crew versus department of justice (lawsuit): john yoo emails: 8/31/10 - august 31 production

8/8/2019 CREW versus Department of Justice (Lawsuit): John Yoo Emails: 8/31/10 - August 31 Production

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From:

Harr ison, Wa nda M ar iah

Sent:

Monda y, July 23, 2001 10:30 AM

To:

Yoo, John C

:

Subject:

RE : Could you find me the phone numbers for

jim haynes -.~

alex azar - (~

lee liberman otis - ~~

gene scaila -~

bill myers interior) - ~

david aufhauser (treasury)

.....

Original Message ... . .

From:

Yoo, John C

Sent:

Monday, July 23, 2001 9:42 AM

To:

Harrison, Wanda Mariati

Subject:

Could you find m e the phone numbers for

Jim Haynes, GC at Defense

Alex Azar, soon to be GC at HHS; I suspect he is a consultant there now

Lee Liberman, GC at Energy

Gene Sca lia, soon to be GC at Labor, I susp ect a consultant there now

Also, could you find out w ho the Gen Coun sels at Treasury and Inl~erior are, and their phone numbers?

Thanks.

OLC 000001


2/925

From:

Wall, Jeffrey B. ......

Sent:

Thursday, August 16, 2001 5:03 PM

To:

Yoo, John C

Subject:

RE : U. C hicago Federalist Society

Sensitivity:

Personal

Attachments :

tmp.htm

tmp.htm (11 KB)

What about Monday, November 12 through Wednesday, November 14? Ill check the Law Schools

calendar to make sure those dates work.

W hen I ment ioned the legal ag enda, I had in mind som ething that Frank Ea sterbrook said a few months ag o. He talked

about how he ha d w orked in the Solicitors O ff ice to get certain cases before the C ourt . I thoug ht that i t might be

interesting to discuss the Bush Administrations aims in that regard. To go in the other direction: I was speaking with

Gene M eyer today, and h e mentioned that you have done su bstant ial work on the separat ion of pow ers. What about

panel on Bu sh judicial selection -- at all levels, including the Sup reme C ourt -- and the prop e~r role of the Senate in the

confirmat ion process? The level of deference due a President s nom inat ions, and so on . Perhap s that would be both

topical and a bit more scholarly.

However, I m open to developing the topic through the fall, especially if an issue arises in your work with the OLC that

you w ould l ike to discuss. I wi l l get back to you w ffhin the next few days on Nov. 12-14 .

Ag ain, many thanks for al l your help --

Jeff

. . . . . Or iginal Message .. . . .

From: Yoo, John C [mailto:[email protected]]

Sent: Thursday, August 16, 2001 3:40 PM

To: Wa ll, Jeffrey B.

Subject: RE: U. Chicago Federalist Society

Sensit ivity: Persona l

Jeff:

O ctober is pretty mu ch booked for me, so I th ink the best t ime for mew ould be November. I am ha ppy to come out

early in the week, say on a Mond ay, and I am equally hap py to do the event at a lunch t ime

In terms of topics, Bush judicial selection is certainly fine. We could also talk about Supreme Court appointment

possibil it ies. W hat else on the legal ag enda would you be cur ious about?

.....

Original Message .....

From: Wall, Jeffrey B.


OLC 000002


3/925

To:

Yoo, John C

Subject:

RE : U. C hicago Federa l ist Society

:~ Dep uty Assistant Attorney GeneraI-Yoo:

It s w onderful to hear that youre interested in speaking . This early in the year, most dates are still open , so were

happ y to accommod ate your v isit at a t ime most convenient for you. I f you have an idea which t ime of the year might

work best, I l l throw ou t some da tesand w e can w ork from there. Beginning with just the.fal l quarter, I sti ll have open

space in early and mid-October, and then again in mid-November.

O ur most popular events are held dur ing the no on hou r, and usually events earlier in the w eek draw greater response.

As for topics, Im not sure wha ts of particular interest to you or the O LC gen erally. Perhaps w e could arrang e a pan el

discussion on judicial nominat ions, or the Bush Administrat ions legal ag enda? I m op en to sug gest ions, and I think that

we w ould be pleased to hear from you on any m atter you deem ap propriate.

After today, my contact information is:

I hope that w e will be able to work ou t a visit to the Law S chool this year. Than ks --

Jeff

. . . . . Or ig inal Message . . . . .

From: John Yoo,

Sent: Monda y, August 13, 2001 5:08 PM

To: Wall, Jeffrey B.

Subject: Re: U. Chicago Federalist Society

Jeff:

Thanks very m uch for your invitation. I would be very interested in speaking . Righ t now, I have taken a year of f and am

serving as a d eputy

assistant attorney general in the O ffice of Legal Co unsel at DO J. So it

may be harder to schedule, and it may be harder to figure out a topic.

But I w ould love to do it , and w ant to f igure out a good date and su bject.

W hat do you have in m ind on both subjects? Also, the better way to reach me wo uld be:

jo h n.c.yoo @ usdoj.gov

202.514.2069

. . . .. O riginal Messag e . . . ..

From: "Wa ll, Jeffrey B."

Date: Sunday, August 12, 2001 9:13 pm

Subject: U. Chicag o Federalist Society

> Dear Professor Yoo:

OLC 000003


4/925

> I apolog ize in advance for contacting you via e-ma il, but, according

> to your home pa ge, you are on leave and e-mail is the best way to

> reach you. On behalf of the Federalist Society at the University of

> Chicago Law School, I am honored to invite you to speak to our members

> and the law school community. We w ould be delighted to hear from you

> on-an y matter you deem appropriate.

>

O ur mos~ popular events are held dur ing the noon hour. O f course, the

Federalist Society will cover all travel-related expen ses. If you r

schedule permits, we would also like to take you to lunch following

the event. This early in the year, most dates are stil l open , so we

would be ha ppy to accommodate your v isit at a t ime most convenient for

you.

I f you have an y questions, I can be reached at the address below.

W e do hope to be able to welcome you to the Law Sch ool this year.

Thankyou for your time and consideration.

Sincerely,

/s/Jeffrey Wal l

Vice President for Speakers

> :~1~1~1~

NOTICE: This e-mail message and all attachments transmitted with it

are intended solely for the use of the add ressee and m ay contain

legally privileged and confidential information. If the reader of this

messag e is not the intended recipient, or an employee or ag ent

respons ible for delivering this messa ge to the intended recipient, you

are hereby n ot i fied that an y d isseminat ion, distribut ion, copy ing, or

other use of this m essag e or its attachments is strictly prohibited.

If you have received this message in error, please notify the send er

immediately by e-mail reply and p lease delete this messag e from your

> computer.

> Thank you. M ayer, Brow n and P latt .

>

NOTICE: This e-mail message and all attachments transmitted with it are intended solely for the use of the addressee

OLC 000004


5/925


6/925

. .RE : U. C hicago Federa l is t Society

Page 1 of 4

What about Monday, November 12 through Wednesday, November14? Iil check the Law Schools calendar to make sure

those dates work. -

When 1 mentioned the legal agenda, I had in mind something that Frank Easterbrook said a few months ago. He talked about

how he had worked in the Solicitors Office to get certain cases before the Court. I thought that it might be interesting to discuss

the Bush Administrations aims in that regard. To go in the other direction: I was speaking with Gene Meyer today, and he

mentioned that you have done substantial work on the separation of pow ers. What about a panel on Bush judicial selection -- at

all levels, including the Supreme Court -- and the proper role of the Senate in the confirmation process? The level of deference

due a Presidents nom inations, and so on. Perhaps that would be both topical and a bit more scholarly.

However; Im open to developing the topic through the fall, especially if an issue arises in your work with the OLC that you

would like to discuss. I will get back to you within the next few days on Nov. 12-14. Again, many thanks for all your help --

Jeff

....

Original Message .....

From: Y oo, John C [mailto:John.C.Yoo@ usdoi. oggy_]




Sensitivity: Pe rsonal

Jeff:

October is pretty much booked for me, so I think the best time for me would be November. I am happy to come out early in the

week, say on a M onday, and I am equally happy to do the event at a lunch time.

In terms of topics, Bush judicial selection is certainly fine. We could also talk about Supreme Court appointment possibilities.

What else on the legal agenda w ould you be curious about?

..... Original Message .....

From: Wall, Jeffrey B. ~

Sent: Thursday, August_16, 2001 3:37 PM

To: Yoo, John C


> Deputy Assistant Attorney General Yoo:

Its wonderful to hear that youre interested in speaking. This early

in the year, most dates are still open, so ~vere happy to accom modate

your visit at a time most convenient for you. If you have an idea which

time of the year might work best, Ill throw out some dates and we can

work from there. Beginning with just the fall quarter, I still have

open space in early and mid-October, and then again in mid-November.

Our mo st popular events are held during the noon hour, and usually

events earlier in the week draw greater response.

As for topics, Im not sure w hats of particular interest to you or the

OLC generally. Perhaps we could arrange a panel discussion on judicial

nominations, or the Bush Administrations legal agenda? Im open to

suggestions, and I think that we would be pleased to hear from you o n OLC 000006


7/925

.RE: U. Chicago Federalist Soci.ety Page 2 of 4

any matter you deem appropriate.

After today, my contact information is:

I hope that we will be able to work out a visit to the Law School this

year. Thanks--

Jeff


From: John Yoo ~

Sent: Monday, August 13, 2001 5:08 PM


Subject: Re: U. Chicago Federalist Society

Jeff:

Thanks very much for your invitation. I would be very interested in

speaking. Right now, I have taken a year offand am serving as a deputy

assistant attorney general in the Office of Legal Counsel at DOJ. So it

may be h arder to schedule, and it may be harder to figure out a topic.

But I would love to do it, and want to figure out a good date and

subject.

What do yo u have in mind on b oth subjects? Also, the better way to

reach me would be:

[email protected] -

202.514.2069


From: "Wall, Jeffrey B."

~

Date: Sunday, August 12, 2001 9:13 pm

Subject: U. Chicago Federalist Society

> Dear Professor Yoo:

>

> I apologize in advance for contacting you via e-mail, but,

> according to

> your home page, you are on leave and e-mail is the best way to reach

> you. On behalf of the Federalist Society at the University of Chicago

> Law School, I am honored to invite you to speak to our members and the

> law school community. We would be delighted to hear from you on any

> matter you deem appropriate.

>

> Our most popular events are held during the noon hour. Of course, the

OLC 000007


8/925

t iE: U. Ch icago Federalist Society

Page 3 of 4

> Federalist Society will cover all travel-related expenses. If your

> schedule permits, we would also like to take you to lunch

> following the

> event. This early in the year, most dates are still Open, so we would

> be happy to accommodate your visit at a time most convenient for you.

> If you have any questions, I can be reached at the address below.

> We do hope to be able to welcome you to the Law School this year.

> Thankyou for your time and consideration.

>

> Sincerely,

>/s/Jeffrey Wall

>

> Vice President for Speakers

***********************************************************************

> NOTICE: This e-mail message and all attachments transmitted with

> it are

> intended solely for the use of the addressee and may contain

> legally privileged

> and confidential information. If the reader of this message is not

> the intended

> recipient, or an employee or agent responsible for delivering this

> message to

> the intended recipient, you are hereby notified that any

> dissemination, distribution,

> copying, or other use of this message or its attachments is

> strictly prohibited.

> If you have received this message in error, please notify the

> sender immediately

> by e-mail reply and please delete this message from your computer.

> Thank you. Mayer, Brown and Platt.

NOTICE: This e-mail message and all attachments trans~nitted with it are

intended solely for the use of the addressee an d may contain legally privileged

and confidential information. If the reader of this message is not the intended

recipient, or an employee or ag ent responsible for delivering this message to

the intended recipient, you are h ereby notified that any dissemination, distribution,

copying, or other use of this message or its attachments is strictly prohibited.

If you have received this message in error, please notify the sender immediately

by e-mail reply and please delete this message from your computer. OLC 000008


9/925

:RE: U . Chicago Feder alist Society

Page 4 of 4

Thank you. Mayer, Brown and Platt.

NOTICE: This e-mail message and all attachments transmitted with it are

intended solely for the use of the addressee and may cgntain legally

privileged

and confidential information. If the reader of this message is not the

intended

recipient, or an employee or agent responsible for delivering this

message to

the intended recipient, you are hereby notified that any dissemination,

distribution,

copying, or other use of this message or its attachments is strictly

prohibited.

If you have received this message in error, please notify the sender

immediately

by e-mail reply and please delete this message from your computer.

Thank you Mayer, Brown and Platt.

OLC 000009


10/925

Froth:

Sent:

To:

Subject:

" EEX:l-r~ns [EEXTrans@ opm.gov]

Tuesday, August 21, 2001 9:37 AM

Yoo, John C

E-mail Confirmation of your Em ployee Express action.

You entered a Direct Deposit Change Action on 08/20/200i at :1:26:06 and it will be effective 08/25/200~L; however,

due to agen cy processing it may not be effective until the next pay period. Thank yo u for using Em ployee Exp ress. For

questions concerning this action, please con tact your servicing p ersonnel or pay roll office.

The Emp loyee Express Helpdesk can assist you with new E mployee Express PIN requests, refer you to your agency

contact, and assist you with using the system. Please send e-mail to [email protected].

OLC 000010


11/925

John Tryneski ~

Tuesday, August 21, 2001 4:47 PM

Yoo, John C

O ur:supporting statement for Your book

Attachments:

tmp.htm

tmp.htm (6 KB )

Dear John,

As I mentioned on the p hone, our evaluat ion of you r proposal w ill be faxed to you short ly. The su pport ing statement

below is not so much an evaluation as, say, an am icus curiae piece. A suppo rting statemen t is written by someon e who

either already knows the project or the author well, but whose good opinion of the work carries weight. In this case,

that person is Jack Goldsm ith. Youll see that he does have a sug gestion for you to consider.

W hen. you receive our evaluation, I would a sk that you resp ond in w rit ing to the points raised in both. it and in the

support ing statement: agreeing, , disagreeing, a nd n ot ing whether you w i ll be incorporat ing them in your plan. Y ou can

send yo ur response to me via em ail as either attachment or as text. In the mean time, we will be discussing a n ad vance

contract for your book on Thursday afternoon, an d I w i ll be in touch w ith you either that af ternoon or the n ext morning

with wh at I trust wil l be good news .

All best,

John

> You asked me to wr ite a supporting sta tement for John Yoos

> War, Peace, and the Framers Constitution for the Chicago Press. I

>sh ould disclose up front that oo an d I are close friends, that w e

> ha ve collaborated on op-eds related to the subject matter of this

> book, an d that we a re general ly ident i fied in the academy as being in

> the same "school" or "camp."

>

>

I think this wil l be a terr i fic and im portant book an d that

> you should ag ree to publish i t.

>

>The acad emic field of foreign affairs law has long been domina ted by a

>set of " internat ionalist" assum ptions, including: (a) internat ional law

>(both treaties and customary international law) presumptively applies

>in the dom est ic realm and trumps domest ic law wh en the two confl ict ;

>(b) presidential power, and especially presidential war power, should

>be narrowly construed; (c) Cong ress is the dom inate branch in foreign

>affairs; and (d) the states have no constitutional role whatsoever in

>foreign affairs. These views domi.nate the academy, and are best summed

>up in H enkins famous book Foreign A ffairs and the C onst i tut ion (O xford

>2d ed. 1996).

OLC 000011


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>There are two problems

with

these views: From a positive perspective,

>they are out of step with modern constitutional practice; and from a

>normative perspective, they are very poorly theorized. (Foreign

>affairs scholarship is without a doubt among the weakest in the field

>of constitutional

>law.) This is especially unfortunate because as the world shrinks,

>more and more traditionally "domestic" issues are taking on a "foreign"

>component -- treaties regulate domestic subjects with greater

>frequency, domestic acts increasingly have international consequences,

>etc.. Foreign affairs law is thus a growing and important field.

>

>The articles on which Yoos book will be based are all excellent pieces of

>academic work that have been published in top law reviews. Many of his

>conclusions -- some of which I disagree with -- are original, and many

>of them are controgersial and/or iconoclastic. (I mean this last

>descript ion as~.a com pliment, especia. l ly in such a stodg y f ie ld as

>foreign

>affairs.) To take one of many examples, Yoo argues, contrary to

>conventional wisdom, that treaties do not have domestic force in mo~t

>instances unless they receive implementation by Congress. He also

>argues, Controversially but persuasively to my mind, that, desPite

>Congresss war declaratio

n

power, the Framers intended the President to

>have broad power to send troops into conflict abroad. These and other

>of Yoos ideas are central to modern legal debates on these topics;, his

>book will, I am sure, expand that influence.

>

>Yoos methodology is also unusual in this field. Although originalism

>has been a dominate approach to constitutional law for the past 20

>years, it has barely been. invoked in the foreign affairs field. Yoos

>originalist approach to foreign affairs law, as well as his largely

>formalist approach to the subject, are thus rare in the academy in this field.

>

>

I have only one suggestion for Yoo which you can pass along to

> him if you think it appropriate. This concerns his use of originalism

> to address foreign affairs problems. Of all the areas of

> constitutional law, foreign affairs is the one in which the original

> understanding of the Framers is arguably the least relevant. In a

> nutshell, the problem is this: The Framers designed a constitutional

> system that presupposed, and hoped, that U.S. international

> engagements would be few and shallow. This constitutional framework

> has necessarily changed as we have moved from a weak isolationist

> nation to the global hegemon in a nuclear world. In this light, of

> what relevance is original understanding? Why do the framers views

matter? I kn ow Y oo ha s responses to this query; I s imply urge h im to f lesh them out in the book.

John Tryneski

Executive Editor

University. of Chicago Press

[NEW AD DRE SS AS OF ~1/:15/0:1i

OLC 000012


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[NE W FA X N U M B E R ]

Catalogs, online ordering, and features from ou r publications-may be found at http://ww w.press.uchicago.edu/

Sign up to receive email notif ication of new titles in any field:

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OLC 000013


14/925

Dear John,

As I mentioned on the phone, our evaluation of yourproposal will be faxed to you shortly. The

supporting statement below is not so much an evaluation as, say, an

amicus curiadpieee. A supportin

statement is written by someone who either already knows the project or the author well, but whose

good opinion of the work carries weight. In this case, that person is Jack Goldsmith. Youll see that h

does have a suggestion for you to consider.

When you receive our evaluation, I would ask that you respond in writing to the points raised in bot

and in the supporting statement: agreeing, disagreeing, and noting whether yoh will-be incorporating

them in your plan. You can send your response to me via email as either attachment or as text.. In the

meantime, we will be discussing an advance contract for your book on Thursday afternoon, and I wil

in touch with you either that afternoon or the next morning with what I trust will be good news.

All best,

John

You asked me to write a supporting statement for Jolm Yoos War, Peace, and the

Framers Constitution for the Chicago Press. I should disclose up .front that Yoo and I are

close friends, that we have collaborated on op-eds related to the subject matter of this book,

and that we are generally identified in the academy as being in the same "school" or

"camp."

think this will be a terrific and important book and that you sho uld agree to p ublish it.

The academ ic field of foreign affairs law has long been dominated by a set of

"internationalist" assumptions, including: (a) international law (both treaties and customary

international law) presumptively applies in the domestic realm and trumps domestic law

when the two conflict; (b) presidential power, and especially presidential war power, should

be narrowly construed; (c) Congress is the dominate branch in foreign affairs; and (d) the

states have no constitutional role whatsoever in foreign affairs. These views dominate the

academy, and are best summed up in Henkins famous book Foreign Affairs and the

Constitution-(Oxford 2d ed. 1996).

There are two problem s with these views: From a positive perspective, they are out of step

with modern constitutional practice; and from a normative perspective, they are very poorly

theorized. (Foreign affairs scholarship is without a doubt among the weakest in the field of

constitutional law.) This is especially unfortunate because as the world shrinks, more and

more traditionally "domestic" issues are taking on a "foreign" component -- treaties regulate

domestic subjects with greater frequency, dom estic acts increasingly have international

consequences, etc. Foreign affairs law is thus a growing and important field.

The articles on which Yoos book will be based are all excellent pieces of academic work

that have been published in top law reviews. M any of his conclusions -- some o f which I

disagree with -- are original, and many of them are controversial and or iconoclastic. (I

mean this last description as a complimen t, especially in such a stodgy field as foreign

affairs.) To take one of m any exam ples, Yoo argues, contrary to conventional wisdom, that

treaties do not have domestic force in most instances unless they receive implementation by

file://C:kDocuments and Settings\dbrinley~Local Settings\Temporary Internet Files\OLK6C... 7/14/2

OLC 000014


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Congress. He aIso argues, controversially but persuasively to my mind, that, despite

Congresss war declaration power, the Framers intended the President tohav~broad power

to send troops into conflict abroad. These and other of Yoos ideas are central to modem

legal debates on these topics; his book will, I am sure, expand that influence.-

Yoos methodology is also unusual in this field. Although originalism has been a dominate

approach to constitutional law for the past 20 years, it has barely been invoked in the

foreign affairs field. Yoos originalist approach to foreign affairs law, as well as his largely

formalist approach to the subject, are thus rare in the academy in this field~

I have only one suggestion for Yoo which you can pass along to-him if you think it

appropriate. This concerns his use of originalism to address foreign affairs problems. Of

all the areas ofconstitutionai law, foreign affairs is the one in which the original

understanding of the Framers is arguably the least relevant. In a nutshell, the problem is

this: The Framers designed a constitutional system that presupposed, and hoped, that U.S.

international engagements would be few and shallow. This constitutional framework has

necessarily changed as we have moved from a weak isolationist nation to the global

hegemon in a nuclear world. In this light, of what relevance is original understanding? Why

do the framers views matter? I know Yoo has responses to this query; I simply urge him to

flesh them out in the book.

John Tryneski

Exeoutive Editor

University of Chicago Press

[NEW ADDRESS AS OF 1/15/01]

~

{NEW FAX NUMBER]

Catalogs, online ordering, and features from our publications

may be found at http://www.press.uchicago.edu/

Sign up to receive email notification of new titles in any field:

http://www.press.uchicago.edu mailnotifier/

file:NC:kDocuments and Settings\dbrinley\Local Settings\Temporary Intemet Files\OLK6C... 7/14/

OLC 000015


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Sent:

Subject:

Geurtsen, Frits

Wedn esday, August 22, 2001 11:35 AM

YQo,

John C

RE: m oving question

John - The sh ort answer is that the government covers the Cos t of shipping you r car, as opposed to the cost of you~.

mileage if you w ere to drive the car out here, "if its advantag eous to the governm ent to d0 so". M y gu ess is thatthe cost

of shipping w ill always exceed the cost of driving, but had Deneen figure out for comparison purposes how much you

would get paid for the mileage. It comes to approximately $482 (2,835.2 miles, per Mapquest, times $.17 per mile).

I wil l also have her ask. her contact point if we can apply the m ileage am ount toward the shipp ing cost and just Iiave you.

cover the difference. I l l let you know as soon as we get an answer. Any other questions? Frits

....

Original Message ....

From: Yoo, John C

Senti

Monday, August 20, 2001 4:10 PM

T o : Geurtsen, Fd~

Subject=

moving question

Frits:

I am sti l l f iguring out exactly how I am going to move our househo ld out here. Does DO J cover the move of a car, in

addition to the household weights you gave me before? I am looking at auto shippers r ight now.

Thanks.

John .Yoo

Office of Legat Counsel

U.S. Department of Justice

Washington, D.C. 205 30

202.514.2069 "

202.305.8524 (fax)

OLC 000016


17/925

From: Geurtsen, Frits


To : Yoo, John C

Subject:

FW: Relocation Q uestion

John - Go od new s; see below. O n the fourth item of consideration, we w ill characterize it in terms of lost produ ctivity as

oppo sed to accelerated arrival since youre already here. Den een is in contact w ith the relocation specialist and w e will let

you know wh at the next step is. Frits

.... Original Message .....

From:

Rodeffer, Mark H

Se~t:

Thursday, August 23, 2001 2:17 PM

Geurtsen, Frits

Subject;

Relocation Question

Frits,

Marcia Paull pr inted your e-mail to her and g ave i t to me. Y ou ask i f a P O V can be shipped (cost ing $750), and the

employee pa y the excess over the mileage that wo uld have been paid for driving the P O V for relocation ($482 ).

It may not be necessary for the employee to pay anything for shipp ing the PO V. The Federal Travel Regulation allows

shipment when it is advantageous and cost effective to the Government. The Regulation, at 41 C.F.R. 302-10.505

requires that consideration be given to the following:

Cost of travel by PO V;

Cost of transporting the POV;

Cost of travel if the PO V is transported: and

Productivity benefit you derive from the em ployees accelerated arrival at the new official station.

The cost of travel by POV would include per diem (lodging plus meals and incidental expenses) in addition to mileage.

However, you must add to the cost of shipping the POV the airline ticket and other costs of the employees en route travel

The fourth item m ay important enoug h to override any small cost considerations.

Mark

OLC 000017


18/925

From:

M artin Ho tvet . .

Sent:

Thursday, September 06, 2001 4:12 P M

To :

Yoo, John C

Subject: 2002 N AAG Corrections Seminar

Dear Professor Yoo:

As per our telephone conversation, the National Association of Attorneys General invites you to speak to our

Corrections Seminar on February 5, 200 1. The Semina r will be held in Louisiana . The attendees will be Assistant

Attorneys General from around the country(80 to :100 in

num ber). Your topic wil l be a const itut ional law upda te, with a focus

on prisoner/criminal law/federalism issues.

W e would a lso l ike to extend an invitat ion to your fr iend Professor Man ning to spea k on the same topics, and

perhaps a lso statutory interpretation~ an d you indicated you would ask h im.

Martin Hotvet

Assistant Solicitor General

New York Dept. of Law

e-mail:

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Page 1 of 1

From:

John Yoo l l~t~~~l~lll

Sent: Sunday, September 30, 2001 5:07 PM

To :

Yoo, John C

Subject: Fwd:

Attachments: Un t it led A ttachmen t

OLC 000019


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Dear Professor Yo

O ,

Attached is a draft of the letter I am preparinl~ to send out to potential

contributors to the Harvard Journal of Law and Public Policys special issue on

Law and the War on Terrorism.

I am submitting this draft tO you for your approval. In it, I mention your name

as an encouraging force behind the symposium and as an informally-committed

contributor. I hope you find this description accurate, and I hope you find the

use of your name acceptable.

You probably understand the collective-action problem involved in an endeavor

such as this because quality writers such as yourself only want to contribute if

other quality writers will also be participating. Professor Stuntz has

already given his permission for the use of his name. I think my use of your

name will likewise be a very valuable force in drumming-up other contributors.

Please let me know as soon as possible if you find this acceptable. I still

consider your commitment an informal one. I would, of course, also welcome

any

substantive reccomendations you might have for the letter.

I greatly appreciate your encoural~ement.

Chris Posteraro

Editor-in-Chief

Harvard Journal of Law and Public Policy

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October 1, 2001

Professor

School of Law

765

Avenue

Boston, MA 0221 5

Dear Professor

:

The terrorist attacks of Septemb er 11 , 2001 will almost certainly bring about a sea change

in Am erican law and public policy. The depth and b readth of that change is only now

beginning to take shape. It is the responsibility of the legal community to provide what

insight and g uidance it can to policy-makers as they forge the parameters of Am ericas

response to international terror.

The

Harvard Journal of Law & Public Policy

invites you to participate in an extraordinary

intellectual endeavor: a special issue on Law and the W ar on Terrorism. The g oal of this

issue is to provide policy-makers with much-needed guidance at a critical juncture in our

nations history. The issue w ill consist of a series of short articles and essay s by leading

scholars in a variety of law and policy fields. Potential topics include:

1)

The Constitutionality of the Bush Administrations proposed changes in the

law of criminal procedure.

The Constitutionality of proposed changes to rules governing INS detention

and deportation.

Requirem ents under national and international law for the use of force,

particularly the limits of th

e

war pow ers of the President.

4) The wisdom of US restrictions on assassination of heads-of-state.

5)

The legal viability of a declaration of war against an individual, a group or

even against an idea (terrorism).

Th e role, if any, that doctrines of self-defense and h ot pursuit play in

Americas pursuit o f international terrorism.

7)

Peripheral concerns, such as the w isdom and leg ality of industry bailouts.

Rethinking the relationship of the United States to. the international

community, particularly our participation in international organizations

such as the International-Criminal Court and the wisdom, or lack thereof, in

using such organizations to address terrorism.

1

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9)

Anticipating US vulnerabilities creatively and offering solutions that take

into consideration concerns about freedom and practicality. -

Addressing the rift between domestic conservatives and libertarians

regarding potential and actual responses to terrorism.

Please feel.flee to write about any of the above suggestions, or develop ~your own topic

related to Americas war against terrorism. Submissions should be relatively brief,

between 12 and 25 double-spaced pages in length, and should contain between 25 and 50

footnotes. These are general guidelines, not firm restrictions.

So that your work w ill be relevant and timely, the

Journal

will compress its editing

timeline as much as possible without sacrificing our reputation for excellence and

thoroughness. To insure relevance, that is to say, your articles consideration of the most-

recent developments, the deadline for submission will be Monday, No vemb er 26. This

deadline is firm. I would greatly appreciate earlier submissions. To insure timeliness, the

Journal will send the symposium to our printers before January 31, 2 002 . It will be in

.policy-makers hands soon thereafter.

Should you dec ide to submit an-article, please inform m e as soon as possible so that I may

allocate space accordingly. The collection of contributors will be an exceptional gathering

of legal academias finest. [ should acknow ledge that the concept for this symposium

benefited greatly from the encouragement of two informally-committed authors,

Professor

William Stuntz of Harvard Law School a n d P r o fe s s o r J o h n Y o o o f t h e U n i ve r s i t y o f

Cali fornia School o f La w (Boalt Hal l ).

The distinct possibility exists that shortly-after publication the

Journal

will invite all

participants to Harvard Law School for a symposium where authors would present their

pieces and discuss other authors work.

Please contact me at the phone number or address listed above if you have any questions.

You should also feel free to e-mail me at _~ --~

.................

. This solicitation does

not constitute an offer of publication, but I can assure you that based on your reputation for

excellence, I cannot foresee the possibility of declining to publish your work. As always,

.the Journal welcomes any other w ritten submissions you would like to make. I hope you

chose to participate in this important opportunity.

Sincerely,

Clwistopher C. Posteraro

Editor-in-Chief, Volume 2 5

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From:

_

.

-

Sent:

Wednesday, October 03, 2001 1:23 PM

To :

Yoo, John C; ,

Subject:

Law and Terrorism Project Soliciation Letter

Dear Professors Yoo and Stuntz,

I just wanted to thank yo

u

both for your early assistance in the Journal of La w an d Pu blic Policys special issue on La w

and Terrorism.

The Journ al has s ent out over 60 solicitation letters to. prominent schola rs in constitutional, crimina l and internationa l

law as well as a few to military and international relations scholars. We will be following up with these scholars in the

near future.

Your ow n pieces Should proceed on the same t imeline I have given the other authors, that is that we w ould l ike your

piece submitted by November 26, 2001.

As we previously discussed, your contributions need not be lonl~ or heavilly researched; rather we are looking for your

~first cutat addressing so me of the legal issues involved in Am ericas war on terrorism.

Please let me know w henever there is anything I can.do to as sist yo

u.

Also, if you know of colleagues, thaiwould l ike to

contribute to this special issue, please d o not hesitate to contact me with their nam es. I have alread y contacted several

of the people Professor Stuntz recommended.

Again, sincere thanks,

Chris P osteraro

. Looks fine to me.

>

> John Yoo

> O ffice of Legal Counsel _

> U .S. Department of Justice

> W ashington, D.C. 20530

> 202.514.2069

> 202.305.8524 ( fax)

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~rom:

S e n t :

T o :

Subject:

Thursday, October 18, 2001 10:40 AM

Yoo, John C

Law a nd Terrorism Symposium

Dear Professor Yoo,

I wan ted to update you o n the truly imp ressive collection of commitmen ts the Journal ha s been able to secure for its

special issue on Law an d the W ar on Terrorism.

Here is the current list, the topics are roug h estimations, no t necessarilly f inalized. I think it is an u nprecidented

gathering of legal thinkers and policy-makers.

Prof. Cass Sunstein University of Chicago Law School

Topic: "The social dynamics, that lead terrorists to be terrorists, in a way that bears on the importance of checks and

balances, on constitutional design, and on what we might do to help prevent more terrorism"

Prof. Debra A. Livingston C olumbia Law School

Topic: Criminal Procedure - Electronic Surveillance Issues

Prof. William Stuntz Harvard Law School

Topic: Criminal Procedure - Stop and Frisk Issues

Assistant Attorney General Viet Dinh

Department of Justice - Office of Legal Policy Professor, Georgetown University Law Center

Topic: Proposed Anti-Terrorism Legislation (may be a foreword)

Prof. Geoge Fletcher Columbia Law School

Topic: We Must Choose: Justice or War (expanding on a 10/6 Washington Postop-ed)

Kenneth A nderson, American Universi ty Law School

Topic: What to do with Bin Laden; exp lor ing the murky categories of covert operations, assasinat ion and mil itary

execution.

Jack M. Beard, Assoc. Deputy General Counsel for International Affairs - Dept.

of D efense (recently returned from Uzbekistan tr ip w/Sec. Rum sfeld) Adjunct Professor, Georgetown University L aw

Center

Topic: Legality of the Use of Force

Phill ip Karber

Director, JFK International Airport

Former Deptuty Secretary for Strategy - Department of Defense (approx. t it le)

Topic: Regulating and Reconstituting Global Aviation in an Era of the Plane as Weapon

Prof. W illiam E . Lee University of Georg ia - Grady C ollege of Journalism

Topic: Military Con trol of the Press

Prof. Noah Feldman NYU Law School

Topic: Implication of the choice of war or law enforcement on administrative law.

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Lt. Col. (Ret.} Dave Grossman andProf. David Klinger (U. of Missouri

Topic:Potential of Terrorists as "Active Shooters" (e.g., Columbine} - The Need for Military Respon_se and Impact on

Second Amendment Law

This list is growing every day.. We have more tentative commitments from Randy Barnettat BU Law, Richard Parker a

Harvard, Jack Matlock (Former Ambassador to the USSR for Reagan and Bush, and Professor Fredrick Hitzat the

Woodrow Wilson School at Princeton.

I should let you know that Gary Lawson at BU paid you a great compliment when he e-m~iled me declining to write

"because anything [he] could say, John Yoo would say better."

Let m e kn ow on ce you have settled on a topic, I bel ieve you we re interested in w riting a bout the w ar powe rs of the

President.

I want to sincerely thank you for your encouragement with this project, I think it is going robe a truly exceptional issue

With sincere thanks,

Chris Posteraro

EIC


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From:

Jeff Wall ......

Sent:

- [hursday, O ctober 18, 2001 12:02 PM

To: "

Yoo, John C

Subject:

Re: Speaking Date

DAAG Yoo,

No problem at all -- we look forward to seeing you on the :~8th. I l l get in touch with you a litt le closer to the event to

discuss travel plans , topic, and the like. In the mean time, please dont hesitate to contact me w ith questions.

Jeff

At 06:13 PM 10/17/2001 -0400, you wrote:

>Jeff:

>

>Ive just discovered I have to attend a conference at DePaul on Apr. 18

>& 19 . Is there anywa y we can m ove my talk to the : lgth? That would

>also save you al l money. I f that is not possible; can w e reschedule for May?

>

>John Yoo

>O ffice of Legal Counsel

>U.S. D epartment of Justice

>Washington, D.C. 20530

>202.514.2069

>202.305.8524 (fax)

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Page 1 of 1

From:

John Yoo i ~~I

Sent:

Thursday, October 18,200.1 1:58 PM

To :

Yoo, John C

Subject:

Fwd : Invitation

Attachmen ts: Invitat ion

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October 16, 2001

Dear John:

I am writ ing to invite you to a m eeting to be held at the George

W ashington U niversity School of Law on the mo rning of November 2.to

discuss a work in progress. I havebeen developing, with the assistance

of one of m y studen ts, a databas e covering the treaty ratif ication

process in the U.S. since World War I1. Although I have not in my

scholarship g eneral ly eng aged in empir ical work, I un dertook this

project in the belief that a f irmer factual foundation might help guide

the debate about U .S. treaty ratif ication that ha s becom e particularly

heated over the past decade. The database h as entries for the 958

treaties submitted to the Senate between D ecember 1944 an d Janu ary 2001.

The s.,~tem contains, for examp le, information abou t the use of

reservations, und erstandings, an d declarations, and the lengths of t ime

taken for treaties to pa ss throug h various p oints in the ratification

process. Other fields of information allow for analysis of differences

in the treaty-making process depen ding up on the party al ignments in the

Executive Branch and H ouses of Con gress, and the subject matter of the

treaties.

O ur results are prelimina ry at this point, but quite fascinating a lso.

O n the one ha nd, there are serious limits to what one can ex pect from

such an in.vestiga tion, and in the end the project may serve primarily to

clarify the lines of debate. On the other hand, my work with the

facts, as it were, has brough t home to me h ow a ll of us operate with

many unverif ied, or even non-verif iable, assum ptions about past an d

present U .S treaty ratification practice. It is m y intent at the m eeting

to present the m ethodology we h ave emp loyed, review our preliminary

f indings thus far an d high ligh t the directions we are contemplat ingfor

continued elaboration of the database. We hope that the comments of the

academics and foreign policy practit ioners in the meeting will help us

evaluate future directions for this project, and pa rticuiarly aid u s in

focussing on ho w this database m ight be useful to the work of both

group s. Da tabase design requires a great deal of foresight both as to

the data to be collected but also as to the questions that are mo st

importar~t to try and il lumina te. Your assistance w ill be greatly

appreciated.

Init ially, I plann ed to hold this wo rking ses sion at the ASILs Tillar

Hous e. Given that site is unavailable because of renovation, Sean Murph y

and Susan Karamanian have generously offered to co-host the workshop

with ASIL, and to hold i t at George Wa shington U niversity. The workshop

will be held in Room S 305 (the S denotes the Stockton building

),

beginning at 9 AM . S 305 is locatedin the main bui lding of the GW Law

School, at 2000 H Street, NW .

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We will adjourn by noon. Please RSVP by Oct. 26th to Susan Karamanian, -

at ~~111~ or by email at : If you

have any questions, please feel free to call Susan or myself. I hope to

send you a draft of our preliminary results in advance of the meeting.

I look forward to seeing you on November 2nd and thank you for your

consideration.

Best Wishes,

David D. Caron

cc: Susan K aramanian

Sean Murphy

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Full Name:

Last Name:

First Name:

Job Title:

Company:

Other Address:

Business:

Business Fax:

E-mai l :

E-ma i l D i sp l ay A s:

Caron, David D.

Caron

David D.

C. W ill iam Maxeiner Distinguished Professor of Law

School of Law , University of California at B erkeley

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Sent:

Subject:

Thursday, October 18, 2001 2:37 PM

Yoo, John C

IRE: Law a nd Terrorism Symposium

Professor Yoo,

Glad to hear you are pleased.

The product ion schedule is this: We need your piece in as close to f inal a form as possible by November 26. That

should be the Monday after Thanksl~iving weekend. We willgive it to our subciters immediately. They will have The

first two w eeks of Decem ber to work on it. Ou r Upp er level editors will get the pieces immediately once they return

from the holiday on J an. 3. W e expect to send it to the printers before the end of Janu ary so it will be in policy-ma kers

hands in February.

Rem ember that these are to be short pieces, certainly no lonl~er than 25 pa ges a nd 5 0 footnotes.

Thanks for your support ,

Chris

> That is really great. Cong ratulations on pullinl~ together such a

> sha rp line

up.

>

> Y es, my paper w ould be on the presidents war powers. W hat is the

> product ion

schedule going to be?

>

..... Original Messal~e .....

From:

.

"

.

Sent: Thursday, October_:18, 200:1 :I0:40 AM

To: Yoo, John C

Subject : Law an d Terrorism Sym posium

>

>

>

>

>

>

>

>

>

>

>

>

>

Dear Professor Yoo,

I wa nted to upda te you on the truly imp ressive collection of

commitments the Journa l has been able to secure for itsspecial issue

on Law and the Wa r on Terrorism.

Here is the current list, the topics are rough estimations, not

> necess arilly finalized. I think it is an un precidented ga thering of

> legal thinkers and policy-makers.

>

> Prof. Cass Sunstein U niversity of Chicago L aw School

> Topic: "The social dynamics that lead terrorists to be terrorists, in

> a way

that OLC 000031


32/925

and balances, on constitutional

> design, and on what we might do to help prevent

more

> terrorism"

>

> Prof. Debra A. Livingston Columbia Law School

> Topic: Criminal Procedure - Electronic Surveillance Issues

Prof. William Stuntz Harvard Law School

Topic: Criminal Procedure - Stop and Frisk Issues

>

>

>

Assistant Attorney General Viet Dinh

Department of Justice - Office of Legal Policy Professor, Georgetown

University Law Center

Topic: Proposed Anti-Terrorism Legislation (may be a foreword)

Prof. Geoge Fletcher Columbia Law School

> Topic: We Must Choose: Justice or War (expanding on a 10/6 Washington

Postop-ed)

> Kenneth Anderson, American University.Law School

> Topic: What to do with Bin Laden; exploring the murky categories of

> covert operations, assasination and military execution.

>

> Jack M. Beard, Assoc. Deputy General Counsel for International Affairs - Dept.

> of Defense (recently returned from Uzbekistan trip w/Sec. Rumsfeld)

> Adjunct Professor, Georgetown University Law Center

> Topic: Legality of the Use of Force

>

> Phillip Karber

> Director, JFK International Airport

> Former Deptuty Secretary for Strategy - Department of Defense (approx.

> title)

> Topic: Regulating and Reconstituting Global Aviation in an Era of"the

> Plane

a s

> Weapon

>

> Prof. William E. Lee University of Georgia - Grady College of

> Journalism

> Topic: Military Control of the Press

> Prof. Noah Feldman NYU Law School

> Topic: Implication of the choice of war or law enforcement on

> administrative law.

>

> Lt. Col. (Ret.) Dave Grossman andProf. David Klinger (U. of Missouri)

> Topic: Potential of Terrorists as "Active Shooters" (e.g., Columbine)

> - The

Need

> for Military Response and Impact on Second Amendment Law

> OLC 000032


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>This l ist is growing every day. W e ha ve more tentat ive commitments

> from R andy B arnett at BU Law, R ichard Parker at Harvard, Jack M atlock

> (Former Ambassador

to

> the USSR for Reag an and B ush, and Professor Fredrick Hitz at the

> Woodrow

Wilson

> School at P rinceton.

. > i should let you know that Ga ry Lawson at BU paid you a great

-> compliment when

he

> e-mailed me declining to write "because anything [he] could say , John

> Yoo

would

> sa y better."

> Let m e know once you h ave settled on a topic, I believe you were

> interested, in writ ing about the war powers of the President.

>

> I want to sincerely thank you for your encouragement with this

> p roject, I

think

> it is going to be a truly exceptional issue.

">

> W ith sincere thanks,

>

> C hris Posteraro

> EIC

> Harvard Journal of Law and Public Policy

>

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sent:

To:

Subject:

Tuesday, October 23, 2001 8:56 PM

Yoo, John C

Van derbilt Fed eralist S oceity

From:.

To: "john.c.yoo"

Subject: Federalist Society debate

Mr. Yoo,

Professor Na ga reda tells me that you m ay be ava ilable to come to Va nderbilt for a Federlist Society event next Spring.

W e wou ld be delighted to receive you on the d ate of your choice and on the topic of your choice. W e are particularly

interested in issues related to the anti-terrorism effort, specifically civil l iberties issues a nd issues of U.S. foreign, policy.

The chapter customarily seeks out a member of the faculty to debate our guest, although we a lso put together panel

discussions on occassion.

Please let me know your thoug hts, and hopeful ly we can w ork something out for next semester.

Best~

Jacki L. Pick

President, V and erbilt Federalist Society

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From:

McCoy, Deneen

Sent:

Wednesday, October 24, 2001 4:44 P M

To :

Yoo, John C

Subject:

Relocation N ews

JQhn,

FYI.

The movers w ill pack you on Novem ber 14th, Load on N ovember 15th & your delivery date is November 19th. Please feel

free to give me a buzz if you need to discuss.

S. Deneen McCoy

Office of Legal Counsel

Budget and Financial Liaison

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From:

S e n t :

T o :

Subject:

Pick, Jacki Lynn ............. _

Wednesday, O ctober 24, 2001 6:06 PM

Yoo, John C

RE : Van derbilt Federalist Soceity

Mr. Yoo,

Any weekday a t the noon hour between January 2 0th and Ap ri l 20th (excluding

holidays) is a g o...you re the first to sched ule for Spring, so w e are flexible at this-point. Janua ry is best.

Thanks,

Jacki L. Pick

Quoting "Yoo, John C" :

Jacki:

I am interested, and wou ld be w il ling to do a talk on an t i- terrorism

issues. W hat dates did you have in mind?

John Yoo

. . . . . Or iginal Message .. . . .

From:

Sent: Tuesday, October 23, 2001 8:56 PM

To: Yoo, John C

Subject: Vanderbilt Federalist Soceity

From: i ..........

To: " john.c.yoo"

Subject: Federalist Society debate

->

>

>

>

>

>

Mr. Yoo,

Professor Nag areda tells me that you may be a vailable to come to

Vanderbilt for a Federlist Society event next Spring. We would be

delighted to receive you on the date of your choice and on the topic

of your choice. W e are pa rticularly interested in issues related to

the a nti-terrorism effort, specifically civil l iberties issues and

issues of U .S. foreign policy.

The

chapter custom arily seeks out a m ember of the faculty to debate our

guest, although we also put together panel discussions on occassion.

Please let me know you r thoug hts, and hopeful ly we can w ork something

out for next semes ter.

OLC 000036


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Best ,

Jacki L. Pick

President, Vanderbilt Federalist Society

Pick, Jacki Lynn

vanderbilt University

Email: , ~ ...........

OLC 000037


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From: Jack Goldsmith

~.Sent:

Thursday, October 25, 2001 12:35 PM

ITo:

Yoo, John C

.

Subject: RE : Not bad for a days work, huh?

Imp.him

here is the op-ed. An y though ts? Think i t could be a R ule of Law? It helps

that my coau thor is a well-respected former Nuremberg prosecutor. Yo ull notice one of your

sentences in here;

A U.S. Military Trial for the September Terrorists

JackGoldsm ith & B ernard Meltzer

There is an emerging conventional wisdom that Bin Laden and his associates, if captured alive,

should be tried,. ~..,~fore an international tribunal made up of judges from around the world,

including M uslim judges. The judgm ent of such a tribunal would supp osedly be more legit imate

to the world comm unity, and in particular to Muslims who op pose the U.S. invas ion of

Afg hanistan, than a trial in the United States. But the legit imacy g ains o.f an international trial are

far from .certain, and any such trial carries significant, and unacceptable, risks.

Nuremberg is often invoked as a precedent for a Bin Laden trial. It is important to recall that the

Nuremberg format was not settled until late in the War. The British worried that a trial would give

Hitler a propaganda platform, and might turn him in to a martyr. It was only after Hitler and

.Goebbels killed themselves, and thus after this concern was reduced, that the British agreed to

the Nuremberg format. The Nuremberg trials thus took place in a defeated and exhausted

Germany that had.been denuded of political martyrs. There was no audience in Germany that

could react to the trial in a way harmful to the allies.

The B in Laden situation is mu ch different. It is doubtful--or at least very uncertain--than an

international tribunal to try the terrorists wou ld ma ke m uch difference to those w ho currently

believe that U.S. a ctions a re unjust. The nati.ons that wo uld establish such a tribunal have

already condemned Bin Lad en and AI Quaeda for the attacks. B in Laden symp athizers wi ll view

an international tribunal in the same w ay that many Serbs continue to view the U.N .-sponso red,

multi-ethnic international tribunal in The Hague: As a biased tool of western power. Some

audiences on the ma rgin wh o are unsure of the justness of the U.S. action might be favorably

influenced by ~n international tribunal. B ut we sho uld not be naively optimistic about the

legit imacy gains of an international trial.

W e should, how ever, be worried about the costs of Such a trial, whichcould enhance B in Ladens

profile and stature. Bin L aden will use the trial as a platform to attack United States motivesand

policies an attack that will reverberate throughout the Muslim world. A dissenting opinion from a "

symp athetic judge w ould further legit imize Bin L aden s power and p restige. E ven an a cquittal for

insufficient evidence is a non-trivial p ossibility, especially if p rotection of intelligence so urces

precluded the United States from making certain evidence public. In light of the events that have

already transpired a devastat ing war ag ainst Afghanistan premised on B in Ladens gu i lt , the

deaths of Afghani civil ians and U.S. soldiers, and the possibly related continuing bioterrorist

attacks in the Un ited States this is a risk the Un ited States must m inimize.

W e are not sugg esting that the t~-ial process be rigged ag ainst Bin La den, for of course a fair tr ial

presuppo ses that the defendan t could be innocent. B ut fairness does not require the U nited

States to g ive Bin Laden every conceivable advantageprior to conviction. As Just ice C ardozo

stated in a d ifferent context, "justice, though d ue to the accus ed, is due to the accuser also. The

concept of fairness m ust not be strained ti l l it is narrowed to a fi lament."

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From: Geurtsen, Frits

Sent: Thursday, October 25, 2001 2:38 PM

To:

O L C A ll

Subject:

Flu Shots

All: As noted in m y earlier email with notes from the anthrax briefing, flu shots are effective in combating organ isms s uch

.as an thrax. I just checked with the health unit and flu sh ots are available right now for high-r.isk individuals an d after "

Novem ber 5 for the rest of us. You can g o to the Hea lth Unit in Ro om 251 7 without appointmen t any day of the week

except Wednesd ays between 9:00 and noon . Frits

OLC 000039


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From: ............

Sent:

Tuesday, October 30, 2001 1:57 PM

Subject:

Contributors to Harvard Journal of Law and Public Policys Special issue On Law and the War

on Terrorism

Thank you very much for agreeing to contribute to the Ha rvard Journal of Law a nd P ublic Policys Special Issue: Law an

The W ar on Terrorism.

The Journa l has assem bled an extrordinary collection of scholars w ho are prepa red to examine a w ide rang e of crit ical

questions.

Please rem ember to abide by the g uidelines I outlined in my solicitation letter.

The deadline for your submission is now less than a month away, November 26.

Contact me as soon as possible if you require special accomodations.

B elow is the current list of contributors. In som e cases m y statement of an a uthors topic is a very..roug h estimation. I

wo uld welcom e dair i ficat ion.

Name: Prof. Kenneth Anderson

Affiliation: Washington College of Law at American University

Topic: How to Deal With a Terrorist: Capture, Assassination, Summery Execution and Other Options

Name: Prof. Randy Barnett (tentative commitment)

Affiliation: Boston University Law School

Topic: TBA

Name: Prof. Sara Sun Beale and M r. James Felman

Affiliation: Duk e University School of Law

Topic: Grand Jury Provisions in A nti-Terrorism Legislation

Name: Professor Jack M. B eard

Affi liation: Dep uty G eneral Cou nsel for International Affairs- Dept. of Defense, A djunct_Professor, Georgetown

University Law Center

Topic: Legal i ty of the U se of Force in A fghanistan un der Do ctr ine of Self-Defense

Nam e: Assistant Attorney G eneral Viet Dinh

Aff i liation: Department of Just ice- O ff ice of Leg al Pol icy and Professor, Georgetown U niversity La w Center

Topic: Anti-Terrorism Leg islation (m ay be a forwa rd)

Name: Professor Noah Feldman

Affil iat ion: Assistant Professor of Law NY U Schoo l of Law

Topic: Is terrorism crime, or is it wa r? W hat concep tual framewo rk will or should the Un ited States use to concep tualize

its f igh t aga inst terror?

Exam ining problems ass ociated w ith the choice of f ramework, and the central quest ion of h ow the war/crime

distinction sh ould be treated, developed , preserved, or rejected.

Name: P rofessor George Fletcher

Affil iat ion: Columbia Law School

Topic: We M ust Choose: Justice or War (Expand ing on 10/6 W ashington Post op-ed)

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Name: Professor Michael J. Glennon

Affiliation: University of California at Davis Sch ool of Law

Topic: Und etermined

Name: Lt. C01 (Ret.) Dave Grossman and P rof. David Klinger

Aff i liat ion: Exp ert on psychology of k i l ling; Prof . of Criminology u. of M issouri

Topic: Potential of Terrorists as ?Active Shooters? (e.g. Columbine)-The Need for Military Response and Implications on

Gun Law s and Second Amendment.

Nam e: Prof. Frederick P. H itz

Affiliation: Princeton University - Woodrow Wilson School of Public and Int l Affairs, Former Inspector General, Central

Intelligence A [~ency

Topic: Exploring not only the ban o n ass assina tion but also the restrictions on the us e of so-called "protected"

professions such a s journalists, clericsl and academ ics. Also addressing the injunction on avoidance of hum an ri l~hts

violators as ag ents, and the restrictions on the CIAs use of dom estic law enforcemen t powers.

Name: Phill ip Karbe

~

Affiliation: Chairman, JFK International Airport, Former Deputy Secretary for

Strategy- D epartment of Defense

Topic: Regulating and Reconstructing Global Aviation in an Era of ?The Plane as the Weapon?

Name: Prof. William E. Lee

Affiliation: University of Georgia- Grady College of Journalism

Topic: Military Control of the Press through Prepublication Review, and the First Amendment Implications of the

Practice

Name: Prof. Debra Livingston

Affi liat ion: C olumbia Law School

Topic: Electronic Surveillance Imp lications of A nti-Terrorism Leg islation

Name: Prof. R ichard Parker ( tentat ive comm itment)

Affiliation: Harvard Law School

Topic: The under-g irding of polit ical discourse by patriotism

Nam e: Prof. Will iam Stuntz

Affiliation: Harvard Law School

Topic: Criminal Procedure, Stop and F risk issues of New Anti-Terrorism Leg islation

Name: Prof. Cass Sunstein

Affi liation: University of Ch icago La w School

Topic: The social dynam ics that lead terrorists to be terrorists, in a w aythat bears on the imp ortance of checks an d

balances, on constitutional design, and on what we might do to help prevent more terrorism

Name: P rofessor Robert F. Turner

Affiliation: University of Virginia, Cen ter of National Security Law Studies

Topic: TBA

Nam e: Michael Wil liams

Affi l iation: .Clerk, The Honorable Chief Judge Douglas Ginsburg

Topic: The Irrelevance of International Law to the W ar on Terrorism

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Name: P rofessor John Y oo and Robert Delahunty, Special Counsel at O ff ice of Legal C ounsel _

Affiliation; Boa lt Hall School of Law

Topic: War Powers of President Bush in the War on Terrorism . _

There may be a few additional contributors, but as you can see, the issue is already quite large.

Thank you very much for deciding to contribute to this important endeavor. As always, do not hesitate to contact me

with any questions or concerns.

Sincerely,

Christopher Posteraro

Editor-in-Chief


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From

Sent:

To:

Cc:

Eric Posner

Wedn esday, O ctober 31,2001 5:31 PM

Yoo, John C ; David Strauss; G eoffrey Stone; Cas s Sunstein; Alan Sykes; Douglas B aird;

Richard Epstein; Jack Goldsmith; Mark Tushnet

Adrian Vermeule

Friends,

After tortuous negotiations, the law review has (for various institutional

reasons) turned dow n ou r proposal to publish a conference issue on the legal implicat ions of the war on terror ism.

How ever, we have been talking to the Un iversity of C hicago P ress, and they are excited about the idea.

We need to know whether you are willing to go ahead with the Chicago Press option. The requirements are: (1) 20

page limit (10,000 words including footnotes); (2) deadline of Dec. 7. The Press would send the collected essays to a

reader, and the Press board would need to approve the book, so although the editor is very optimistic, there is no

guarantee that the book would, be published. If it is, the publication date would be July or August if all goes according

plan. You would be free to republish your essays separately in law reviews or other outlets, but only after the book ~s

out.

W e need from you a yes or n o. I f we g et more than a few nos, the project is of f . Please let us know . (Below is our

current lineup.)

Thanks,

Eric and Adrian.

Posner & Vermeule, Introduction

Strauss, The Anti-Terrorism Bill

Stone, Censorship

Sunstein, Congressional-Executive Relations Sykes, Insurance Baird, Bailouts Epstein, Patents Goldsmith, Military

Tribunals Posner, R egulatory Responses Yoo, Posse Comitatus Tushnet, Federalism

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~rOm:

Sent: .

To:

Co:

Subject:

Leonard A. Leo ~ _ -

Thursday, November 01,2001 6:24 AM

Yoo, John C; Laufman, David H; PowelI,SeLena

Y; i~

2001 Federalist Society C onvention--Terrorism B riefing

Attachments: 2001-TERRO RISM BR IEFING C O O RDINATIO N MEM O .doc; Ileo.vcf

2001-TERRORISM

~RIEFING CO ORDI. .

l leo.vcf (374 B )

See attached panel coordination memo.

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MEMORANDUM

November 1, 2001

TO:

FROM:

Hon. Frank Keating, Governor of Oklahoma

Hon. Larry Thompson, Deputy Attorney General

Prof. Bob Turner, UVA National Security Law Center

Hon. Edwin Williamson, Sullivan & Cromwell

Prof. John Yoo, DOJ Office of Legal Counsel

Leonard A. Leo, V ice President, Lawyers D ivision

Federalist Society National Lawyers Convention, November 17 Briefing

on Legal Issues Relating-to the War on Terrorism

First, thanks again for agreeing to participate in the Federalist Societys

2001 National Lawyers Convention. We are expecting an outstanding turnout this

year, and I lcnow that our mem bers will be very interested in hearing from each of

you regarding "Law an d the War Against Terrorism."

As we ve discussed, the program takes place on Saturday, Novem ber 17

from 8:00-9:30 at the Mayflower Hotels State Room. The order of business will

be as follows:

8:00

8:05-8:50

8:50-9:05

Call to order and introduction of the moderator, John Yoo

Introduction of the topic and three of the speakers (Keating ,

Turner, Williamson) by Professor Yoo

Presentations by Governor Keating, Mr. Williamson, and Professor

Turner (12-15 minutes each)

Question period led by moderator, with audience participation as

well

9:05

Introduction of Mr. Thompson by the moderator, Professor Yoo

Presentation by Mr. Thompson (12 -15 m inutes)

9:25-9:30 Additional questions from the audience

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In telans of subject areas, Our current understandi_ng is that each of_the

speakers will address the following sub jects:

Governor Keating--law enforcement issues, with particular emphasis on

the role of state and local authorities.

Mr. W illiamson--war powers issues.

Professor Turner--the laws 0f w ar and the use of force

Mr. T hompson--law enforcement issues, with particular emphasis on the

federal effort.

If you have an y questions before the program, please do not hesitate to

contact me. We will look forward to seeing you on the .17

th.

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Business:

Business Fax:

Eomail:

E-ma i l Display As:

Leonard A. Leo

Leo

Leonard A.

Vice President, Lawyers Division

The Federalist Society

~ -

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From:

Jack Goldsmith

-

Sent:

Tuesday, November 06, 2001 10:51 AM

To: Yoo, John C

Subject: Re: give a call when you can.

Attachments :

tmp.htm

tmp.htm (9 KB )

here it is in a n utchell

W hy C lL is not federal law

1.

Textual/originalist evidence

The Supremacy clause limits supreme federal law to treaties and "laws made in pursuance" of the Constitution."

CIL is not made pursuant to the Constitution. It is made by the nations of the world.through a different process. This

textual point raises an important constitutional

issue: If CIL were automatically federal law, it would raise delegation/appointments clause issues, because U.S. law

would be made by non-U.S, entities.

Article III limits the laws that establish federal jurisdiction to treaties and the "laws of the United States." It is well-

settled that the law of nations, which was part of general common law in the eighteenth century, was not part of the

"laws of the United States" within the meaning of this phrase. Also, Federalist 80 (Hamilton) confirms that the law of

nations was not included within this phrase. See Stewart Jay, Vanderbilt Article; Bradley and Goldsmith articles; Clark

article in Penn.

Article II says that the Prez must "take care that the Laws are faithfully executed." Hamilton, citing this provision,

argued as Pacificus that the President had the ability to enforce the law of nations if he so chose. But Hamilton never

suggested (nor did anyone elsei that the law of nations limited Presidential power.

There are lots of early sources that say the law of na tions is part of the "law o f the land " See especially the

Neutrality Grand Jury charges. However, the assertion that the law of nations was part of the law of the land was likely

nothing more than a mimicking of B lackstone, who

certainly was no t referring to U.S. federal law. See 4 W illiam

Blackstone, Co mm entaries 67 (1769 ) (" law of na t ions. . , is held to be part of the lawo f the land"). In any event, the

characterization of the law of na tions as the law of the lan d wa s perfectly consistent with the law o f nations Status as

general com mon law. N ineteenth-century courts frequently em ployed the p hrase " law of the land" to refer to a variety

of non-federal laws, including general common law. See O gden v. Saunders, 25 U .S. 213, 320 (1827) (stat ing that law o

the land g overns enforcement of contracts); Ma rine Insurance v. Tucker, 7 U.S. 357 , 393 (1806 ) (declaring w ell sett led

marine insurance rule part Of the " law merchant of the land")

See also Charles Pergler, Judicial Interpretation of International Law in the United States 19 (1928) (if state statute

"violates an established principle of international law.., clearly there would be only one course open to the courts, viz.

to enforce the state statute, always assuming its constitutionality and that it does not contravene any valid federal

enactment, or any treaty"); Quincy Wright, The Control of American Foreign Relations 161 (1922) ("state constitution

legislative provision in violation of customary international law was valid unless in conflict with a Federal constitutiona

provision or an act of Congress").

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2. Case Authority

Article II1: Num erous nineteenth century decisions confirm that C lL wa s not federal law w ithin the mea ning of Article III

Perhaps most on p oint is New York Li fe Ins. Co. w Hendren, 92 U.S. 286, 286-87 (1875 ), which held that the Supreme

Court had no jurisdiction to review "the general laws of war, as recognized by the law of nations applicable to this

case,"

because su ch laws d o not involve "the constitution, laws, t~eaties, or executive proclama tions of the Un ited States."

See also Ol iver Am. Trading Co. v. M exico, 264 U .S. 440, 44 2-43 (1924 ), which says that the ClL of sovereign immunity in

not federal law; Ker v. l ll inois, 119 U .S. 436, 4 44 (1886), wh ich makes the point clear with respect to foreign abduct ions;

and City and County of San Francisco v. Scott, 111 U.S. 768, 769 (1884), which concerned the power of conquest on the

. val idi tyof expropriation. Com pare H unt ington v. Attri ll , 146 U .S. 657, 683 (189 2)~ These cases al l involved Sect ion 2 5 o

t Article III ; but the lang uag e of Section 25 and Article III is the same, an d the reason ing of thes

cases that the law o f nations is gen eral law, not federal law a pplies to Article II as w ell. In ad dit ion, American Ins. (30 . v.

Ca nter~ 26 U.S. 51 1, 545-46 (1828), wh ich said that a case involving ap plication of the "law, admiralty and marit ime" --

elements of the law of nations -- does "n ot arise under the Con stitution or Law s of the United States" within the

mea ning of Artic e III. This last case point to another reason w hy the law of nations did not imp licate article III. The law

of nat ions included the law merchant and the law marit ime as well as w hat we today call public internat ional law. W e

know from Swift and man y marine insurance cases that the law m erchant and the law ma rit ime w ere not part of the

laws o f the United States und er Article III . There are more cites like this (e.g. W are v.

Hi l ton). i f you need.them.

In modern times, there is one court Filartiga that has held that CIL is federal law for purposes of Article Ill. To the bes

of my knowledge, no other court has followed Filartiga on this point in a holding, althoul~h many modern courts have

stated in dicta that ClL is federal common law.

Art icle Vl: No court has ever held that ClL is federal law within the mean ing o f Art icle Vl. U nfortunately, no court has

held that CIL is not federal law w ithin the m eaning of Article VI either. How ever, it follows from the-cases above, wh ich

hold that ClL w as g eneral law, that CIL is not federal law within the m eaning of Art ic le VI .

Article II: Pa quete Ha bana s ays tha t CIL is part of our law, and that courts should enforce it subject to controlling

congressional or executive action. This confirms that ClL was general common law prior to Erie. For if it were federal

law, it would control the executive. Sabbatino also suggested that CIL did not bind the President, for it emphasized tha

the President g ets to determine the con tent of ClL for the United States. Also, mos t modern courts, that have

considered the issue have concluded, following Paqu ete Habana , that CIL does not bind the President. See e.l~. G arcia

.Mir v. Meese, 788 F 2d 1 446, 153 -56 (CA ll) . The only case I know to the contrary is a dct opinion, 505 F supp 787, af f

on other l~rounds.

Finally, the Supreme C ourt has never ever held that CIL is federal law for any purpos e (and as the cas es above sug gest,

before Erie it often held that CIL wa s not federal law). A nd in recent years it has sug ges ted that it is not. Thus, for

example, in Un ited States v. Alvarez-Ma chain, 504 U .S. 655 (1992), the Co urt rejected the argument that a cr iminal

prosecution of a person abducted from Mexico by U.S. agents violated the U.S.-Mexico extradition treaty, and the Cou

refused to give independent significance to the ClL prohibit ion on international abductions. See The Supreme Court,

1991 Term - Leading Cases, 106 H arv. L. Rev. 163, 322-23 (199 2) ("By chance or design, the Supreme Court disposed of

Alvarez-Machains potentially viable customary international law defense without analysis."). Similarly, in Stanford v.

Ken tucky, 492 U .S. 361 (1989), the C ourt refused to consult internat ional pract ice in construin~ the Eighth Amend ment

because "it is American conceptions of decency that are disposit ive," and the Court failed to give any independent

sign if icance to a pos sible CIL prohibition on execution of juvenile offenders. Id. at 369

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At 07:52AM 11/6/2001 -0400, you wrote:

>John Yoo

>Office of Legal Counsel

>U.S. Department of Justice

>Washington, D.C. 20530

>202.514.2069

>202.305.8524 (fax)

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-

Page 1 of 5

here it is in a nutchell

W hy C IL is not federal law

Textual/originalist ev idence

The Su prem acy claus e limits sup reme federal law to

treaties an d " law s m ad e in pursua nce" of the C onstitut ion."

C lL is no t mad e pursua nt to the C onst itut ion. i t is m ad e by the

na tions of the w orld throug h a d ifferent process . This textual

po int raises an imp ortant constitut ion al issu e: If ClL w

au toma tically federal law , it w ould raise

deleg ation/appointments clause issues, because U oS. law

w ould be mad e by non-U .S, entities.

A rticle Il l limits the law s that es tablish federal jurisdiction

to treaties an d the "law s of the U nited States." It is well-settled

that the law of nations, w hich wa s pa rt of general comm on law

in the eig hteenth century, wa s no t part of the " law s of the

U nited States" wi th in the m eaning of th is ph rase. Also,

Fed eralist 80 (H am ilton) confirms that the law of nations w as

no t included w ithin this phras e. See Stew art Jay , Van derbi lt

.Article; B radley and G oldsm ith a rticles; Clark article in P enn .

Art icle-II says that the P rez mu st "take care tha t the L aw s

are fai thful ly execu ted." Ha m ilton, cit ing this p rovision, arg ued

as P acificus.tha t the Pres iden t ha d the abil ity to enforce the

law of nat ions i f he so chose. B ut Ha m ilton never sug gested

(nor did a nyon e else) tha t the law of nations l