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UPDATED: Memo to John Yoo: Either talk...or stop writing

For a couple of weeks I wondered what had happened to John "Torture" Yoo, the monthly Inquirer op-ed columnist who'd gone well over a month without a column. Then last week -- after a nearly two-month break -- he re-appeared with a piece on Judge Sonia Sotomayor and the New Haven firefighter case that read more like it was ripped from the Rush Limbaugh Show than the musings of a supposed constitutional scholar. It was insipid right-wing boiler plate that spoke to one of the unexamined aspects of Yoo's controversial hiring: As a columnist, he's dull.

But that was last week. Now John Yoo is in the news yet again, and it also speaks yet again to why a major American newspaper should not award a contract to a man who stands accused of unethical legal practices at the Justice Department, who's now being sued for torture and who in the minds of many readers gave the green light to war crimes that sullied the reputation of the United States.

Hard to believe, but Yoo's resume looks even worse after this report that was released late Friday by inspectors general for the nation's leading intelligence agencies. The report found that in essence Yoo alone, as a upper-mid-level lawyer in the Justice Department, acted to authorize a large-scale post-9/11 spying initiative called the President's Surveillance Program -- apparently because other top governmental officials might object to the legality of the program if they knew about it. Indeed, that is exactly what happened over the next couple of years:

Only three Justice officials - [former Attorney General John] Ashcroft, Yoo, and intelligence-policy lawyer James Baker - were read into the electronic surveillance initiative. Many of their superiors were kept in the dark, the unclassified summary reported for the first time yesterday.

One former department lawyer, Jay Bybee, told investigators he was Yoo's superior but was never read into the program and "could shed no further light" on how Yoo became the point man on memos that confirmed its legality.

The report said Yoo prepared hypothetical documents in September and October 2001 before writing a formal memo in November, after Bush had already authorized the initiative.

In that memo, Yoo concluded that the FISA law could not "restrict the president's ability to engage in warrantless searches that protect the national security" and that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area - which it has not - then the statute must be construed to avoid such a reading," the report said.

The Washington Independent adds some context:

But Yoo's memos at OLC were not part of an academic exercise; they were making policy. Setting aside for a moment the potential culpability of Yoo himself, the more important point here is that, as the inspectors general report makes clear, the White House specifically sought him out and excluded his superiors, ignoring the usual chain of command in the Justice Department, apparently because they knew that John Yoo would give them the legal opinions that they wanted to hear.

The significance of this is profound. Essentially, you can make the case the president and the vice president were engaged in a well-planned conspiracy to get around the laws of the United States on domestic surveillance, part of a broader plot that also involved unlawfully keeping Congress in the dark about plans for a CIA assassination squad. But George W. Bush and Dick Cheney wanted a lawyer to aid and abet their conspiracy, and John Yoo -- a fierce partisan outside the normal decision-making loop -- was the lawyer they turned to.

This means that John Yoo has a lot of explaining to do. Now, here is what I find particularly galling in the context of Yoo's position as an op-ed columnist for the Philadelphia Inquirer.

 Other key figures - including Bush chief of staff Andrew Card, former Attorney General John Ashcroft, former CIA Director George Tenet, and John Yoo, former lawyer in Justice's Office of Legal Counsel - declined interview requests, investigators said. (Yoo is now a law professor at the University of California, Berkeley, and writes a monthly column for The Inquirer.)

So John Yoo gets paid to spout off about the news of the day, on his own terms, but when agents of his country's intelligence agencies wanted his help in a major investigation, he clammed up. I think that's a huge ethical problem. Here's why.

Like most institutions, newspapers can be horrible at practicing what we preach. But let us at least remember and re-state what newspapers do preach, and that is transparency...and the truth. John Yoo may have a legal right not to talk to investigators in this circumstance, but when he does that and then tries to pass himself as a journalist. even an opinion journalist, he's trying to have it both ways, and that's wrong. Yoo has also shown that he supports government secrecy and restrictions on a free press in a manner that anyone in the media should find truly appalling. If he's not willing to be transparent about his actions and the truth of what happened during the Bush administration, his privileged platform as a columnist should be in jeopardy.

I've already said that the Inquirer -- which had "misgivings" about giving Yoo a contract in the first place -- should have fired him when more information was revealed about his alleged misconduct at the Justice Department about his role in authorizing torture. That didn't happen, but now the Inquirer should be telling Yoo to talk -- or walk...away from his contract. I'm not holding out much hope for that happening, either, but it would be the right thing to do.

UPDATE: Just to clarify one thing, I realize there were some -- although my initial post didn't make this exact argument -- who said initially that the Inquirer shouldn't be giving Yoo "a free forum" to defend his actions in the Bush administration. My initial point back in May was that I didn't think Yoo should be writing for the Inquirer, period. What I'm saying now is that -- well, since he is writing for the Inquirer, then he should at least answer the questions that he seems to be ducking on the President's Surveillance Program.