Torture Memo Author On Only Regret

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The author of the controversial torture memos during the Bush administration says his only regret about the period is the "pressure of time" he had to act under. John Yoo, author of Crisis and Command: A History of Executive Power from George Washington to George Bush, also says that his memos' definition of "severe pain" came from a statute that regulates insurance benefits under Medicare.

MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

MADELEINE BRAND, host:

And I'm Madeleine Brand.

Now a new book about presidential power. It's written by a man made famous - or infamous, depending upon your political persuasion - for helping expand President Bush's powers after 9/11. He is John Yoo. From 2001 to 2003, he was a lawyer in the Justice Department's Office of Legal Counsel. When he was there, John Yoo wrote a number of controversial memos. They justified, among other things, the use of enhanced interrogation techniques and warrantless wiretaps. His new book is called "Crisis And Command."

I recently spoke with John Yoo about those memos, any regrets he may have - he does have one, and why he thinks it's important for a president to be so powerful.

Professor JOHN YOO (Law, University of California, Berkeley; Author, "Crisis And Command"): We need a powerful president because we have periods of emergency, crisis and even war where we need part of the government that can act quickly in response, that the powerful president isn't necessary all the time. It's someone who we need to come forward and address unforeseen events and circumstances.

BRAND: You argue in the book that the greatest presidents come forward during times of crisis to do that, to seize power when they can, and to expand the role of the executive.

Prof. YOO: That's right. You look at who most scholars think are our greatest presidents, men like Washington, Lincoln and FDR. These are presidents who were no shrinking violets. They embraced their power. They used their powers vigorously to attack the challenges of their day and often - or sometimes in direct conflict with the Congress and the Supreme Court.

The other thing is that we have had bad presidents. And one thing I try to do in "Crisis And Command" is write about some of our bad presidents. And often, they were people who when confronted by these same challenges, retreated and shrunk into a shell, and asked Congress or the courts to take the lead.

BRAND: But when we were looking at what is commonly called the war on terrorism, it's often seen as an unending war. And so, how do these powers get put back in the bottle if you have an unending war?

Prof. YOO: I share your concerns. And the hard thing is how do we figure out when the war against al-Qaida, the war with other terrorist groups is going to be over, when they're not a nation state. There's no territory to conquer. There's no armies to fight in the field. How do we know when the war is over? I think that's a very fair and difficult question because it's that point when the president's powers will recede.

BRAND: I wonder if you've reconsidered the validity of any of the measures that you supported in your memos just after 9/11. It was in the flush of this terrorist attack, when feelings were running very high. It's now eight years passed. And I'm wondering, for example, with the approval of secret wire tapping, of not abiding by Geneva, of getting rid of habeas corpus, do you have any regrets?

Prof. YOO: Obviously I think about it a lot. I think we should always have an open mind and, you know, be willing to reconsider evidence in new light to see whether we should've done something differently. The only thing I regret was just the pressure of time that we had to act under.

The problem was we had to make all these decisions in such a short period of time under the pressure of circumstances. And, of course, one would always like the luxury to have more time to think it through, but I think under those circumstances, I probably would do the same things again.

BRAND: You wrote: The definition of torture is the victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injuries, so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result. Where did you get that definition?

Prof. YOO: Well, when we did these memos in the Office of Legal Counsel, we looked at all kinds of sources. The particular language you read, we borrowed from another statute passed by Congress that contained a definition of what's severe pain and suffering. But we also looked at a lot of other things. If you look at those memos, they also look at foreign countries. They look at states. And they look at past cases in the federal courts. I might add that since those memos, there's been a Federal Court Of Appeals, based in Philadelphia, that has adopted definition that's quite similar to those memos.

BRAND: The statute you mentioned, was that a statute governing treatment of prisoners or...

Prof. YOO: No. You know, I'd be the first to admit, there was no statutes involving treatment of prisoners that was - exactly on point. So I believe this statute involved Medicaid and Medicare, in fact.

BRAND: Why would you pick this definition over any others?

Prof. YOO: Well, the problem is that one worries about picking something that's just purely subjective. And so one thing I think the Justice Department owed the people - the CIA, the people in the National Security Council and the White House were asking us these questions - was to try to be as clear as we could, to try to find a line.

BRAND: So you found this one from a Medicare and Medicaid statute?

Prof. YOO: Yeah, if you look at the memo in its entirety, it's not just that one definition. It fills it out. It provides examples of basically everything that the federal courts had found to be torture in other kinds of cases. And it provided, you know, lists, examples of things that the judges had found to be torture.

BRAND: Even though waterboarding had been described as torture for many, many years - had been used by Pol Pot.

Prof. YOO: Well, you know, one thing I would say is that when - I think waterboarding is, clearly, I think the hardest question. It was the interrogation method, I think if you look at these other memos that were done, came closest to the line. I'll just say this. I mean, I think it's a very difficult question and again, dire situations - it's not all the time and is not just for everybody. It's under these most, I think, emergency situations.

BRAND: As you were writing this book and researching examples of executive power and what's happened during times of crisis, how did you compare the president you worked for, President Bush, with these other presidents? Where would you put him?

Prof. YOO: As you know, in the book itself, I don't want to take a position on where Bush will eventually fall out on the rankings of presidents because it takes decades until we can really be sure. But I think the - what - I'm first to admit is that it really depends on whether what he did were appropriate to the circumstances.

BRAND: What do you think personally?

Prof. YOO: I think President Bush probably will be like a lot of our recent presidents, probably around the average. I think that's around where Bill Clinton and the first President Bush ended up.

BRAND: Where do you think he made a mistake?

Prof. YOO: I think certainly in the area of domestic policy. I think that there were problems and, you know, these are not the areas I really worked on, but I think these are areas where I think the Republicans and the president overspent. They expanded federal programs too far. The Iraq war, obviously, is always going to be question. I personally have never been certain - it was not my job at the time, obviously, but I was never certain whether the Iraq War made sense as a matter of strategy. And I think obviously, that could end up being a mistake. But it's still - we're still in the middle of it.

BRAND: John Yoo, thank you very much.

Prof. YOO: Thanks for having me on.

BRAND: John Yoo. His latest book is called "Crisis and Command." He now teaches law at UC Berkley.

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