John Yoo Speaks

It's just too bad it didn't come sooner, so we could have better assessed his intellectual shortcomings. But this is an amusing argument. Watch carefully, as the shells move around and the pea is never revealed:

FIVE years after 9/11, President Bush has taken his counterterrorism case to the American people. That’s because he has had to. This summer, a plurality of the Supreme Court found, in Hamdan v. Rumsfeld, that Congress must explicitly approve military commissions to try suspected terrorists. So Mr. Bush has proposed legislation seeking to place the tribunals, and other aggressive antiterrorism measures, on a sounder footing.

Try as you might, you will never find a reference to the substance of the proposed legislation. You will never, for example, find an answer to Mr. Graham's question:

"Where in American jurisprudence do you find support for the concept that a person accused can be tried and convicted on evidence which that person has no opportunity to see, confront or rebut?” Mr. Graham wrote [to Condoleeza Rice].

Mr. Yoo can't be bothered with such trivial Constitutional issues: he has bigger firsh to fry:

But the president has broader goals than even fighting terrorism — he has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the “erosion of the powers and the ability of the president of the United States to do his job” and noted that “we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.”

Thus the administration has gone to war to pre-empt foreign threats. It has data-mined communications in the United States to root out terrorism. It has detained terrorists without formal charges, interrogating some harshly. And it has formed military tribunals modeled on those of past wars, as when we tried and executed a group of Nazi saboteurs found in the United States.

Remember: these are all good things. There is no basis for them in the Constitution, but such is the extraordinary power of the President in time of war, that not only should they be permitted, to deny them is to let the terrorists win! And what is the precedent for these extraordinary powers?

To his critics, Mr. Bush is a “King George” bent on an “imperial presidency.” But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive. Harry Truman sent troops to fight in Korea without Congressional authority. George H. W. Bush did not have the consent of Congress when he invaded Panama to apprehend Manuel Noriega. Nor did Bill Clinton when he initiated NATO’s air war over Kosovo.

The settled doctrine of Constitutional jurisprudence that Constitutional rights and privileges cannot be waived, and that non-Constitutional powers cannot be created, be damned! Two Democrats and W.'s Poppy all got to wage war as they saw fit, so W. gets to wage war on the American people as he sees fit! And just as W. thinks it's his goal to right the wrongs of the Baby Boomers of the '60's (it's Clinton's fault!), so must the experiences of Vietnam and Watergate be expunged from the national memory. No, I am not making this up:

A reinvigorated presidency enrages President Bush’s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. But the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.

It is simply breathtaking to see such an analysis: it is without a shred of support in law, or history, or even jurisprudence. "[W]rong headed or obsolote legislation and judicial decisions" are to be "checked by presidential action"? What case of precedent, pray, does Mr. Yoo offer for this incredible and literally unprecedented legal theory?

Answer comes there none. Except it's Congress' fault for reacting to Vietnam and Watergate with the War Powers Act. Apparently that clause about Congress declaring war really meant war creates a Roman diktator who is given all power he thinks he needs to protect the country until hostilities have ended. Note there is no refernce to FDR anywhere in Mr. Yoo's "analysis" (one must use the term loosely here).

There is one reference to the Hamdan decision, but you'll be surprised to learn that was aimed at Congress more than the Presidency:

(This is why the Hamdan decision was less a rebuke of the presidency than a sign of frustration with Congress’s failure to update our laws to deal with the terrorist menace.)

Reviewing the history of the Hamdan case (aside from the ruling itself), this statement is breathtaking int is mendacity. Oh, and the real problem is not with Bush; it's with how the Presidency is perceived. The people, in other words, are the problem (you can't make this stuff up):

Unfortunately, much of the public misunderstands the true role of the executive branch — in large part because today’s culture transforms presidents into celebrities. On TV, a president’s every move seems central to the universe, so he has the image of power that far exceeds the reality. But as the presidential scholar Richard Neustadt, a liberal icon, argued, the presidency is inherently weak, while mythic things are expected of and attributed to it — like maintaining national security and economic growth.

How did we ever get that idea? And what is the solution? Trust him; he's the government:

Today many pundits and political scientists seem to want the president’s power to be the sum of his communication and political skills, his organizational ability, his cognitive style and emotional intelligence. It is almost as if any president who uses the constitutional powers allocated to his office to effect policy has failed, not succeeded.

But the presidency, unlike Congress, is the only office elected by and accountable to the nation as a whole. The president has better access to expertise from the unified executive branch — including its top secret data — than the more ad hoc information Congress develops through hearings and investigations.

I'm only surprised it doesn't end with: "Let Bush be Bush!" Although it practically does:

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats. We have needed energy in the executive branch to fill in that gap. Congress now must act to guide our counterterror policy, but it should not try to micromanage the executive branch, particularly in war, where flexibility of action is paramount.

So there you have it. The Idea has not failed; only the little people who keep getting in the way of the Idea. Governance by Ayn Rand is what is called for, and the sooner it is accepted, the better. The military, by the way, is having none of it. Start first with what Seymour Hersh said:

There's a lot of anxiety inside the -- you know, our professional military and our intelligence people. Many of them respect the Constitution and the Bill of Rights as much as anybody here, and individual freedom.

Here's what the NYT is reporting:

It was a stinging defeat for the White House, not least because the views of Mr. Warner, a former Navy secretary, carry particular weight. With a long history of ties to the military, Mr. Warner, 79, has a reputation as an accurate gauge to views that senior officers are reluctant to express in public. Notably, in breaking ranks with the White House, Mr. Warner was joined by Colin L. Powell, the former chairman of the Joint Chiefs of Staff, in a rare public breach with the administration he served as secretary of state.

I think it's a reasonable conclusion that the Pentagon is moving as far away from Bush as it can. At any rate, the CW in D.C. is slowly being left behind:

The thinking was that Mr. McCain, who was tortured as a Vietnam prisoner of war, would not budge, nor would Mr. Graham, a military lawyer and zealous guardian of military standards. That left Mr. Warner as the best potential target for the White House. But as he considered the consequences of the proposal, the chairman decided to stick to his guns, saying he believed the nation’s reputation was at stake.

“He is a man of the Senate,” said Mr. Graham, arguing that Mr. Warner’s stance spoke volumes because it went against his nature to have so visible a conflict. “He is also a military man and has thought long and hard about this.”

The only good thing that can be said about Mr. Yoo's legal advice: it is already in the dustbin of history. Which "May say 'Alas,/but cannot help or pardon."