1 Boring Old Man

In a 2006 conference entitled Executive Powers in Wartime held by the Federalist Society, John Yoo summarized his position using a "functionalist" approach. After drawing on arguments in some of the Federalist Papers that the Executive Branch could act more quickly and secretly than the Congress, he moved on to a historical argument. He mentioned four Presidents, three of our "greatest" and one of our "weakest." Abraham Lincoln exercised broad reaching powers without consulting Congress – raising money, raising an army, invading the Confederacy, suspending Habeus Corpus, etc. Yoo then turned to F.D.R. in the time before Pearl Harbor, ignoring Congressional attempts to stay out of the war by aiding England, engaging the Germans at sea. And then Yoo lists F.D.R.’s exercising broad powers including wiretaps, military tribunals, etc. after the war was underway, powers very similar to those claimed by President Bush and Vice President Cheney. Yoo’s example from the Cold War was J.F.K. who unilaterally acted in the Cuban Missle Crisis, pre-emptively blockading Cuba even though there had been no hostile action to provoke us [except the placement of missles near our shores]. These were examples of our greatest Presidents exercising broad powers outside the oversight of Congress. His counter example was one of our weaker Presidents, James Buchanan, who did not convene a Summit between leaders in the North and South in an attempt to stave off the Civil War because he did not think it was within his powers. Yoo ended his argument with the usual complaint of all members of the Federalist Society, that the courts are attempting to legislate and exert too much control.

Focusing only on his historical points, points made over and over by this Administration, there’s a logical fallacy in Yoo’s argument big enough to drive a Mac Truck through, without having to question anything about his version of history. Abraham Lincoln, Franklin Roosevelt, and John Kennedy were, indeed, great men – by any parameter. And their "greatness" was not in their office [the Presidency]. It was in their character. Were we guaranteed great men as Presidents, John Yoo would have a very strong point – it is more efficient to have the war powers in one place. We wouldn’t need oversight. We wouldn’t need checks and balances. In fact, we wouldn’t even need Congress or Democracy. Our great leaders would simply do the right thing.

Our whole system of government was conceived to deal with the other side of the coin – a situation where our leaders are not great men, where they can’t be either expected to or counted on to do the right thing. So, while making the President Commander in Chief they vested the power to make war in the Congress. They set up a complex set of checks and balances to assure that there was oversight every step of the way. Why? Because we might have a bad leader, or a misguided leader, or an average Joe who was in over his head. And, by Yoo’s own examples, a great President can obviously act unilaterally in times of great crisis.

Yoo argues that the actions of these exceptional men are precedents. He argues that these exceptions justify a new rule. In essence, he says that "greatness" is a priviledge of the Office of the Presidency. Neither George W. Bush nor Vice President Cheney are great men. They’ve shown us over and over that they are the exact kind of leaders that require our most vigorous oversight. The pre-war version of Iraq they presented to us and to the U.N. was wrong. It was worse than wrong, it was fabricated. The powers they claimed were uniformly un-necessary. They’ve never been straight with us. There’s always "spin." There was no real reason to go around the courts, around Congress. Their motives for invading Iraq remain suspect. They claim the rights of our great leaders simply because they occupy their offices, but show none of the character or integrity of those great men. John Yoo is, in a word, wrong.