John C. Yoo
Winter 2002 ICAS Liberty Award Dinner
January 22, 2002 6:30 - 9:45 PM
Lai Lai Garden, Blue Bell PA.
Institute for Corean-American Studies, Inc.
965 Clover Court, Blue Bell, PA 19422
Tel : (610) 277-9989; (610) 277-0149
Fax: (610) 277-3992
Biographic Sketch & Links: John C. Yoo
John C. Yoo
Deputy Assistant Attorney General
United States Department of Justice
It is also a great pleasure to return to the Philadelphia area to receive this award. My family has lived in the Philadelphia area from our arrival here in 1967. My brother and I went to the public schools in Lower Merion, and then to the Episcopal Academy before leaving home for college. Philadelphia was a great place to grow up and I cannot imagine being better off anywhere else.
I have been asked tonight to speak about immigration, national security, and civic duty. After the attacks on September 11, these have been some of the most important questions of the day. I would like to start by describing my office and its involvement in these issues. I would also like to state at the outset that the views I express here are my own, and do not represent those of the Department of Justice.
Last April, President Bush and Attorney General Ashcroft offered me the opportunity to serve as a Deputy Assistant Attorney General in the Office of Legal Counsel. I accepted immediately. The Office is charged by federal regulation with providing answers to legal questions for the executive branch.
The Office of Legal Counsel - known fondly by Justice Department attorneys as "OLC" - is truly a unique place for any lawyer to work. If you ask current and former law students what their favorite law school class was, many will mention Constitutional Law. In short, constitutional law is the law of the United States Constitution, the fountain of all power of the United States government, and for all Americans, the most important source of protection of our most precious individual rights and civil liberties. In essence, constitutional law is the fundamental legal foundation for everything that happens in this country.
So it should come as no surprise that law students find constitutional law so fascinating. Yet, after they graduate, very few lawyers actually get to practice constitutional law on a regular basis.
OLC is a special place precisely because OLC attorneys do have the opportunity to practice constitutional law, day in and day out. Often called the "President's law firm," OLC and its two dozen attorneys handle some of the most difficult and important legal issues confronting the Executive Branch of the United States government. We advise the President and the Attorney General as to what their constitutional and statutory legal powers are. We analyze all proposed legislation and executive orders to ensure that they do not violate the Constitution. And the White House Counsel and the general counsels at the many Cabinet departments and federal agencies seek our guidance on what they can and cannot do.
OLC is an extraordinary place to work, and I am truly grateful to President Bush and Attorney General Ashcroft for giving me this opportunity to serve there.
It is an especially extraordinary and challenging place to work these days. The tragic events of September 11 were unprecedented, and for so many reasons. It was a horrendous act of war against the United States, one that killed thousands of civilians on American soil. It was a terrorist attack of an unprecedented magnitude. And it brought this country together, in a renewed spirit of patriotism and united purpose, that has commanded the attention and admiration of people all over the globe.
It was also an unprecedented event for constitutional lawyers. As the President's and the Attorney General's advisors on questions of constitutional law, OLC has been called upon repeatedly, in recent weeks, to answer legal questions that, in earlier times, had been asked primarily by academic, and only for hypothetical reasons. Unfortunately, those questions are hypothetical no more. What powers does President Bush have to launch a war against terrorism - in the President's words, to "bring our enemies to justice, or bring justice to our enemies"? What can Attorney General Ashcroft legally do to secure our borders, our airports, and our post offices from attack by those who would use our freedoms against us? What are the limits on the Justice Department's authority to detain suspects, investigate possible future terrorist attacks, and protect American lives from harm? What can the Executive Branch do immediately, on its own authority, and what actions require Congress to enact new legislation?
Before I arrived at OLC, I was a law professor in California, specializing in constitutional law, and focusing especially on foreign affairs law and presidential powers during wartime. When I came to OLC last June, I could not have imagined that such a tragic event would occur, or that my academic pursuits would become real-world controversies for government lawyers, with serious consequences for so many real-life Americans. But the tragedies are very real, and I am grateful to have been given this opportunity to make a contribution to this most American of causes - the protection of freedom and the security of liberty - and to help the President and the Attorney General do what they have been called upon to do in order to keep this country safe, strong, and prosperous.
Some of the questions we have been asked to work on involve some of the very issues that I was asked to speak about: immigrants and national security. Some have expressed concern that the domestic responses to the September 11 attacks have engaged in racial profiling and the persecution of a religious group. They have claimed that suspects are being detained incommunicado and without being charged, that individuals are being selected for questioning based solely on their race, and that we have established a kangaroo court system to try only non-citizens, a sign that the United States does not trust the millions of permanent resident aliens and short-term visitors to our nation.
Unfortunately, I think that these criticisms are exaggerated. Indeed, the Department of Justice has carefully reviewed the new law enforcement policies developed in reaction to September 11 to ensure that they are fully legal and constitutional. But let me explain why these policies are fully legal and, indeed, follow in the footsteps of traditional law enforcement techniques.
First, the question has arisen whether the suspects detained after the September 11 attacks were held in violation of their constitutional rights. It should be clear by now that individuals were detained for normal reasons under the criminal law, some because they had committed a crime, some because they had already committed a violation of our immigration laws, some because they were "out of status," meaning they no longer had a valid visa, and some because they were a material witness to a crime. It was simply untrue that they were held incommunicado; each detained individual had access to a lawyer, indeed, I believe that each individual so held made use of his right to counsel. They each were brought before a court where the grounds for their detention were examined by a judge. It should be made clear that the United States had legal grounds, under the criminal law, to hold these defendants for violating a federal law.
Second, some have criticized the Department of Justice's efforts to question a few thousand individuals, many apparently of Arab descent. It should be clear, at the outset, that these interviews were wholly voluntary; there was no government coercion, and hence no violation of anyone's civil liberties. They were only asked to cooperate with our investigation, as a matter of choice, to help in the federal government's efforts to prevent future terrorist attacks on Americans. It is true that many of the individuals questioned were young men who recently came from nations in the Middle East. But it should not be forgotten that the terrorists who hijacked the planes and crashed them into the World Trade Center and the Pentagon on September 11 were young men who had come from nations in the Middle East. It is natural for the government to want to seek help from people who had recently been in the same countries, who might run in the same circles, and who might even have known or come into contact with the terrorists.
Third, critics have attacked the President's military order establishing military commissions for the trial of terrorists for war crimes. They characterize it as a kangaroo court, one without procedures, lawyers, or appeals, that will impose rough drumhead justice on non-citizens. They say that it could potentially sweep in any of the millions of permanent resident aliens and other non-citizen immigrants.
I have found this to be one of the most exaggerated of the attacks on the administration's policies. Military commissions have been used by our generals and Presidents in almost every major war in our history. George Washington, Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt have all authorized the use of military commissions. They have long been understood as an aspect of the President's Commander-in-Chief authority, and have been the traditional method by which the United States has tried enemy soldiers for war crimes. Military commissions have been upheld by the Supreme Court in Ex Parte Quirin, a case that allowed President Roosevelt's use of military commissions to try 6 Nazi saboteurs. They had come ashore and been caught by the FBI, only after some of the saboteurs had repeatedly tried to turn themselves in. At least one of the defendants even alleged he was an American citizen. The Court also upheld the use of the commissions to try Japanese General Yamashita for war crimes committed in the Philippines at the end of World War II. Congress has passed a law recognizing the President's power to use military commissions.
This record of practice shows that military commissions are not the dangerous innovation described by their critics. They would be used only to prosecute war crimes, such as attacking purely civilian targets with no military value, and taking and killing hostages. They would never be used for garden-variety crimes. It is also important to understand that the President's order was only a first step. The Department of Defense is now in the process of developing the rules that will govern the commissions, and I am sure that they will ensure that even terrorist war criminals receive a fair and full trial, as the President's order itself commands.
That said, I would be the first to admit that the Justice Department is being aggressive in fighting terrorism. We have faced an unprecedented attack on the American homeland by enemies who came, not openly, but in disguise. They killed thousands of Americans in one day, only because they were Americans. The challenge will be winning the war, and safeguarding the nation's security, while also preserving the liberty of its citizens. Immigrants in America, I believe, have an important role to play in this fight. The United States is a nation of many different people of many different national origins, religions, and beliefs. When al Qaeda and its allies attacked the United States on September 11, they attacked the idea of America, that immigrants could come to this nation to freely practice their own religion and to follow their own beliefs without interference. They attacked the idea that a nation should refuse to impose a single religion or culture. They attacked the idea of freedom.
While a challenging time, this time also presents enormous opportunity for immigrants to our country. Rather than allow the terrorists to win by scaring us from leading our lives, we can reaffirm the greatness of America. We can show that we can renew American society by participating in civic activities, politics, and charities. It is a wonderful time, particularly for the young people in the audience, to become involved in public affairs and the world around them. They can show that our response to the terrorist attacks was not to fear them, but to take part again in the different churches, private groups, and volunteer organizations that, as Tocqueville noted, formed the real structure of American society.
America is a great country precisely because it has welcomed generations of immigrants to its shores. Immigrants can repay America's generosity, in her time of greatest need, by contributing through public service to help our nation. Again, thank you very much for inviting me to join you this evening, and let me say once again how honored I am to receive the Liberty Award.