The Unrepentant John Yoo: 'Enhanced Interrogation' Got Us bin Laden

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The fallen author of the infamous torture memos returns to defend the policies of the Bush administration in the war on terror 

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Former government lawyer John Yoo taking credit on behalf of the Bush administration for Sunday's strike against Osama bin Laden is like Edward John Smith, the captain of the Titanic, taking credit for the results of the 1998 Academy Awards.

Yet front and center here is Yoo, the fallen author of the infamous torture memos, the man whose "flawed legal reasoning" and "professional misconduct" on the topic of "enhanced interrogations" nearly turned him into a criminal defendant, publicly pitching the case that he and his former bosses are "vindicated" (and more) by the way in which the Al Qaeda leader was hunted down and killed. Having long ago caught his finger in the hinge of history, Yoo is inexplicably back for more, clearly unrepentant about the terrible damage his consistently poor judgment cost the United States.

Yoo wants to transfer credit from the White House team that actually got bin Laden to the White House team that famously did not.

From his perch as a law professor at the University of California-Berkeley, Yoo officially has become the voice of a concerted effort by former Bush administration officials and their shills to retroactively justify even the most odious of the legal policies put into practice immediately following the terror attacks of September 11, 2001. And, in Yoo's case, the evident goal is not just to defend those untenable practices but to elevate them in importance to (and, I guess, beyond) the brilliant gumshoe work performed by the Obama team in tracking down bin Laden.

Yoo wants America and the rest of the world to know that "President George W. Bush, not his successor, constructed the interrogation and warrantless surveillance programs that produced this week's actionable intelligence." Got that? Yoo wants to transfer credit from the White House team that actually got bin Laden to the White House team that famously did not. He wants to do so despite good evidence to the contrary. And he wants to do so without any expressed accountability or remorse for the impact many of those extralegal Bush-era "programs" wrought upon our rule of law and  standing in the rest of the world. Abu Ghraib? What Abu Ghraib?

And there is more. In the World of Yoo, the Obama administration was able to carry out its daring plan not necessarily because of extraordinary intelligence work on behalf of its operatives but rather in spite of the current president's namby-pamby approach to terror suspects. Forty-eight hours after U.S. forces dumped bin Laden's body into the sea, Yoo writes:

Imagine what would have happened if the Obama administration had been running things immediately following 9/11. After their "arrest," we would have read [Khalid Sheikh Mohammed] and [Abu Faraj al-Libi] their Miranda rights, provided them legal counsel sent them to the U.S. for detention, and granted them all the rights provided a U.S. citizen in criminal proceedings.

This is make-believe, a fantasy even more warped and cynical than was the fairy-tale world of legal precedent that Yoo and his Office of Legal Counsel colleagues ginned up in 2002 to justify the torture of terror suspects. It is a wild insult to the men and women of the Justice Department and the Pentagon who have worked so hard (before and after the 2008 election) to be just and thorough in their treatment of the detainees. It completely ignores the force of Supreme Court precedent -- from both before and after 9/11. And it shows that Yoo still darkly believes that if his critics in law and politics are not with him they are necessarily against American interests.  

If this, too, were all Yoo were arguing today, it would be bad enough. But there is still more. In Yoo's view, the Obama administration made a big mistake by killing bin Laden. Instead, Yoo argues, the brave Navy Seals should have captured the fugitive so that he could be tortured for information about current Al Qaeda operations. Yoo wrote of bin Laden:

As Sunday's operation put so vividly on display, Mr. Obama would rather kill al Qaeda leaders -- whether by drones or special ops teams -- than wade through the difficult questions raised by their detention...

[Bin Laden's] capture, like Saddam Hussein's in December 2003, would have provided invaluable intelligence and been an even greater example of U.S. military prowess than his death.

So in the World of Yoo, the Obama administration demonstrated a form of cowardice by killing the man responsible for the most deadly crime in American history. And the Bush administration demonstrated a form of bravery when it captured and tortured Khalid Sheikh Mohammed who, eight years later and unlike his former boss, still walks the face of the Earth, unprosecuted, unconvicted, unsentenced and very much undead. Yoo's notoriety from all of this will last so long as America follows a rule of law. But when, exactly, will his specific 15 minutes of fame end? 

Probably not anytime soon. He's got the perfect three-card monte scam going. If the Obama administration makes a mistake in prosecuting the war on terror, there stands Yoo ready to say: "We told you so." And if, as was the case Sunday, the Obama administration pulls off a stunning coup in the terror war, there stands Yoo saying: "You couldn't have done it without us." Like his former boss, Yoo evidently doesn't make mistakes. Instead, he just keeps fighting -- even though he's fighting a war he long ago lost and which now, especially, has entirely passed him by.

Image credit: Reuters

Drop-down image credit: Reuters

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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