The Torture Tutor

As the author of official memoranda seeking to justify torture, warrant-free wiretapping, detention without trial, and other expressions of lawless power, John Yoo appears to be enjoying his 15 minutes of infamy.

Profiled in the mainstream press, lionized and vilified in the opinion media, Yoo is experiencing a burst of publicity that can only enhance his career -- and help promote a new book in which he justifies the supposedly “inherent” constitutional authority of the president to ignore statutes passed by irritating congressional majorities and decisions delivered by meddling federal judges.

Yoo hardly looks like the kind of man who would insist, as he did in a notorious Justice Department memorandum he co-authored while serving in the Office of Legal Counsel four years ago, on a narrow definition of torture as the infliction of suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” With his benignly saturnine face and genteel demeanor, this accomplished son of Korean immigrants is an engaging poster boy for the authoritarian ideology of the Bush administration.

It is important to consider the sources and implications of that ideology, even while we struggle to restrain a presidency running amok. Rather than being the merely pragmatic response to the new problems posed by stateless terrorists after the September 11 attacks that the administration claims, Yoo's advice represents a direct assault on constitutional legitimacy and the system of checks and balances created by the nation's founders. According to Yoo, the Constitution provides absolute power to the president to carry out foreign wars without congressional approval and to simply cast aside treaties ratified by the Senate.

“I'm pretty sure that's an argument no one has ever made before,” Yoo boasted to the Los Angeles Times. But in fact his claim to exclusive authorship is more than a little inflated. He isn't really the first person to regard the president of the world's oldest democracy as an elected emperor.

That distinction may belong to a Washington jurist whose partisan behavior and irascible temperament have come to symbolize exactly what a federal judge should not be. And Yoo happens to know that particular judge very, very well -- because his career began in 1992, when he won a clerkship with the jurist: U.S. Court of Appeals Judge Laurence Silberman. The connection between the two bears examination -- not only because Silberman pioneered the arguments Yoo now advances, but because he's still playing a role in the present.

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Silberman's own career dates back to the Nixon administration, when he rose to the position of deputy attorney general under John Mitchell. Since then, as he ascended to the federal bench and nurtured the young Federalist Society lawyers like Yoo who arrived in his chambers, Silberman has assiduously promoted the most imperial and Nixonian version of presidential power.

While Yoo's justifications for executive-branch overreaching may sound uniquely farfetched, the truth is that his older mentor long ago marked out the extreme
position on this issue. In 1978, when Congress passed the Foreign Intelligence Surveillance Act (FISA) that George W. Bush has admitted violating, Silberman testified against the legislation, saying that it would create an “unconstitutional” hindrance to presidential power. Both branches rejected that opinion when Congress passed fisa and President Jimmy Carter signed it.

Over the decades since then -- thanks to appointments by President Ronald Reagan and the late Chief Justice William Rehnquist -- Silberman has risen to one of the most powerful positions in the federal judiciary short of a seat on the Supreme Court. In the meantime, he has earned a reputation as a remorseless, bullying partisan whose jurisprudence is measured to the convenience of his fellow Republicans.

Perhaps the most significant example of such partisan service by Silberman came during the constitutional crisis that endangered Reagan: the Iran-Contra affair. Then, like now, defenders of White House misconduct argued that the president could ignore the will of Congress by secretly arming the contras in Nicaragua and trading arms for hostages with the terrorist regime in Iran.

As a judge on the Court of Appeals for the District of Columbia, Silberman joined with another Reagan appointee to dismiss the felony conviction of Lieutenant Colonel Oliver North won by special prosecutor Lawrence Walsh. Himself a lifelong Republican, Walsh later said he believed Silberman had a conflict of interest that should have disqualified him from hearing the North appeal, and that his open displays of bias at the appeals hearings had reached the level of judicial misconduct. The effect of Silberman's decision in the North case was to allow the Reagan White House to escape the consequences of its blatant violations of law -- an outcome in keeping with his anything-goes philosophy of presidential power.

That outlook changed rather predictably when Silberman reviewed the
prerogatives claimed by a Democratic president. During the Kenneth Starr investigation, he denounced the Clinton administration's argument that executive privilege should apply to Secret Service agents protecting the president. To him, Clinton's resistance to Starr's prosecutorial excesses amounted to “a declaration of war on the United States” by the president. Such intemperate exclamations are hardly surprising to anyone familiar with Silberman's secret history. As David Brock has written, the judge privately encouraged Brock (in his former life as journalistic hit man) to publish the most salacious, sexually oriented material in The American Spectator in order to destroy Clinton.

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Today, Silberman sits as a senior judge on the U.S. Court of Appeals in the District of Columbia. Under a separate appointment by Rehnquist, he also hears appeals from the decisions of the Foreign Intelligence Surveillance Court established under FISA. This is not a terribly taxing job, given the exceedingly rare occasions when that court rejects a government application for a surveillance warrant.

That Rehnquist would have placed Silberman in a position to oversee the workings of the FISA court seems typical of a certain Republican style of governance, which perversely vests responsibility for enforcing federal laws in officials who disdain their purpose. Ruling on a sealed case in 2002, Silberman exploited that position to deliver an opinion that undermined FISA and advanced the imperial executive.

Alluding to the power to collect foreign intelligence information without a warrant, he wrote: “We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.” Of course, FISA was passed precisely to monitor and limit (or “encroach” upon) the president's undeniable power to detect and deter any threat to the United States. The clear implication of Silberman's obiter dictum -- which had no direct bearing on the case at hand -- was that FISA itself is unconstitutional and pointless, because the president can wiretap, search, and seize evidence at will in the name of national security.

How do views such as Silberman's and Yoo's become established “law” in an administration? One way is through clerkships of the sort Yoo served -- but clerkships with a very select group of judges. An impressive roster of administration officials have clerked for Silberman, in no small part because his clerks routinely win clerkships with Antonin Scalia or Clarence Thomas.

Yoo clerked for Silberman in 1992 and Thomas in 1994, and accepted a key post in the Office of Legal Counsel in 2001. The importance of that job became clear when, along with fellow Silberman alumnus Viet Dinh, he helped to write the USA Patriot Act in the weeks following 9-11.

Certainly Yoo has adapted and expanded Silberman's jurisprudence to lend an aura of legality to the dangerous usurpations of the Bush regime. But the roots of our current crisis can be found in the chambers of the judge who taught him to undermine the democratic foundations of the republic.