSAEBB/NSAEBB127/02.01.26.pdf;
111. Memorandum from William H. Taft IV, Legal Adviser, Dep't of State to Counsel to the President, Comments on Your Paper on the Geneva Convention (Feb. 2, 2002), available at http://www.slate.com/features/whatistorture/pdfs/020202. pdf.
112. Dep't of Justice, Office of Prof 1 Responsibility, Report: Investigation into the Office of Legal Counsel's Memoranda on Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists 85-88 (Dec. 22, 2008) (draft report), available at http://judiciary.house.gov/hearings/pdf/OPRFirstReport081222.pdf (quoting Goldsmith's June 15,2004, draft memorandum at 1 n.1).
113. Memorandum from David Margolis, Assoc. Deputy Att'y Gen., for the Att'y Gen., Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility's Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists 1-2, 68-69 (Jan. 5, 2010), available at http://judiciary.house.gov/hearings/pdf/ DAGMargolisMemo100105.pdf.