Yoo Ain’t Seen Nothing Yet

Monday, June 23rd, 2008

Last week, ex-Bush executive power rationalizer John Yoo penned an op-ed for the Wall Street Journal heaping the usual criticisms on the Supreme Court’s Boumediene decision, which held that the government can’t just snatch people up off the street, then hold them forever without ever giving them a trial.

Glenn Greenwald dresses Yoo down here. Cato’s Tim Lynch has a go at him here. Meanwhile, Gene Healy finds an intriguing article written for Cato a few years ago attacking Bill Clinton for his unilateral, imperious approach to foreign policy. That article’s author? John Yoo.

Hack-tastic!

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25 Responses to “Yoo Ain’t Seen Nothing Yet”

  1. #1 |  Nando | 

    A member of the Bush administration has been caught supporting one thing that they were totally against when the Democrats were in power? Wow, go figure.

    I think hypocrisy was one of the fundamental qualities that they looked for in all “Bushies.”

  2. #2 |  Chance | 

    I read an article a while back that compared how experts who were right about issues like Iraq WMDs, terrorism, and legal issues were doing with how those who were completely wrong were doing. Those who were incorrect were doing just fine (professorships, highly paid lobbying/corporate positions, etc) while the people who were spot-on are not doing so well.

    The lesson? Nobody likes a Cassandra. Although I’m an atheist, sometimes I really, really hope I’m wrong so that there will be some justice in an afterlife for fools like Yoo.

  3. #3 |  MassHole | 

    I would like to see some justice for Yoo and his pals in this life.

    He should not be able to walk down the street without being taunted.

  4. #4 |  Julian | 

    An earlier post of yours defends the Branch Davidians as innocent. Do you know how the ATF found out about them? Because they were assembling machine guns and selling them to local drug dealers and any other criminal who would buy them. Beyond that, Protective Services had dozens of documented cased of child abuse, physical assault, rape, and child rape coming out of that compound. The events involving that cult were tragic, but Koresh and his fanatics were anything but poor innocent victims of government persecution.

    As to Yoo, that man knowingly advised the subverting of the U.S. Constitution, a document he took an oath to uphold both when he became a lawyer and when he joined the Justice Department. In a just world, he’d be charged with treason and hung. At the very least, he should face obstruction of justice and the closest thing to felony malfeasance our courts allow. Instead he’s getting his ammoral writings printed in a journal of distinction. Goes to show you how wedded to criminality the right has become in our society.

  5. #5 |  UCrawford | 

    The lesson? Nobody likes a Cassandra. Although I’m an atheist, sometimes I really, really hope I’m wrong so that there will be some justice in an afterlife for fools like Yoo.

    Amen, brother…everyone I’ve met who still supports Bush and the Iraq war appears to be someone who finds reality and consequence annoying inconveniences they wish would go away. And they despise anyone who points those things out to them.

    I’m really curious if, 20-30 years down the road, any of these guys in the Bush administration are going to look back and say “You know, I was completely off in everything I was doing.” Even Robert McNamara (the worst SECDEF in history before Rumsfeld took over) eventually admitted that he was wrong and made a lot of horrible mistakes in regards to Vietnam (which didn’t keep Rumsfeld from repeating many of those mistakes). With the Bushies, I just don’t see it happening. I honestly believe that the overwhelming majority of those guys will look back and say that the reason all of what they did failed wasn’t because their plans were inept and tyrannical…they’ll claim it was because America lacked the “will” to implement them (kind of like the Hitler rant in “Der Untergang” about how the German people deserved to be wiped out). There’s just some kind of group sociopathy going on there and I just can’t understand why so many people who still support Bush and his ideas refuse to see it. Maybe it’s fear or stupidity or racism or religious fanaticism or some kind of combination of all of them…I just don’t get how people can stick to that mentality when the disastrous results are so obvious and well-documented throughout history.

    Also, how ironic is it that Yoo, the epitome of omnipotent government advocates, got a job teaching at Berkeley, allegedly a hotspot for anti-government types?

  6. #6 |  Sam | 

    The fact that people like Yoo somehow exist legitimately in this government is cause for great concern. It seems like me it would be easy to bring and prove criminal charges against so many of these people. Why has this not happened?

  7. #7 |  jwh | 

    Radley

    You are appealing to a scary bunch of whacko’s here……heaven forbid a lawyer might possibly have a legal argument that just might possibly contradict the ACLU minds full of mush that you’d like to defend your interests.

    Yoo was expressing a legal position, both during the current Bush administration, and during the Clinton administration….and believe it or not, the situations were vastly different.

    What was different, pray tell? How about that one president CHOSE to put his head in the sand and pretend that terrorists weren’t trying to bring the West to it’s knees, and another president who didn’t have that luxury.

    Thanks, Bill……..

  8. #8 |  Zeb | 

    Thanks, John Yoo, for making the best case for Obama over McCain in the last paragraph.

  9. #9 |  Les | 

    Hey, jwh! Why do you never respond? People could get the impression that you’re a little cowardly when it comes to defending your positions. Why not prove you’re not a coward and respond to me?

    Several posts down, you asked:

    Please name any Gitmo detainee who has been falsely imprisoned by the government’s abuse of the Patriot Act? I only want one name…..just one…….

    So, I gave you a couple of names, but you never responded. Why is that?

    I even gave you more names.

    http://www.cjr.org/cover_story/prisoner_345.php

    http://www.mcclatchydc.com/detainees/story/38773.html

    This is the fourth attempt, but I’ll repeat my question to you, and hopefully you’ll answer it this time: why do you trust the government to be 100% efficient at arresting only guilty people when it’s not 100% efficient at doing anything?

  10. #10 |  UCrawford | 

    jwh,

    Yoo was expressing a legal position, both during the current Bush administration, and during the Clinton administration….and believe it or not, the situations were vastly different.

    Yoo was expressing a legal position where he used himself and an intellectually dishonest interpretation of the Constitution (and several Founders’ opinions) to rationalize the government’s open use of torture and the installation of a monarch.

    Basically, John Yoo is a shit attorney who worked for a shit president who is even worse than the shit president who preceded him.

    What was different, pray tell? How about that one president CHOSE to put his head in the sand and pretend that terrorists weren’t trying to bring the West to it’s knees, and another president who didn’t have that luxury.

    Tell you what…why don’t you go read “Ghost Wars” by Steve Coll and “Fiasco” by Thomas Ricks and then try to argue that line of crap?

  11. #11 |  Tokin42 | 

    I don’t care what you think about the Iraq war but the Boumediene decision was the supreme court once again overstepping its bounds. The president and congress should thank them kindly for their concern and then explain to them why they should keep their whore mouths shut.

    The supreme court has zero standing in deciding anything regarding enemy combatants held on foreign soil. We had this argument awhile ago about the federalist papers and everyone here argued that it was either the role of the Executive and/or the Legislative branch to decide how enemy combatants were to be dealt with. Now this president (or the next one you happen to like) along with congress answer solely to an unelected body of judges and not the people who elected them.

  12. #12 |  Tokin42 | 

    I should have specified “foreign” enemy combatants on foreign soil.

  13. #13 |  UCrawford | 

    Tokin42,

    The supreme court has zero standing in deciding anything regarding enemy combatants held on foreign soil

    Except Guantanamo is not foreign soil. It’s a possession of the United States (since it is leased in perpetuity from Cuba), it has been for quite some time. And as such the Supreme Court has jurisdiction over it.

    The president and congress should thank them kindly for their concern and then explain to them why they should keep their whore mouths shut.

    You know, it’s responses like that from Bush’s supporters that makes me absolutely certain that our Supreme Court ruled correctly. Anything that makes that draft-dodging warrior wannabe of a chief executive and his sycophants go apoplectic has got to be a correct ruling…especially since Bush seems to cherrypick most of his legal advice from Pat Robertson’s fake law school.

  14. #14 |  Les | 

    Now this president (or the next one you happen to like) along with congress answer solely to an unelected body of judges and not the people who elected them.

    Don’t the president and the congress answer first to the Constitution? And doesn’t the Supreme Court have the final say on what is and what is not constitutional?

  15. #15 |  old | 

    So, how many of the founding fathers would be in jail if they were alive and operating today? How many would be at think tanks? How many would be employed by the Bush administration?

  16. #16 |  Tokin42 | 

    Crawford, this isn’t about Bush. This is about the absolute right granted by the constitution to the Executive and the Legislative Branches in dealing with foreign enemy combatants. (How did I become the biggest originalist on this site?) You shouldn’t accept a supreme court decision you know to be wrong just because you think it screws the current Executive you don’t happen to like.

    I know my “shut their whore mouths” was over the top, it was a joke, but I think the premise is right on the money. The President and the Congress were well within their bounds on these tribunals and were backed up by a hundred years of precedence before 5 unelected judges decided amongst themselves that they are the ones in charge. They should absolutely pass a resolution stating exactly what I said, minus the “whore mouths” part obviously, and let them know they should mind their own business.

  17. #17 |  UCrawford | 

    Tokin42,

    this isn’t about Bush. This is about the absolute right granted by the constitution to the Executive and the Legislative Branches in dealing with foreign enemy combatants.

    And any powers given to the executive and legislative branches that are used to create laws are still subject to judicial review in the courts. That’s what checks and balances are about. At no point was any branch of government ever set up so it could do whatever the hell it wants…regardless of what our current chief executive has to say.

    You shouldn’t accept a supreme court decision you know to be wrong just because you think it screws the current Executive you don’t happen to like.

    As for detainees, the Constitution was meant to apply to foreigners who are on U.S. soil as well. We recognize human rights in this country, even if the current President doesn’t. As a former soldier yourself you should recognize that…I’m assuming you went through the same training about the Geneva Convention (to which we are still signatory) and the treatment of enemy combatants that I did.

    And I don’t believe the Supreme Court decision to be wrong…I actually believe it to be correct, and not because I despise Bush but because I don’t believe in the idea that anyone being tried in any legal system set up by this country (foreigner or citizen) should ever be denied habeas corpus simply because the President has decided that they’re an undesireable. The President doesn’t get to decide who’s deserving of a fair trial, regardless of what his shitty “lawyers” tell him.

  18. #18 |  Tokin42 | 

    something must be up with the database, it seems to be missing a few comments. I’ll wait to see if my last comment shows back up before I re-type the whole thing. I’m not lazy, just busy.

  19. #19 |  UCrawford | 

    Tokin,

    It deleted all of the comments that were made this morning for some reason. I just happened to have mine saved so I could re-enter this afternoon (I do that frequently since a lot of websites have hiccups that lose your comments because the site times out when you’re entering).

  20. #20 |  Tokin42 | 

    You and I are the only ones having this conversation anyway.

    Back to the argument…I think you believe something a lot of folks mistakenly believe…that EVERYTHING is up for judicial review. That isn’t how our government was set up or even close to the intent the founders envisioned when creating our 3 co-equal branches of government. The exact quote is :

    U.S. Constitution, Article 3 Section 2

    In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    Congress has the ability to make exceptions of what the USSC is allowed to consider. Not only did congress take the time to make the exceptions asked of them by the USSC in the Hamden case, but the previous precedent was explicit in the belief that the supreme court has zero role in dealing with foreign enemy combatants REGARDLESS of where they are held. Remember,
    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1

    If you read the whole thing (no minor chore) pay close attention to this part:

    The Constitution confers on the President the ‘executive Power’, Art II, 1, cl. 1, and imposes on him the duty to ‘take Care that the Laws be faithfully executed’. Art. II, 3. It makes him the Commander in Chief of the Army and Navy, Art. II, 2, cl. 1, and empowers him to appoint and commission officers of the United States. Art. II, 3, cl. 1.

    The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.

    This court totally ignored 200 years of rulings including the most recent. They also just took a huge chunk of power away from the other 2 branches of government and they shouldn’t allow them to get away with it. If the supreme court really believes that they have final say over everything, everywhere, and at any time then we may as well fold up the other 2 “co-equal” branches of government and just have the USSC decide everything for us. Instead of the supposed “monarchy” my left and libertarian friends are freaked out about we’ve just seen a “quinarchy” (my word thank you) installed while half the country pats itself on the back.

  21. #21 |  UCrawford | 

    Tokin42,

    I think you believe something a lot of folks mistakenly believe…that EVERYTHING is up for judicial review.

    Every law is set up for judicial review. So are the actions of the President or Congress when they do things that violate the law (like suspending habeas corpus for people based on hearsay in an undeclared war). Our Founding Fathers never at any point had the intent of allowing the President to do whatever the hell he wanted without checks or balance…including Alexander Hamilton (who was probably the strongest advocate for executive power). So you can trot out that line about how Yoo’s advocacy of torture was really reflecting the Founders’ opinion all you want…I’m not buying. As Radley and many others have already pointed out, Yoo’s argument took extreme liberties with the interpretation of what the Founders said, his arguments were intellectually dishonest and logically (and ethically) laughable and even if the Founding Fathers did support something like Yoo’s position (which they didn’t) I’d still reject it. So did the military’s lawyers, by the way…lawyers who actually care about the law and human rights (unlike Yoo).

    I will never agree that our government has the right to torture detainees based on the President’s say-so. I will never agree that our government has the right to do away with habeas corpus and the rule of law whenever they find it inconvenient. And I will never agree that foreigners are any less deserving of human rights under our legal system than Americans are. You seem like a fairly sharp guy at times, so what I don’t get is why you’d actually believe in all that crap.

    The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared

    Except that Congress has never actually declared war in Iraq or Afghanistan. So the president’s claims of “wartime” powers are a complete load of shit regardless of whether or not they allowed troops to be moved into those countries. Bush was given a mandate in Afghanistan (hunt down al-Qaeda and cooperators) which he exceeded, then lost interest in, quite some time ago. Bush’s mandate in Iraq was to find WMD, which didn’t exist, so he no longer has a legitimate war of which to be commander-in-chief. As far as I’m concerned he’s just a criminal who’s murdering civilians and soldiers for his own personal gratification at this point, so fuck him if he doesn’t like what the courts have to say.

    If the supreme court really believes that they have final say over everything, everywhere, and at any time then we may as well fold up the other 2 “co-equal” branches of government and just have the USSC decide everything for us.

    1) There aren’t three co-equal branches. The legislative branch was meant to be most powerful…that’s why Congress gave them control of the money. The executive’s job is to carry out the laws that Congress passes, which Bush steadfastly refuses to do because he refuses to accept that the Presidency was never designed to be a monarchy.

    2) The Supreme Court was created to point out when the other two branches violate the supreme law of the land (the Constitution). That’s all they did in this case. If you want to complain about that, don’t pretend to be arguing from a Constitutional perspective because your position is that they should be nothing more than a rubber stamp…which was never the intent. If Bush thinks what they did was wrong, then he can try and man up and rally the legislature to pass a Constitutional amendment authorizing the president to torture detainees (which is the only way he would actually have that authority…if the Constitution specifically grants that power to him). Otherwise he can shut his whore mouth and ride out of the rest of his term like a good little hack.

  22. #22 |  Tokin42 | 

    You really think the president is basically an employee of the congress? While I completely disagree with your assessment that the legislative branch is set up as the most powerful but lets run with that for a second. The congress passed the “Authorization for Use of Military Force Against Iraq Resolution” in 2002. Congress authorized the military action and wrote the resolution determining how the detainees were to be treated. By your own account then (if congress is the determining branch) the supreme court has overstepped it’s bounds. If this congress doesn’t put them in their place, a future congress and president is going to seriously regret it.

    The bush haters really need to set aside their anger towards this president and pay attention to what just happened to their future. I keep saying this, this ISN’T about the current president, this is about the separation of powers and the power grab by 5 unelected and unaccountable judges. The treatment of detainees, once it’s been determined by the congress, is a POLITICAL issue. Your opinion that I will never agree that our government has the right to torture detainees based on the President’s say-so. I will never agree that our government has the right to do away with habeas corpus and the rule of law whenever they find it inconvenient. is no longer relevant thanks to this decision. They just took that away from you, it’s now up to them and not the voters.

  23. #23 |  Tokin42 | 

    sorry, screwed up the quote tag, you’ll recognize where it should have been.

  24. #24 |  UCrawford | 

    Tokin,

    You really think the president is basically an employee of the congress?

    No, I think the president’s job is to carry out the laws of the land, not to draft them. Bush on the other hand seems to think that he writes the laws, as evidenced by his abundance of signing statements (an illegal power created by other presidents that he has abused more than other presidents did).

    The congress passed the “Authorization for Use of Military Force Against Iraq Resolution” in 2002. Congress authorized the military action and wrote the resolution determining how the detainees were to be treated.

    The authorization to invade Iraq was premised on the idea that Saddam had weapons of mass destruction or was about to have them and was planning to attack us. That was pretty much debunked back in 2004, which meant that the reason we’re there is no longer valid so Bush from that point on exceeded his mandate and is conducting an illegal war. As for the MCA, the methods set up were illegitimate and unconstitutional (which even the military’s top lawyers pointed out), which is why the government’s position on the treatment of detainees has been rejected every time it’s hit the Supreme Court (3 times now). That’s the courts’ job, to shoot down unconstitutional legislation. If Bush doesn’t like it then he can feel free to try and get a Constitutional amendment going. Or at least he could if his incompetence hadn’t cost the Republicans Congress (awwww).

    As for whether Congress is more powerful, that’s self-evident. They could end this war any time they damn well please…all they have to do is yank the funding. Unfortunately the Democrats who control Congress are currently run by possibly the only politician more incompetent and cowardly than Bush (Pelosi). That doesn’t change the fact that as they control the purse strings. This doesn’t give them authority to micromanage battlefield tactics, of course (not that Bush gives a damn what the battlefield commanders’ opinion is anyway whenever it’s politically inconvenient for him), but it does give them the ultimate authority to shut Bush down whenever they damn well please (and let’s not even forget about their powers of impeachment, which is only a non-factor because Pelosi refuses to consider it). Also, they control the funding for the executive branch, and can cut that off too if they feel a need (as they did with Cheney’s office at one point)…so while Bush isn’t an employee of Congress, he does have to answer to them, whether he wants to or not.

    I keep saying this, this ISN’T about the current president, this is about the separation of powers and the power grab by 5 unelected and unaccountable judges.

    Did you actually listen to what Scalia said? There was almost no Constitutional justification for his position. He didn’t even pretend that his vote for Bush was premised in anything more than personal fear about what would happen if “terrorists” at Guantanamo were released. The five justices who shot Bush down were the ones doing their job. And the fact that you only indicted the five justices who happened to vote against Bush’s position (as opposed to the setup of the Supreme Court in general) indicates that this is very much about your personal preferences on a specific set of issues…so don’t pretend to be making a Constitutional argument. Right now you’re just arguing sour grapes.

    The treatment of detainees, once it’s been determined by the congress, is a POLITICAL issue.

    And the Supreme Court is part of the political process. That’s why they were given the powers they were in the Constitution.

    I’m not sure what the last couple of sentences were about, you garbled them.

  25. #25 |  Tokin42 | 

    I’m not trying to be condescending but I think you’re allowing your obvious dislike for this president to cloud your judgement. Lets lay out the 2 things we know are absolutely true:

    1. The constitution gives the congress the authority to limit what the supreme court is allowed to rule on, the exceptions clause. Congress uses that authority all the time.

    2. After the Hamden decision, congress used that authority to spell out what treatment the detainees were to be given.

    Those are the basic facts of my argument that you cannot get around. If both 1 and 2 are true (which they are) then this decision by the supreme court is nothing more than a power grab and should be slapped down. If congress doesn’t, then they’ve abdicated their roles (and our votes) to an unelected judiciary which is a huge mistake.

    The point I was trying to make at the end of my last post was…there are some issues which should be kept SOLELY within the political realm, and war powers are one of those items. The judiciary isn’t set up, and was never considered, to be where the people of this country decide how to deal with foreign detainees during a war. That is such a basic concept that even the last ruling (the link I provided earlier from ww2) the USSC said exactly that. What I’m saying is that we no longer have any say in how detainees are treated, the supreme court has taken over that role for us. Your visceral dislike of how the war and detainees are handled are no longer relevant as far as they are concerned, the only opinions that matter are those 5 judges. It annoys the hell out of me when the feds take an issue out of the states hands using the commerce clause and this is the same thing only on a much larger scale.

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