Yoo in Review

David Luban

I have a review essay of John Yoo's War By Other Means in the current New York Review of Books (March 15, 2007). It is, alas, not free unless you're a subscriber to NYRB's electronic edition.

Yoo's book is a quasi-memoir of his two years in the Office of Legal Counsel - only a quasi-memoir, because confidentiality stops him from revealing much real news (he can't even say whether he wrote the August 1, 2002 torture memo). Perhaps the most interesting personal fact to come out in the book is how deeply Yoo despises John Ashcroft for dropping him like a hot potato when the torture memo leaked.

Most of the book is argument rather than memoir, defending a hard-line view on eight crucial subjects in the conflict with Al Qaeda: whether it is a real war; the Geneva Conventions; targeted killings; the Patriot Act; the NSA and wiretapping; Guantanamo; interrogation; and military commissions. Unsurprisingly, Yoo does not back down on any issue, including the propriety of the torture memo.

The review argues that Yoo's overall position never overcomes a central contradiction. He argues that the conflict with Al Qaeda is a real, not a metaphoric war, albeit a war of a novel kind (Gonzales's "new paradigm"). (Last November I discussed this issue here.) As such, it triggers the President's commander-in-chief powers, which, Yoo assumes, are the familiar powers of a battlefield commander: near-total authority over matters of targeting, intelligence, detention, and interrogation. The problem is that in the new kind of war the battle can be anywhere; and most of the time, for most people outside the Middle East, the war is indistinguishable from peace. By insisting on old-paradigm war powers in a new-paradigm war, he in effect replaces peacetime law with wartime law, at the President's discretion.

Think of the capture of Jose Padilla: arrested in a Chicago airport. Although he is a U.S. citizen, the president declared him an unlawful enemy combatant, with none of the legal rights we take for granted, and thus began the years of imprisonment and isolation that have apparently reduced Padilla to "a piece of furniture," in the words of the brig commander. (Naomi Klein's disturbing article about this and other instances of psychological torture is here.)

As I put it in the review, "The result is a system with two sets of rules superimposed on each other: the rule of law as we have come to expect it in civilian life, and a regime of war powers with vastly diminished civil liberties." Yoo's position implies that the president's commander-in-chief powers "could displace civilian law anywhere, perhaps for decades on end, just on the president's say-so." In Yoo's view, that doesn't even require Congressional authorization, because a week after Congress had authorized President Bush to use military force in response to 9/11, Yoo was still writing an OLC opinion arguing that Congress had merely "acknowledged" power that in fact is "inherent" to the executive - and his opinion is still in force. This view, which vests power in the president to determine how much power he has to set aside the rule of law, is extremely dangerous. (Last August, The Onion brilliantly parodied the problem in an article titled "Bush Grants Self Permission to Grant More Power to Self" .)

I go on to explain why the constitutional framers had nothing like "a civil and military super-executive" in mind when they established civilian control of the military in the commander in chief clause (which makes the president commander in chief of the military). The rest of the review aims to show, based on public records, that Yoo is not, to put it delicately, a reliable reporter of legal positions, other people's positions, or facts.
Posted 5:26 PM by David Luban [link]