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.
We have become the people we used to fight against. Yoo facilitated that transformation. In a “Trial at Nuremberg” he would be a defendant.
http://jonathanturley.org/2014/09/16/the-yoo-turley-debate-two-inversive-views-of-presidential-power/#comment-1292229
Nope, Jim22. I’m against torture. Period.
No “haters” here.
Constitutional law experts Yoo, Turley, debate Islamic State action at CNU
September 15, 2014|By Austin Bogues
http://articles.dailypress.com/2014-09-15/news/dp-nws-cnu-debate-executive-prerogative-20140912_1_islamic-state-president-obama-john-yoo
Excerpt:
Yoo, who wrote the Bush Administration’s legal guidance for enhanced interrogation techniques — including the use of water boarding — argued the president has broad authority under the Constitution to engage active threats to national security.
Turley, a nationally renowned law professor at George Washington University, argued that presidents need more consultation with Congress and need to seek authorization for all military involvement.
The two law professors framed their debate against the backdrop of the recent military action President Obama announced against the “Islamic State of Iraq and the Levant,” sometimes referred to as “ISIL” or “ISIS.”
The debate presented an interesting juxtaposition.
Yoo, a former Bush Administration official, has been a frequent Obama critic but supported his policy for attacking the Islamic State. Turley, who said he voted for Obama and backs many of his domestic policies, emerged as the sharper critic of the president’s calls for military action.
Yoo, now a professor of law at the Berkeley School of Law at the University of California, said the president needs to be able to act quickly to address imminent threats, saying that history’s great presidents have used executive action to protect the country in times of emergency.
These greats reacted to crises “not by turning over political leadership to the other branches,” Yoo said. Instead, “they tried to act with decision and speed to protect the nation from a threat.”
Yoo said he felt Obama was well within his constitutional authority to issue the military action against the Islamic State. He said Congress had sufficient power to check the president by holding the “power of the purse.”
“My view is that the president is the commander-in-chief, and so President Obama can use force to prevent a threat like ISIS (from) getting to a point where it can attack us,” Yoo said.
But Turley disagreed, saying he questioned Obama’s legal reasoning for attacking the Islamic State.
Turley said Congressional approval for the operation was needed — not just existing authorizations for attacking al-Qaeda and its affiliates that were first sought by President Bush for the War on Terror.
“John and I read the constitutional history very differently,” Turley said.
He said this question needs to be answered: “When is that war specifically going to end? Is there going to be a moment where the president is going to announce, ‘I’m happy to announce terrorism has been defeated’?”
Turley said he didn’t think Congress’ ability to fund or defund wars was enough to provide appropriate oversight and replace the constitutional power to declare war.
“Power of the purse is one of the greatest mythologies out there,” Turley said. “Congress didn’t appropriate any money for Libya. The president ran an entire war — which was quite extensive — off free money.”
In response, Yoo said the Founding Fathers wanted the executive branch to have a wide amount of independence on national security — instead of a system where the legislature had control over foreign affairs.
“His criticism is of the institution of the presidency as a whole,” Yoo said of Turley. “Under his description of our constitutional system, we could be just as well off if there was no executive branch of the government at all.”
CNU’s Center For American Studies sponsored the debate in honor of Constitution Day, which is Sept. 17.
“We are hoping to restore some faith in our country that individuals of different positions can both be intelligent and speak at a high level in this country on highly passionate issues,” said Elizabeth Kaufer-Busch, associate professor and co-director of the Center for American Studies.
Everones against torture unless they or their loved ones benefit from the potential results.
@Paul, the fact that Al-Qaeda is not a signatory is beside the point, the U.S.C. is domestic law in full force and effect. We refer to that colloquially as ‘treating prisoners in accordance with the Geneva Convention’ but in point of fact our law simply prohibits torture, there’s no qualification that the prohibition doesn’t apply to non-state actor’s who aren’t signatories to the treaty.
Darren, I agree. I would like to watch this debate. I think the fact that JT points out that he and Yoo had a spirited, substantive, and civil debate escapes the haters here. They might prefer a cartoon of the debate.
Scott Supak (@ssupak)
It’s never torture when Yoo authorizes torture…
If anyone has a video of this debate we would like to view this.
For many reasons it is important to hear both sides of this issue from the words of both speakers, especially during a civil debate. Otherwise shouting at each other produces little of value. Far more of an understanding of any issue or person’s actions can be obtained by not throwing up walls.
I remember just prior to the 2003 invasion of Iraq, Saddam Hussein during an interview on an American news anchor offered to debate President Bush over the situation. I thought that would be very good. If these two men wanted to debate the matter and try to sell their positions to their respective citizens and the other for that matter, it would be certainly better than killing each other’s soldiers to mettle out the matter. But, our president’s advisors probably recommended against that. Probably not wanting to risk that President Hussein might win him over. In my view if a person is not man enough to go face to face with his opponent in debate, he should not be allowed to prosecute a war from the comfort of his living room.
Donald P. Gregg:
Time for U.S. to ban use of torture (link @ 2:28)
September 16, 2014
(CNN) — I worked as a CIA operations officer and station chief during the Cold War years. In the gray world of espionage, there was a clear distinction, at least in my mind, between the CIA and our opponents: They tortured their prisoners, we did not.
The CIA’s main opponent was the Soviet Union’s KGB, whose headquarters on Lubyanka Square in Moscow was notorious for torture. In those days, I believed that the greatest thing going for me as an intelligence officer was the fact that I was an American.
Now, as the Senate Intelligence Committee prepares to make public some of the findings of its investigation into CIA torture after 9/11, let’s hope we can start a much needed public reckoning over a tragic mistake that has undermined the very principles I and many others felt we stood for.
Our resorting to torture after 9/11 has cost us dearly — we can no longer assert that we do not torture our enemies, leaving us in a much weaker position when urging our allies or our opponents to eschew such tactics. Now any American, civilian or military, who falls into the hands of our fundamentalist enemies is in even greater danger of being tortured or killed.
Advocates of allowing for the use of torture (or what they prefer to describe as enhanced interrogation techniques) assert that since we haven’t suffered a major attack since 9/11, that torture must somehow have played a part in preventing one.
Even President Barack Obama, in his admission that unnamed officials “tortured some folks” in extremely dangerous times after 9/11, seemed only apologetic, not outraged. Indeed, he appeared to urge understanding for the torturers’ failings.
Meanwhile, there is profound reluctance on the part of CIA to reveal its own evaluation of the efficacy of its use of torture, as this might risk disclosing the torturers’ identities — and those of the people who put them to work. (The CIA’s extraordinary admission that it has essentially spied on the Senate Intelligence Committee by hacking into computers of committee staff members is merely another stark example of its reluctance to come completely clean about what it has been doing).
It is difficult not to conclude that such reluctance is largely based on the fact that very little of value was learned — in line with what is reported to be the conclusion of the Intelligence Committee.
This is all the more frustrating because during my tours in wartime Vietnam in the early 1970s, and as station chief in Seoul, South Korea, I worked hard and effectively against the use of torture. But it would be almost impossible for me to take such positions today.
So what do we do now?
In addition to public release of the Intelligence Committee report, the CIA should be compelled to make public, with the fewest possible redactions, its detailed internal evaluation of what, if anything, torture achieved, what it failed to do and what its use has cost us.
Donald P. Gregg:
“Time for U.S. to ban use of torture”
September 16, 2014
Editor’s note: Donald P. Gregg, a former ambassador to South Korea, is author of the new memoir “Pot Shards: Fragments of a Life Lived in CIA, the White House, and the Two Koreas.” The views expressed are his own alone.
http://edition.cnn.com/2014/09/15/opinion/gregg-cia-torture-report/
We didn’t torture the Japanese. In fact, we convicted some of them for torturing with water boarding.
Not that Schulte cares about facts.
Wow… I thought the GOP signed the Geneva convention,….. Guess they should….
Schulte: “Since the terrorists did not sign the Geneva Convention (much like the Japanese) they are not covered by it.”
SO much for our shining city on the hill…
Paul C.
No, I’m talking about breathing the same air and all…
Max-1 – attorneys disagree with other attorneys about 50% of the time.
As far as the main issues go, I agree with both of you. Both the Courts and the Executive have gotten out of hand with a Congress that is crippled.
Mr. Turley,
That you can be in the same room with Yoo. AMAZING!
“Yoo has always been a civil and engaging person in these debates.”
So? He’s certainly not civil in what he advocates… Being civil to someone like him only encourages him.
But then, my complaints about overrating civility here land on deaf ears…
So, here’s Krugman with a defense of treating these people the way they should be treated, with derision:
http://krugman.blogs.nytimes.com/2014/09/14/wild-words-brain-worms-and-civility/
> First, picturesque language, used right, serves an important purpose. “Words ought to be a little wild,” wrote John Maynard Keynes, “for they are the assaults of thoughts on the unthinking.” You could say, “I’m dubious about the case for expansionary austerity, which rests on questionable empirical evidence and zzzzzzzz…”; or you could accuse austerians of believing in the Confidence Fairy. Which do you think is more effective at challenging a really bad economic doctrine?
> Beyond that, civility is a gesture of respect — and sure enough, the loudest demands for civility come from those who have done nothing to earn that respect.
—
Woo deserves the opposite of respect.