Yesterday, I had a spirited debate with Berkeley Professor and former Bush Administration lawyer John Yoo at Christopher Newport University’s Center for American Studies (CAS). The debate was structured around the question of “Filling in the Gaps: Is Executive Prerogative Constitutional?”
Yoo served as the Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, Department of Justice (OLC) during the George W. Bush administration. He is best known as one of the authors of the so called “torture memos” that legitimated waterboarding and other interrogation techniques long defined as torture and violations of the Geneva Conventions. The debated however focused on the broader question of the rise of executive power in the executive states. Yoo has long been an advocate for a dominant executive power in the United States and has written books arguing that presidents have sweeping powers, particularly in the areas of foreign affairs and national security.
The debate predictably revealed almost inversive views of presidential power. Yoo warned that we are living in a period of “judicial supremacy” where courts have become too intrusive into political questions and crisis management. I have long complained of the relative passivity of the courts in avoiding such questions through excessively narrow standing doctrines and the rise of an uber-presidency.
Yoo pointed out that all of the presidents who have acted unilaterally or boldly without Congress or the courts are now ranked as our most popular. While this sounded a bit like a “Got War?” campaign for presidential popularity, I disagreed with Yoo’s account of both the Framers as well as presidential history. Yoo received the biggest response when he ridiculed Rand Paul’s pledge that as president he would limit this actions launching military campaigns in line with the Constitution and seek greater congressional involvement. Yoo said it was a laughable position that would was no way to attract support and that the most popular presidents were the “strong” ones who did not run to the Congress or the courts to protect the country. He compared electing Paul president to selected a drug dealer to head a police department. I strongly disagreed with Yoo’s recurring notion of a president who consults with Congress as “weak” as well as the analogy of Rand to a drug dealer.
Ironically, I will be debating Yoo again on Thursday. Despite our extreme disagreements, Yoo has always been a civil and engaging person in these debates. We spoke with students before the debate and had lunch with the faculty. Yoo was very eager to speak with students and we actually agreed on a couple items in this discussion about undergraduate core curriculum and some domestic legal issues.
I particularly enjoyed visiting the 260-acre campus in Newport News of Christopher Newport University, which is beautiful. Much of the campus has been built in the last 20 years and they planned it out beautifully. The level of excitement and success at the university is incredible. I particularly loved the statue of Christopher Newport at the entrance but asked about one anomaly: he has two arms when 1590 (early in his career as a privateer) he lost his right arm during his attempt to capture a prize ship off of Cuba. Yes, Newport was viewed as a pirate but he preferred privateer and he was a very cool historical figure. What I do not understand is why the school is not tapping into the whole Pirates of the Caribbean buzz as the Newport “Pirates.” How cool is that? (except for the challenge from any descendants of the pirates over trademark licensing following the Redskins ruling). By the way, the President of the University insisted that he simply commissioned a statue that depicted Newport the day before he lost the arm so it remains historically accurate. Can you tell that President Paul S. Trible Jr. is a former U.S. Senator?
Today I am in Utah to give two speeches at the Utah Valley University’s Center for Constitutional Studies. It will be an exciting day with other speakers including University of Chicago Professor Richard Epstein, Robert O’Neil, former president and professor emeritus at the University of Virginia, New York Times columnist Stanley Fish, professor of human resource management at Rutgers University Barbara Lee, expert on health information Deborah Peel, and Eugene Volokh, author and law professor at UCLA. I will be speaking this afternoon in Orem, Utah on free speech issues.
Since the terrorists did not sign the Geneva Convention (much like the Japanese) they are not covered by it.
Some lawyers think outside the box. Yoo is one of those. He is the same kind of lawyer who came up with RICO so we could put La Cosa Nostra members away.
“This time around, we, in effect, quickly became what we despised. ” -slohrss29
Yep.
And I’m reminded of John Whitehead’s recent posting:
“I tell you, freedom and human rights in America are doomed. The U.S. government will lead the American people in — and the West in general — into an unbearable hell and a choking life.”—Osama bin Laden (October 2001), as reported by CNN
https://www.rutherford.org/publications_resources/john_whiteheads_commentary/an_unbearable_and_choking_hell_the_loss_of_our_freedoms_in_the_wake_of
Excerpt:
What a strange and harrowing road we’ve walked since September 11, 2001, littered with the debris of our once-vaunted liberties. We have gone from a nation that took great pride in being a model of a representative democracy to being a model of how to persuade a freedom-loving people to march in lockstep with a police state.
What began with the passage of the USA Patriot Act in October 2001 has snowballed into the eradication of every vital safeguard against government overreach, corruption and abuse. Since then, we have been terrorized, traumatized, and tricked into a semi-permanent state of compliance. The bogeyman’s names and faces change over time—Osama bin Laden, Saddam Hussein and now ISIS—but the end result remains the same: our unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security.
Ironically, just a short week after the 13th anniversary of the 9/11 attacks, we find ourselves commemorating the 227th anniversary of the ratification of our Constitution. Yet while there is much to mourn about the loss of our freedoms in the years since 9/11, there has been little to celebrate.
The Constitution has been steadily chipped away at, undermined, eroded, whittled down, and generally discarded to such an extent that what we are left with today is but a shadow of the robust document adopted more than two centuries ago. Most of the damage has been inflicted upon the Bill of Rights—the first ten amendments to the Constitution—which historically served as the bulwark from government abuse.
Set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, overcriminalization, armed surveillance drones, whole body scanners, stop and frisk searches, roving VIPR raids and the like—all sanctioned by Congress, the White House and the courts—a recitation of the Bill of Rights would understandably sound more like a eulogy to freedoms lost than an affirmation of rights we truly possess. …
If there is any sense to be made from this recitation of freedoms lost, it is simply this: our individual freedoms have been eviscerated so that the government’s powers could be expanded. In this regard, ironically, Osama Bin Laden was right when he warned that freedom and human rights in America are doomed, and that the U.S. government would be responsible for leading us into an “unbearable hell and a choking life.”
The choices before us are simple: We can live in the past, dwelling on what freedoms we used to enjoy and shrugging helplessly at the destruction of our liberties. We can immerse ourselves in the present, allowing ourselves to be utterly distracted by the glut of entertainment news and ever-changing headlines so that we fail to pay attention to or do anything about the government’s ongoing power-grabs. We can hang our hopes on the future, believing against all odds that someone or something—whether it be a politician, a movement, or a religious savior—will save us from inevitable ruin.
Or we can start right away by instituting changes at the local level, holding our government officials accountable to the rule of law, and resurrecting the Constitution, recognizing that if we follow our current trajectory, the picture of the future will be closer to what George Orwell likened to “a boot stamping on a human face—forever.” (end of excerpt)
Is a video, audio or transcript of this debate available online? Will the next one be?
This is not about hating Bush or hating Obama, this is about fearing the unfettered and unchecked power of a runaway executive branch; not just the chief executive but all of the tentacles of that branch which it directly control and influence – right down to the cop on the street. For if the President can ignore the law “for the good of the people”, then surely it is OK for every policeman on the street and every executive agency to ignore the law “for the greater good”. This is a corrosive and poisonous attitude that soon leaves us with nothing more than creatively justified felons in positions of power over all facets of our lives and government from the very largest to the very small. Where this felonious behavior is not only ignored but often justified by the courts, Constitution be damned, “for the greater good”, “because not to do so would create to large of a burden”, or “that’s the way we do it” – justice be damned as well.
Where corruption is openly tolerated and even encouraged – provided that corruption is simply large enough, counted in millions or billions, and is spread around from large corporations (at least the ones that are too big to fail) to the key decision makers that may pass laws to regulate or punish their egregious behavior.
No branch is doing its job acting as a check or balance for the people. All seem perfectly happy to collude in the game of go along and get along. But as Teddy Roosevelt famously said, “The Constitution was created for the people, not the people for the Constitution”. It must be interpreted that way.
Is this where the men are playing with boys and girls comment is appropriate…..
Well said DBQ. But what did you think the President Bush haters where going to do? Say that their President who said he would. “Fundamentally transform America” has too much power and is a bad guy? Don’t hold your breath.
In WWII, the US sought to maintain the high ground. There was a decision to treat prisoners of war here honoring the conventions. A publication I worked for had done a great piece on the importance of the treatment prisoners received here in the states. There were accounts of how they were accepted into the communities where they were stationed. This is how we treated one of the most brutal military regimes in history, and it helped pay for itself long afterward. The enemy combatants were clearly not the same as the professional Axis soldiers, but we still could have avoided the “race to the bottom,” which we did at full speed. There is no positive argument to be made about the executive decision to torture people. In the face of an entire world falling apart and thousands upon thousands of American soldiers killed, we maintained the proud discipline and ideals of what it meant to be an American. This time around, we, in effect, quickly became what we despised. This argument concerning Presidential overreach and torture needs to be called out and treated for what it really is.
“Bush-haters will turn a pretty good article about respectful, reasoned debate into a forum to spew venom about Bush. Pathetic.”
It is sad that a debate about one of the most important issues in our governmental history, the respective powers and balance of powers between the three branches of government under the Constitution and how this balance seems to be changing, has to be sidelined into a vituperative blame Bush rant.
“The debated however focused on the broader question of the rise of executive power in the executive states. Yoo has long been an advocate for a dominant executive power in the United States and has written books arguing that presidents have sweeping powers, particularly in the areas of foreign affairs and national security.”
This would be an interesting topic of actual discussion instead of knee jerk anti Bush dialogue.
There seems to be a real inability, of the commenters, to stick to the topic raised by the post.
Professor Turley,
Do you know if the CAS will be publishing transcripts of the debate at some point?
No, I’ll be honest. I’m a Bush hater. Hate, hate, hate… just to be clear.
I don’t think someone can be a real conservative anyway and be a fan of the shrub. He has insulted about every aspect of decency and thumbed his nose (well… Rumsfeld’s…) at the Geneva Conventions.
BUT–just because I hate Bush, doesn’t mean I am a fan of Obama. When you crash something like the United States, you send it on a spiral from which it may never return. Need a historical hero figure here… quick!
Maybe Yoo needs to go on a waterboard ride like Christopher Hitchens did.
Did I say I hated Bush???
We mustn’t denigrate the Bush Reign of Terror which was but merely a prelude to the Obama Über Presidency.
Time for a musical interlude. Dedicated to those who condone torture:
http://youtu.be/0rEsVp5tiDQ
It’s not that we are “leftist Bush haters” as says Steve H., it’s that we happen to love this little republic of ours and that “piece of paper” known as the Constitution.
And we, too, “work” and happen to be pretty good at “making payroll (and a profit), and paying taxes”, as well as running businesses. But the facts are just so darned inconvenient sometimes, for folks like Steve H.
Best as I can tell, waterboarding was used on unlawful enemy combatants. Screw unlawful enemy combatants! I will not condone any protections afforded unlawful enemy combatants.
18 U.S. Code § 2340 – Definitions
As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
To all the conservative bloggers, you should not waste any more time on this blog; it’ll digress into a “hyena-eats-gazelle” feeding frenzy. Suggest that you go back to work, running your business, making payroll (and a profit), and paying taxes.
Again, Professor, all you have to do is mention Bush and the leftist Bush-haters will turn a pretty good article about respectful, reasoned debate into a forum to spew venom about Bush. Pathetic.
Glenn Greenwald:
John Yoo’s war crimes
Why is one of the central perpetrators of a systematic torture regime teaching at Berkeley law school and welcomed in our most respectable opinion venues?
http://www.salon.com/2008/04/02/yoo_2/
Excerpt:
(3) This incident provides yet more proof of how rancid and corrupt is the premise that as long as political appointees at the DOJ approve of certain conduct, then that conduct must be shielded from criminal prosecution. That’s the premise that is being applied over and over to remove government lawbreaking from the reach of the law.
That’s the central argument behind both telecom amnesty and protecting Bush officials from their surveillance felonies (it’s unfair to hold them accountable for their illegal spying behavior because the DOJ said they could do it). It’s the same argument that CIA Director Gen. Michael Hayden just made on Meet the Press as to why CIA interrogators should be immunized from the consequences of their illegal conduct (“when I go and tell him to do something in the shadows and point out to him it is perfectly lawful, that the Department of Justice has reviewed it . . . I need him to have confidence in that DOJ opinion”).
The DOJ is not the law. They are not above the law and they do not make the law. They are merely charged with enforcing it. The fact that they assert that blatantly illegal conduct is legal does not make it so. DOJ officials, like anyone else, can violate the law and have done so not infrequently. High DOJ officials — including Attorneys General — have been convicted of crimes in the past and have gone to prison.
Embracing this twisted notion that the DOJ has the authority to immunize any conduct by high government officials or private actors from the reach of the law is a recipe for inevitable lawlessness. It enables the President to break the law, or authorize lawbreaking, simply by having his political appointees at DOJ — including ideologues like John Yoo — declare that he can do it. As these incidents ought to demonstrate rather vividly, the mere fact that Bush officials at the DOJ declare something to be legal cannot provide license to break the law with impunity. (end of excerpt)
Yes, he did Raff and frankly he should’ve known better and actually to be honest with you, I think he did, I think he was asked to write a memo that legitimized it and he just made the nonsensical leap that the enhanced interrogation technique being applied. Its almost as if he he was arguing that splashing a little bit of Aqua Velva on somebody’s face after shaving wasn’t torture. I jest, but the torture statute is clear and while we often seek guidance from the Geneva Convention with respect to the treatment of prisoners taken during an armed conflict, that portion of the Geneva Convention, obviously unsigned by Al-Qaeda, was specifically incorporated into domestic law in the U.S.C. – See 18 U.S.C. 2340. Waterboarding works by simulating drowning, in what world is that NOT the ‘threat of imminent death’?
http://www.foreignpolicyjournal.com/2012/05/12/bush-convicted-of-war-crimes-in-absentia/
Yoo, too.
http://www.thedailybeast.com/articles/2009/04/13/the-bush-six-to-be-indicted.html
Yoo, too.
And what rafflaw said.
Yoo is dirty and should not be practicing law in any way, shape or form. He gave legal cover to a torture regime.