Former Bush administration lawyer John C. Yoo is already thinking about his former client's legacy. Speaking to about 30 lawyers Monday at a Federalist Society luncheon, Yoo argued that history will view President Bush more like Franklin D. Roosevelt or Harry S. Truman than Richard Nixon.
Yoo, a constitutional law professor at the University of California-Berkeley, was a deputy assistant attorney general in the Department of Justice's Office of Legal Counsel from 2001 to 2003. There he wrote the famous "torture memo," which became White House policy, saying the Geneva Conventions, which prohibit torture, did not apply to prisoners captured in Afghanistan.
He opened his talk with a guarded and lukewarm endorsement of Bush's nomination of Michael B. Mukasey as attorney general earlier in the day.
Yoo said he was acquainted with the nominee, a former federal judge in New York, because Mukasey first heard the case against Jose Padilla, a U.S. citizen accused of terrorism whom Mukasey ruled had a right to counsel. Padilla was convicted last month of criminal conspiracy.
Yoo called Mukasey "smart and fair when it comes to issues of terrorism," but added that he does not know Mukasey's political views on other issues.
Other contenders, such as former U.S. Solicitor General Ted Olson and former Deputy Attorney General Larry Thompson, are staunch conservatives who are candid about their political views, said Yoo. "Ted Olson looked like the nominee. If the White House did not nominate him because he's too controversial, that is disappointing," he said.
It's "good for the president to nominate someone with his views [as attorney general]. Every subordinate should agree with his views so there is a unified approach to the law," said Yoo, adding that the nomination of a less polarizing candidate is a warning "not to be too open about what you think because it renders you un-confirmable for attorney general."
Yoo said that Bush's aggressive use of power since the Sept. 11 attacks will be proven justified by history because the nation needs a powerful president in times of war.
"The greatest presidents are those who exercise executive power most aggressively," he said, contending that George Washington, Abraham Lincoln, Roosevelt and Truman, like Bush, seized power in wartime and acted without the authorization of Congress.
"The president reacts to unforeseen events and emergencies that Congress can't anticipate … like Sept. 11, that are outside the anticipation of written laws," said Yoo. "The framers wanted a presidency that's unified and can operate with speed and secrecy so they left [the office] with ambiguous limits on its power. It was not carefully defined, deliberately."
Bush's abrogations of power from the other branches are for the defense of the U.S. and, thus, good, said Yoo. As an example, he said, the National Security Agency's warrantless electronic surveillance of thousands of Americans is justifiable because the purpose is to catch terrorists, while Nixon's secret wiretapping of those he considered political enemies was "to save his own hide."
Bush's expansion of executive power is no different from that of earlier presidents in times of emergency, Yoo said, acknowledging that the rub in the current situation is that "people don't agree if we are in a state of war."
"A large part of the population is not sure if we're living in a state of war or if, like our European allies, we should view terrorism as a law enforcement issue. That's the issue that's triggered the debate over presidential powers," he said, noting that he takes an "exuberant view of presidential power."
His audience seemed to as well.
"The president could violate Congress every day to save my life," said one man.
Asked when the state of emergency will end, Yoo replied, "when the al-Qaida terrorist organization is destroyed."
"It won't be forever but it could take a long time," he added.
Yoo asserted that an "imperial judiciary" is a bigger danger right now than an imperial presidency.
He said the courts waited until after World War II to decide that the internment of U.S. citizens of Japanese descent was wrong, but "now, in the age of judicial supremacy, the courts intervene before the war is over," referring to federal courts' decisions to hear cases brought by foreign nationals imprisoned on suspicion of being terrorists at the U.S. Naval Base in Guantanamo Bay, Cuba.
The Supreme Court contravened Yoo's 2002 memo on the Geneva Conventions last year in Hamdan v. Rumsfeld, ruling the Geneva Conventions apply in the United States' treatment of terrorist suspects.