The Case Against John Yoo
The OIG has finally released a declassified version of its report on the NSA surveillance program. Much of the information contained in the report has already been reported, but it still makes for an interesting read. I'm convinced that the Ashcroft/Comey hospital episode will someday serve as the basis of a major Hollywood movie. I'm sure someone's already working on the screenplay.
The most damning part of the report, however, is the part describing the role John Yoo played in authorizing the program. It turns out that from 2001 to 2003, Yoo was the only person at the OLC who was "read in" to the program. His boss, Jay Bybee, had no idea what Yoo was doing and first learned of the NSA program from media reports. That's simply astounding. As the report points out, OLC opinions were supposed to be peer-reviewed and represent the studied opinion of the Justice Department. But Yoo was issuing official OLC opinions that no other lawyers at the OLC had reviewed, including the head of the OLC.
Yoo was completely unaccountable. And these were the results:
Lest anyone believe that those statements are not "clear" enough, here's what the Senate report that accompanied the passage of FISA had to say about the intent of the legislation:
Another part of the report states that Congress, by passing FISA, was intending to assert its maximal authority in this area under the framework of Youngstown, thereby reducing the president's powers to their "lowest ebb."
The most damning part of the report, however, is the part describing the role John Yoo played in authorizing the program. It turns out that from 2001 to 2003, Yoo was the only person at the OLC who was "read in" to the program. His boss, Jay Bybee, had no idea what Yoo was doing and first learned of the NSA program from media reports. That's simply astounding. As the report points out, OLC opinions were supposed to be peer-reviewed and represent the studied opinion of the Justice Department. But Yoo was issuing official OLC opinions that no other lawyers at the OLC had reviewed, including the head of the OLC.
Yoo was completely unaccountable. And these were the results:
Yoo's November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program. Yoo acknowledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence," but opined that "[s]uch a reading of FISA would be an unconstitutional infringement on the President's Article II authorities." Yoo characterized FISA as merely providing a "safe harbor for electronic surveillance," adding that it "cannot restrict the President's ability to engage in warrantless searches that protect the national security." According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. You wrote that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area--which it has not--then the statute must be construed to avoid such a reading."It's difficult to put into words how insanely deficient this legal "analysis" is. The entire point of FISA was to constrain the president's ability to conduct warrantless surveillance for national security purposes. Prior to FISA, Title III already prohibited warrantless surveillance in the law enforcement context. FISA was intended to provide similar protections in the national security context. Not only did FISA make clear that it provided the "exclusive means" for conducting electronic surveillance, but, as the report points out, it has a provision that suspends its requirements for 15 days following a declaration of war, a clear indication that the statute was intended to apply in war time as well as peace time.
Lest anyone believe that those statements are not "clear" enough, here's what the Senate report that accompanied the passage of FISA had to say about the intent of the legislation:
[FISA] puts to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillance in the United States outside of the procedures contained in chapters 119 and 120.Still not clear? Well, consider this. Prior to FISA, there was a provision in the federal code that stated the following:
Nothing in this chapter shall limit the constitutional power of the President to take such measures as he deems necessary to protect the nation against actual or potential attack . . . or to protect national security against foreign intelligence activitiesFISA expressly repealed that provision. The Committee Report explained that the repeal of this provision “eliminat[ed] any congressional recognition or suggestion of inherent Presidential power with respect to electronic surveillance."
Another part of the report states that Congress, by passing FISA, was intending to assert its maximal authority in this area under the framework of Youngstown, thereby reducing the president's powers to their "lowest ebb."
Which brings me to another glaring omission from Yoo's opinion. From the OIG Report:
The OIG Report details a number of other obvious flaws in Yoo's opinion, but I think you get the idea. Yoo disregarded the law. He gave the administration a legal opinion that fell far short of any acceptable professional standards. And he issued it in the name of the OLC, without even letting his boss know what he was doing. Unbelievable.
Yoo's legal memorandum omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of governmental powers between the Executive and Legislative Branches. Justice Jackson's analysis of President Truman's Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC's subsequent reevaluation of Yoo's opinions on the legality of the PSP.This is putting things very diplomatically. Youngstown is not just a leading case; it is THE leading case addressing the extent of the president's Article II authority. Writing an opinion like this without mentioning Youngstown is like writing an opinion about the legality of an abortion-related statute without citing Roe v. Wade. It's flat out malpractice, particularly when the case in question completely undermines your argument.
The OIG Report details a number of other obvious flaws in Yoo's opinion, but I think you get the idea. Yoo disregarded the law. He gave the administration a legal opinion that fell far short of any acceptable professional standards. And he issued it in the name of the OLC, without even letting his boss know what he was doing. Unbelievable.
posted by A.L. at 9:41 PM
30 Comments:
It's not unbelievable; we've known this whole time that Yoo broke the law. We just didn't know the mechanism he used to break the law, and frankly we still don't know enough because we don't know what this program is which astounded the people who learned about it.
Com'on Mr. Comey, tell us, what made you rush to Ashcroft's hospital bedside to stop the thuggish Gonzo from breaking the law further? Com'on Mr. Comey, Mr. Mueller, what made you consider resigning? What was so horrible that you would have resigned if it continued? Stop protecting the Bush administration, and other malcontents.
The OIG report is not the only one being diplomatic. I'm not a lawyer myself, but everything I've learned doesn't indicate the Yoo "disregarded" the law. It says he flat-out broke it. Even if he isn't in a federal prison till he's old and gray, he should be disbarred and tossed out of that "liberal bastion" that he "teaching" at.
As mentioned, Yoo was the only person from OLC who was "read in"; not even Yoo's boss Bybee was "read in". That was because Bybee and most other DoJ officials were considered by President Bush to be non-operational in regards to the PSP (page 14 of the PDF file linked to by A.L.). There is nothing that I can find in the law that legally obligated Yoo to report anything to Bybee if that was how the President wanted it, and apparently Yoo didn't believe he needed to report anything to Bybee. This doesn't make him unaccountable, especially since the White House required Yoo to report directly to them. How Bybee learned about all this is immaterial.
As mentioned on pages 23 and 24 of the PDF file, Yoo left the DoJ and was replaced in his position by Patrick Philbin. Bybee himself was replaced (after Philbin) by Jack Goldsmith. While Yoo didn't believe it necessary to have Bybee be one of those "read in" (for whatever reason), Philbin did believe Goldsmith should be, and Goldsmith was "read in".
What is interesting is that the report is critical of the very few DoJ personnel Bush wanted "read in" at the beginning. Within the report, it is mentioned that Ashcroft (along with others) declined to be interviewed by the OIG (page 8 of the PDF file). There is a mention in the report that it isn't known whether or not Ashcroft argued early on that more DoJ people be considered "read in" (page 18 of the PDF file; Gonzales did say Ashcroft thought it "inconvenient" not to have more DoJ personnel involved, but there is nothing definitive on whether or not Ashcroft sought to get more "read in"). Since he wasn't required by law to give the OIG an interview, and nobody in Congress has been willing to call Ashcroft for any testimony, nobody really knows all of the answers.
As far as Yoo's opinion being malpractice, or that he disregarded the law, that can be debated. The report lists Justice Jackson's opinion in Youngstown as being definitive of a President's wartime authority (as does A.L.). While the OIG was critical of Yoo's not using Youngstown in the OLC opinion, I would submit that Yoo probably didn't think Youngstown applied. Here's why.
Within Jackson's opinion are three classifications of Presidential authority. The first has to do with when the President has the actual or implied authorization of Congress. By the time Yoo wrote his opinion, members of Congress had already been briefed (page 20 of the PDF file). As far as anyone knows, nobody suggested stopping the PSP early on (it is also mentioned that Congressional staff was in on some of these briefings, although it doesn't say if staff was there for the first one, prior to Yoo's opinion). So as far as Yoo may have thought, it was his opinion that Congress had given de facto authorization for the PSP, satisfying Justice Jackson's first classification. It also meant, at least with how I interpret Yoo's opinion, that FISA was to constrictive of Presidential powers during wartime, even the war clause that is in place in FISA.
As shown in the report, others disagreed. However, those parts of the whole PSP continued after some modifications. But whether that constitutes malpractice or a disregard of the law is up for debate. As noted in the report, Bush decided who was going to be "read in" (which didnt' include Yoo's boss Bybee, but did include Bybee's boss Ashcroft), and nobody knows if Ashcroft wanted anyone else in the DoJ to be considered "read in". So one can't say that Yoo was unaccountable since we don't have all the information.
Yes, Steve, it is quite possible for you to go through your entire life completely making things up in your head that disguise what is in plain site and not coincidentally, serve to rationalize the beliefs you already hold.
Truly, you deserve a gold medal for this floor exercise.
has anyone asked for yoo to be disbarred yet? i believe he's licensed in PA
Steve's argument shows that it might be strictly possible for Yoo to have been acting in good faith, however there are several reasons for this to be unlikely.
If it were true that Youngstown didn't apply, then Yoo should have addressed this directly. He can't simply ignore it because he thinks it doesn't apply; he has to describe why it doesn't apply. This also applies to "FISA can't restrict wartime Presidents".
There are also issues about "Congressional authorization". Does this have to be an authorization like the AUMF, where all of Congress is involved? Or is about 1-2% of Congress just knowing about the program enough to rise to the level of "authorization"?
Further, as AL states, OLC opinions ought to be peer reviewed. The fact that this wasn't being peer reviewed should have set off alarm bells. The fact that it did set off alarm bells once it was finally reviewed by someone else in OLC implies that they were intentionally avoiding standard operating procedure because they were looking for just one person to tell them what they wanted to hear and they didn't want anyone else to burst their bubble.
Finally, exactly how many of John Yoo's OLC memos need to be rescinded before people will realize that the man was a hack?
I wrote that? Then I must be more corrupt, convoluted, and warped in the head than I realized.
SteveAR,
You argue that "Yoo probably didn't think Youngstown applied," because You believed "Congress had given de facto authorization for the PSP, satisfying [Youngstown's] first classification."
By arguing that the PSP fell into the first Youngstown category, you concede that Youngstown actually does apply! Indeed, you are arguing that the Youngstown framework must be applied to the situation. Yet, for some reason, Yoo did not cite Youngstown at all.
The PSP hypo, or something like it, likely appeared on every Con Law exam in every law school in the country over the past 5 years. If a law student answers the hypo by arguing the Youngstown first category applies, that is fine as long as they make a cogent argument. But if a law student fails to cite Youngstown at all in their answer, they will absolutely fail the exam.
Yoo did not cite Youngstown -- a failing for which he would get an F in first year Con Law. That's why it's malpractice.
AJ:
If it were true that Youngstown didn't apply, then Yoo should have addressed this directly.
Anonymous (7:03pm):
By arguing that the PSP fell into the first Youngstown category, you concede that Youngstown actually does apply! Indeed, you are arguing that the Youngstown framework must be applied to the situation. Yet, for some reason, Yoo did not cite Youngstown at all.
The OIG report indicates that there are those who believe Yoo should have considered Youngstown. I wouldn't dispute that. However, there is another argument that Yoo could make in regards to his not using Youngstown.
The Youngstown decision came down because President Truman had seized U.S. private property under the auspices of his being the Commander in Chief of the Armed Forces. But the PSP was designed to fight the terrorists more directly, as specified in the 2001 AUMF, which is completely different from Truman's actions that were overturned by Youngstown. With this in mind, it would make sense that Yoo need not mention Youngstown since the reasons for it aren't applicable in regards to the PSP.
About the only case that is even close to Youngstown is Al-Haramain, which is being fought tooth and nail by the Obama administration. Even with the suit still not yet decided, the court allowed the government to designate Al-Haramain as a group that provides support to terrorists, which, again, falls under the 2001 AUMF.
AJ:
This also applies to "FISA can't restrict wartime Presidents".
Here is what A.L. said in the post:
The Committee Report explained that the repeal of this provision “eliminat[ed] any congressional recognition or suggestion of inherent Presidential power with respect to electronic surveillance."
I contend that FISA unconstitutionally restricts a President's commander in chief authority since the surveillance being done is not just for the sake of doing surveillance. The PSP is a tactic as part of the military strategy to fight terrorism; Congress has no control over these kinds of activities just as it has no control over unit placement once the military is in the field. Yoo may not have referenced the one specific section regarding FISA and war, but he obviously mentions FISA repeatedly.
Further, as AL states, OLC opinions ought to be peer reviewed...The fact that it did set off alarm bells once it was finally reviewed by someone else in OLC implies that they were intentionally avoiding standard operating procedure because they were looking for just one person to tell them what they wanted to hear and they didn't want anyone else to burst their bubble.
That's fine. But how does that show that Yoo disregarded the law or committed malpractice? It was the White House that set the rules of who would be "read in", not Yoo. In the OIG report, Bybee considered Yoo to be the expert in the area of national security. Maybe Yoo was too arrogant to have considered asking to have Bybee "read in", as Philbin did later with Goldsmith (although we really don't know since Yoo declined to be interviewed by the OIG); but, if arrogance in politics is somehow attached to a criminal offense, just about every elected official in Washington and their staffs would be guilty. And remember, we don't know if Ashcroft had asked to have more DoJ personnel "read in". You can't blame Yoo for this since he wasn't the one who set the rules up.
Steve,
You're capacity to defend the indefensible is truly astounding. You realize, don't you, that Goldsmith, Comey, and Philbin are all conservative Republicans, right? And they were so shocked and appalled by the obvious deficencies of Yoo's work that they took the extraordinary (and I believe unprecedented) step of rescinding the opinions. They were so bad that they almost precipitated a mass resignation.
Even if you believe that Youngstown is distinguishable, you still have to cite it and explain your reasoning. Youngstown is the lead case, after all. But you wasn't even willing to make that argument (that FISA is unconstitutional). So instead, he claimed that the statute lacked a clear statement that it intended to restrict the executive, thereby allowing the court to avoid raising the constitutional issue. This is a patently disingenuous argument that ignores just about everything about FISA. Indeed, Yoo's interpretation of FISA as a "safe harbor" makes absolutely no sense at all. The warrantless wiretapping FISA was intended to stop was not being done for the purposes of gathering evidence or using it in court, it was being done in secret, purportedly for the national security purposes. FISA was intended to stop that wiretapping itself, not just regulate its usage. Yoo knows this. But he didn't care. He just pretended FISA did say the things it clearly said.
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SteveAR: I contend that FISA unconstitutionally restricts a President's commander in chief authority since the surveillance being done is not just for the sake of doing surveillance. The PSP is a tactic as part of the military strategy to fight terrorism; Congress has no control over these kinds of activities just as it has no control over unit placement once the military is in the field.
I don't see how this approach can imply anything other than complete and unchecked executive power, which violates the very core of our governance structure.
Who determines when we face a security threat? The president, under his Article II commander in chief power. Who determines what actions are necessary to combat this threat? The president. Where is "the field"? Everywhere, abroad and at home. Who can exercise review or oversight on the president's determinations? No one, because that would be an unconstitutional restriction of his commander in chief power. (I also have a hard time categorizing the CIA, or most other eavesdropping programs, as part of "the military." Who is going to make that determination? Oh yes, the president.)
Yoo had written that the president's Article II powers could trump Fourth Amendment requirements on searches. If so, I thought, why not the First Amendment as well? Then it turned out that Yoo had written in Oct. 2001 that the president might be able to justify abridgment of free speech and free press rights too. Is the claim that as long as the president gets a legal memo from some subordinate flunky at Justice, then the entire rest of the Constitution can get thrown out the window?
Basically, there seems to be an assertion that the president can do whatever he claims is necessary to protect the nation at his sole discretion. (Note that when DoJ wouldn't sign off on the program, Gonzales essentially said that DoJ approval was a nicety and that they'd go ahead anyway because of the president's interpretation of the law.) But the "strict constructionists" can't point to any clause in the constitution to justify this grant of unchecked power. Even the claim regarding Article II fails because according to standard principles of construction, what is passed later trumps what cames previously. The Bill of Rights comes after Article II and therefore would take precedence.
But such basic rules don't seem to apply when the outcome is one that some people don't want to see.
Incidentally, impeachment would not seem to be a option to constrain presidential overreach because no laws have been violated under this expansive reading of Article II.
SteveAR = John Yoo?
Who else would make the silly argument that the law doesn't apply because it would be inconvenient for the president?
A.L.:
Even if you believe that Youngstown is distinguishable, you still have to cite it and explain your reasoning. Youngstown is the lead case, after all.
Why? I think an argument can be made that the events that led to Truman's seizure of Youngstown Sheet weren't because striking workers there were making war or initiating a rebellion against the United States, which are the set of circumstances than what Yoo wrote about. I'm not saying that Yoo is right, just that he could make that argument. Obviously, other conservative Republicans (which is immaterial to the discussion) thought that Youngstown should be included, and I don't dispute their legal reasoning.
The warrantless wiretapping FISA was intended to stop was not being done for the purposes of gathering evidence or using it in court, it was being done in secret, purportedly for the national security purposes. FISA was intended to stop that wiretapping itself, not just regulate its usage.
That doesn't make any sense. What you are saying is that 50 U.S.C. § 1802 doesn't exist.
He just pretended FISA did[n't] say the things it clearly said.
I'm not sure how you can say that when you yourself seemed to have ignored the existence of a whole section of FISA, the one that regulates warrantless searches.
dsimon:
Yoo had written that the president's Article II powers could trump Fourth Amendment requirements on searches.
No he doesn't. The Reasonableness Clause itself allows searches (in the form of surveillance) without warrants; there is no absolute requirement in the 4th Amendment that a warrant must be issued for every single solitary search by the government. That's the argument Yoo (and others) make, and there are a number of examples: drunk driver checkpoints, luggage searches at airports, and certain automobile searches).
SteveAR: The Reasonableness Clause itself allows searches (in the form of surveillance) without warrants
And who will determine what is reasonable? Aren't courts extremely deferential to the executive branch when it comes to matters of national security?
Also, Yoo apparently did argue that even the reasonableness provision may not apply. "The newly disclosed Oct. 23, 2001, memo was in response to a request from Gonzales, at the time President Bush's top lawyer, and Haynes, who was chief counsel at the Pentagon, to determine if there were any restrictions on the use of the U.S. military inside the country in targeting terror suspects. The Yoo memo essentially concluded there were none. The country, he argued, was in a 'state of armed conflict.' The scale of violence, he argued, was unprecedented and 'legal and constitutional rules' governing law enforcement—such as the Fourth Amendment prohibition on 'unreasonable' searches and seizures—did not apply." http://www.newsweek.com/id/187342/page/2
And what about the First Amendment?
"In perhaps the most surprising assertion, the Oct. 23, 2001, memo suggested the president could even suspend press freedoms if he concluded it was necessary to wage the war on terror. 'First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,' Yoo wrote in the memo entitled 'Authority for Use of Military Force to Combat Terrorist Activity Within the United States.'" http://www.newsweek.com/id/187342
I ask again: where is there any check on executive power under this expansive reading of Article II? Why doesn't Yoo's memo just throw the rest of the Constitution out the window?
dsimon:
And who will determine what is reasonable? Aren't courts extremely deferential to the executive branch when it comes to matters of national security?
[snip]
I ask again: where is there any check on executive power under this expansive reading of Article II?
To answer to your first question, the courts. To answer your second question, yes. To answer your third question, I'll ask you a question: isn't the fact that the courts look at these matters indicate a check on executive power?
From the Isikoff article:
"The scale of violence, he argued, was unprecedented and 'legal and constitutional rules' governing law enforcement—such as the Fourth Amendment prohibition on 'unreasonable' searches and seizures—did not apply."
Isikoff writes this as if what Yoo was advocating was ignoring the 4th Amendment. That isn't the case at all. What Yoo argues is that warrantless searches (as I mentioned, in the form of surveillance) are reasonable under certain conditions.
Here's the problem as I see it. All these memos came out within 2 months of 9/11. The U.S. had gone through 60 years since it was attacked on American soil and the federal government had to figure out how to stop it from happening again. The administration and the Congress went on a war footing instead of trying to fight the terrorists using the failed law enforcement method. Unless those that read Yoo are willing to look into what Yoo wrote in that context, then the readers are going to see something they deem outrageous in every utterance, word, or phrase that Yoo makes.
Remember, 9/11 wasn't anything like Pearl Harbor. America's enemy infiltrated U.S. soil in order to attack it, not launch a military strike from hundreds of miles away.
SteveAR conveniently overlooks the previous AQ attacks, which had been handled quite handily by law enforcement methods.
What was the difference on 9/11? A weak, incompetent president, paying little attention. That allowed unscrupulous power-brokers to play turf war games, to the detriment of the country. A one-sentence summary of the report by the 9/11 commission would be along the lines of: "managers were too intent on protecting their bailiwicks to notice the danger."
When you have the White House reaching into mid-level DoJ ranks to pick a go-to guy for getting ass-covering memos under which to justify whatever is desired, it's a clear indication of management failure.
Steve wonders why, if Youngstown is potentially distinguishable, it has to be distinguished.
Legal ethics, anyone? Yoo was writing a memo on the legality of conduct which, if the courts disagreed with Yoo, could land the actors in jail. He had a duty to advise *them* of arguments that *might* persuade courts to rule that their conduct was illegal. Yoo could not fulfill that duty while *ignoring* Youngstown.
Ask yourself: if you're defending yourself in court for violation of FISA, and the case against you relies on Youngstown, is that a case you want to be hearing about for the first time? Or would you like Yoo to have brought it up?
"No good lawyer," as Jim Comey so memorably said in a similar context, would provide good-faith advice to his client on this FISA issue without discussing Youngstown. Anyone who argues otherwise is either not a lawyer, a bad lawyer, or a dishonest lawyer. Such omissions by Yoo should constitute the center of the case against him for providing bad-faith "get out of jail free card" memos as part of a criminal conspiracy.
And as already noted, the notion that "the actual or implied authorization of Congress" can be inferred from "members of Congress had already been briefed" is far from evident. Did FISA provide for a few members to make up Congress's mind for it on exceptions to the statutory text?
C2:
SteveAR conveniently overlooks the previous AQ attacks, which had been handled quite handily by law enforcement methods.
C2 conveniently overlooks the fact that the prosecution of anyone arrested for the first WTC bombing didn't prevent the Khobar Towers bombing. C2 conveniently overlooks the fact that the prosecution of anyone arrested for the Khobar Towers bombing didn't prevent the embassy bombings in Africa. C2 conveniently overlooks the fact that the prosecution of anyone arrested for the embassy bombings in Africa didn't prevent the bombing of the U.S.S. Cole. C2 conveniently overlooks the fact that the prosecution of anyone arrested for the bombing of the U.S.S. Cole didn't prevent 9/11. Those first three attacks were under the watch of a weak, incompetent President, paying little attention, the same President who turned down a request to take Osama bin Laden into custody when the offer to do so was made.
By the way, of the 21 people indicted for the embassy bombings, only four were arrested by the U.S. prior to George Bush taking office (all were convicted shortly after 9/11). 3 were arrested by British officials in 1998 and two are still in custody there fighting extradition to the U.S. (one died). One was arrested in Germany, was extradited to the U.S., and is now in Gitmo. That's eight arrests and 0 convictions out of 21 indictments in the three years remaining of the Clinton Presidency. Tell me again how the law enforcement methods prevent terrorism.
SteveAR: If Yoo wrote that the president's Article II powers can override free speech and free press clauses, what interpretive method would prevent it from overriding any reasonableness requirement in the Fourth Amendment? Since the Bill of rights are amendments, why don't they take precedence over anything that comes before them, including whatever expansive reading one would give to Article II?
To answer your question: the courts not much of a check if they're going to consistently defer to the executive branch on matters of national security, especially when proponents of expansive Article II powers say that the president is the person who gets to determine what constitutes a matter of national security. I can just see those proponents screaming about unelected judges with no national security background substituting their judgments for the president's in such matters.
I am fully aware of the "context" after 9/11 and I do not consider it an excuse for shoddy lawyering. I believe that it is precisely when the temptation to break the law is greatest that we most need the constraining force of the law; otherwise, what is it there for? That someone may have acted with good intentions may garner sympathy, but I do not believe it excuses the act. I'd bet that many of those involved in the Spanish Inquisition acted with the good intention of saving souls. But waterboarding is waterboarding, and good intentions do not absolve them of what they did.
Also, one may want to consider the "context" that Cheney was constantly looking for ways to expand executive power. But I doubt that finding one compliant, unsupervised lawyer in DoJ should serve as a sound basis for an executive "national security" exception to the Bill of Rights, especially when such an exception seems to be entirely at the discretion of the executive branch.
Here's a hypothetical for you. The president decides it's necessary for security purposes to have video cameras on ever street corner. Congress, responding to their constituents, passes a statute forbidding such action (or establishing ground rules or requires that any plan obtain congressional approval). The courts, unwilling to second guess the chief executive, says the statute unconstitutionally abridges the Article II national security powers. (There's no Fourth Amendment violation, since the cameras are just seeing what anyone could see on the street.) Is it really possible that the cameras go up against the vast wishes of the public?
It's not that the cameras won't make us safer. They probably would. But we should have a say in whether we want to live in a police state, and that say should not be dependent solely on who was elected to the White House. It seems clear to me that to cut out the role of our elected representatives in this process would be a fundamental restructuring of our basic governance structure, one that is not justified by the structure of the constitution itself and violative of basic democracy.
SteveAR,
As anyone with half a brain has noticed by now, only the removal of the conditions which foster terrorism prevents terrorism.
That the people responsible for past acts of terrorism are, gradually -- and by law enforcement methods -- being brought to justice demonstrates the falsity of your own arguments.
SteveAR: C2 conveniently overlooks the fact that the prosecution of anyone arrested for the first WTC bombing didn't prevent the Khobar Towers bombing...
I'm sorry, but that's not really an argument. It's like saying that because people keep committing crimes, prosecuting crimes is ineffective. I'm not sure what the point is here, nor how it relates to the issues under discussion.
I could just as easily point to dozens of countries that have not resorted to "enhanced" interrogation techniques and have not been attacked. Why wouldn't that support the conclusion that standard law enforcement has been sufficient to keep those countries safe?
Tell me again how the law enforcement methods prevent terrorism.
I don't believe that was ever the claim. Nothing will completely "prevent terrorism."
C2:
As anyone with half a brain has noticed by now, only the removal of the conditions which foster terrorism prevents terrorism.
I agree. But you leftists are wedded to a completely false notion of what those conditions are.
That the people responsible for past acts of terrorism are, gradually -- and by law enforcement methods -- being brought to justice demonstrates the falsity of your own arguments.
Right. After over 3500 innocents were murdered and more than 5000 innocents were injured. Had we continued using those methods, we would have finally brought the remaining 17 to justice after another at least another 50,000 casualties. Good thinking.
dsimon:
Why don't you read one of Yoo's memos to understand what I'm talking about when I mention the reasonableness clause.
the courts not much of a check if they're going to consistently defer to the executive branch on matters of national security, especially when proponents of expansive Article II powers say that the president is the person who gets to determine what constitutes a matter of national security.
There's a reason judges usually defer to the executive branch on matters of national security; it is the executive branch's job to manage national security, not judges.
I believe that it is precisely when the temptation to break the law is greatest that we most need the constraining force of the law; otherwise, what is it there for?
That's a ridiculous statement. If you are basing your whole argument, as so many on the left do, on the notion that the Bush administration looked to deliberately break the law in response to 9/11, that's nuts.
By the way, your hypothetical already happens as part of the laws of various cities in the country (obviously, not for national security reasons). As far as I know, they are all constitutional (I don't know of a ruling that doesn't allow them). I think you're too worried about the wrong people (those in the federal government) making the country a police state. Big city mayors are already doing it.
I'm not sure what the point is here, nor how it relates to the issues under discussion.
My point is, and has been, that the U.S. was at war for three years before 9/11, except that the U.S. government didn't seem to realize it for those three years. Many who visit here still don't want to believe it.
I could just as easily point to dozens of countries that have not resorted to "enhanced" interrogation techniques and have not been attacked.
The idea that "enhanced" interrogation techniques cause terrorism is ridiculous and false. Only leftist nuts like C2 would think it does.
I don't believe that was ever the claim. Nothing will completely "prevent terrorism."
The argument is that law enforcement is more effective against terrorism. I disagree, and there are a high number of dead Americans that prove they are wrong.
SteveAR, this will be my last response because you're not answering my questions.
Again, I ask: if Yoo wrote that the president's Article II powers can override free speech and free press rights, why not the reasonableness clause too? (And if someone at DoJ did write it, would the president be free to act on it?) And as an aside, again I'm reminding you that Gonzales went ahead and "approved" the programs that Justice would not, saying that the president had the authority to do so (backing off only after threatened with mass resignations at Justice). How is this not an assertion of unchecked executive power?
You say city mayors are already monitoring their streets with cameras. But that doesn't respond to my hypo. I posed the hypothetical that the president takes the unilateral step of doing so, and that it's opposed by a vast majority of the public. Under your interpretation of Article II, it seems that Congress can't block it, and the will of the people is foiled. That conclusion seems plainly wrong to me. A response would either justify the conclusions or explain why the situation wouldn't happen.
That's a ridiculous statement. If you are basing your whole argument, as so many on the left do, on the notion that the Bush administration looked to deliberately break the law in response to 9/11, that's nuts.
Perhaps I should have said "bend" the law instead of "break" it. But the point is the same. You wrote about "context." I responded that context does not excuse actions that violate the law. Nor should it excuse coming up with rather creative legal theories to get around what should be pretty clear law. Nor, as others have pointed out, should it excuse a glaring failure to cite the leading case in the area, if only to explain why it doesn't apply.
Perhaps various actors thought they were following the law. And perhaps those who waterboarded during the Spanish Inquisition thought they weren't doing anything wrong. But just because they thought it wasn't wrong doesn't mean it wasn't wrong, or that they shouldn't be held accountable for what they did. Or do you think there should be good faith exemptions for all of those who do indeed break the law?
The idea that "enhanced" interrogation techniques cause terrorism is ridiculous and false.
That was never the argument. It was only that one can point to many nations who continue to rely on "law enforcement" and have not been attacked, so saying that we were attacked even though we use "law enforcement" doesn't show very much, if anything.
The argument is that law enforcement is more effective against terrorism. I disagree, and there are a high number of dead Americans that prove they are wrong.
First, the 9/11 commission report made it pretty clear that we had all the information necessary to prevent the attack through "law enforcement" techniques, but that various agencies didn't communicate them to each other.
Second, as I wrote before, we could all live much more securely in a police state. But sometimes I think we make choices about what we value most. The founders of this nation could have lived much more securely under the British, but they put their lives on the line for...principles. Principles of liberty and limited government.
I still have yet to hear an explanation as to how the expansive reading of Article II does not lead to essentially unchecked executive power. If refusing to cede such power implies some marginal decrease in my personal safety, that's a trade-off I'm more than willing to make because I do not believe that ultimate security is the highest priority or value of our nation. That's what the founders showed through their actions. It would be sad if it were now a minority view, which I fear it may be.
SteveAR,
And yet we have the congressional testimony of a real expert, Matthew Alexander, who stated: "a majority of foreign fighters state that the reason they had come to Iraq to fight was because of the torture and abuse committed at both Abu Ghraib and Guantanamo Bay."
SteveAR: One more question in addition to those in my prior post.
You say the courts will provide a check on executive authority. But you also say FISA is an unconstitutional infringement of that authority. Yet FISA is what requires the executive to go to the courts in the first place. If FISA is unconstitutional, how can courts enforce any Fourth Amendment reasonableness requirement for surveillance? If Congress can't force the executive branch to go to the courts, is it up to the sole discretion of the executive branch to determine reasonableness? If so, then that would seem to be no check at all. What if anything am I missing?
Pretty interesting discussion. I just want to make a point of strategy. The "case against John Yoo" is really three different cases, only one of which seems to me to have any chance of success to result in any kind of punishment for Yoo:
1. The "shoddy term paper" case
This is the case A.L.'s original post makes, and it is the weakest of the three. The idea is that any minimally competent but unbiased lawyer would have included X, Y or Z in his analysis, and since Yoo didn't, one has to conclude that Yoo is either grossly incompetent or applied undue bias.
2. The "naïve client" case
This is the case Anderson makes in his comment. Yoo's memo wasn't simply an academic exercise in legal reasoning, but he had a client to serve and let this client down by offering what amounts to a defense strategy rather than an appraisal of the legal consequences to the actors.
3. The "collusion" case
This is the case I believe is the only one that matters, and by happenstance also the only one truly affected by the new evidence from the OIG. It is expressed in a quote attributed to J.P. Morgan: "Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do."
Yoo was not providing shoddy research due to incompetence or because he was trying to screw his client over. He was in cahoots with his client, and any unbiased government lawyer would recognize the unusual institutional arrangement Yoo was put in by his client as an attempt to isolate him from the rest of the OLC because of the acute danger that less trustworthy peers and superiors at the OLC would recognize Yoo's memo for what it is: an attempt to skirt rather than appraise the law. There is no possibility that Yoo failed to recognize this. He did, and he went along with it.
Good analysis, T&E. N.b. that my "naive client" argument, as you call it, isn't a *legal* case vs. Yoo; it goes *directly* to his ethics, but only *indirectly* to his legal culpability.
The relevance of the ethical point, like A.L.'s "shoddy term paper" argument, is that it leaves Yoo left to argue either that he was shoddy and unethical, or else that he colluded. A jury could, as you suggest, find the former implausible.
Anderson: Agreed, but I'm not solely concerned with the legal case against Yoo. There are also the possibilities of disbarment and revocation of tenure, where the ethical element matters as much as, if not more than, in a legal case.
I'm not sure any strategy will get Yoo to admit anything. He will in all likelihood claim to the end that his scholarship was sound and unbiased given the circumstances, and will roll out friendly witnesses who will support him on it. This is why context matters, and ignoring the context (as the "term paper" case does) will only result in a stalemate of expert witnesses that will likely be resolved in Yoo's favor. Creating a false context (as the "naïve client" case does) will ratchet up the level of minimally acceptable scholarship, but nobody really believes that the Bush Administration was really naïve in this matter. Also, since it was the administration who isolated Yoo from the rest of the OLC, Yoo himself can't be held accountable in that case. He can only be held accountable if the case is made that the isolation was a prerequisite for him to create a memo that met his client's expectations but that wouldn't subject him to interference from his peers and superiors at the OLC.
There is a common mistake especially in the tenure discussion (Dean Edley's defense of Yoo comes to mind) to consider Yoo's memos as contrarian entries in the marketplace of opinions, and that punishing Yoo for them would irreparably harm the marketplace of opinions itself. This is bogus of course, because Yoo had a monopoly of opinion and was handpicked to provide the opinion the administration wanted to hear. But this is very much a default mindset when it comes to academic expression, and to shatter this mindset in the jurors will be crucial in any attempt to hold Yoo accountable for his actions.
I would say that the case against John Yoo speaks for itself. To get to the man's character and motives, you need look no further than his answer on whether the testicles of a detainee's child may permissibly be crushed. That someone of this moral and intellectual caliber is a professor at Berkeley Law and was a chief drafter of legal memos for our nation's executive branch for several years, is almost incredible.
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