The New York Review of Books’ David Cole destroys John Yoo’s legal arguments

Love the Internet. The other day when I posted about John Yoo, the administration’s legal hack who justified its most heinous acts, not only did I get some helpful copy editing (I had written John “Woo” instead of “Yoo”), but I got a fantastic link to a November 2005 article by David Cole that…well…destroys all of Yoo’s legal claims that form the basis for his rhetoric on an expansive executive.

According to the piece, Yoo is an “originalist,” one of those paleo-conservative legal minds who believes that the Constitution is not a “living” document – i.e., subject to changing interpretation based on changing values, like the idea that African Americans are the physical, mental, and political equals of whites – but that interpretation should be limited to framers’ intent and the actual text found in the document. (Justice Scalia is perhaps the most widely known originalist.)

Of course, like most conservative intellectuals, Yoo (and Scalia) really don’t adhere to their own ideology, in this case, the Constitution framers’ intent or the actual text of the document. Instead their rhetoric masks an antipathy towards a secular-based government touting individual liberties and a weak executive. Cole:

It is ironic that a president who proclaims his faith in “strict construction” of the Constitution would have found Yoo’s interpretations so persuasive, for Yoo is anything but a strict constructionist. One of the arguments most often made in defense of “originalism” is that interpretations emphasizing a “living” or evolving Constitution are too open-ended, and accordingly they permit judges to stray too far from the text. Yoo unwittingly demonstrates that his brand of originalism is just as vulnerable to that criticism as other approaches, if not more so. He not only departs from the text, but contradicts the principles that underlie it.

On Yoo’s preference for cutting Congress out of the act of declaring war:

As the war in Iraq has painfully underscored, the decision to go to war, especially a war initiated by the president without broad international support, can have disastrous consequences; and extricating the country from such a war can be extremely difficult. Were Congress to be eliminated from the initial decision-making process, as Yoo would prefer, the result would almost certainly be even more wars, and more quagmires such as the one in Iraq. On this issue, the framers were persuasive, and it is Yoo who has failed to understand both the checks on executive power they imposed and the reasons they did so.

On Yoo’s insistence that treaties belong in the President’s sphere and shouldn’t be considered rule of law:

Yoo…maintains that because foreign policy is an executive prerogative, the executive must be able to reinterpret and terminate treaties unilaterally. But while the Constitution plainly envisioned the president as the principal negotiator of treaties, it also gave clear responsibilities for treaties to the other branches; all treaties must be approved by two thirds of the Senate, and once ratified, treaties become “law” enforceable by the courts. The president must certainly be able to interpret treaties in order to “execute” the laws, just as he must be able to interpret statutes for that purpose.

Basically, for all this blather about “originalism,” what Yoo really wants is a powerful executive free from any legal checks:

…[A]ll of Yoo’s departures from the text of the Constitution point in one direction—toward eliminating legal checks on presidential power over foreign affairs. He is candid about this, and defends his theory on the ground that it preserves “flexibility” for the executive in foreign affairs. But the specific “flexibility” he seeks to preserve is the flexibility to involve the nation in war without congressional approval, and to ignore and violate international commitments with impunity. As Carlos Vazquez, a professor of law at Georgetown, has argued in response to Yoo, “flexibility has its benefits, but so does precommitment.” The Constitution committed the nation to a legal regime that would make it difficult to go to war and that would provide reliable enforcement of international obligations. Yoo would dispense with both in the name of letting the president have his way.

What does this inflexibility entail?

In short, the flexibility Yoo advocates allows the administration to lock up human beings indefinitely without charges or hearings, to subject them to brutally coercive interrogation tactics, to send them to other countries with a record of doing worse, to assassinate persons it describes as the enemy without trial, and to keep the courts from interfering with all such actions.

Perhaps not that surprising from the original author of the infamous torture memo (pdf). You know the one – the memo says it ain’t torture unless there’s “major organ failure.” (Obviously this guy never had an older sister.)

Yoo implies that such a…unique…interpretation of the Constitution is necessary in a “post-9/11 world,” where terrorist lurk on every street corner and flexibility is necessary to stop them. But has this flexibility aided the US fight against terror?

In all likelihood, the policies and attitudes Yoo has advanced have made the country less secure. The abuses at Guantánamo and Abu Ghraib have become international embarrassments for the United States, and by many accounts have helped to recruit young people to join al-Qaeda. The US has squandered the sympathy it had on Sep- tember 12, 2001, and we now find ourselves in a world perhaps more hostile than ever before.

Worse still, from a legal standpoint, the method by which the US has detained suspected terrorists has actually worsened our ability to try and convict them for crimes.

…[O]n the one hand, it has become increasingly unacceptable for the US to hold hundreds of prisoners indefinitely without trying them; on the other hand our coercive and inhumane interrogation tactics have effectively granted many of the prisoners immunity from trial. Because the evidence we might use against them is tainted by their mistreatment, trials would likely turn into occasions for exposing the United States’ brutal interrogation tactics….Had we given alleged al-Qaeda detainees the fair hearings required by the Geneva Conventions at the outset, and had we conducted humane interrogations…few would have objected to the US holding some detainees for the duration of the military conflict, and we could have tried those responsible for war crimes. What has been so objectionable to many in the US and abroad is the government’s refusal to accept even the limited constraints of the laws of war.

And now that these errors have been exposed, executive power shown to be a destabilizing and self-defeating force, the government has changed its course. Right?

The consequences of Yoo’s vaunted “flexibility” have been self-destructive for the US—we have turned a world in which international law was on our side into one in which we see it as our enemy. The Pentagon’s National Defense Strategy, issued in March 2005, states,

Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak, using international fora, judicial processes, and terrorism.

The proposition that judicial processes —the very essence of the rule of law —are to be dismissed as a strategy of the weak, akin to terrorism, suggests the continuing strength of Yoo’s influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong. Michael Ignatieff has written that “it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does.” Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing.

It’s the same sort of legalese that supports warrantless wiretapping, domestic spying, and the “enemy combatant” status. In other words, legalese that is paranoid, delusional, and without basis in law.

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  1. Mark T

    New York Review has a wonderful archive of articles going back to the 1960’s, with a very good seaerch tool that will find what you are looking for based on subject, author, or date. I paid $20 to access it for a year, but I’m under the impression that it is free now – I never get passworded, and my year is long since up. I could be wrong. Anyway the magazine is a valuable resource, with many articles like the one you cite. Its reporting on the reporting on the runup to the Iraq war was priceless.




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