The debate continues to rage this week over the push by Vice President Dick Cheney and others to have former President George Bush deploy active military units in a suburb of Buffalo to arrest a small group of men who were suspected of supporting terrorism (here). Nor surprising, Bush officials went to Berkeley law professor John Yoo to tell them that (surprise!) the President was not bound by the Fourth Amendment or federal law if he unilaterally declared the operation to be a national security matter. Yoo and his former colleague conclude that “the president has the legal and constitutional authority to use military force within the United States to respond to and combat future acts of terrorism, and that the Posse Comitatus Act does not bar deployment.” I discussed the controversy on this segment of Countdown.
The military intervention memo follows the blanket theories of executive power that we saw in the torture memos. Yoo (at that time deputy assistant attorney general in the Office of Legal Counsel) co-authored the memo with Robert J. Delahunty, a special counsel in the office. Delahunty is also an academic — a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota (a religious based law school and integrates faith and law). Yoo and Delahunty basically argued that the only thing needed to circumvent the Fourth Amendment and federal law was a unilateral declaration by the President that these men were being captured as part of a national security rather than a law enforcement operation. Presumably, they would then be tried in Bush’s (now Obama’s) custom-made, outcome-determinative military tribunal system.
Once the President defines the operation as a national security matter, Yoo and Delahunty conclude “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”
It is an argument ready-made for authoritarian rule. Yoo and Delahunty believe that our laws are so malleable and porous that both constitutional and statutory protections become purely discretionary once a President re-defines a given operation in this opportunistic way. The Lackawanna case is an excellent example of the transparent use of such arguments. This was clearly a routine law enforcement operation that became a conventional terrorism case. The defendants were found guilty of material support, not plotting an actual attack.
The fact that two law professors would make such an argument is unsettling. If accepted (and it came within one man of being executed), it would have opened the door to a classic form of tyranny.
Yoo have been teaching at Chapman law school, though he has been followed by protests like the one below in his classroom:
[I do not approve of such displays in classrooms. While I do not understand the decision of Chapman to invite Yoo to serve as a visiting professor, the classroom is not the place for such displays. It is not fair to the students and undermines the traditional protections of the classroom. The way to protest Yoo is not to try to keep him from speaking or teaching, but to educate citizens about the extremism of his views.]
This controversy is made more disturbing by the obviously opportunistic use of 9-11 to realize long-held visions of an all-powerful and imperial presidency by people like Cheney, Yoo, and others. The Lackawanna case was viewed as an opportunity to try out the theory and expand the President’s power. There were some who viewed the September 11th attacks as an irresistible opportunity and moved quickly to re-shape the country in a more authoritarian image. Even recently a Fox guest Michael Scheuer openly opined on the need for another attack to achieve such policy objectives, here.
Nevertheless, the Yoo-Delahunty memo reminds us that, even those people teaching our legal traditions and values, can be hostile to those very traditions and seek their curtailment. The lack of any limiting principle in this memo reflects a fundamental disagreement with the basic precepts of our governing system. Whether it was the result of ambition or antipathy, it is a chilling document for everyone in the teaching academy.
For the memo, click here.
anon,
Great find. The fusions centers are dangerous. I’m glad this was exposed, I’m certain there is much more to know.
I respectfully disagree with your statement Professor Turley, “[I do not approve of such displays in classrooms. While I do not understand the decision of Chapman to invite Yoo to serve as a visiting professor, the classroom is not the place for such displays…]”.
It has always been my contention that the most fundamental virtue of a system of criminal law is that it removes the burden of attaining justice from the victims (or their successors) and reinforces a consensus on moral/ethical behavior. It’s in society’s best interest to not have multi-generational blood feuds as well as (like my State) a provision for jury nullification. Good criminal law prevents anarchy as well as self-corrects.
What we see today is a super-class of criminal behavior that is well documented, publicly discussed and unilaterally condemned but un-pursued. By virtue of public, corporate or/and political position obvious lawbreakers are shielded from the minimum impact that should arise from their lawlessness. We have become a country with one set of laws for ‘little people’ and seemingly no laws restraining the public behavior of America’s corporate and political ruling class.
In a society that had a minimally functioning legal system not only would such lack of judicial parity not exist but someone like Yoo would have long ago been stripped of his law license and given time to ponder his errors in a cell down the tier from Addington, Cheney, Libby, Gonzales, Meyers et al.
We don’t have that though and their legacy of lawlessness lives on and oppresses us still: every keystroke and electronically transmitted thought or word cached and scanned, National Security Letters on the rise, the opacity of government defended and expanded, the real possibility of indefinite (life-long) detention becoming law, the use of black sites for prisoner detention ongoing, the possibility of American citizens being snatched up and held incommunicado in an extra-constitutional legal system in place … Lawlessness set in motion and still unchecked.
As well we have the architect’s of the banking crisis in either high government office or still at the helm of the banking giants, now squabbling over how many billions (derived from [still] risky but ongoing financial practices) to set aside as bonus’.
Absent a formal legal system that would punish such transgressions (and even recognizing that a society for whatever reason can not or will not imprison it’s (ex) leaders) the society could still exact some measure of justice by shunning them. Societies have used this method of punishment for millennia. Simply make them unwelcome and burden them with their unworthyness to enjoy the normal life in a society.
Instead we have Carl Rove as a commentator on a national television network, Cheney becoming the darling of the high-profile interviewers and John Yoo teaching law. (Excuse me a moment while I resist the urge to throw up at that last statement.) These persons should not be given so much as a polite acknowledgment of their existence in society. The ‘cut direct’ should be the norm for acknowledging their presence.
Their continued free existence (with ‘rewards’ accruing) in our society absolves them of wrongdoing and explicitly teaches that justice is fungible based on class, profession, wealth and proximity and usefulness to same. Some people still reject that notion and resort to self help.
I disagree that a classroom or any other public place is off limits to the opposition of tyranny and lawbreakers unpunished of the kind we are dealing with. If a classroom is not ‘public’ in the legal sense of the word I won’t quibble but modify my statement to include private spaces. If Rove or Yoo or Cheney or Rumsfeld et al went into a restaurant and some fellow diner stood up and proclaimed that ‘there sits a monster, a torturer an enemy of democracy’ that would be appropriate IMO. There should be no safe ground from criticism for them.
We have reverted (by necessity) to a society where the victim is burdened with the getting of justice for a certain class of crime and I for one am glad to see persons stepping up to do their duty.
Eileen Clancy, Founding member of I-Witness Video(http://iwitnessvideo.info) who has documented government surveillance of activist groups for years. Her group was targeted by police raids last summer during the Republican National Convention in St. Paul, Minnesota.
Excerpt from Democracy Now! story:
AMY GOODMAN: Eileen Clancy, I’d like to bring you into this conversation. You have long been documenting police and federal authorities’ activities in antiwar and peace protests at the conventions in 2004 and then 2008. You, yourselves, at I-Witness were targeted. You were detained by police. The places that you were setting up video to video police actions on the streets were raided by the police in St. Paul. Your reaction to what you’re listening to and watching today?
EILEEN CLANCY: Well, I have to say, I think this is one of the most important revelations of spying on the American people that we’ve seen since the beginning of the Bush era. It’s very clear that there’s no such thing as one spy, especially not in the Army. So—and it’s very clear that this problem is national in scope, in that sort of casual manner that these folks are interacting with each other.
It’s really like in January 1970. Christopher Pyle, who was a former US Army intelligence officer, revealed in Washington Monthly that there was an extraordinary program of spying by the Army on political protest groups. And he said that—well, what was written in the New York Times was that the Army detectives would attend some of these events, but the majority of material that they gathered was from police departments, local governments and the FBI. And at that time, they had a special teletype, pre-internet, that connected the Army nationwide and where the police could load up their information on this stuff. They also published a small book that was a blacklist, which is similar now to the terrorist watch list, where the police share information about activists with maybe no criminal basis whatsoever. And at the time, in January 1970, Pyle said that there was a hope to link the teletype systems to computerized databanks in Baltimore, Maryland, which, of course, is the general area of the National Security Agency, which does most of the spying for—it’s supposed to be foreign, but apparently they do domestic spying, as well.
So this now, what we have here—and after these revelations, there was a Church Committee. There was a great deal of investigating that went on. And while a lot of it was covered up, the military was pushed back for a while on this front. But because now we have the capability of gathering an extraordinary amount of information and holding onto it and sharing it, through the internet and through other means, we really have this 1970s problem amped up on steroids, twenty-first-century-style. And this had been going on for a while.
Something terrible has been going on in the Pacific Northwest in terms of police spying. There are other documents that had been revealed—the Tacoma police, Homeland Security, meetings, minutes. And you can see that one of the essential problems with this kind of model and the fusion center model is that in the same meeting, they’re talking about a Grannies Against the War group handing out fliers at the local mall, and they’re talking about new information about what al-Qaeda is going to do. It’s a model that doesn’t make any sense whatsoever, and it’s a model that’s based really on hysteria.
end of interview excerpt
Something terrible has been going on in the Pacific Northwest in terms of police spying,” states Clancy. As an ordinary citizen, albeit a vocal one, I know that “something terrible” is “going on in” communities all across this country. Some common tactics involve persistent surveillance, surreptitious home entries, and vandalism of personal property. Some (and I emphasize “some”) in the law-enforcement community appear to be involved, and I say this with some trepidation.
I’m screaming in a vacuum, it would seem.
While you don’t approve of such displays in classrooms, Yoo’s malfeasance against the Constitution demands extraordinary responses against him in any circumstance, including the classroom. Why there are even students in his classroom to listen to him, is beyond me.
Democracy Now! Broadcast Exclusive: Declassified Docs Reveal Military Operative Spied on WA Peace Groups, Activist Friends Stunned
“The Posse Comitatus law bars the use of the armed forces for law enforcement inside the United States. The Fort Lewis military base denied our request for an interview. But in a statement to Democracy Now, the base’s Public Affairs office publicly acknowledged for the first time that Towery is a military operative. “This could be one of the key revelations of this era,” said Eileen Clancy, who has closely tracked government spying on activist organizations.”
http://www.democracynow.org/2009/7/28/broadcast_exclusive_declassified_docs_reveal_military
Sua:
“So much for the intellectual competence and prestige of a law degree.”
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For every Yoo there are forty Brandeis’ or Holmes’ or Traynors’ or even Turleys. I would not judge the whole by the exception. Lawyers have saved the Republic much more than they have threatened it. We can start with Adams, Jefferson, Madison, and work forward through Lincoln … and then to Sam Ervin, and on and on.
So much for the intellectual competence and prestige of a law degree.
Any fawning crackpot without one could compose this stuff to support a tyrannical, imperialist government for his power-hungry leader.
Mike A:
“Richard Nixon used far fewer words, but reached the same conclusion …”
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I can do that in four “notes”:
“I am the law.”
“I discussed the controversy on this segment of Countdown.”
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Well it seems Lawrence O’Donnell is a Turley blog fan too, since we’ve been quoting “A Man for All Seasons” for about two years now in regards to the Bush crime syndicate. Here’s the scene that bears watching again and again. Nice work JT, BTW-as usual:
Mike A.,
You are an amazing person!
I have had the dubious honor to have read some of the Yoo memos. After cutting through the endless explantory discussions and strained analogies, his thesis is quite simple: the president, as chief executive and commander in chief, has a fundamental duty to protect the country, and therefore has the inherent authority to determine when a threat exists and to utilize whatever resources he deems appropriate to meet it, without regard to existing statutory and treaty law or restrictions imposed by the Constitution.
Richard Nixon used far fewer words, but reached the same conclusion when he stated, “If the president does it, it’s not illegal.” This is the theory of executive power long ago adopted by Richard Cheney and imposed on the country during his term in office. In my own opinion, the theory can be explained in even fewer words than Nixon used: national security justifies tyranny.
“rcampbell” tells of Yoo’s relationship to Clarence Thomas…
Correct me if I’m wrong, but I believe that Clarence Thomas spent time at Ivenwald (“The Family’s” refuge in Arlington, VA) during the Anita Hill hearings. I have to wonder if John Yoo has spent time there, as well.
(I agree with many of the comments that have been posted. We’re in such trouble folks, but I have faith that there’s still hope.)
Anonymously Yours As a matter of fact, they Bush and Cheney could have stayed in Office even after Obama had been elected under the NSA power.
Yes and now Obama has the same luxury appointed to him. In order for that to happen thier has to be a chaotic situation or some type of economic collapse. The writing is on the wall.
FEMA NLE 09 started yesterday and there are several scenarios they are preparing for. This year foriegn troops will assist. Britain, Mexico, Australia and Canada.
There are two scenarios that FEMA is concerned with. These two scenarios has promted FEMA to produce a document called the C and R report. This document was said to have been circulated among senior members of congress including Nancy Pelosi. It’s called C and R because C stands for Conflict and R stands for Revolt, these are the two scenarios. Under the conflict scenario, this is where the United States defaults on the loans made by China and other countries and the United States effectively cancels it’s debt starting a major conflict with those countries. If anyone believes that China just lent us money under the current economic conditions as a goodwill gesture, I got news for you. China recieved assurances, plus collateral.
The R scenario is one where taxes are levied at such a high rate that Americans in this country revolt.(can you say T-Party) Now it has been said that these bills (cap and trade, health care) that are trying to be passed, are tax generating bills. The money collected from higher taxes would go quickly to pay down the debt. This maybe why they are trying to rush everything thru without reading it.
Just a note: The 3rd Infantry Division’s 1st Brigade Combat Team known as BCT to the Northern Command’s U.S. Army North will augment FEMA and federal law enforcement. This Brigade will be given the Army’s full arsenal of non-lethal weapons to train with. These weapons are designed for command and control of unruly crowds or mass protesters
Is Yoo angling to be the next ruler of Myanmar?? He’s sure got the temperament and obviously the judicial vision of someone who could be highly successful over there….
It’s hard to imagine that the imbecile, Yoo, can have studied the same US Consititution and the same US laws at the same Harvard and Yale as actual legal scholars. But then, I see he stunted any potential intellectual growth by clerking with in-Justice Clarence Thomas in the Neanderthal Wing of the Supreme Court building.
The only good part of Yoo’s story is that, as with in-Justice Thomas, his anti-American citizens views prove that legal stupidity is an equal opportunity employer.
Does it surprise you? That Yoo would say such a thing?
“Once the President defines the operation as a national security matter, Yoo and Delahunty conclude “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.””
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People do not understand that NSA is stronger than the Constitution. As a matter of fact do anyone of you recall FEMA. That was a Bush moment. The Director of the NSA had not stated that it was a National Emergency and therefore Brown did not have the power to act.
FEMA was gutted for all practical purposes after (the) NSA was Approved. As a matter of fact, they Bush and Cheney could have stayed in Office even after Obama had been elected under the NSA power.
I was betting that this would have happened but for Bush wanting to rid himself of DC. Now if Cheney had been President (really in charge) where would we be today? Would Obama have the Office he currently holds?
So this Article does not surprise me.
JT was correct to point out the opportunism of 9/11. Her is David Addington on the subject:
“We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.”
I think we really need to prepare for this scenario. It’s likely we will face another attack and we should decide in advance that we will not destroy our Constitution and commit depraved acts of cruelty, violence and torture because of it.
I keep telling you guys 9-11 allowed for the executive office to take the gloves off and allow them to do what ever they wanted to under the guise of Natl. Security. The problem is Obama realizes how much power the executive branch can wave with the magic baton the previous CEO had. Why do you think Obama continues many of the same policies. The baton has been passed to him. Why do you think he doesn’t want to look back and instead wants to look forward. The most important person who knows that truth is Colin Powell. The guy was forced to lie and the only thing he could do was to support Obama. A vote for Obama was a vote for Bush.
Cheney and Bush saying that, “my hand picked hack allowed me to do it” is also a scary argument. Yoo was elected to no position. He is not the decider, the president is. Therefore for Cheney and Bush to hide behind the skirts of Yoo is completely disengenous. They claimed the power to do many things, now suddenly, it wasn’t their power they exercised, it was Yoo’s.
As a lawyer at the DOJ, doesn’t Yoo work for the people of the United States? He is accountable to us and the Constitution. If he wants to be the personal lawyer of Dick and George, so mote it be, he could have resigned and signed on as personal lackey. As he did not do so, he is now accountable to the people in a court of law.
It further worries me that these same policies and beliefs concerning the rights of presidential kings are still in force. Further, we have a division of the army dedicated to quelling internal dissent operating in the US. This division is against the law and should not operate on US soil.
I don’t know why people so readily give up the very things we are supposed to be fighting for, the things the terrorists are trying to take away. This doesn’t make sense. Why are we worried about terrorists taking away our freedoms when we have Congress and the President to do that for us?
Bush and Cheney need to see a courtroom from the inside as does Yoo and all the other lackies who dismantled our Constitution. More importantly, our citizens need to quit accepting that a president may act as a dictator. It doesn’t matter which party your dictator comes from, he’s a dictator and we need to restore the rule of law in this nation.