John Yoo Issued Opinion on Use of Force on 9/11

[Bolo Boffin]

From Emptywheel:

Still reading through the Yoo side of the Esquire transcript. At times, it's very frustrating, since Esquire gave only Yoo's side of the conversation, without the questions. But by putting this passage of the final article...

So let’s go back to that moment in the heat of battle. The way Yoo tells the story, he was sitting at his desk at the Justice Department when the first plane hit the World Trade Center. He had only been working there two months, hired to answer the White House’s questions on foreign-policy laws at a time when the biggest legal issue before him was a treaty about polar bears. When the order came to evacuate Washington and people began heading out into the streets, someone from the attorney general’s office told him to stick around.

Soon the questions came:

Is this a war?

Do we need to declare war?

Can we scramble planes?

And again: Is this a war?

Together with these two answers from the transcript...

Yes, that was a question . That was earlier: Can we use force?

I must have. I can’t tell you what I said. No, I don’t think that’s actually public. Can you use force in response? What kind of force? What are the standards that guide the use of force?

I think it's fairly safe to say that sometime on 9/11, Yoo gave an opinion about whether or not the US could shoot down remaining hijacked planes.

Emptywheel emphasizes the shootdown order because it was what prompted Cheney et al. to scramble for legal opinions, but I think the real story is John Yoo working on polar bear treaties at one moment and telling Cheney things Cheney wanted to hear in the next. It looks like Cheney was trying to cover his ass for pulling a Haig on 9/11 and found himself a nice, compliant lawyer who would justify anything and everything they needed.

Cheney's usurpation of authority on 9/11 started a chain of events that ended with Abu Ghraib and the U.S sanction of detainee torture.

ETA: And why did Cheney need to usurp power and start throwing his weight around? Because George Bush kept himself out of the loop time and again on 9/11. He stayed in the classroom. He stayed at the school. He kept giving speeches. And meanwhile, people were waiting on him to get connected, to be in charge, to be available for the big decisions. Cheney had tried twice to get hold of the President in the previous hour, and had to wait interminable minutes to do so.

When the call came to shoot down or not, Cheney forewent trying once again to get hold of the President and just made the decision. Again he was asked and again he made the decision. That's when Josh Bolten told him to contact the president and confirm the order.

In other words, Cheney could have made the decision provisionally (Act as if the answer is Yes.), and then started immediately to try and contact Bush. He didn't. He made the decision and the room watched as he did not pick up the phone. He was asked again and he made the decision again, and he did not pick up the phone again. And finally Josh Bolten said, "Pick up the phone."

And so John Yoo found himself at the beck and call of Cheney later that day, answering all sorts of questions about use of force and scrambling planes.

Someone should ask him if he was asked about the legality of the Vice President making those kinds of decisions and if so, what was his answer?

[Supersedeas]

1. oh, the pride that law school must feel for Prof Yoo