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May 08, 2008


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Steinn Sigurdsson

I am trying to get a small scale context on where Yoo's actions fall.

If, say, a UC professor of education were to take an external position, say as an authoritative consultant to the Chicago Board of Education, and as such, write a policy for the district which authorized and encouraged school principals and their delegates to sodomize delinquent children, would this be cause for investigation and possible disciplinary action? Particularly so if the head of the Board actually sent this to the schools as policy and there was reasonably suspicion some schools were adopting the policy and carrying it out.

I am trying to distinguish this from a controversial opinion article, and present a hypothetical where the university association is presumed authoritative and the action of the faculty member is by proxy.

My sense is that this would, of course, lead to investigation and disciplinary action, not to mention legal action.
The only question then is how authorizing this for the President and his delegates is different, and my understanding of the entire history of US constitutional law, going back to pre-US days, is that this directly opposes the essential principles of US law.

I Am Not A Lawyer, of course.


[Somewhat fittingly, I think, the villain of JRR Tolkien's "The Hobbit" writes in to defend John Yoo:]

Youngstown is not relevant to the question of interrogations.

[You miss the point. The holdings of Youngstown are very general. If Yoo wants to argue that it doesn't apply, he needs to say why it does not apply. You cannot help Yoo today by adding things he did not say to his memo.]

First, Youngstown concerns domestic property, not alien combatants. Second, Youngstown deals with actions within the US. Indeed, this is the central reason for why the Court does not defer to the president; they do not think that the theatre of war in Korea can be extended to the continental US. Yoo's memo deals exclusively with actions outside the US, and pretty much in the theatre of war.


My concern is not to "help" Yoo; I think his memo is wrong-headed. DeLong agreed with a comment that Yoo's omission of _Youngstown_ in the memo is evidence of legal malpractice. This is what I object to. If Congress had passed a law governing interrogations, it would be relevant, but it had not at the time.

Was Clinton's OLC staffer Randolph Moss guilty of malpractice for his failure to cite _Youngstown_ in this memo: http://www.justice.gov/olc/final.htm

The memo deals directly with the issue of presidential war authority and the role of Congress, and Moss found no need to cite it. Why? Because _Youngstown_ was not decided on the grounds that Congress could restrict the conduct of war abroad, but rather that war powers could not be extended permit the president to interfere in labor strikes at home. As Jackson noted:

"We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence."

And as Black's plurality opinion stated: "The order [to seize the mills] cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production."

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