Yoo: Killing bin Laden was a mistake

John Yoo, who wrote the "torture memos" for the Bush Administration, said Osama bin Laden should've been captured alive during a testy exchange with Eliot Spitzer, saying at one point, "This might be the last time I'm obviously going to be on your show, because you obviously don't think it's worthwhile to hear from me at all."

BLOG EXTRA: Here is the transcript of  Thursday's interview:

SPITZER: He authored the infamous memo that said torture was legal, but now he's saying Osama bin Laden should not have been killed. Go figure.

John Yoo was deputy assistant attorney general during the Bush administration. In an editorial in the "Wall Street Journal" this week, he takes on President Obama for killing bin Laden and even questions the manner in which the Navy SEALs conducted the operation. I spoke with him a short time ago.

(BEGIN VIDEOTAPE)

SPITZER: Joining me all the way from Fairbanks, Alaska, is John Yoo.

Mr. Yoo, thank you so much for joining us.

JOHN YOO, DRAFTED BUSH "TORTURE MEMO": Thanks for having me.

SPITZER: You have said very clearly that you feel that bin Laden should have been taken alive. Why is that?

YOO: Because I think the most important source of intelligence that we can get on Al Qaeda and its future plans as coming from their leadership, from interrogations that we conduct the very leadership. This is a covert enemy that hides among the civilian population and wants to lodge surprise attacks on our own civilians. The best, most reliable information we can get is from interrogation and I'm worried that we have, this administration has closed off that flow of intelligence since President Obama took office.

SPITZER: All right. Now, look, I think that most people would say, yes, if we have the opportunity to interrogate him, that would be wonderful. We should have aspire to that. But it's the next step you take that does trouble me because you then suggest in the op-ed that you wrote, that because this administration is unwilling to incur the legal risks of actually taking him alive, they affirmatively chose to pursue a path of sending in fewer SEALs hoping, therefore, they would have an excuse to kill him rather than take him alive. And I'll quote, I'll quote the passage here. You say this, meaning the concerns of what would happen if he were taken alive, may have dissuaded Mr. Obama from sending a more robust force to attempt a capture. So you are now critiquing the very methodology and tactical decisions they made to send in the Navy SEALs this way as opposed to some larger forces. Is that really what you're doing here?

YOO: Yes, I am. I think that if you look at the size of the force that went - I'm not questioning the decisions that the SEALs made when they were on the ground. Obviously if the SEALs felt that this guy had a gun near, was standing, was about to try to shoot them, then, of course, they should shoot him in self-defense. But if they were going in with no options other than to kill him, then I do think that's a problem. And that's what it's starting to sound like from the information that's coming out of Washington right now. Obviously we're going to learn more over the next few days, or I hope we're going to learn more over the next few days, but it does seem from the initial reports that a deliberately small force was sent in and there wasn't a lot of thought given to the idea of capturing him.

SPITZER: You're second guessing every person in the chain of command who came up with this most successful –0

YOO: Obviously - obviously I'm not. SPITZER: That's what you just said.

YOO: No.

SPITZER: That's what you just said.

YOO: You're putting words in my mouth. I'm not ridiculing the Armed Forces. I think this is a decision that was made by civilian leadership. They have a number of options. They can say, we're going to go and try to kill him or we could try and capture them. If you have to capture, you want to try to capture him, you would send in a different kind of force and a different configuration. I don't think this is a problem with the military or the intelligence professionals. I think this is a decision that's made by President Obama and the civilians (ph) as it should be actually in our system. I do think that they don't want to capture high-level Al Qaeda leaders. They have not captured a single one since they've taken office. They don't want to take anybody and send them to Guantanamo Bay. They haven't added anyone to Guantanamo Bay. They have made choices in previous cases to kill Al Qaeda leaders when they've had the option to capture them.

SPITZER: You know, John, I just got to say I think it is remarkable that the person who wrote the legal opinion that rationalized torture, perhaps the most ridiculed legal opinion in many years that I'm aware of, is now second guessing the tactical decisions made by the president that has been the single most successful counterterrorism effort in the past decade. Your president, for whom you work, and I mean no disrespect to mean, did not succeed and doing what President Obama has just done. And you're now second guessing down to the number of Navy SEALs he sent in saying they should have done it a different way. I just don't know what possible credentials you have to second guess the number of Navy SEALs who should have gone in to Abbottabad to capture bin Laden.

YOO: Well, I don't know if you want to question my credentials and use me as a punching bag. This might be the last time I'm obviously going to be on your show, because you obviously don't think it's worthwhile to hear from me at all. But I do think that these are legitimate questions that a lot of people are raising in Washington. I think that the Obama administration had several options. I think it's bizarre that you would say that in our democracy that people shouldn't raise questions and ask whether something could have been done better. And I do think that this administration has put itself into a bit of a corner because they really don't want to capture Al Qaeda leaders. I mean, I think the record seems pretty clear on that.

SPITZER: John –

YOO: They've done everything they could to try in the past to transfer this over into a law enforcement operation, and so they don't want to face those kinds of legal questions.

SPITZER: John, a couple points. One, I have never said nor would I ever say anything that challenges your right to question this judgment. I'm just amazed that you would do so in the context in which we see a successful mission that accomplished what we wanted, that recovered the single greatest treasure trove of documentation about Al Qaeda that we have ever gotten our hands on that will lead once it's decoded to the entire dismantling of that organization and now you're second guessing the operational decisions about which you have not the foggiest idea because you couldn't.

You have been struggling mightily since Monday morning to justify and rationalize the Bush administration's policy, your legal doctrine that torture and waterboarding was not only legal but also necessary to the location and to the fact that we were able to find Osama bin Laden. The predicate, it seems to me, of your entire argument is that Khalid Sheikh Mohammed, KSM, himself gave up the identity of the courier. I've read all your writings. Isn't that fact that you claim that completely false?

YOO: Well, first let me say we didn't try to justify torture. We didn't think we were committing torture. What we thought we were doing is carrying out interrogation methods to pressure people like Khalid Sheikh Mohammed that was short of torture. But secondly, I think in terms of the effectiveness of the interrogation methods, the CIA director, Leon Panetta, has gone on the air on national television and said that the identity of the couriers were given up by Khalid Sheikh Mohammed and then another Al Qaeda leader named al-Libi, both of whom were subjected to enhanced interrogation measures. So I don't why you think that –

SPITZER: John –

YOO: - the factual claim is false. This is what the Obama administration is putting out.

YOO: John, with all due respect, that is not what the director of the CIA has said.

Let me make it very clear, KSM continued to lie about the importance, the identity, and the role that was played by the courier even after 183 instances of waterboarding. Is that not the case? He lied after waterboarding just as he lied before waterboarding about this very courier? Isn't that the accurate statement?

YOO: No. No. First of all, before he was subjected to any enhanced interrogation measures, Khalid Sheikh Mohammed actually refused to answer any questions at all. He actually invoked his right for a lawyer and to remain silent and said, I'll see you guys in New York City. After enhanced interrogation measures, he became cooperative. That doesn't mean obviously that he wasn't trying to downplay the significance of the couriers. But that's the whole point of the intelligence operation is that you pull together a mosaic of everything Khalid Sheikh Mohammed said, this al-Libi said. Another guy named Ghul (ph) who was captured said you put it all together it allows you to put things into focus. The fact that Khalid Sheikh Mohammed and these other leaders were trying so hard actually to downplay someone that intelligence suggested was important signified why we had to find this courier's identify and where he was.

SPITZER: John, when you interrogate people, you need truthful answers and the whole purpose of the enhanced interrogation, your word what we call torture, waterboarding, most people have absolutely no doubt dispute that waterboarding is torture. The fact of the matter is, after 183 instances of waterboarding, he lied about this guy. He tried to distort, twist, and would not tell the truth but John, anyway, I appreciate you having the good humor to come on this show even though we disagree fundamentally on some of these issues. And have a good trip up in Alaska. I appreciate you coming on.

YOO: Thanks.

(END VIDEOTAPE)

SPITZER: I have to say it is kind of amazing how some folks from the prior administration cannot ever summon the basic decency to say to President Obama, job well done. We have done something amazing. The president succeeded.

John Yoo, please just stand up and say, president, you did it right.

Here's a clip from John Yoo's previous appearance on our show: