Update at bottom: If asked to OK crushing child's testicles I'd resign, Yoo admits
The senior Justice Department legal adviser to President Bush who made the legal case for the Bush Administration's use of torture tactics on terror suspects defended comments that the president could unilaterally "massacre" civilians in wartime in a newly released interview.
"You did argue that the president can legally order a village of civilians massacred," a KQED radio host asked John Yoo, now a professor at Berkeley. "Do you stand by that?"
"If, I thought it was militarily necessary," Yoo replied. "All you have to do is look at American history.... Look at the bombing of Hiroshima and Nagasaki."
Not backing down, Yoo championed the use of nuclear weapons in World War II.
"Could Congress tell President Truman he couldn't use a nuclear bombing in Japan, even though Truman thought in good faith he was saving millions of American and Japanese lives?" Yoo continued. "Or look at the American bombing campaign of World War II over Europe. Again, terrible things that the country had to do to bring the war to a faster conclusion and in the long run perhaps save more American or German lives."
He also suggested that the decision to use America's nuclear arsenal is the president's alone.
"The government places those decisions in the president, and if the Congress doesn't like it they can cut off funds for it or they can impeach him."
Liberal blog ThinkProgress' Ian Millhiser, which first highlighted the interview, argues that Yoo's understanding of the law in this case is wrong.
"As far back as 1804, a unanimous Supreme Court held in Little v. Barreme that Congress has sweeping authority to limit the President’s actions in wartime. That case involved an Act of Congress authorizing vessels to seize cargo ships bound for French ports. After the President also authorized vessels to seize ships headed away from French ports, the Supreme Court held this authorization unconstitutional on the grounds that Congress’ decision to allow one kind of seizure implicitly forbade other kinds of seizure. More recently, in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court held that the President does not have the power to unilaterally set military policy (in those cases with respect to detention); he must comply with statutory limits on his power. Taken together, these and other cases unquestionably establish that Congress has the power to tell the President 'no,' and the President must listen."
"John Yoo is a moral vacuum, but he is also a constitutional law professor at one of the nation’s top law schools and a former Supreme Court clerk," the site added. "It is simply impossible that Yoo is not aware of Little, Hamdi and Hamdan, or that he does not understand what they say. So when John Yoo claims that the President is not bound by Congressional limits, he is not simply ignorant or misunderstanding the law. He is lying."
This weekend, Newsweek's Michael Isikoff noted that Yoo also "told Justice Department investigators that the president's war-making authority was so broad that he had the constitutional power to order a village to be 'massacred,' according to a report released Friday night by the Office of Professional Responsibility."
Pressed on his views in an interview with OPR investigators, Yoo was asked:
"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.
If asked to OK crushing child's testicles I'd resign, Yoo admits
The former Bush adviser has apparently been playing the devil's advocate on torture. Arguing that the president has the right to do things that he personally wouldn't approve of.
KQED host Michael Krasny noted that journalist Gary Wills "takes very profound exception" to Yoo's views on torture.
"He feels in terms of presidential power, I mean such things as - and I used two examples that I believe have been used with you - ordering a child's testicles to be crushed or having a whole village of civilians killed," Krasny said. "This gets into realms of monarchical or dictatorial or tyrannical power that really don't serve the interest of what our Constitution is about, which is checks and balances."
"Well," Yoo replied, "first let me say that all of these wild hypotheticals about interrogation methods or wartime measures were nothing like what we considered in the department and nothing like what I would ever approve in the government
Yoo admitted, "If I was asked to approve some of these terrible things I'd rather resign than take part in them."
"But I have to say the Administration never considered some of these things," Yoo pointed out.
Yoo was asked about the testicles scenario during a 2006 debate with International Human Rights expert Doug Cassel.
Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.
(11 minutes in, the preceding exchange can be heard)