I must say that John Yoo is an interesting character. He is something of a creation of the Federalist Society, or else he’s a natural "fit." It’s hard for me to get my mind around what drives these people. But they are part of the Right Wing Power House including the American Enterprise Institute and the Hoover Institute. Whatever their ideology, they’ve populated our government inside and out. All of John Yoo’s bios have him at the Justice Department from "2001-2003" without exact dates [obviously, I was looking to find out when he came, and when he left]. One thing that’s for sure. He was in the Office of Legal Counsel for a reason. His academic papers make it clear that the opinions he’s authored for the Bush Administration have been at the center of his thought for a long time. His first Memo was published just two weeks after 9/11 [September 25, 2001]:
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001. The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
I don’t really understand why it was published. Was there opposition from Congress that early requiring such an opinion? I just don’t know. But on the surface, it looks like a Power Grab to me, that early in the game.We know that Cheney and others were urging Bush to go to war in Iraq without Congressional Approval, and that this Memo had something to do with that struggle. In the end, Bush did go to Congress who approved the war [to their undying shame!].
But back to Yoo. We learned yesterday that there followed another of his Memos on October 23, 2001 that apparently became the underpinning for the N.S.A. Unwarranted Domestic Surveillance Program, a program we only learned about three years later [after the 2004 elections]. The contents of this Memo are unknown, but we can make some pretty good guesses. The Torture Memos followed [August 1, 2002 and March 14, 2003]. In all of these Memos, the same logic is rehashed about the absolute power of the Executive in Wartime.
As a non-lawyer, I’ll forego any attempt to summarize the rationalizations underpinning these decisions, but I did find something of interest. I was looking through the Federalist Society’s web site, searching for "Yoo." I ran across an audio recording of a
Panel that Yoo was part of in 2006 and listened to his segment. It’s a Legal Panel, populated with luminaries, chaired Professors, from various Institutes. It’s mostly painfully dry and pedantic. But Yoo’s segment is
really worth hearing, in part because he summarizes his arguments, but also to get a glimpse at his persona. I’ve marked where his segment is to hopefully spare you some of the torpor of a Legal Panel.
It’s easy to see why he’s a Professor in a prestigous Law School. He’s personable, very smart, and he’s "cute." Unlike a lot of the neocons who are humorless and dark, he’s just plain "cute." His arguments have the usual flavor of such panels. He talks about the Federalist Papers and what he thinks the Founders really meant. The Executive Branch is unfettered by debate and division, and can act quickly is the gist of it. He doesn’t have much to say about the fact that the Constitution gives War Powers to Congress. His main argument is what he calls "functional" – how the country has functioned. He talks about the "Great Presidents" first: Abraham Lincoln, Franklin Roosevelt, John Kennedy. All of them went around Congress [Civil War, Emancipation Proclamation, World War II, Cuban Missle Crisis]. Then he talks about the worst Presidents, mainly James Buchanan who didn’t act to prevent the Civil War because he didn’t think he had the Power. So the argument goes that our "Great Presidents" seized Power in time of war and acted without consulting Congress. Heros all.
It’s an interesting argument. Basically, he’s claiming that Presidents who acted unlawfully in wartime established a precedent for future Presidents. I think there is merit in considering his argument. The problem with it is obvious. George W. Bush is not now nor never has been a Great President. Vice President Dick Cheney [sort of President] is not now nor never has been a Great Anything. Yoo’s argument is, in my opinion, an argument that takes exceptions and tries to turn them into a rule, and he assumes that any President is "exceptional." Bush and Cheney might be "exceptional," but not in the sense he’s talking about. They are exceptionally ideologic. They are exceptionally incompetent. And they are exceptionally unprincipled. They equate themselves, sure enough, with a Lincoln, or an F.D.R., or a J.F.K. – but they haven’t come close to earning that right. Yoo’s argument rests on a priori "Greatness." It’s an absurd argument because it’s based on personality, not law, and makes the mega-fallacious assumption [an assumption both Bush and Cheney share – that they’re "Great"].
I’m not going to bother to even try to puncture that balloon. It never got blown up in the first place…
I.Q. Test Question
Which picture doesn’t fit with the others?
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