Mark Follman

John Yoo is someone who knows how to push an argument. At the U.S. Justice Department he designed rationales for the most controversial policies of the Bush-Cheney “war on terror,” and since then he has promoted right-wing political views in the opinion pages of the Wall Street Journal. Yoo must also know that an argument, however unyielding, quickly goes limp when it gets basic facts wrong.

If so, he hasn’t bothered to address a key problem with his recent Op-Ed trashing President Obama for the killing of Osama bin Laden. His misrepresentation of the CIA’s role, flagged in a MediaBugs error report, undermines Yoo’s most audacious critique of the president.

What was hailed across the press and party lines as Obama’s “gutsy” call to send in the Navy Seals, Yoo regarded as a botched opportunity. He suggested that the U.S. might have taken bin Laden alive. “If true, one of the most valuable intelligence opportunities since the beginning of the war has slipped through our hands,” Yoo wrote in the Journal.

That was just part of how he reiterated the case for the Bush administration’s brutal interrogations of terrorist suspects. Yoo further argued that Obama wanted bin Laden not dead or alive, but just dead — because taking him prisoner would have required Obama “to hold and interrogate bin Laden at Guantanamo Bay, something that has given this president allergic reactions bordering on a seizure.”

Here’s the problem: Yoo’s argument hangs on a faulty summation of the intelligence trail that brought the Navy Seals to Abbottabad. From Yoo’s perspective, as the U.S. closed in on the compound “the CIA became certain that the al Qaeda leader was hiding inside.”

That doesn’t square with planning and operational details made public by top Obama officials and the president himself. As many news outlets have reported, Obama had to calculate his risky decision based on uncertain evidence of bin Laden’s whereabouts. According to CIA director Leon Panetta, analysts were only 60 to 80 percent confident bin Laden would be found in the compound. “We never had direct evidence that he in fact had ever been there or was located there,” Panetta said. National Security Advisor Tom Donilon said Obama made his move based on “what was probably a 50-50 chance that Osama bin Laden was there.” The president himself said on “60 Minutes” that “there was no direct evidence” of bin Laden’s presence.

If Yoo and the editors of the Wall Street Journal know something about the bin Laden operation the rest of don’t, they should share it. Otherwise, they should correct the record.

In a recent conversation about news accuracy, a senior editor at the New York Times told me that its opinion writers tend to get more leeway than its news reporters do when it comes to drawing context. Still, he said that when an opinion writer has clearly gotten a fact wrong “you have to correct it.”

We agree. The question is, does the Wall Street Journal? We may not get an answer to that; thus far the Journal has been unresponsive to inquiries about Yoo’s piece, and its newsroom has proven inaccessible on such matters in prior cases.

It’s unsurprising to see Yoo argue for the notorious interrogation policies he helped craft. (Or for more credit for bin Laden’s demise to go to the president he worked for.) But his implication that Obama — armed with full-proof intelligence — intended from the get-go to bury bin Laden at sea just so he wouldn’t have to decide whether to waterboard him looks foolish in the face of widely reported facts. Meanwhile, the Times has since reported that the White House had two teams of specialists ready for action during the mission: “One to bury Bin Laden if he was killed, and a second composed of lawyers, interrogators and translators in case he was captured alive.”

As of this writing, MediaBugs’ multiple emails to Yoo and the Wall Street Journal have gotten no response and Yoo’s piece remains as it was first published.

[Cross-posted from the MediaBugs blog.]

UPDATED: A couple of interesting comments over at the MediaBugs blog.

UPDATED, 5/16/11: In the Washington Post today, Greg Sargent reports about a “private letter” from Leon Panetta to John McCain strongly making the case that interrogation by torture was not instrumental in tracking down Osama bin Laden.

The Panetta letter reveals further problems with Yoo’s piece, in which Yoo claimed: “CIA interrogators gathered the initial information that ultimately led to bin Laden’s death. The United States located al Qaeda’s leader by learning the identity of a trusted courier from the tough interrogations of Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi.”

But according to Panetta’s letter: “We first learned about the facilitator/courier’s nom de guerre from a detainee not in CIA custody in 2002.”

Panetta continued: “It is also important to note that some detainees who were subjected to enhanced interrogation techniques attempted to provide false or misleading information about the facilitator/courier. … In the end, no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.”

UPDATED, 5/23/11: And now Yoo’s polemic in the Wall Street Journal has been further discredited by reporting in… the Wall Street Journal. In March, according to the Journal, Defense Secretary Bob Gates also felt explicit uncertainty about bin Laden’s presence in Abbottabad (emphasis mine):

The B-2 plan had many supporters, particularly among military brass. A bombing would provide certainty that the compound’s residents would be killed, and it posed less risk to U.S. personnel. At the time, Mr. Gates, the defense secretary, was skeptical of the intelligence case that bin Laden was at the compound.

As late as April 28 — just three days before the raid — Gates still worried about it. Obama convened his top national security advisers in the White House Situation Room. “Only at that meeting,” reports the Journal, “did Mr. Gates come around to fully endorsing the operation, because of his skepticism of the intelligence indicating bin Laden was there.”