John Yoo, who is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03 during the tumultuous post-9/11 years. Mr. Yoo became famous for co-authoring legal memos that saw the evolution of “enhanced interrogations techniques.”
In the February 24th edition of the Wall Street Journal, Mr. Yoo penned a rather pompous commentary, "My Gift to President Obama.” While Mr. Yoo might possess a great legal mind, it is definitely not suffused with humility. Despite being put off by his opening salvo, “Barack Obama may not realize it, but I may have just helped save his presidency,” I still read through his entire hubristic essay.
Most of his diatribe was dedicated to problems with the Justice Department's Office of Professional Responsibility (OPR), who ran an extended investigation into the CIA's detention and interrogation methods that had evolved from Mr. Yoo’s afore-mentioned legal opinions. In his lengthy invective, Mr. Yoo failed to address President Obama’s basic proposition, which rejects “as false the choice between our safety and our ideals,” and which Mr. Yoo even acknowledged upfront in his article.
Subsequently, Victoria Toensing, a deputy assistant attorney general in the Reagan administration (1984-88) and chief counsel for the Senate Intelligence Committee (1981-84), got into the act. In the March 2nd edition of the Wall Street Journal, Ms. Toensing followed up Mr. Yoo’s generous bestowal on President Obama with her take on the subject in "KSM Deserves Military Justice” – even contradicting President Reagan on this issue!
She began by acknowledging that “In the 1980s, the Reagan administration established a policy for trying terrorists in civilian courts.” And then added “I know the basis for its policy of trying terrorists in federal courts—and why it is no longer applicable.” She then went on to provide a lengthy historical but unconvincing argument – citing the case of Mohammed Ali Hamadi, one of the terrorists involved in the June 1985 hijacking of TWA Flight 847, which resulted in the murder of U.S. Navy diver Robert Stethem. Mr. Hamadi was tried, convicted, jailed and released after a lengthy term by the German court system.
By comparison, her other citation “so-called 20th 9/11 hijacker Zacarious Moussaoui,” was tried by the U.S. criminal justice system and sentenced to six life terms without the chance of parole – a sentence he is now serving in a Supermax prison in Colorado. Nevertheless, Ms. Toensing concluded her article by saying, “We now have a system that provides due process while recognizing there are differences between enemy combatants and bank robbers. We should use it.” One wonders if Zacarious Moussaoui feels like a petty “bank robber” following his lifetime incarceration by the U.S. criminal justice system.
My point is that we are ill-served by ideologues on both sides of this debate, who insist on this false dichotomy between the abilities of our criminal justice system and what Mr. Yoo called “the president’s constitutional ability to fight the enemies that threaten our nation today.” Neither approach in and of its own is sacrosanct and sufficient – executing and winning this war on terrorism will require a judicious application of both, constitutionally granted executive power and the use of our world-famous legal system.
To conclude in the tenor of the Yoo-Toensing debate… So Let It Be Written, So Let It Be Done!
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