From the OPR Report:
"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally"
"Yeah," Yoo replied, according to a partial transcript included in the report.
"Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."
"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.
"Sure," said Yoo.
Yoo is not endorsing a massacre in a village. He is merely saying that the president of the United States has the inherent constitutional power to order such a thing in wartime if he so wishes. There is no law and no treaty that can properly prevent the executive branch from ordering such a thing. No domestic or international law.
The picture above is of Lidice, where another executive whose power trumped all law and all treaties in wartime commanded an army that, upon entering the town of Lidice, on June 10, 1942, murdered all 192 men over 16 years of age from the village on the spot. Below is a more recent example in American history of a massacre of a village, My Lai, in Vietnam:
Again, I am not saying that Yoo approves of such a thing, just that he believes that this is what presidential power inherently permits in wartime. If the president had ordered the massacre directly, because he believed it tactically necessary for national security, it would have been totally legal and constitutional - and no crime would have been committed by anyone under his command.
And in the war Yoo is referring to, the war on terror, there is no conceivable end to this power since there is no formal enemy to surrender, and there is no geographical limit to this power, including the United States, where the war on terror exists, where villages of Muslims, accused of being terror suspects, have already been identified.
Yoo believes the Founders of the United States wanted the presidency to have this kind of power. He believes they threw off a monarchy in order to create a presidency with no legal bounds on it if such a president alone declared a war without end and alone has the power to name its enemies and its location.
I will say on behalf of Yoo that there’s something a bit odd about the dialectic that led so much opprobrium to attach to him personally. The crux of the matter is that serious violations of domestic and international law were committed thanks to orders given at the highest level. But it would be politically unthinkable to hold the front-line perpetrators of the torture accountable while ignoring the fact that their conduct was specifically authorized by the relevant officials. And it would also be politically unthinkable to put Bush, Cheney, Rumsfeld, etc. on trial for their lawbreaking. So the idea of John Yoo as the villain began to take shape. And in the end it looks like even he’ll get away. People will make some noise about how maybe he should lose his job at Berkeley, but in the end I’m pretty sure he’ll keep it.
I have never argued that Yoo should be a scapegoat. I believe this responsibility lies with Bush and Cheney first and foremost. But those who twisted the law and constitution of the United States to provide a golden shield for such actions are, as at Nuremberg, legally responsible and accountable.