"Here, it's tie-dye and marijuana. It's just like the 1960s, with the Vietnam War still to protest."

John Yoo, back at Berkeley, endures his environs.

"I think of myself as being West Berlin during the Cold War, a shining beacon of capitalism and democracy surrounded by a sea of Marxism," Yoo observes, sipping iced tea in the faculty club lounge, a wan smile registering the discomfort of colleagues walking by en route to the bar.

He sees his neighbors as the human figures of "a natural history museum of the 1960s," the Telegraph Avenue tableau of a graying, long-haired, pot-smoking counterculture stuck in the ideology's half-century-old heyday.

He's happy in Berkeley, he says, and that's something I understand.

Imagine "Reverse Yoo."

Orin Kerr poses a hypo in which John Yoo is asked to interpret a federal statute that fairly appears to permit enhanced interrogation techniques like waterboarding. The Reverse Yoo believes, personally, that these techniques really are torture and should be forbidden:

[Reverse Yoo] is not going to be like the Nazi lawyers who let the Holocaust occur... So Yoo decides that he must write a memo concluding that these techniques are unlawful.  Granted, he needs to get a bit creative to reach that result.   He needs to stretch a legal term here, bend a legal term there.  But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods.   With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.

Now, did the real John Yoo do basically the same thing as the Reverse Yoo? Or is the bending and stretching justified to prevent torture but not to permit it? Does it all depend on whether you think enhanced interrogation techniques are torture?

John Yoo would like Barack Obama to know: "I may have just helped save his presidency."

He'd like a little appreciation for "winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe." Of course, the fight was against the current Executive Branch, including the investigation conducted by the Justice Department's Office of Professional Responsibility:

OPR's investigation was so biased, so flawed, and so beneath the Justice Department's own standards that last week the department's ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

Yoo says he fought for "to help our president—President Obama, not Bush.

If a president cannot, or will not, protect the men and women who fight our nation's wars, they will follow the same risk-averse attitudes that invited the 9/11 attacks in the first place.

Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department's ethics witch hunt not only brought an unjust persecution to an end, but it protects the president's constitutional ability to fight the enemies that threaten our nation today.

John Yoo gets a sympathetic ear...

... from Right Wing News.

John Yoo and Jay Bybee are cleared of anything but "poor judgment" in a report that was "softened" by a senior Justice Department official.

Newsweek reveals the findings of the report from the Office of Professional Responsibility:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) ...

A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder....

So it wasn't a political decision, we're being told. It wasn't that the Obama administration would like  the "torture memo" issue to go away. But consider this new development in the larger context:

For weeks, the right has heckled Attorney General Eric Holder Jr. for his plans to try the alleged 9/11 conspirators in New York City and his handling of the Christmas bombing plot suspect. Now the left is going to be upset...

And the 9/11 trial isn't going to be in NYC anymore.

"I've spent my whole career learning to settle down unruly college students who have not done the reading."

Said John Yoo, about why Jon Stewart couldn't get to him.

Yoo.

Too.

"[T]he Obama administration may be attempting to appease its antiwar base ... or trying to look good for the chattering classes."

John Yoo defends his memos:

Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable -- combat occurred wholly on U.S. territory and enemy soldiers were American citizens. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of "reasonableness" -- as they might review a police officer who fires in self-defense -- rather than demand a warrant to use military force to stop a terror attack....

But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

"These memos I wrote were not for public consumption. They lack a certain polish." Said John Yoo.

Polish?

"I think [it] would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently."...

"One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, ‘What are people going to think of me?’ ... Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do."

Any sympathy for the lawyer? For lawyer-client confidentiality? The need for harsh, straight-talk without the verbal lubrication of public speaking.

UPDATE: More here.