What Does John Yoo Believe?

A correspondent sends me to a 2000 article by Yoo, "The Imperial President Abroad", an article that opens:

Aside from getting himself impeached, President Clinton's most signal impact on the Constitution, and the rule of law it embraces, will have been in the area of foreign affairs. As his domestic agenda met with frustration in a Republican Congress, President Clinton exercised the powers of the imperial presidency to the utomost in the area in which those powers are already at their height--in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law...

That's a hell of an opening paragraph from someone who was, less than three years later, to say that the president has the power to order the torture and maiming of prisoners no matter what laws congress may have passed or treaties the United States has signed.

What does Yoo mean by saying that Clinton has "undermine[d] democratic accountability and respect for the rule of law? He turns out to mean:

• "The Clinton administration's use of the military in several long-term interventions has rendered the War Powers Resolution a dead letter.... [Its failure to obtain] affirmative congressional authorization for its conduct... is still open to constitutional question..."
• "The administration has used troops... not to achieve total victory or to contain the spread of Soviet influence but in order to achieve more limited goals... whose long-term benefits for American security are unclear..."
• "In Kosovo... American troops... serve[d] under... non-American... commanders, such as British General Michael Jackson.... [This] threatens that basic principle of government accountability. International or foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution..."

The only way I can find to reconcile these arguments with those of the Torture Memo is to conclude that Yoo truly believes nothing at all.

Can anybody help me here? For the president's commander-in-chief power to extend to the ordering of torturing and maiming against natural law, solemn treaty, and congressional enactment but not to extend to placing U.S. troops under NATO command?...

Does anyone understand how Yoo can pass the Turing test here?

---

People have been asking "what is Youngstown?" as it more and more becomes the pivot around which lawyers' discussions of the matter of John Yoo's Torture Memo wheel. For example, Boalt Hall graduate "Ugh" writes in:

Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong: And John Yoo clearly knows about the Youngstown case, he taught it to me in Con Law I in the spring of 2000. Strangely, he somehow omitted his theory of POTUS as King that semester, as if, somehow, he might not have believed it. Huh.

Youngstown is the Korean War steel seizure case: Youngstown Sheet & Tube Co. v. Sawyer. During the Korean War President Harry S Truman seized the steel mills to keep them running. The Supreme Court said that he could not do that: it limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress.

Steel company attorney John W. Davis closed his oral argument before the Supreme Court with Thomas Jefferson: "In questions of power let no more be said of confidence in man but bind him down from mischief by the chains of the Constitution." The Court voted by six to three to affirm the District Court's injunction barring the President from seizing the steel plants.

The plurality opinion by Justice Hugo Black held that the president had no power to act without congressional or constitutional authorization. Robert H. Jackson's concurrence was less absolutist, and divided the constitutional issues into three cases--(1) presidential action in accord with express or implied authority from Congress, (2) presidential action in the face of congressional silence, and (3) presidential action in defiance of congressional legislation--classified Youngstown as category 3 in which presidential powers were at their "lowest ebb," and so disallowed Truman's action.

Since then the Supreme Court has expressly cited Youngstown and the Jackson classification as authority for its decisions invalidating Nixon's warrantless wiretaps, permitting litigation against thep to proceed in Clinton v. Jones, limiting the power of the president to intervene in state judicial process in Medellín v. Texas, and in Hamdan v. Rumsfeld.

Youngstown is good law, and bears heavily upon the issues of John Yoo's Torture Memo. Yoo did not fulfill his duty to his clients or to the law in ignoring it in the Torture Memo--at the very least he had a duty to explain his (erroneous) implicit claim that the principles of Youngstown did not apply because the situation here was in some way distinguished from the situation there.

Comments

[Ken Muldrew]

"Does anyone understand how Yoo can pass the Turing test here?"

Yoo's public voice was directed toward noble lies, told for the good of the country, or at least for what he took as the good. The creation of enemies, be they domestic (Bill Clinton in this case) or foreign (everyone outside of Israel and the US is fair game here), lies at the heart of the Neocon program.

Shadia Drury on the Neocons:
"When ideas are inculcated by whispering to boys in corners, the result
is not just corruption, but stupidity. I contend that the pernicious
influence of Leo Strauss has its source in the kind of elite he
cultivates--an elite that is not fit for power because it is neither
wise nor good. It is not wise because it cannot defend its beliefs
before the tribunal of reason; it preaches only to the converted. It is
not good because it is a manipulative elite that eschews the truth in
favor of lies and deceptions, and because it exempts itself from the
moral standards it imposes on others--and this is the road to tyranny."

Brad's example gives the clearest possible demonstration of the corruption, stupidity, and tyrannical excesses created by these clever boys whispering in corners.

[Charlie Stross]

Does anyone understand how Yoo can pass the Turing test here?

He's auditioning for the star job in the turbine hall at a large power station.

Surely that's the right place to put all that energetic spin to some kind of use!

[Charlie Stross]

Does anyone understand how Yoo can pass the Turing test here?

He's auditioning for the star job in the turbine hall at a large power station.

Surely that's the right place to put all that energetic spin to some kind of use!

[esb]

9/11 didn't change "everything" but it certainly changed him.

[derek]

What does John Yoo believe - well, I think that is a fairly easy question to answer - it depends on the party holding the presidency: if it is a Democrat, the president has no war powers whatsoever, but if it's a Republican then the president can act, as you put it, like a king.

[Matt]

I didn't hire the guy.

But, I can tell that the entire professorship of Berkeley will be spending the rest of their time correcting the Law dept at Berkeley.

[mistah charley, ph.d.]

the explicit and implicit slogans that apply, as already noted by earlier posters:

1. 9/11 changed everything

and

2. IOKIYAR it's ok if you're a republican

[mistah charley, ph.d.]

the explicit and implicit slogans that apply, as already noted by earlier posters:

1. 9/11 changed everything

and

2. IOKIYAR it's ok if you're a republican

[RW]

It would appear that John Yoo is pretending to be a lawyer in the same sense that Larry Kudlow pretends to be an economist with the main difference being that Kudlow is pursuing his putative craft in the appropriate venue whereas the jury appears to still be out on Yoo.

I suspect Yoo may represent embarrassment to some university dons who would very much like this issue to go away and he may also represent some conservative dollars to Boalt Hall and the general fund but as Socrates was reported to have once counseled, "be what you wish to seem," so ...well, whether the Faculty Senate finds grounds to intervene or not, it will be interesting to see what UC Berkeley thinks of itself these days.

FWIW I don't believe UC Berkeley is a suitable venue for Yoo given the, um ...flexibility of his scholarship but I'm fairly sure the Heritage Foundation or Hoover Institution would be interested even if he proves insufficiently glib to host a talk-show.

[Emma Anne]

Another vote for IOKIYAR

[Lukeness]

I wonder if Yoo assumed all these torture memos would forever be classified, so he didn't need to care about consistency or legality... only whether he was pleasing his clients.

[PSP]

It is worth reading Justice Jackson's opinion if you have any interest in Constitutional law. Keep in mind as you read, that Truman ordered the steel mills seized to keep Korean war production going and avert a scheduled strike. Truman did so by executive order, ignoring a statue providing a method for making a seizure as "much too cumbersome, involved, and time-consuming for the crisis which was at hand." The steel companies sought and obtained an injunction, and the Supremes heard an emergency appeal.

It has been a long time since Con Law, but Justice Black's opinion holding that the President has no power without authorization from congress probably represents an older, original conception of presidential powers. A conservative like Yoo might be expected to argued that the President has even less power than under Justice Jackson's analysis, if originalism among conservatives was anything other than a means to an end.

Justice Jackson analysis reads:

The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [n3]

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category. [n5] [p639]

Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class, because Congress has not left seizure of private property an open field, but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; [n6] another, condemnation of facilities, including temporary use under the power of eminent domain. [n7] The third is applicable where it is the general economy of the country that is to be protected, rather than exclusive governmental interests. [n8] None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. [p640]

This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-40 (1952).

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZO.html

[Q the Enchanter]

"[How can Yoo] pass the Turing test here?"

What are you on about, DeLong? John Yoo is obviously a *very intelligent* Turing Machine: He is exquisitely sensitive to shifts in political power, and able to revise his "legal analysis" accordingly.

[y]

"Ipse autem rex non debet esse sub homine sed sub deo et sub lege, quia lex facit regem." Bracton ca. 1230
[Moreover the king himself must not be under man, but under God and under the law, for it is law that makes the king.]

[Joe S.]

You should be careful about quoting John W. Davis. He was the fellow who argued the Confederacy's case in Brown v. Board. Helluva lawyer, though.

[Chris Brown]

It seems pretty clear to me. Yoo is an ideologically driven amoral slut.

[Chris Brown]

It seems pretty clear to me. Yoo is an ideologically driven amoral slut.

[Ugh]

"It seems pretty clear to me. Yoo is an ideologically driven amoral slut."

After I described what he was like as a professor on a comment thread elsewhere, someone remarked that he was the emodiment of the banality of evil.

[Julian Elson]

Although most of Yoo's analysis seems to be partisan hackery, I share his concern about U.S. troops being under the command of Michael Jackson.

[M. Carey]

Why of course, Yoo is merely a mob lawyer, and deserves a LONG prison sentence along with his war criminal clients.

[Blissex]

«implicit claim that the principles of Youngstown did not apply because the situation here was in some way distinguished from the situation there.»

But that is pretty obvious. The private property rights of steel mill owners are sacrosanct and protected from arbitrary actions by the executive, but who gives a damn about what happens to bearded brown skinned nobodies?

Are you putting the private property rights of USA steel mill owners on the same plane as the non-rights of nasty-looking untermensch?

American voters know better :-).

[CharleyCarp]

Broken record like, I'll repeat that Mr. Yoo gave the game away with his mention of In re Quirin in footnote 13 of the latest memo. He deliberately put the conclusion of that case on the Separation of Powers point exactly backwards, because it is the only way his analysis can be said to be consistent with prior interpretations of the Constitution.

He's free to argue that Youngstown and Quirin were wrongly decided, or are somehow inapplicable in the modern era. What he is not free to do, when working as a lawyer with me (and you) as clients, is deliberately mistate the law for the purpose of facilitating crime by fellow employees. Were they capable of feeling shame, the administration at UC would feel it over continuing efforts to pretend that Mr. Yoo was engaging in the former rather than the latter.