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.
PaulT. Yoo done good!
PaulThomson,
That was good, very good. Now who was on First?
PaulThomson, that was excellent. I could almost visualize the conversation.
mespo, in order to breach the space-time continuum we may need the assistance of some creation scientists.
I think it was all a misunderstanding, like what happened in the famous Abbott v Costello case:
Cheney: “Good news Mr. President. I got Yoo to justify sending troops into Buffalo.”
Bush: “I said what?”
Cheney: “Not you.”
Bush: “What?”
Cheney: “No. Yoo said we could justify it based on national security.”
Bush: “I have no idea what you are talking about.”
Cheney: “Idiot. Yoo is an attorney.”
Bush: “No, retard, I is an MBA.”
Cheney: “Listen. We can send troops into an American city! Yoo said we could!”
Bush: “I would never say such a thing!”
Cheney: “No, Yoo is a justice department hack we hired to write crap like this!”
Bush: “Ha ha. I know you ‘is’, but what am I?”
Cheney, leaving in disgust: “I’m going to see if I get get him to write one saying I’m in charge.”
Bush: “What?”
And thus we were spared at least this desecration of the constitution.
Mike A:
“… I believe it important that Mr. Yoo be rendered to a country with which he shares a political-cultural affinity.”
************
I think 15th century Spain has a certain appeal to me. Maybe Seville or Cordoba as a venue. Can we breach the space-time continuum?
Buddha,
My dream is similar to yours, except the beings that grab the evil Mr. Yoo are the same ones that would take the dead to Hell in the movie “Ghost”.
Yoo clerked for Thomas? That explains everything. Didn’t the founding fathers express fear that the U.S. would one day fall into tyranny? Just asking.
Mike A,
You are a visionary.
Buddha, as a matter of basic ethnic sensitivity, I believe it important that Mr. Yoo be rendered to a country with which he shares a political-cultural affinity. Perhaps North Korea would be suitable.
I keep having this dream.
There is a van. White. Window tint black as Satan’s soul. The engine growls hungry for action. With tires squealing in the darkness like the cries of the oppressed, it slams to a hard braking stop right next to Yoo. He’s gone tharn – too dazed by the lights and the noise to react. The side door flings aside and masked men grab him. They are all in Tricky Dick and Bush masks. A bag is put over Yoo’s head and he’s kicked in the balls every time he tries to speak. He shuts up pretty quick. After learning that if you can’t say something nice you should shut the Hell up the hard way, he is taken to an undisclosed location and waterboarded. Not to death mind you.
Just until his mind breaks.
Then the van discretely dumps him naked in the very worst part of Compton to aimlessly wander about the streets crying “I’m sorry, America!” over and over again while the poor children and war orphans throw things at him.
It’s just a dream, sure, but it give me a warm fuzzy feeling inside that smells like laughter at a bad man getting what he so justly deserves – a taste of his own medicine.
What we have in this country is the legal parallel to Leona Helmsley’s famous quote: Only the little people must obey the law.
You can read Glenn Greenwald’s analysis of the Straussian “noble lie” theory in the context of William Kristol.
I would like someone to pose the following question on television: Is it even possible for a senior US official to be guilty of a war crime? Is there some set of facts, if shown to be true, that would necessarily make them guilty? I suspect, at a sub-conscious level, that senior officials do not believe they can ever be guilty of such a crime.
Cheney granted an extra six months of serect service protection. Cheney made the request directly to Obama and Obama approved. Janet Napolitano signed the order last week. I think Obama Bush and Cheney belong to the same club. It is expected that Cheney will seek another six months of protection after this extension runs out by the end of the year.
This is part of Helen Thomas’ column:
“Why did no bells ring for the U.S. lawmakers — particularly those privy to the brutality — when briefed on the abusive treatment of the captives. Did they owe more allegiance to the CIA than to the honor of our country?
There are hair-raising reports of methods that Americans — including private contractors — have used to coerce information from our prisoners.
They include slamming a prisoner against a wall; denying him sleep and food; waterboarding him under so-called enhanced interrogation; and keeping him in a crate filled with insects.
I remember when President Ronald Reagan, marveling at the courage of American soldiers, used to say: “Where do we get such men?” And I have to ask: “Where did we get such people who would inflict so much pain and ruthlessness on others?”
William Rivers Pitt, a best-selling author who wrote “The Greatest Sedition is Silence,” recently raised the emotional question of whether U.S. adoption of torture has debased the international standards for treatment of prisoners and that our enemies may now feel that they can torture Americans.”
http://www.commondreams.org/view/2009/07/28-3
Yoo and Bybee are a disgrace to the profession …
Mike A.,
I haven’t read it but I will.
seamus,
ditto what I said to lottakatz. I also was astounded that people would clap on what appeared to be Yoo’s behalf. It’s not completely clear if they’re clapping for him, but it seems so. I wish his students would sit outside the classroom as a protest and refuse to go in, for every class. Let him teach to an empty classroom. That might get the university’s attention. If they are clapping for him, they have lost their minds and souls (if they had one).
Jill, thank you for your kind words. I mentioned on another thread that Christopher Pyle, who is now a professor of constitutional law at Mount Holyoke, has just published a new book entitled “Getting Away With Torture.” I picked it up a couple of weeks ago courtesy of my annual Father’s Day Borders gift card and find it to be a fascinating, exhaustively documented exploration of the Bush-Cheney crimes. It provides a virtual blueprint for prosecution. You might want to check it out if you haven’t already read it.
This is a bit dated and probably old news to most:
“Total Intelligence Solutions” February 21, 2007
“Blackwater Brass Forms Intelligence Company”
Full article can be seen at:
http://hamptonroads.com/node/226371
By BILL SIZEMORE
The Virginian-Pilot
“Cofer Black, vice chairman of Blackwater USA, announced Tuesday the formation of a new CIA-type private company to provide intelligence services to commercial clients.
The executive roster for the new venture, Total Intelligence Solutions, is loaded with veterans of U.S. intelligence agencies, including two other Blackwater officials.”
lottakatz,
I would have written this in my prior post but I didn’t see what you wrote until mine had gone through. That was a brilliant piece of writing and I agree with everything you said.
I haveto disagree with the Professor Turley on the classroom prank. It’s a surreal situation that allows this war criminal to continue to teach, let alone remain in polite society.
I guess people could simply send letters to the trustees of the university and in the hope that Yoo will be disinvited to lecture. But we are clearly in a period of our history when the rule of law has gone out the window. Obama is simply going to use the expansion of the executives power under Bush to his own advantage. No one will be prosecuted. Our government will continue to piss and moan when any of our citizens is abused in anyway knowing full well that we have lost any moral authority we may have had to complain.
Why these students attend (maybe it’s Con Law 1 , and they have no choice) Yoo’s class is beyond me. I certainly don’t know why they are applauding him.
If civil disobedience still has a place in our society to address wrongs the government is too cowardly to address, then I think you have to applaud these guys. Rosa Parks was breaking the law when she sat in the front of the bus. Gandhi was breaking the law when he made salt. Other than tresspassing, and really I think one has to refuse to leave before one can be arrested for tresspassing, or maybe theft of service (for watching what I’m sure was a brilliant lecture for free),I can’t see any laws being broken.
If having to listen to an Australian guy make a joke about getting his nuts buzzed is the worst thing that ever happens to Yoo atleast we can thank these guys for their efforts.