Yoo spells it out for us

September 18, 2006

Anyone who has followed the administration’s assault on the rule of law is familiar with the work of John Yoo, the former Justice Department lawyer and current Berkley law professor. Yesterday, Yoo did all of us a small favor: he put his entire twisted approach to the law in a single New York Times op-ed, making it easier for the nation to have a single, handy guide to the bizarre theories that justify the Bush administration’s conduct.

To his critics, Mr. Bush is a “King George” bent on an “imperial presidency.” But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive.

In other words, the critics are right. We’re saying the president is engaged in an audacious power-grab, and Yoo responds by arguing that Bush should engage in an audacious power-grab.

The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority. That is why Mr. Bush has issued hundreds of signing statements — more than any previous president — reserving his right not to enforce unconstitutional laws.

Consider what Yoo is saying in print here: the president can decide to “sidestep” the law. He can also issue a statement explaining that he’ll ignore laws he believes are wrong.

And who gets to decide which laws “invade” the president’s executive authority? According to Yoo, the president does.

Yoo envisions, and successfully urged his former administration colleagues to accept, a presidency without limits. Launching a pre-emptive war against a country that isn’t a threat? No problem. Ignoring existing law to spy on Americans? Sounds good. Detaining suspects without charges and torturing them? A-OK. Terminating old international treaties and blowing off new ones? Just another day at the office.

As my friend Michael J.W. Stickings put it:

What Yoo has provided is essentially a laundry list of Bush’s abuses of power while in the Oval Office. [For] that I thank him. I’m not sure anyone else has done it so succinctly, or at least so succinctly without even a trace of irony. All this is good, according to Yoo…. [H]e makes his case in all seriousness.

It’s hard to believe, but it’s true. This charlatan believes the best way to defend Bush against charges of abuse and lawbreaking is to say abuse and lawbreaking are inherently good. Of course Bush is breaking the law, Yoo seems to be saying; he’s the president.

Bush will leave office in January 2009, but I often wonder if the United States will ever be the same.

And this Yoo turn in our democracy could not be possible without our flaccid legislative branch. Our elected officials have invited tyranny. Founding fathers, graves rolling…

  • Why don’t we get on with it and just declare the Regal Moron a “living God”? Hey, it worked for Imperial Rome. And the Romans didn’t seem to mind if their gods were idiots, perverts, drunks, etc., so why should we? It’s all part of the “bread and circuses” known as America today. America, the New Rome.

    Seriously, who ever characterized our invasion/conquest/crusade as a “war”? We beat up a nation (twice) which we created in the first place, a nation which couldn’t attack us if it had wanted to, and this is called “war”? The idea that Bush is a “war president” besmirches the memory of men like Washington, Madison, Lincoln, Wilson, FDR and Truman. Compared to these, the presidents responsible for the Mexican War, the Spanish-American War, the Indian Wars, the unnamed wars we fought in Central America, and War on Drugs for that matter are pikers. And the Regal Moron is least of them all. “War president” … HAH!

  • so, when the next Democratic President declares a ‘War on Poverty’, we can expect him to have unlimited powers?

    And, btw, why hasn’t the ACLU (or someone) tried challenging these signing statements – I wonder if SCOTUS will have such a calm view of their demotion?

  • And yet Bush says he can’t go into Pakistan to grab bin Laden because it is a “sovereign nation” (please ignore all that prior bluster about going into and after nations that harbor terrorists in this one instance, and what Yoo says). I guess bin Laden would be safe in Seminole Nation in Florida or any of our other Native American areas as they are “sovereign. “http://seattlepi.nwsource.com/national/186171_bushtribes13.html

  • a good intro to the powers presidents have claimed and used during war since fdr is a new book by gerald astor, “presidents at war.” and it comes with a bonus, a foreword by murtha.

  • The United States will begin its long, arduous road to recovery on January 3rd, 2007—when the next Congress convenes. Investigations, I think, will start sometime before Spring of that year.

    Most of what Herr Bush and his corrupt gang of Tammany Hall thugs have done constitute criminal acts, and the phrase “High Crimes and Misdemeanors” is defined under English Law. “High Crimes” in that era are now thought of as felony acts; misdemeanors were at that time referred to as “low” or “petty” crimes. This interprets the “vague phrase” of the Constitution as being “Felonies and Misdemeanors.” That these crimes have been perpetrated against the United States, with specificity to both her Constitution and her People, may be interpreted to mean that this collecting of brutish profiteers have engaged in acts of Treason against the Nation—and such acts are not shielded by “Presidential Pardons.”

    The healing process will continue in January 2009, immediately after the next President is sworn in. Herr Bush will no longer ba able to hide behind the Presidential Seal; he’ll no longer have a huge bureaucracy to cower under. He’ll be out in the open; exposed; little more than a paper tiger that’s been to a dentist for multiple tooth-extractions. He won’t be able to protect his vast legions of misfits and minions—and more than a few of them will sing to the clouds, trying to cut their own little plea-bargain deals.

    In the end, America will recover, and will hopefully establish the necessary laws to prevent this atrocity from ever happening again.

    As for Herr Bush, the argumant might be that he’s “toast.” To that I must voice a modicum of disagreement. He’s not worthy of being called “toast.” He’s just the scorched crumbs that you find in the bottom of the toaster—and, as with his “legacy,” those scorched crumbs usually wind up either in the trash, or flushed down the drain. They certainly never earn a footnote in history….

  • What are the limits to Presidential power under Yoo’s doctrine? Apparently the President can declare war unilaterally and then ignore the legislative branch and neuter the courts until he decides the war to be over. But we will always be at war because people hate us, and they will always hate us because we prefer war to promote our values.

    Save these crack-pot analyses for when President Obama or Clinton takes the oath — I suspect they will rethink in a panic.

  • If Ward Churchill is eligible for firing because of his political views, John Yoo, by all counts, is eligible for imprisonment because of his political acts while in the Bush administration.

  • I’ve got to go with Anney. Yoo needs a long term in a Federal Prison to remind him that the American People refused to ratify the Constitution without the Bill of Rights just because they did not want a King in America.

  • Yoo is near the top of my list of people who need to be subjected to “alternative interrogation techniques” until he can recite the Constitution start to finish.

    For this bit of double-speak alone he deserves to rot in hell:

    “The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority.”

    Jackass.

  • “…reserving his right not to enforce unconstitutional laws.”

    Silly me, I thought the Supreme Court had sole jurisdiction to decide whether a law was constitutional or not. How pre-9/11 of me.

  • I also wonder if our country will ever recover from the last eight years of blatant tyranny. These people are such traitors to everything we believe in as Americans. From the piece on the IRS to this editorial by Woo, I sometimes wonder how we ever allowed things to get so out of control. Where is the Press or the Congress or even Joe six-pack? If this was the sixties or the seventies, we would all be hitting the streets. If we were immigrants and our jobs were threatened we would be demonstrating. Personally I have written so many letters, made so many phone calls, I just feel fatigue. I hope that in January of 2007 we will begin to see some turnaround, but I am not holding my breath. So much damage has already been done that I doubt that I will see any restitution in my lifetime. Also I can’t underestimate the power of the Republican attack/money machine. I am feeling very depressed about that reality lately.

  • “Silly me, I thought the Supreme Court had sole jurisdiction to decide whether a law was constitutional or not. How pre-9/11 of me.” – Curmudgeon

    Yep, one of the first things the Marshal Court did was declare it was the sole abiter of the Constitution. Of course, since that power is not in the Constitution, how exactly is that constitutional?

    The idea of the Supreme Court interpreting the Constitution is something most Americans just accept. Yoo is clearly not one of them.

  • Lance,

    In the sense that judges are sworn to uphold the Constitution, as are all government employees and they have the responsibility of judging most cases on Constitutional grounds, one might say the SC has the final word on the Constitutionality of any adjudicable matter.

    You’ll probably agree that the Constitution did not give any President the job of being a judge of whether something is constitutional or not though, no more than any other citizen. Bush has elevated himself to a judgeship level above even a SC judge.

    And an aside: I thought Presidents appointed judges who could advise them about the constitutionality of their actions, not how to circumvent the Constitution and American law.

  • The Watergate rationale is similar to the old coded race references, just updated to use the culture war. In this case, it’s the post-Watergate reforms that caused all these problems, so, if you support Bush and John Yoo, you hate hippies, free love, left-wing radicals, etc.

    Never mind that the unitary executive is ahistorical, unconstitutional, and un-American…

    I wrote up a rant at my site already (drop a comment and say hi if you check it out), since John Yoo is my bugbear and I look for any sign of his brand of lunacy to assault. I only wish I had more of a Con Law background, but I think even common sense is sufficient to see the weakness of this case.

  • First thing – it is spelled Berkeley with three e’s. Short of that you can use CAL which is just like saying UCLA or USC or Cal-Poly or CalTech. Proper spelling is like good manners – welcome anytime.

    Now on the to scumbag Yoo. After yesterday I’m likely to be on Homeland Security’s list of subversives because I slammed this piece of shit in a letter to the NYT editors. Not that I needed to rebut his pathetic excuses for tyranny instead I suggested that Yoo would get his payment for his treason at the end of rope. Seriously this cockroach has hurt this nation as much as OBL and you could argue more than McVeigh. As much as I hate the death penalty I would gladly pull the lever to hang this treasonous SOB.

  • “The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority.”

    I guess that’s just a fancy way of saying the Constitution is “just a goddam piece of paper”.

    It’s time to weave a few dozen copies of the constitution into a rope and invade someone’s authority.

  • Reading Yoo’s trash…

    “…the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress…”

    Actually, the founders went to great lengths to preclude the type of executive power Yoo is advocating, so Yoo is simply lying. The check the president does have is the veto. Has he used it? No.

    “…The changes of the 1970’s occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia in the wake of Richard Nixon’s use of national security agencies to spy on political opponents….”

    Yeah, other than thousands of Soviet ICBMs, we had no serious national security threats to United States soil. And that stuff about Nixon spying on people, that was paranoia.

    “…Today many pundits and political scientists seem to want the president’s power to be the sum of his communication and political skills, his organizational ability, his cognitive style and emotional intelligence. It is almost as if any president who uses the constitutional powers allocated to his office to effect policy has failed, not succeeded…”

    And of course what right wing argument is complete without a nice fat strawman? Care to name these people, Yoo?

    “…The Republican Congress, for instance, wanted to give President Bill Clinton a line-item veto, only to be blocked by the Supreme Court…”

    Or maybe that didn’t happen because it was blatantly unconstitutional.

    The man is shameless, and should be tarred and feathered.

  • As much as I hate the death penalty I would gladly pull the lever to hang this treasonous SOB.
    Comment by WI Horseguy

    I think the death peanalty should be reserved for acts of treason and serious acts of predatory violence. I think that there are individuals in Bush administration could be found guilty of both. The more we learn the worse it gets.

  • I don’t get it . Is this the supposed Long War running with no end in site.

    While we’re at war I (Bush) make all the decisions barr none.
    He gets to disreguard all branches of gov. for the forseeable future
    and issue signing statements all over the place.
    Aren’t they afraid one day Democrats will have all this power too?
    Oh yea Dems are to honorable to stupe to Repulicans low levels
    I wonder is that why we lose all the time?

  • Glenn Greenwald quoted a well-known “lefty blogger” on Yoo’s arguments. That “lefty” needs to be quoted here:

    The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .

    The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

    . . yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.

    Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

    . . yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.

    Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

    . . yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.

    Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

    Alexander Hamilton, Federalist No. 78

    I really want to know how a guy like Yoo can be a professor of law at a leading law school, when he obviously believes in the overthrow of the entire system he is supposed to be educating about?

  • “You’ll probably agree that the Constitution did not give any President the job of being a judge of whether something is constitutional or not though, no more than any other citizen. Bush has elevated himself to a judgeship level above even a SC judge.” – Anney

    I’m saying the Constitution does not provide in any form or fashion for the interpretation of the Consititution. The authors did not proscribe the Supreme Court to be America’s Constitutional Court, as exists in many other countries. I suspose that the authors thought their work was so clear and plain that no real interpretation should be needed. The court claimed the authority and not until Yoo has it been challenged. Then again, Yoo is wrong about everything regarding Executive power, so his challenge to the court’s authority doesn’t much move me.

    On the other hand, at least one author suggested that there should be a constitutional convention every twenty years to rewrite the damn thing. Twenty being a nice “constitutional” number, five presidential terms or ten representatives terms. I suspect the only reason we didn’t get into the habit was the institution of slavery. But think about the dozens of ‘fixes’ we could get to the document if we had a convention now.

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