Balkinization  

Sunday, February 25, 2007

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.

Comments:

There is nothing new under the Sun concerning warfare apart from the weapons used. Terrorism by non-governmental actors has been going on since the dawn of time. Our nation has dealt with this problem with the Barbary Pirates and the Indians for more than a century after the establishment of the United States.

Likewise, the Constitution's delegation of war powers to Congress and the President do not change depending upon against whom the war is being waged. War is war. It is the same whether warring against the nation states of Afghanistan and Iraq or against al Qaeda.

What is interesting, though, is the application of the Constitutions de jure war making powers to the reality of de facto wars. The Yoo memorandum of law concerning the scope of the President's war making powers against non-state terrorists inspired me to address this issue in a post over at my blog. I would enjoy it if you would read my effort and give your opinions.
 

Bart,

I have read your post and it misses a critical point Professor Luban was discussing. Our wars against Barbary Pirates and Indians may have been undeclared wars against non-state actors, but they had recognized geographic limits. John Yoo's theory is about a war with no geographic limits, in which the battlefield is everywhere, including places where no actual violent acts have taken place. How would you address that?
 

I know, I know – academic freedom.

Academic freedom is important and shouldn't be eliminated just to deal with a particular professor, even one as horrible as John Yoo. However, those who contribute money to Boalt, especially its graduates, should feel no obligation to make contributions to a school which employs Yoo. And they should let the school know the reason why their contributions ceased.
 

Enlightened Layperson said...

Bart, I have read your post and it misses a critical point Professor Luban was discussing. Our wars against Barbary Pirates and Indians may have been undeclared wars against non-state actors, but they had recognized geographic limits.

From where do you get that idea? In our wars with the Barbary Pirates and the Indians, we pursued the enemy where ever they went.

Even when we formally declared war against a country like Germany or Japan, we waged war against Germany and Japan in any country their troops were stationed without declaring war against those various countries.

War is against peoples - not territory.

John Yoo's theory is about a war with no geographic limits, in which the battlefield is everywhere, including places where no actual violent acts have taken place. How would you address that?

In this, I would agree with Professor Yoo. The Germans peacefully occupied Austria and Czechoslovakia. Do you contend then that our troops could not engage the Germans in those countries?

Things get uncertain when a non state group like al Qaeda is stationed in a country which does not clearly support al Qaeda, but is also not surrendering al Qaeda or allowing us to pursue al Qaeda in its country.

Iran comes to mind here. We know that al Qaeda has crossed Iran and is supposedly under house arrest in Iran. It is much less clear whether Iran is supporting al Qaeda.

Life has a habit of making our best laid rules appear problematic.
 

The big question is...why is this man still teaching law at UC Berkeley's Bolt Hall in one of the most liberal cities in the world?

Why hasn't he been strung up by angry law students?

This man is a total disgrace, and any views he has on the law should be laughed at, not allowed a place in civil discourse.

He's as much of a joke as Cheney!
 

"Bart" DePalma:

The Yoo memorandum of law concerning the scope of the President's war making powers against non-state terrorists inspired me to address this issue in a post over at my blog. I would enjoy it if you would read my effort and give your opinions.

While I'm sure you'd "enjoy it", no thanks to your blogwhoring. We've already heard it many times over ... and given our opinions. You ignore them here as you did at UT, and I don't suppose you'd be any different on your own blog. So once again, thanks for the invite, but we'll take a pass...

Cheers,
 

Re "Bart"'s blogwhoring: IC that Jenya's taken the cue and joined in the fun. Betcha her page is better than "Barts" ... or at least more academic. ;-)

Cheers,
 

randomopinion:

John "Voodoo Law" Yoo continues to be the legal grey matter behind the neocons’ actual policies, in the US and abroad. Proof of this is two-fold: (1) the enormous amount of money he receives (directly and indirectly) from the usual financers of that political movement to continue writing about his theories...

FWIW, Yoo was advisor to the student chapter of the Federalist Society at Boalt when I was there....

Cheers,
 

As a citizen without legal training, I argue only on the basis of a general understanding of our constitutional republic (maybe a democracy maybe not). In our system, the balance of powers is one of chief bulwarks against tyranny, in peace or war. Yoo is saying that there is a constitutional basis for pulling out this foundation. This is casuistry to conceal a flat contradiction. As David Luban points out,even the guys at the Onion see through his mask of tyranny.

On the academic freedom issue, it seems to me that Yoo's crimes against the republic are based on what he has done in government service, not as member of an academic institution. Would we say that Mussolini should have been outside the law if he had been granted a professorship somewhere?
 

For what it's worth, I would have loved to have been witness to what ran though the members of the hiring committees' minds when they decided to hire John Yoo at Boalt Hall.
 

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