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.
Article I, Section 8, two relevant clauses to the authorization by Congress for the Commander in Chief to send boots on the ground to pirate territories like Syria:
“To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”
Paul, Your point is a non-sequitur regarding Yoo’s advocating torture.
No, child soldiers may not lawfully be treated the same as adults. Yet Bush and Obama both tortured a child solider, Omar Kandr. It is stunning for me to see that people support torturing children. What is your complaint about ISIS at that point?
Many, many people also have a problem with the way the US tries children as adults in the civilian criminal system.
Jill – Kardr seems to have confessed to his terrorism. And if there was torture, it seems to have come mainly from the Canadians. There certainly was interrogation. Nothing we have not seen from police
RTC, I had the chance to hear KSM lawyer speak. His lawyer said that, In fact, KSM did confess to assassinating Kennedy.
The history of torture is quite long. It is not helpful in obtaining information. In fact, during the torture at Abu Graib, our soldiers were sent into harms way after being given directions on where to go by private torture contractors such as CACI. These people tortured prisoners, got false information, and our troops got killed. YEAH torture!!!!
Torture was studied by the American govt. under the auspices of the CIA. Report after report found that torture does not work if you want accurate information. It absolutely “works” if you want confessions.
The torture report is clear that torture did not provide actionable intelligence. If you want real intelligence, you need a skilled interrogator, one who would never stoop to torture.
So let’s see the mighty and manful benefits of having presidents who order and protect those who torture! 1. False confessions-check. 2. soldiers sent in harms way due to false confessions-check, 3. a society who advocates actions which are illegal-check 4. a society who hypocritically calls others who torture barbarians while reserving that same right to itself-check. Well that’s all good!
A strong leader is not a torturer. A prisoner is in the complete control of the prison guard. Only cowards and sadists would torture a prisoner. This is a sign of enormous weakness, not strength.
A “leader” who is unwilling to support his oath of office, who cannot dare to do what is lawful and ethical, even in an emergency is weak, not strong.
A man like Yoo, who advocated torturing a child to get the parent to confess is not strong. He is quite weak and he advises weak men and women. He should be on trial for war crimes.
I’m glad this debate happened but Yoo also needs to debate his case as a defendant in a court of law.
Jill – just to give you the other side of the argument. When a 10 year old child is about to throw a hand grenade at you or shoot you, do you have the right to defend yourself? Can you shoot them back? Can you kill them in self-defense? When a child is actually the enemy (an we know the problem with child soldiers) do they not have the same standing as an adult?
In this country we constantly try children as adults and give them adult punishments. I was just watching a case in Canada where they tried a 14 year old and gave him the death penalty. It took him 50 years to get his name cleared.
Nick Spinelli, you may have been seeking this quote:
“Obama is the President Nixon wanted to be.”
Here is Article I, Section 8 of the Constitution:
Article I.
Section 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;–And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
==
The relevant clauses above are:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions;
—
In discussing whether the President is overboard or if Congress is off the charts, these provisions are the relevant Constitutional provisions to the discussions.
I suggested on the other article on this topic that the discussion of Constitutional breaches or powers of the Presidency should not focus solely on the Declaration of War clause, but on the Piracy clause. These exist, side by side, in Article I, Section 8 of the Constitution. The Framers understood the difference between dealing with nation states and pirates operating off of pirate territories. Here in the middle east we have some terrorist group now proclaiming that they are a nation state and call themselves the Islamic State. But these terrorists keep changing their pirate stripes. In any event, the President needs to go to Congress when they are in DC and not out raising money, and request an authorization to use military force to kill terrorists and invoke the piracy clause and the declaration of war clause of Section 8. I will post these in full in the next comment. The subject of pirates is spot on. You and Yoo just did not know why it is so relevant.
Hey Raffy, hope you didn’t refer to my comment at 10:53… I had thought my anti-Bush tirade waaay up above did enough to damage the scholarly nature of this blog!
Wow.
It is amazing to think that the same people who claim that President Obama is constantly going beyond the law, can do a tap dance around admitted torture by the previous administration and the CIA. When the Japanese did it to us, it was torture, but when we do it, they deserved it.
rafflaw – when the Japanese used ‘waterboarding’ (a relatively new term btw) they added some serious wrinkles, like beating the prisoner at the same time as well.
That’s what’s so scary to me right now. This blundering administration with their reckless military PR could get us in some crazy thing in a hurry. He blundered into the “red line” deal in Syria–the statement of a true lightweight of diplomacy… then he wanted to bomb them, Putin then saved Obama from himself–so then Obama arms the rebels, which gave us ISIS, now we get to fight our own hardware?? This just sounds like madness to me and it needs to be shut down. There was a movie in the 90s where we fought a war with Canada, and I don’t think that was a far-fetched as what this reality has been. So yeah, how about the other two parts of government speaking up.?? Maybe we can rewrite the positions so that if they don’t at least go on the record every week, they don’t get a paycheck. ?????
So he was the guy on the grassy knoll…I knew it!
Torture is never acceptable, not just because it’s immoral, but because it doesn’t work. Period. Khalid Sheik Mohammed would have confessed to killing Kennedy.
Prof. Turley sed:
I know how you feel. I cannot understand why there isn’t at least a high school team called the Kankakee Torrent. Now that’s a cool name.
OK–no more shock posts. I think the point has been made. Yoo is plainly wrong. This Presidential Power argument shows how quickly things get out of hand when there isn’t robust checks of power. At best, the checks could help us maintain a sense of justice and the strength of safety in our individual citizenship. How quickly we went down hill to a President that went straight to torture, and another President who decided who he could put to death. It just happened so amazingly quickly! Would we have been better off to just stay British?? (or.. Franconian…) That was a nasty war to fight to end up just like we were (substituting recent police actions for quartering of troops…).
slohrss29 – slowly but surely Congress has given its power away. I am not sure that consulting with Congress before the end of the War Powers Act kicks in is productive unless he wants a full out war. Right now the Obama administration cannot seem to come to grips with whether we are at war with ISIS/ISIL or not.
Jim, I am a glass half full guy. I know most people are good. And, when the chips are down, people are very generous. Although that HBO documentary on the Westgate Mall Kenyan massacre is tough to watch, I take out of the incredible bravery and kindness. However, I learned @ a young age, working @ Leavenworth, there are evil people. They need to be captured or killed, not necessarily in that order.
Nick, Didn’t you realize that if these reporters who keep getting their heads cut off would just turn around and give the guy with the knife a huge, or better yet, play volleyball with them, They would drop their knife and bake cookies together. Some live in the real world, some think it’s unicorns and rainbows. This is why I’ve learned to dislike songs like Lennon’s “Imagine”. If you really listen to the words it sounds like a really boring life to live.
Justice Holmes,
“We have become the people we used to fight against. Yoo facilitated that transformation. In a “Trial at Nuremberg” he would be a defendant.”
—–
Exactly! Torture is acceptable when our country does it–but not when other countries do it.
Are we really going to trust our freedom, liberty and Rights to the will of one man when our entire system of government was designed to protect us from that very same thing? Could we really be that ignorant of history?
“The Obama Doctrine, it turns out, isn’t so much a policy as a posture: that the United States will applaud good things, scorn bad things, and instruct others to do the same . . . [Hence] an idea or policy is not measured by how it actually works, but by whether he says it has worked, is working, or will work: that the imagining of a thing is the same thing as its factual existence (in other words, hope is the same as change).”
http://thefederalist.com/2014/09/15/how-not-to-lead-the-u-s-in-world-affairs/?utm_source=The+Federalist+List&utm_campaign=86965e1eb7-RSS_DAILY_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_cfcb868ceb-86965e1eb7-79248369
Yoo sucks, Turley rocks!
These thunderstorms don’t last long, they’re like tropical afternoon storms. Just stay inside and they’ll be gone soon.
Improsoned? Is that torture or an enhanced interrogation technique? I bet it hurts.