Positive Liberty » Legal Rhetoric, B+ / Legal Reasoning, D-: Lawyers are trained not only in logical analysis but also in the use of rhetoric. Reasoning has its persuasive value but, as every trial lawyer knows, so does appeal to mere emotion. See if you can tell which technique is primarily in play here:
Suppose al Qaeda branched out from crashing airliners into American cities. Using small arms, explosives, or biological, chemical or nuclear weapons they could seize control of apartment buildings, stadiums, ships, trains or buses.
The author is John Yoo, former legal advisor to George W. Bush and current Franz Schlegelberger Professor of Law at the University of California at Berkeley. Note how his hypothetical examples shift effortlessly from terrorists using small arms to their use of biological, chemical or even nuclear weapons. It is true that if al Qaeda had nuclear weapons, they might use them. Then again, if al Qaeda built a Death Star, they might use that, too.
What all of these scenarios, including the Death Star, have in common is that they are possible, albeit only in the sense that they are not, logically speaking, impossible.
The learned professor continues:
In the weeks after the Sept. 11, 2001, strikes on New York City and Washington, D.C., these were hypotheticals no more. They became real scenarios for which responsible civilian and military leaders had to plan.
In what sense after 9/11 did terrorist use of nuclear weapons become “hypotheticals no more” but “real scenarios”? Certainly not in the sense that terrorists have used nuclear weapons. Is Yoo implying that he knows terrorists are in possession of nuclear weapons? That is, is he using the words “hypothetical” and “real” correctly here or is he twisting the meaning of these words for added rhetorical effect when all he is really claiming, stripped of that rhetoric, is that civilian and military leaders had to take the mere possibility of such scenarios more seriously?
The possibility of such attacks raised difficult, fundamental questions of constitutional law, because they might require domestic military operations against an enemy for the first time since the Civil War. Could our armed forces monitor traffic in a city where terrorists were preparing to strike, search for cells using surveillance technology, or use force against a hijacked vessel or building?
Now look. There isn’t a constitutional scholar in America, not even at Berkeley, who has ever maintained that U.S. military operations could not be undertaken against a bona fide foreign hostile military incursion on American soil. The heart of the controversy over the Posse Comitatus Act (18 U.S.C. § 1385) is whether federal military forces can be used for what have heretofore been considered domestic law enforcement purposes even during a time of war. But as Yoo sophistically conflates the notion of a “military operation” with the likes of monitoring city traffic, using surveillance technology or even force against a hijacked vessel or building, what he is doing is denying either that these are domestic law enforcement functions or that our domestic law enforcement agencies, state and federal combined, are capable of performing them. In fact, however, even Mayberry R.F.D. has a (federally funded and outfitted) SWAT team these days, and that’s even before the FBI shows up with more hardware than the Army needed to invade Grenada in 1983.
In these extraordinary circumstances, while our military put al Qaeda on the run, it was the duty of the government to plan for worst-case scenarios — even if, thankfully, those circumstances never materialized. This was not reckless. It was prudent and responsible. While government officials worked tirelessly to prevent the next attack, lawyers, of which I was one, provided advice on unprecedented questions under the most severe time pressures.
Note the distancing phrase “lawyers, of which I was one.” (Note also the, let us hope, prescient use of the past tense here.) Note, too, the difference between merely planning for worst-case scenarios, which responsible and prudent government officials would indeed be expected to do, and effecting some of the possibly necessary responses to those scenarios such as, oh, say, torture and extraordinary rendition preemptively and long before such scenarios ever came anywhere close to happening.
Note as well the ambiguous sense of the term “unprecedented,” which could mean questions never addressed before by the courts or merely questions asked by the president which, by their very nature – “So, John, as president I can pretty much round up anyone anywhere on Earth and hold him without judicial review for as long as I want, right? – no president at least as smart as Gerald Ford would ever have thought to ask before. We’re speaking purely hypothetically here, of course. No one seriously believes George Bush would ever use the phrase “judicial review” in a complete sentence. And, besides, “we were in a hurry!”
Complaining that he has been criticized, Yoo continues:
According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001, which concluded that the September 11 attacks triggered the government’s war powers and allowed the president to use force to counter force. Alexander Hamilton saw things differently than critics of the Bush administration. He wrote in Federalist 74: “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”
That would be not merely a 37 page memo but his 37 page memo, which by characterizing all federal efforts to combat terrorism as essentially military in nature effectively both obliterates the import of Posse Comitatus and rationalizes the use of plenary, unchecked executive power both domestically and abroad as long as such power is exercised for the putative purpose of fighting terrorism. (Oh, and Alexander Hamilton — who in unrelated news is at long last on the verge of finally getting his Bank of the United States of American — agrees with Yoo. At least, according to Yoo.)
The attorney and counselor at law continues with his objections to criticism, and here to be fair I must quote him extensively:
The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment’s requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”
This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right.” The Court continued: “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”
Our memo had nothing to do with the First Amendment. It only referred to the case to show that constitutional rights apply differently during the exigencies of warfare than during peacetime. The 1931 case bolstered a point that the Supreme Court recognized in 2000 in Indianapolis v. Edmond, striking down random traffic stops to search for illegal drugs. “The Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack,” the Court wrote. Courts have understood that law-enforcement standards could not govern military operations against wartime enemies. They have rejected, to take one example, claims that the Constitution required compensation for the destruction of oil facilities before the invading Japanese in World War II.
Very well, what did the entire paragraph in question state?
First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. “’When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that the utterance will not be endured so long as men fight and that n Court could regard them as protected by any constitutional right’ … No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) (citation omitted); cf. Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (recognizing that “[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service”). Accordingly, our analysis must be informed by the principle that “while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind.” Lichter, 334 U.S. At 782; see also United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J., concurring) (“[W]e must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad..”); McCall v. McDowell, 15 F. Cas. 1235, 1243 (C.C.D. Cal. 1867) (No. 8,673) (The Constitution is “a practical scheme of government, having all necessary power to maintain its existence and authority during peace and war, rebellion or invasion”).
It is simply disingenuous to characterize a memorandum submitted to the Counsel to the President and the DoD General Counsel that directly and unambiguously asserts that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully” as having nothing to do with the First Amendment. To be sure, the paragraph does arise in the context of an analysis of Fourth Amendment applicability. But if quoting the sentence entirely out of context misrepresents it, so does claiming that the paragraph in its entirety merely strengthens the Fourth Amendment analysis.
In the first place, the holding “of the Supreme Court in the case of Near v. Minnesota ex rel. Olson concerning press freedom” is not the passage Yoo quotes. The Court in Near strikes down a state statute as an infringement of the 14th Amendment (which makes the First Amendment applicable to the states as well as the federal government.) Now, I’m not sure how they teach what constitutes a case holding at Yale where Yoo went to law school or at Berkeley where he now teaches, but I’m reasonably confident that the holding in any judicial opinion is a statement of how and why the court decides a case as it in fact does and not language which, at most, limits the scope of that decision.
In the second place, while the Court in Near clearly does acknowledge that even the prohibition against prior restraint of the press “is not absolutely unlimited” (Near at 716), its quoting of Schenck v. United States (a case the Yoo memo conveniently fails to cite even as it also quotes Schenck) refers to a 1919 conviction under the Espionage Act of June 15, 1917 for distributing pamphlets encouraging men to disobey the Selective Service Act of May 18, 1917. Well, there’s no war hysteria like old war hysteria, after all. Nonetheless, the rationale behind the holding in Schenck was substantially overruled in 1969 by Brandenburg v. Ohio, a fact one must suppose Yoo also knew.
As a result, it is difficult, to put it mildly, to see how dicta quoted from a case that no longer constitutes good law in another case which in fact struck down attempted state restrictions on constitutional liberties works to strengthen Yoo’s contention that President Bush need not be concerned by Fourth Amendment protections, either. Unless perhaps the reasoning was something like “Famous dead people said no constitutional provision is absolute and, besides, presidents have lots of power — it says so right there in the Constitution — so let’s not sweat the details. We’re in a hurry!”
In fact, both the Yoo memorandum and his frankly pathetic attempt at self-justification hang on only slightly less tenuous reasoning; namely, that the nation was (and still is and, with any luck, forever will be) in a state of war, that wars are, by definition, fought by military forces and therefore anything done in opposing or fighting our enemy regardless of how or where it is done constitutes a “military operation” for which the proper constitutional oversight of presidential acts by the courts and congress is somewhere between slim and none. Because, after all, as John Yoo, Esquire’s keenly honed legal mind analogizes:
Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable — combat occurred wholly on U.S. territory and enemy soldiers were American citizens. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of “reasonableness” — as they might review a police officer who fires in self-defense — rather than demand a warrant to use military force to stop a terror attack.
You see, al Qaeda is like the Confederacy. It largely fills its rank and file with good old boys from places like Richmond, Virginia and Atlanta, Georgia. Yes, he actually does want to work the comparison. It’s Bush as Lincoln, suspending habeas corpus as the Army of Northern Virginia threatens to surround Washington, D.C.. Just as Yoo would have the reader believe that there was any question whatsoever in the mind of any U.S. official whether federal forces needed to seek a judicial warrant before engaging an actual attacker on U.S. territory.
John Yoo must think we are all idiots. But then perhaps that’s understandable after the poor guy spent so much time working for one.