Saturday, April 12, 2008

Thinking out loud about John Yoo (and about Carl Schmitt)

Sandy Levinson

I am in the process of sorting out my thoughts about John Yoo. On the assumption that others are also perplexed about the right response to the significant charges that have been made against him and their relevance to his position at the University of California (Boalt Hall), I offer the following as very tentative observations and non-rhetorical questions:

1) What would our response be if he were a tax teacher and had been involved, while on leave or during his authorized service as a day-a-week "consultant" to a private law firm, in writing what almost all members of the relevant "interpretive community" regarded as patently deficient "opinion letters" ostensibly legitimizing tax shelters that served as a very important part of a scheme to defraud the US taxpayers of millions of dollars?

2) Why is it dispositive whether he is charged with or convicted of a crime? I can imagine all sorts of "criminals" I would be proud to have on my faculty--e.g., those who engaged in civil disobedience and perhaps outright resistance to evil political regimes. I can also imagine being basically indifferent to whether colleagues had violated a variety of crimes that are "merely" malum prohibitum. Or am I wrong: Does a law school have a higher obligation to care about its faculty's fidelity to any and all laws than, say, a political science or biology department, which I presume should be guided almost exclusively by concerns about intellectual merit?

Concomitantly, I can offer all sorts of reasons why it is exceedingly unlikely (though Scott Horton suggests that I may be mistaken on this point) that the Department of Justice will in fact prosecute any of the conspirators involved in move toward torture. Is the political unwillingness of the Bush Administration, or, most likely though for different reasons, a Clinton, McCain, or Obama administration, to bring charges against Yoo, Rumsfeld, Colin Powell (alas--surely, that is the most dispiriting news of the week), etc. to be taken as binding the rest of us from making an independent judgment about their culpability? Is any such exercise of independent judgment to be dismissed as vigilante justice? (Recall, I do not regard this as a rhetorical question.)

3) Carl Schmitt, Hans Kelsen, and John Yoo. One of the most distinguished members of the U.C. Berkeley faculty for many years was Hans Kelsen, who had been run out of Germany in part because of the perfidy of the notorious Carl Schmitt, who was prohibited, following World War II, from returning to teach in any German university. As a matter of fact, though, Schmitt continued to exercise real influence on a number of German jurisprudes, including, for that matter, the drafters of the German Constitution, who stipulated the unamendability of provisions dealing with "human dignity" in part because of his brilliant critique, in Legality and Legitimacy, of amendment systems, like that in the United States, that seemingly left basic rights to the tender mercies of a supermajoritarian triumph of the will.

Kelsen, unlike Schmitt, was no apologist for Hitler. But Kelsen defended a theory of "revolutionary legality" that certainly could be turned to a defense of a singularly unattractive grundnorm under relevant circumstances. As much to the point, by almost any account, Schmitt was a truly brilliant thinker who might be said to have much to teach, with regard to the analysis of contemporary legal realities, to law students and law professors. Students might have especially profited from a continuation of seminal Weimar legal debates that had occurred between Kelsen and Schmitt.

So does any defense of John Yoo that doesn't depend on the basically formal argument that he is already at Berkeley--but instead argues that it is in fact a good thing that Berkeley has him as a member of its faculty--require acceptance as well of the proposition that Berkeley should have had the courage to offer Carl Schmitt a position in, say, 1950? Or, to complete the analogy, if Schmitt had been a member of the Boalt Hall faculty in the 1920's who took an authorized leave to defend the Nazi takeover in 1933, would that have been disqualifying? Does the answer depend on finding support of Hitler simply beyond the pale, as against support for the "global war on terror"? (Schmitt was neither tried nor convicted of any criminal activities, though he was never formally "denazified," unlike many people who arguably were more serious collaborators than he in the enforcement of Nazi law.)

Lest there be any confusion, I do not in the least believe that Hitler and Bush are comparable, and I do believe that the United States has all sorts of good reasons to embark on gaining "actionable intelligence" about people, especially if unaffiliated with traditional state, who wish us harm. (On this, see Niall Ferguson's review of my friend and colleague Philip Bobbitt's new book on Terror and Consent: The Wars for the Twenty-first Century, which will appear in tomorrow's New York Times.)

4) I have also recently read William Stevenson's The Man Called Intrepid, about all sorts of irregular and illegal activities that book place both in Great Britain and the United States prior to the formal outbreak of World War II. Indeed, Robert Sherwood is quoted as saying that FDR realized that he would impeached if Americans knew of some of his violation of the neutrality acts. I have no reason to doubt that John Yoo believed that the situation facing the United States after September 11 was as dire as that facing England and the United States in 1939-40. How important is it whether one agrees or disagrees with his analysis of the situation and his concomitant willingness to do what he did?

I will be genuinely grateful for any reflections on these questions--and any other questions that any respondents might wish to raise--as I try to figure out my own position on whether Berkeley has any duty to initiate a serious inquiry into John Yoo's fitness to continue as a member of its faculty (since I agree with my colleague Brian Leiter that demands for his firing even prior to any such inquiry asks for what is an unequivocal violation of important principles of academic freedom).


Scott Horton doesn't say anything about John Yoo that John Ely didn't say about Roe v. Wade (As I recall, Ely characterized the opinion as not just bad, but one that didn't even try to be constitutional law, or words to that effect.) So my question would be, should Harry Blackmun be barred from any academic position, on the grounds that he wrote an opinion that the dean of Stanford Law School found embarrassingly bad, and which legalized the killing of millions? That is where this logic seems to me to lead.

I should note, I myself am pro-choice, more or less, and I am not trying to make abortion an issue, only to point out where Horton's reasoning leads.

Sandy, I do think the fact that Yoo is a tenured member of the faculty is not a mere 'formal' difference, but the very heart of the matter. Berkeley would be well within its right not to hire John Yoo today, just as no other law school would, I suspect, consider hiring him. But the point of tenure is that, having met the requirements of a probationary period, one may not be terminated except for 'good cause,' where good cause rather plainly does not include subsequent bad legal work or morally odious opinions (even opinions expressed to bad people like George Bush and Dick Cheney).

As I noted on the other thread, the idea that Berkeley, or any other university, should get into the business of investigating possible criminality by faculty members, when no state agency charged with such a task has made a finding of criminal conduct--or even a finding sufficient for an indictment for criminal conduct--is a quite frightening one. Even in the case of alleged research misconduct universities sometimes have a hard time doing a responsible job, as the Churchill case well-illustrated. What exactly would a university committee charged with investigating Mr. Horton's theory about criminal conspiracy do? Do you think that Cheney or Rumsfeld would show up on campus to answer questions about war and torture strategy? The whole prospect is absurd.

Brian, I think Pepperdine would be only too happy to hire Yoo.

Here are my comments Sandy..

* The notion that "the situation facing the United States after September 11 was as dire as that facing England and the United States in 1939-40" is pure hysteria.

* The similarities between the Bush administration and the Nazis are pretty obvious at this point, especially in regard to their views on executive authority and foreign policy. These people think committing crimes against peace is just good policy.

* The worst thing about their lawyers isn't that they were (and are) willing to aid and abet crimes against humanity and war crimes, it that they were willing to employ the worst sort of dishonest sophistry to subvert the law itself to criminal purposes -- and that goes double for their confederates in Congress.

* It isn't just the lawyers in OLC, the White House, and the DoD General Counsel's Office; it's DoD as an organization, especailly the lawyers in the Civil Division and Solicitor General's Office who are involved in the detainee cases -- they are committing an offense p. 18 USC 371 regarding 18 USC 2441 and related statutes every time they file a brief (see in particular 18 USC 2441(c)(2) as it refers to Hague IV 1907 Annex Art. 23[h] which prohibits depriving enemy nationals of any right or action of law).

* Setting the comparisons to the Nazis aside, the comparisons to Stuart kings of England are just as bad -- especially in the context of the apologists' arguments concerning the customary laws of war and 'original meaning' of the US Constitution, which are pure hypocrisy and bunk.

We have no way of knowing what John Yoo really thinks about 9/11. But assuming he really believes the situation was dire, Professor Levinson's question is:

"How important is it whether one agrees or disagrees with his analysis of the situation and his concomitant willingness to do what he did?"

It shouldn't matter at all, but it does to some extent. That's why the official story of 9/11 should not be taken as an unquestioned premise, where serious questions have been raised by many serious people.

FDR knew he would be impeached and accepted responsibility for that.

FDR's lawyer told FDR he would be impeached and the lawyer took responsibility for that.

John Yoo told Bush that what he was doing was legal and helped this administration avoid taking responsibility.

People that engage in civil disobedience take responsibility for their actions and are proud to go to jail.

Hope this helps, sometimes you lawyer people get all jammed up into finding the particles, subparticles, and hemi-demi-sub-fine structure.

Brian, the university would not be conducting a criminal investigation. It would be conducting an investigation into whether or not Mr. Yoo violated the codes of conduct that apply to him as a professor and employee.

Be that as it may, some of your statements sound awfully similar to the "government cannot do anything right" spiel.

I believe the School of Law at Boalt Hall can handle an inquiry into one of their professors, if they so choose.

Actually Ningen, Yoo wrote a book on what he thought about 911.

How important is it whether one agrees or disagrees with his analysis of the situation and his concomitant willingness to do what he did?

It matters a lot. If a fireman breaks down my door in order to fight a fire, that's a morally correct action. If John Yoo loudly shouts "fire" and breaks down my door when there is no fire, he's committed a wrong. If he does so with the intent to allow his henchmen to tie me up and rob me, he's committed a very serious crime.

In answering this, I don't mean to indicate that I see even a remote moral equivalence between the actions of FDR and his advisors, on the one hand, and those of GWB and his advisors, on the other.


The question of criminal conviction actually does matter, at least for the University of California. The Academic Personnel Manual here states that criminal conviction can be a reason to institute proceedings that could lead to disciplinary measures for a tenured faculty member -- could, I add, and not must -- and among those disciplinary proceedings, termination of employment is a possiblity, but not by any means automatic.

Among the types of "unacceptable faculty conduct" is

"Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty."

I am as appalled as any be John Yoo, and his ability to articulate in the most emotionless voice the most abhorrent doctrine (vide, eg, his debate with the dean of USF, on Cspan, held at Black Oak Books in Berkeley (I'd link but google is letting me down...)

That said, can we abrogate the protections of tenure for behavior (if indeed in this instance we choose to characterize speech as behavior, probably legit as the speech--his memo--was in fact an act of his office) unrelated to his academic position?

On Josh Marshall's blog, I have opined that disbarrment itself would not necessarily provide the basis for a firing in the face of tenure, since law teachers need not be (and frequently are not) licensed to practice law.

I'm pretty sure that a conviction for aggravated assault of a fellow patron at a bar (absent a moral turpitude component, eg Yoo cold-cocked the guy out of nowhere) following a drunken brawl wouldn't do the trick either.

Nor should it.

I think the closest case is if the nexus of his academic position and his stated legal opinions were such as to implicate his academic position as a professed source of jurisprudential *authority underpinning the reasoning process.

*If, for instance, his opinion were stated thus:

"Not only does the OLC believe that nut crushing attendant to interrogation is ok under the hypothetical given, but also a canvass of Law School Professors indicates support for the idea"

(technically true, if he canvasses himself; there is no claim as to number canvassed or the distribution of results on the crush/don't crush spectrum...)

I have not read anything to indicates this to be the case.

"On Josh Marshall's blog, I have opined that disbarrment itself would not necessarily provide the basis for a firing in the face of tenure, since law teachers need not be (and frequently are not) licensed to practice law."

Not being licensed to practice law is quite different than being disbarred... I would be shocked to learn of a law school that retained a disbarred lawyer...

It occurs to me that there is something law professors can do about this, this thread seems as logical a place to suggest it as any:

Next time the law school rating systems ask your opinion about the quality of the Boalt faculty, put it at the absolute bottom. This is a way to say that John Yoo's conduct was so heinous that it taints the reputation of the entire school.

Thanks for your response, Charles. I have great respect for your PEGC work.

I guess you are talking about War by Other Means. I meant what he really thinks, not what he wrote, but I'll assume he believes the pack of lies about 9/11. That doesn't mean we should.

Given that Yoo's memoranda were unrelated to his employment at Berkeley, their technical quality is not the issue here. Nor is it whether he might have to answer criminal charges -- that isn't Berkeley's business at this juncture.

Rather, the issue is what to do about alleged moral misconduct that occurs outside of the university setting. In this instance, the alleged moral misconduct is aiding and abetting torture.

This leaves me with two questions. First, where are American universities these days on the invocation of morals clauses in disciplining employees? Second, is the fact that this would be an aiding and abetting case relevant as a matter of law or policy?

I find the discussion about academic freedom in this context particularly fascinating. It seems that it has been parsed so far in the following ways:

(1) Berkeley would have been totally within its rights not to have hired Yoo in the first place.

(2) Having hired Yoo and given him tenure, the bar to dismiss him is FAR higher, and one must be extremely wary of investigations of tenured faculty members based on their viewpoints, regardless of how repugnant some find them. 

(3) Even institutional investigations initiated on supposedly legitimate grounds can shade into the ideological - see Churchill. (This is as a separate matter from whether he should have ultimately been terminated once his plagiarism, etc., were discovered - simply to note that suspicion regarding the university's rationale for investigation made that question far more difficult.) 

(4) Berkeley's personnel manual sets forth, as many university personnel manuals do, the conditions under which a faculty member can be investigated and disciplined or terminated, and apparently one of those grounds (not surprisingly) is conviction for a criminal offense. (and note that it must actually be conviction, not just, say, suspicion of commission, or conviction by public opinion - again, not surprisingly.)

As Gordon Silverstein suggests, the fact that Yoo hasn't in fact been convicted should stand as a major obstacle to Berkeley's terminating his appointment. 

But it seems to me that this situation involves even an additional twist. It might be one thing if a faculty member were hired and the institution knew nothing of his or her criminal (or supposedly criminal) past. It comes out, and the institution invokes its personnel procedures to conduct an investigation, use adequate due process, and potentially terminate the appointment.

Here, where Berkeley knew at least the basics when it hired him, any investigation would start to look a bit more suspect, even if he's ultimately convicted - is it using the conviction as a way to get out of what's become an embarrassing public story? 

And since it does know at least the basics, and Yoo knows it knows, should Yoo have (and should any controversial faculty member) sign an agreement when he started that would explicitly set his involvement in the torture memos as off limits in any subsequent investigation into or decision to terminate his appointment? 

Could one imagine a situation in which an incoming faculty member basically said, "we both know I'm a lightning rod on _X_ issue; let's agree now, in writing, that whatever happens [short of conviction? including conviction?], that particular issue will never be the basis to question my appointment at this university?" Or should that simply be understood as a natural corollary of protection from ideology- or viewpoint-based termination of appointment? 


Would it change anybody's mind if Yoo's most egregious work (such as the recently released March 14, 2003 memo) were after the fact justfications for prior conduct? Look closely at the construction of that memo. It runs through a litany of very specific acts. It includes a promise from the Criminal Division not to prosecute.

Now, go back and look at the interrogation logs of detainee 063[1]. The logs cover Nov. 23, 2002 to Jan. 11, 2003. Compare the activities in those logs with the acts that Yoo blesses in his memo. Remember that Alberto Mora was raising the illegality of the interrogation routine at Gitmo with Haynes & Yoo from Dec. 20, 2002 through Feb. 2003.

We also have the current story from ABC which makes it clear that the WH approved and the CIA used a variety of illegal interrogation techniques, including waterboarding, before the OLC created a list of what was legal.


Rachel, your question assumes something which is not true. That's not your fault; it's the fault of Dean Edley and subsequent commentors who failed to mention a key fact:

Conviction of a criminal offense is NOT the sole ground for dismissal. It is merely an example of conduct which can lead to dismissal. The Berkeley standards expressly say this (I quoted them in the thread under Prof. Lederman's post #6). Thus, the lack of a conviction is no obstacle at all.

Mark, those other standards seem to apply only to behavior within the campus community, including research behavior.

Mark, those other standards seem to apply only to behavior within the campus community, including research behavior.

I agree. When I linked to them the other day, I questioned whether they even apply. Most people seem to assume they do, but as I see it, one of two things must be true:

1. The ethical principles apply even though Yoo wasn't on campus at the time. In this case, he gets the protections afforded faculty, but has to meet the ethical standards and is subject to discharge for violating them.

2. The ethical principles don't apply because Yoo wasn't on campus. In this case, he needn't be concerned with meeting the ethical standards, but can't claim the protections against discharge afforded to faculty.

What should NOT happen, in my view, is for Yoo to have it both ways, that is, to claim the protections against discharge while denying any obligation to comply with the standards.

I do not understand the issue of conviction. It was cited that

"Among the types of "unacceptable faculty conduct" is

"Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty."
(Gordon Silverstein : 12:45 AM)

It is a statist point of view that equates commission of a crime with a conviction. For various reasons, it is not the same. Here, the reason is at the heart of the problem.

We are talking about a crime committed by the state, coordinated by the Department of Justice, while majority of federal judges seems very timid about challenging government lawlessness committed in the name of national security. (The modus operandi seems to be that they were careful to squash precedents that would allow to enact a totalitarian state, but loath to order any kind of cease and desist to alter the actual conduct so far).

And this is the nature of the beast, war crimes. Those are crimes committed by the state, organized by the national leaders and their nominees. Prosecution requires that they are first defeated, militarily or politically.

So, with war crimes, it is more the rule than the exception that they do not lead to a conviction. And yet, or rather because of it, they were put on the short list of crimes against humanity. Worse than an ordinary murder, which is a crime against "the People", rather than "the Mankind".

Someone raised a question, how exactly a relevant committee of University of California could establish the commission of the crime? It seems simplicity itself. We know what did he do, so no interviews with, say, Rumsfeld, are required, although he should be cordially invited.

I'm still trying to figure out what threat faced the US in 1939-40? None, right. Wasn't any threat at least a year away for you guys? The past is so confusing, eh!

William Ockham,

Yes, that is a very valid point. You may be interested in a 2004 article by Bilder and Vagt, "Speaking Law to Power: Lawyers and Torture", from the American Journal of International Law. It is up on JSTOR.

"The similarities between the Bush administration and the Nazis are pretty obvious at this point"

Care to explain that one? Assuming, that the concentration camp they hauled you off to for posting that comment allows Internet access and you haven't been executed yet?


It isn't so much a matter of similar acts, though the invasion of Iraq was most certainly a crime against peace in the same sense that the Nazi invasion of Poland was, and what the Bush and administration describes as "enhanced interrogation" techniques are methods of torture which the Nazis described with the same terms. The greatest point of similarity in in the notion that the President's powers as commander-in-chief are absolute, and not subject to any regulation by law. The administration calls it the "unitary executive theory" and the "original meaning" of the Constitution, but the reasoning behind those terms is pretty much the same as the Nazis -- and also, Charles I of England, who was executed for what were, in essence, crimes against peace and crimes against humanity.

As a current undergrad at Berkeley, I can say personally that I am appalled John Yoo is still a faculty member at the Boalt Law School. Needless to say, it seems my personal opinion (and the opinions of many other students and faculty at Berkeley) don't matter too much in terms of whether John Yoo will keep his job. Maybe that's a good thing; maybe academia should insulate itself from the real-world a little bit more by providing cover for a man who hasn't just performed some "bad legal work," but has advocated the use of torture. Perhaps this will result in a fuller, more well-rounded discourse concerning the issues of international justice, war criminal detainees, and executive power...NOT!

I've been writing on Carl Schmitt's formulation of sovereignty and his thesis that all of our major political concepts are secularized theological concepts. I'm thinking of continuing my research on Schmitt and performing a Nietzschean genealogical account on sovereignty from Hobbes to Schmitt to the Bush Administration. I wonder what I will find in my research?

Mr. Gittings,

You still failed to describe adequately how the invasion of Iraq was "most certainly a crime against peace in the same sense that the Nazi invasion of Poland was . . . ." The latter was nothing more than conquest to obtain territory for Germany; the former was in no way similar. Even if you take as true, arguendo, the most serious charge leveled against the administration for invading Iraq (to-wit: obtaining oil), that is not the same as conquest of territory. However, that most serious charge is easily debunked by the simple fact that the United States has *not* plundered Iraq of *any* oil. Rather, the administration has argued that its purpose for invading Iraq was twofold: (1) deposing Saddam Hussein to prevent the use of WMDs; and (2) liberating the Iraqi people from a repressive regime. There has been no attempt to treat Iraq as conquered territory in anywhere near the same manner that Hitler treated Poland and all other countries the Nazis conquered.

Moreover, it is far from clear how the "similarities between the Bush administration and the Nazis are pretty obvious at this point." The Nazis viewed the Poles (and virtually everyone who was not German) as inferior beings -- not even human -- yet there is no evidence of a similar mindset by the Bush administration. This statement needs *far* more explanation and should not be tossed about in such an off-handed manner, as if it were a foregone conclusion that is not subject to debate.

Furthermore, the "unitary executive" theory does not mean that the President's powers are not subject to any regulation by law. Neither does the "original meaning" theory of constitutional interpretation have anything to do with limiting the President's powers. I, for one, would greatly appreciate you explaining what you mean by these statements and these comparisons. For example, my understanding of the "unitary executive" theory is that it finds unconstitutional acts by Congress to set up quasi-legislative and quasi-judicial bodies within the executive branch and preventing the President from controlling them and firing the heads of those bodies. Additionally, "original meaning" is a method of constitutional interpretation that holds that the constitution should be understood today as it would have been understood at the time that it was adopted. Neither of those terms even come close to what you have alleged.

I for one am appalled by the lack of intelligent discourse concerning the actual merits of the Iraq invasion in the public arena. Too many people find it too convenient to attempt to make inapposite analogies between the Bush administration and one of the most evil regimes in the history of the world. Name-calling and inappropriate analogies are convenient tools to attack those with whom one disagrees and yet add virtually nothing to the discussion. In this environment, it is no wonder why people decide to keep out of politics and political discourse.


The similarity is obvious: neither had a legitimate grounds for war. All you're telling me is that you like Bush's excuses and alibis better than you like Hitler's, and you aren't very familiar with the history of WW1, the Russian Revolution, and the subsequent conflicts in Eastern Europe leading up to WW2. The biggest difference is that Poland and Russia posed a much greater potential threat to Germany than Iraq ever has to the United States. Iraq in 2003 was no threat at all, and I don't care what your excuse is -- a rape is a rape.

As for the resemblance of the Cheney / Addington UET and the Nazi "Fuehrer Principle", see:


Note the last paragraph:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

What about that is unclear to you?

Mr. Gittings:

Presume what you will about what I am familiar with and what I am not. However, the work cited does not appear to support that the theory that Congress cannot limit the power of the President to conduct military operations he or she deems necessary to defend the national security of the United States is limited to Dick Cheney or David Addington. Rather, the entirety of the last paragraph indicates that this is in accord with interpretations of past administrations as well as the Court. The unquoted portion of the last paragraph reads:

"In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas."

Additionally, I see no reference in the cited work to the "Fuehrer Principle." This leaves me without a basis from which to analyze and comment on your analogy of the cited work to this principle. If you would be so kind as to provide a cite that defines the "Fuehrer Principle," that would help me to understand your position more.

You also bring up another interesting point. You argue a similarity between the invasion of Iraq and the invasion of Poland by stating that neither was supported by legitimate grounds. This makes me wonder: what, to you, would qualify as a legitimate ground for war?

Thank you.


I'm not presuming anything but your statements and arguments.

You'll find the 'Fuehrer Prinzip' described HERE.

The President of the United States has no authority to commit war crimes on the pretense of lawful authority: he has no such authority, and anyone who claims he does is either a liar, a fool, or a traitor.

Would you claim he could use poison gas?

Would you claim he could decide to build concentration camps and simply exterminate anyone he pleases?

No you wouldn't -- yet that's exactly the claim of the Bush administration, and it's sheer idiocy to whatever extent it isn't pure treason.

The only legitimate ground for war is an actual military attack, and then only in proportion to the actual threat as a last resort. Read the judgment of the International Military Tribunal at Nuremberg. You'll find a full discussion there.

Mr. Gittings:

Thank you for pointing me to a document which will explain your understanding of the Fuerher Principle. I look forward to reading it and learning more about your position.

As to your statements that the President claims the authority to use poison gas, or to build concentration camps to "simply exterminate anyone he pleases," I must agree to disagree. I have yet to see or hear any such credible claims from *any* Bush administration official. Moreover, bandying about accusations of treason is dangerous -- there is only one definition of treason: "levying War against [the United States], or in adhering to the[] Enemies[ of the United States], giving the[] [Enemies of the United States] Aid and Comfort." U.S. Const. Art. III, s. 3.

Lastly, you stated that a legitimate war requires "an actual military attack," citing the IMT. I read this statement to mean that you would require one country to be attacked by another country before the former country could wage war against the latter country. Have I misstated your position? I just want to be clear that I understand where you are coming from.

Thank you!


You say you haven't seen any such claim??

I just quoted the claim verbatim:

"Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

What about the concept "any limits" is unclear to you?

The explicit claim there is that the President can do absolutely anything at all regardless of the law.

I've all ready given you a concise answer about war -- if you want the details, read the judgment of the IMT; maybe read some Locke and Grotius too. It is a last resort in cases of real need, not a means of imposing your political or economic agendas on other people against their will.

And see article 6(a) of the IMT Charter:

"CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing[.]"

Mr. Gittings:

There is a gigantic chasm between what you claim and what is the most reasonable interpretation of the statement you have quoted. Mr. Yoo was arguing that the Constitution prohibits the Congress from interfering with the President's power to prosecute a military conflict beyond that recognized by the Supreme Court of the United States (i.e., the War Powers Act). Inferring from this statement that the President claims to have the authority to use poison gas, or to establish concentration camps with the concomitant power to exterminate anyone he or she wishes, is at best wildly speculative and is simply putting words in the writer's fingers. This statement was simply that two particular statutes could not limit the President's power to prosecute a military conflict. That statement was made within the larger context of a document analyzing the limits placed by the Constitution on the power of Congress, as interpreted by the courts, to limit the power of the President in conducting a military operation. I see no insidious motive or hidden agenda in that document or the statement in context, especially when examining the actions used in the conduct of this military conflict.

Attempts by Congress to interfere with the President's conduct of a military operation usurps the President's constitutionally-granted role as the Commander-in-Chief. U.S. Const. art. II, sec. 2. Had the Founders intended to have Congress share authority in conducting military operations, they could have included that within the powers granted to Congress under Article I, yet they did not. See U.S. Const. art. I. Rather, they vested the power of command over the military of the United States solely with the President. That said, Congress was not left powerless to prevent abuse of the power of command. Congress can, at any time, remove all funding for any military conflict with which that body disagrees. Moreover, Congress can provide for criminal sanctions for any member of the U.S. military for any violation of the Geneva Conventions, or any other act which Congress deems to be criminal, effectively preventing any member of the U.S. military from complying with orders which the Congress deems to be criminal by the threat of prosecution and punishment. See U.S. Const. art. I, sec. 8, cl. 12-16. However, any such laws would be subject to review by the federal courts. Should they overreach, they would properly be found unconstitutional. Thus, while Mr. Yoo was claiming that Congress was not able to interfere directly with the President's power to conduct a military operation, he was not, and indeed could not have been, claiming that Congress has absolutely no power to prevent the commission of war crimes such as you are attributing to him.

I therefore maintain that I have never heard nor read of any Bush administration official, or any official of any American administration since the Geneva Conventions, claim to have the power to use poison gas, or to build concentration camps to "simply exterminate anyone he pleases." Hence my original statement on the matter, that we must agree to disagree on this point.

Concerning your comments that Iraq was a war of aggression, we must also be gentlemen and agree to disagree there. We apparently have some disagreements as to basic principles and, so long as we differ on those basic principles, no matter how sound our mutual logic may be (and I make no claims that my logic is unassailable) we will never be able to agree on our mutual conclusions on this issue.

Thank you for a lively discussion and debate on this topic. I thoroughly enjoyed it. And I truly, sincerely mean it; this is the kind of passionate debate that is missing from the public arena when we devolve into name-calling, a situation that occurs far too often.

Thank you, and take Care.


Well I'm sorry, but 1 + 1 = 2, not 0 or 3, and there isn't any room for 'reasonable interpretations' to the contrary. The case here is no different: your views are simply fallacious.

There was no legitimate reason to invade Iraq, there is no legitimate basis for the US occupation, and in purely military terms, both the war and the occupation have been disastrous failures. They went to war in Iraq purely because they wanted to for political reasons, and that is a war of aggression by definition.

Congress has no means of limiting anything except by statute, and the claim that no limit could be enacted by these two particular statutes is plainly a claim that NO such limit could be enacted under any circumstance -- a blanket repudiation of EVERYTHING the US Constitution is supposed to stand for. Mr. Yoo wasn't doing anything but fabricating fraudulent pretexts for committing crimes under a false color of authority.

The fact that you have a driver's license doesn't authorize you to use a car as a murder weapon, and if you look at the Constitution, you'll see that Congress has the authority to regulate military affairs, define offenses against the law of nations, etc. The US Army has been governed by statute from the beginning -- the first US Articles of War were adopted by the Continental Congress the day after they appointed Washington to command the Army. The idea that a military commander can operate outside the law is simply absurd: it is fundamental breach of military duty to either issue or obey an unlawful order. If you would just READ the IMT Charter, articles 7 & 8 in particular, you will see that acting as a head of state or in obedience to what you thought was a lawful order is no defense to a charge of war crimes, crimes against humanity, or crimes against peace. Charles I of England was tried, convicted, and executed for such crimes, and we revolted against George III for much less. Mr. Yoo is nothing but a liar, a subversive, and a war criminal, just like like Bush, Cheney, Addington, Mukasey, McCain and all the rest of these disgraceful gangsters.

Title 10 USC is nothing but a statute that regulates the armed forces, and Title 18 has any number of statutes that apply to military personnel, 18 USC 2441 in particular. I've been investigating the Bush administration's war crimes more than full time since 2001, and I understand their arguments better than you do. There is nothing reasonable about any of it: it is nothing but an irrational mixture of nutty neo-fascist delusions, fallacies, and frauds --- facts are facts.

You're not only wrong, you're supporting war criminals and murderers who are actively subverting the Constitution and laws of the United States. My attitude towards the Republican Party is no different than my attitude towards Al Qaeda: both are criminal organizations of murderous fanatics who practice terrorism for political purposes. The only real difference is that the Republicans are much more dangerous, for the same reasons Hitler and the Nazis were the greatest threat to Germany in 1938 -- there just weren't very many Germans who understood that before 1944 or 1945.

Mr. Gittings:

Thank you for making my point: we disagree on basic principles. You believe that the Republican Party is "a criminal organization[] of murderous fanatics who practice[s] terrorism for political purposes." I do not. It's that simple. So long as there is such a divide between us on basic principles, we will not be able to agree on anything related to the Bush administration or the Republican Party. Given what I have read about your organization from your organization's website and the emails you wrote which led to your establishment of the organization, I see that it is futile to try to change your mind on the matter. Therefore, I thank you again for this discussion but I bid you adieu so that we may not waste any more of each other's time.

Best Regards, Mr. Gittings.


You people have no principles: you're just a gang of criminals who behave like Nazis because you're just as dishonest and demented as the Nazis were -- and what you so wishfully refer to as your "principles" are the same excuses the Nazis and Soviets used to justify their crimes.

It's perfectly clear why you'd rather not talk about it. Very old news too -- I've been listening to the excuses of folks like you for going on seven years now.

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