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December 18, 2005 - The Founding Fathers Superceded by John C. Yoo

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And just who is John C. Yoo?


He's a professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served as general counsel of the Senate Judiciary Committee, as a law clerk to Justice Clarence Thomas, and, from 2001 to 2003, as a deputy assistant attorney general in the Office of Legal Counsel of the Department of Justice. Last year, Yoo acknowledged that he was the fellow who had written a particular memo while at the Justice Department - the one arguing that physical interrogations had to cause damage on the order of major organ failure before they were considered torture under American law, and although that was interesting and important, it really didn't matter much because the commander in chief was exempt from such laws.

The constitutional theory he espouses goes like this - neither the congress nor the judiciary (and by inference the laws they promulgate and interpret) have authority over an equal branch of government. The president, in the pursuit of his duties as president, is not subject to the laws. Citizens can offer their judgment of his performance once and only once, every four years at the ballot box.

This is the "constitutional assumption" underpinning much of what the White House approves as policy or action. Why else, when asked why no one had been held accountable for any errors in intelligence about the threat Iraq rally posed to us, the mistakes on the ground after we took over the place, the misjudgments regarding how we'd be "greeted" and the difficulties in reconstruction, there was this exchange, just after the election, with the Washington Post


WP: Why hasn't anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?

GWB: Well, we had an accountability moment, and that's called the 2004 election.


As Digby explains here, it's the Yoo reading of the constitution - the president has only one "accountability moment" while he is president. His re-election. Beyond that, he has been given a blank check. And that includes breaking the law since if the president does it then it's not illegal, the president being the executive branch that is not subject to any other branch of government. Congress has no right to abridge the president's war making powers. Its only constitutional remedy to a war with which they disagree is to deny funding.

It's all in Yoo's new book - The Powers of War and Peace (University of Chicago Press, October 2005).

You'll find a discussion of all this here from Christopher Shea in the Boston Globe - "In John Yoo's world, President Bush didn't need to ask Congress for permission to invade Iraq. And if the special forces captured a terrorist suspect who might know of an upcoming attack on the New York subway, Bush could order him placed on a torture rack - regardless of treaties the US has signed or whether Congress had passed laws banning torture."

The item explains Yoo's reasoning in some detail, and in historical perspective, and has some reactions - Michael J. Glennon, professor of international law at Tufts University's Fletcher School saying, ''Yoo concludes that for all intents and purposes we have an elected king." Lori Damrosch, a Columbia law professor, says the fact that President Bush sought congressional approval for the Iraq and Afghanistan wars, and that his father sought its blessing for the first Gulf War, shows that even they reject the Yoo position. Jane Stromseth, a professor of law at Georgetown, looking at our "founding documents" for support Yoo's position, comes up empty - ''The founders had a deep commitment to the idea that no one person should be able to take the country into war."

But Yoo is the man who has issued the key classified Justice Department legal opinions for the administration, and should anyone question what is going on, these can be used, behind closed doors, to argue whatever was done is constitutionally and legally just fine and dandy. If anything rises to arguments before the Supreme Court on whether the administration acted unconstitutionally here and there - as in obviously breaking the law - these can be trotted out to explain things.

Sorry for the long preamble, but this puts the events of Friday, December 16th, in context - Senate Rejects Extension of Patriot Act (AP) - "The Senate on Friday refused to reauthorize major portions of the USA Patriot Act after critics complained they infringed too much on Americans' privacy and liberty, dealing a huge defeat to the Bush administration and Republican leaders."

This was the same day the New York Times reported Bush Lets US Spy On Callers Without Courts. On the face of it, since wiretapping US citizens strictly requires a warrant, and they are easy to obtain quickly, and the president ordered the National Security Agency (NSA) to contact these wiretaps without involving any warrants, specifically telling the NSA not to involve any judge, panel or court, that's flat-out against the law. The Washington Post account is here Bush Authorized Domestic Spying.

As you see, the underlying conflict centers on what powers the chief executive and the executive branch has - what should be granted and what can just be assumed.

The sides line up, the traditionalists who think they understood Jefferson and the rest about the balance of powers in the constitution, and those who think Yoo's view on what Jefferson and the rest really meant is more compelling.

In this context too, as you recall, a few days earlier, this story broke - the Pentagon is spying on anti-war protesters right here at home. They say they're just trying to protect military bases from damage, but there was this –


The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One "incident" included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald's National Salute to America's Heroes - a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: "US group exercising constitutional rights." Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense - yet they all remained in the database.


They're keeping a list.

This also is illegal and falls under the Posse Comitatus business from 1878 and came up with the FBI, not the military, back in the sixties, when the FBI was infiltrating peace demonstrations and assembling dossiers on John Lennon and stuff like that. Domestic spying and secret dossiers are a no-no. Exceptions can be made, but you show cause and get a warrant, or now you don't. The law reads that you do, but the argument is that such laws do not now apply to the executive branch.

You see there was the 1978 Foreign Intelligence Surveillance Act, passed after the FBI and other agencies got flack for spying on Americans. That law gives the government - with approval from a mysterious court panel in the Justice Department - the authority to conduct these covert wiretaps and surveillance of suspected terrorists and spies, even if they are citizens and here in the United States. But you had to ask.

Forget about that.

It all comes down to the pre-war resolution where the congress voted to give the president the power to do "whatever was necessary" to deal with Iraq and with terrorism in general.


From the Times


Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.


Did this resolution, in fact, confirm that the president, and by extension the executive branch, need not be hamstrung by any existing laws or treaties? Did the congress agree that their only remaining input into anything the nation does was to be to either fund or not fund what the president decides? Yoo provided the administration the legal opinion (classified) that this was precisely the case. The whole week was filled with the fallout from all that this implies.

As noted previously and discussed in detail, mid-week the administration "reversed course" and accepted Senator John McCain's call for a law banning cruel, inhumane and degrading treatment of foreign suspects in the war on terror. No more torture.

Why would the president concede? Perhaps it was more than the votes lining up in the house and senate - he couldn't stop this - and it was just moot. Nice law. Looks good on the books. Helps out image around the world. It just doesn't apply to me or to my administration. No big deal.

Of course some traditionalists, with the old view of the constitution, are pretty upset, like Jack Cafferty, CNN's "everyman" in this rant on Friday's "Situation Room" –


Who cares if the Patriot Act gets renewed? Want to abuse our civil liberties? Just do it! Who cares about the Geneva conventions? Want to torture prisoners? Just do it! Who cares about rules concerning the identity of CIA agents? Want to reveal the name of a covert operative? Just do it!

Who cares about whether the intelligence concerning WMD's is accurate? You want to invade Iraq? Just do it. Who cares about qualifications to serve on the nation's highest court? Want to nominate a personal friend with no qualifications? Just do it.

And the latest outrage, which I read about in "The New York Times" this morning, who cares about needing a court order to eavesdrop on American citizens? Want to wiretap their phones conversations? Just do it!

What a joke. A very cruel, very sad joke.


Yeah, well, that's the way it is in Yoo-World.

This Times scoop can, of course, be seen another way, as here


This is against the law. I have put references to the relevant statute below the fold; the brief version is: the law forbids warrantless surveillance of US citizens, and it provides procedures to be followed in emergencies that do not leave enough time for federal agents to get a warrant. If the NY Times report is correct, the government did not follow these procedures. It therefore acted illegally.

Bush's order is arguably unconstitutional as well: it seems to violate the fourth amendment, and it certainly violates the requirement (Article II, sec. 3) that the President "shall take Care that the Laws be faithfully executed."

I am normally extremely wary of talking about impeachment. I think that impeachment is a trauma for the country, and that it should only be considered in extreme cases. Moreover, I think that the fact that Clinton was impeached raises the bar as far as impeaching Bush: two traumas in a row is really not good for the country, and even though my reluctance to go through a second impeachment benefits the very Republicans who needlessly inflicted the first on us, I don't care. It's bad for the country, and that matters most.

But I have a high bar, not a nonexistent one. And for a President to order violations of the law meets my criteria for impeachment. This is exactly what got Nixon in trouble: he ordered his subordinates to obstruct justice. To the extent that the two cases differ, the differences make what Bush did worse: after all, it's not as though warrants are hard to get, or the law makes no provision for emergencies. Bush could have followed the law had he wanted to. He chose to set it aside.

And this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached.


You can click on the link and click "more" to see the relevant statutes "below the fold," but you get the idea. The president ordered his subordinates to violate the law.

But then note this passage from the account in the Washington Post


The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times.

That legal argument was similar to another 2002 memo authored primarily by Yoo, which outlined an extremely narrow definition of torture. That opinion, which was signed by another Justice official, was formally disavowed after it was disclosed by the Washington Post.


And what will happen with this one? It's hard to imagine this one will be disavowed. Friday morning, just after all this broke, on the "Today Show" Condoleezza Rice was saying, yeah, we did this, but we did nothing illegal.


She knows her Yoo.

Of course, the problem really is not spying on Americas. Sometimes that may be justified - so you explain to a judge or some panel and get a warrant. They are some bad folks out there. Who would argue otherwise? The problem is who has to follow the law and who doesn't. The administration believes that the constitution explicitly authorizes that they need not follow the law, and they have the legal theory to support that. Others think Yoo is a nut and recently he was heckled when he spoke at UC Irvine out here. Constitutional law students gone wild? Something like that. He's become an odd sort of celebrity - the man who justifies the president as king.

Do recall these words from the president - "If this were a dictatorship we'd have it a lot easier. Just so long as I'm the dictator."

Everyone thought he was kidding. Now we have this - Shocked Lawmakers Demand Spy Program Probe (Katherine Shrader, AP). One thinks of Claude Raines in "Casablanca."

It comes down to Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee promising hearings early next year. And he's a Republican.

Bush is saying nothing, because if he said anything that would "tie his hands in fighting terrorists." Bush said in an interview late Friday on "The News Hour with Jim Lehrer" on PBS - "I will make this point - that whatever I do to protect the American people - and I have an obligation to do so - that we will uphold the law, and decisions made are made understanding we have an obligation to protect the civil liberties of the American people."

No one at the NSA is saying anything. (The Times, curiously, says some of the folks at the NSA refused to do the wiretapping - they wouldn't go along, afraid if Kerry were elected they be in major legal trouble.)

We see also that "Vice President Dick Cheney and Bush chief of staff Andrew Card went to the Capitol Friday to meet with congressional leaders and the top members of the intelligence committees, who are often briefed on spy agencies' most classified programs." That must have been interesting.

And there's a twist too, as Tim Grieve points out here, quoting the Times


"The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting."

Our question: When did the White House make its request, and what does "a year" mean? The Times is awfully light on details here, leaving itself open for speculation from the left as to whether the Times sat on the story through last year's presidential election. At the same time, the right is free to speculate about the Times' decision to run the story now, just as the Senate was about to take up and - as it turns out - vote down the reauthorization of the PATRIOT Act.


Yes, all day Friday you could read comments on the web from the right saying the Times published today to screw up the vote on the Patriot Act and mess up Bush, or that they wanted to make everyone forget the news of the successful elections in Iraq to mess up Bush, or (Matt Drudge) this was all tied to a new book the reporters had coming out next week. And on the left folks were saying the Times delayed publication to make sure Bush was reelected - some sort of plot by Judy Miller? Whatever.

Grieve called the reporters - Eric Lichtblau and James Risen - and asked. Why now? Why did you sit on this story for a year? Lichtblau told him to call Catherine Mathis in Corporate PR. She sent Grieve a FAX from the editor, William Keller. She didn't want to talk.

The reasons?


We start with the premise that a newspaper's job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest. From the outset, the question was not why we would publish it, but why we would not.

A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security. Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.

We also continued reporting, and in the ensuing months two things happened that changed our thinking.

First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood.

Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program - withholding a number of technical details - in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the NSA has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority - not the need for a robust anti-terror intelligence operation - that prompted debate within the government, and that is the subject of the article.


Okay, they said please don't reveal any of this or the bad guys will kill us all. Yeah, it's all completely true, and running the story might tip the election the other way - but what about the bad guys? They'd know we were onto them.

This is pretty clever. For more of the same see The Big Stall: How Bush Gamed The Media To Get Re-Elected In 2004. So this Times thing actually was typical, and one tends to forget things like this - (AP) "CBS News has shelved a '60 Minutes' report on the rationale for war in Iraq because it would be 'inappropriate' to air it so close to the presidential election, the network said on Saturday."

These guys are good.


And they had Yoo.



Sometimes there's not any constitutional issue. Sometimes there's just spin, to put it kindly.

As you recall, an issue for the last several weeks is all the business about the prewar intelligence. The Democrats were saying Bush and Cheney had spun everyone and that's why he got his "do anything necessary" resolution from Congress. The White House line was Congress saw the "same intelligence" the president saw and made the decision to go to war along with him. This is the "we were all fooled" defense - or the "you're as dumb as I am" gambit.

Now we have a report from the nonpartisan Congressional Research Service. One of our senators from out here, Diane Feinstein, requested it. You can find it here.

"The president and a small number of presidentially designated Cabinet-level officials, including the vice president - in contrast to members of Congress - have access to a far greater overall volume of intelligence and to more sensitive intelligence information, including information regarding intelligence sources and methods."

"... the president and his most senior advisors arguably are better positioned to assess the quality of the community's intelligence more accurately than is Congress."

It seems the executive branch withholds from Congress four types of intelligence: the identities of intelligence sources; the methods used to collect and analyze intelligence; "raw" or "lightly" evaluated intelligence; and "certain written intelligence products tailored to the specific needs of the president and other high-level executive branch policymakers," including the President's Daily Briefing.

So?  Just stop saying that everyone saw the same stuff.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
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