Balkinization  

Friday, June 11, 2004

Yoo: If you don't like our torture, vote us out of office

JB

John Yoo, who served in the Office of Legal Counsel from 2001 to 2003, tries, without much success, to defend the Bush Administration in this op-ed in the Los Angeles Times.

I've only met John once, at a Federalist Society panel on judicial nominations. He was charming, polite, and his arguments were lawyerly and well made, although since I was on the other side I wasn't fully persuaded. In this case, however, I have to say that I don't think the arguments he offers in the op-ed are very good at all. He also engages in a non-sequitur, dragging out the old ticking time bomb scenario (or in this case, "a nuclear weapon in an American city") to conclude that there must be general authorization for all "strategic and tactical decisions" a President might make as Commander-in-Chief. But the fact that we might give the President the benefit of the doubt in the ticking time bomb situation does not imply that he should be free from all congressional oversight.

Yoo also tries to defend one of the most wrongheaded claims in the torture memo, the claim that Congressional laws that impinge on the President's assertions of his Commander-in-Chief power should be construed not to apply to the President. I think this argument, taken to its logical conclusion, destroys the checks and balances in our Constitution and makes the President unaccountable to the Rule of Law.

There is one thing in this op-ed that I do agree with: At the very end, Yoo says: "If the American people disagree with [the President's] policy [on prisoner interrogations], they have options: Congress can change the law, or the electorate can change the administration."

And there you have it. If you don't like what we are doing, throw us out of office. We dare you. Double dare you.

I think we should take up that challenge, don't you?



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