Photograph by Christine Alicino

The blunt, cruel reality is an obdurate horror. Whether the news is personal or touches everyone, there is first the terrible word. Killing waters have breached the wall. Jets have hit the towers. The news is too terrible to contemplate, but it affords no escape. It weighs on us in pure existence: This is true. And for good or ill, the terrible news demands a call to action. Paradoxically, that action may start with a new idea.

On September 11, 2001, while most of official Washington fled, John Yoo remained at his desk in the Justice Department’s Office of Legal Counsel and contemplated the terrible news. It was not, for him, the flames in the sky, nor the bodies tumbling through the flames to earth that transfixed him. As a scholar, he had looked at violence and terror, from Civil War raids in Kansas to the works of the IRA, the PLO, and the other ruthlessness of our time. The Twin Towers’ destruction instead told Yoo that terror had announced itself in the era of globalization.

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Yoo, the child of immigrants from South Korea, had studied Latin and Greek history at his parochial school in Philadelphia, diplomatic history at Harvard (summa cum laude), and constitutional law at Yale Law School. He thought about the implications for government in the emerging high-tech era. But the fires of September 11 were for him as different from theory as a discussion of atomic energy in 1938 was from the obliteration of Hiroshima. The proof was at hand, he felt. It was time to face some very unpleasant facts about who we are as Americans in a new war on polymorphous fronts.

He concluded that our nation’s most potent institutions — those at work on the battlefield and as part of the legal system—would have to move forcefully, too. And soon he acted.

"I saw that a small group can now attack us with the violence of a nation," says Yoo, a professor at Berkeley’s Boalt Hall School of Law since 1993. "The Geneva Convention never recognized this kind of enemy." Soon after September 11, Yoo advised the president of the United States that it was time to rethink the rules of war. It was time for America to think about secret detention, secret courts, and extracting information—even if it meant through torture.

Yoo’s advice (he does not openly claim authorship of the still-classified and therefore secret document) to George W. Bush had a double effect. Captured al-Qaeda leaders have been broken at American hands, either through fear, confusion, or violence. That has yielded information, Yoo insists, without furnishing hard data, that helped take down two-thirds of the group’s leadership, and adds: "Better than I would have thought." No less, still another net result is that America is also seen as a torturer, a country that brings atrocities to the countries it claims to liberate, and has done so on the sly, with disregard for its own Constitution.

When the memos came to light, Yoo, an apparently cheerful and open man who says he has no trouble getting lunch companions from among the Cal law faculty, was denounced, picketed, and vilified as an architect of the atrocities of Abu Ghraib. Protestors shut down one class. He canceled an appearance when the police told him he might spark a riot. "I don’t want to be the cause of any kind of violence," he says, flashing an ironic smile.

But he is sincerely attuned to the other paradoxes in modern war and politics. Violent interrogation, he notes, is far less violent than the killing of as many as 50,000 innocents in Iraq (a more traditional war that Yoo believes has drawn attention away from the new terror threat). Likewise, the deaths in all our other wars, or the blunders even in our so-called "just" modern wars, have been bad calls that killed thousands of bystanders. But the public thinks that Yoo’s kind of state-sponsored savagery is unacceptable, particularly if it is called "torture."

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