The “John Yoo, Let’s Pretend We’re Lawyers” Game

/83 Comments/in /by

Here’s a fun little game you bloggers can try at home. It’s called the "John Yoo, Let’s Pretend We’re Lawyers" game.

  1. Take an 81-page opinion dealing with the degree to which the President’s power is bound (or not) by existing laws during war time
  2. Open both parts of that opinion in your PDF reader (Part One, Part Two)
  3. Using the search function on your PDF reader, search for the word "Youngstown"
  4. Guess how many citations to Youngstown you find–go on, guess!

Peterr helpfully suggests via email, "Maybe it was redacted for national security reasons."

And in case you were worried that Yoo simply doesn’t know about Youngstown, see this link (also courtesy of Peterr), that demonstrates that Professor Yoo believes it is the first text to consider in any discussion of separation of powers.

83 replies
  1. MarieRoget says:

    Good morning, ew. SInce Yoo’s once again front & center in the news, I find myself asking- why is he still teaching @ UC Berkley? It’d be interesting to find out how many protests against Yoo’s continuance on the Boalt faculty there have been on a campus where hardly a day passes w/out some protest large or small. And why Berkeley is still hanging on to him. For the great PR his presence generates?

    BTW, no small irony that Yoo’s courses for Spring ‘08 include:
    220D – Constitutional Law & Development
    220S – Constitutional Law: Structural Issues

    • emptywheel says:

      I’m sure Boalt’d love to be rid of him–particularly if this memo gets anything like hte attention it deserves. That’s the problem with tenure, though.

      One of reasons I did this post is to hopefully focus some attention on the aspect of this opinion that no one (not even Professor Yoo) can quibble with–you simply can’t have a discussion of presidential power without a reference to Youngstown.

      This elevates Yoo’s actions into ones that just MIGHT give Berkeley an excuse to fire him, because it’s such an atrocity in terms of practicing law. Basically, fraudulent scholarship.

      • klynn says:

        I agree with you, however: the courts might not…My favorite Wiki statement on Youngstown (that’s snark, mind you) is:

        The Court did not cite Youngstown in any of its 2004 decisions on the scope of executive power to detain United States citizens and foreign nationals in the prosecution of the War on Terror, but did cite Youngstown in the 2006 decision Hamdan v. Rumsfeld.

      • MarieRoget says:

        I hope you’re right about giving Berkeley the excuse needed to unload Yoo. He’s been @ Boalt since ‘93- what must his lectures on Constitutional law be like, I wonder.

        Tenure can be a bitch, although I know of one case where it was actually a blessing @ one Cal State where I taught several yrs. ago. Tenure helped to retain Rudy Acuna @ Cal State Northridge in the midst of local controversy about his social/political activism.

        • Peterr says:

          Tenure will protect a faculty member from controversy, but not from incompetence or ethical misconduct. If you falsify data as a biologist, you are toast — and no shouts of “academic freedom” will save you. If you are a historian and you plagarize from other scholars, you are gone.

          The question before the folks at Boalt is whether the quality (or lack thereof) in this memo rises to the level of professorial misconduct. I’d have to be the one arguing on Yoo’s behalf during those discussions.

        • MrWhy says:

          I’d have to be the one arguing on Yoo’s behalf during those discussions.

          This is obviously a love/hate relationship you have with Mr. Yoo.

  2. skdadl says:

    Oh, me, me, pick me! I know the answer!

    Because I read your earlier threads, o’ course, EW. Manohman, this is such an edumacation. I feel very angry but hopeful at the same time.

  3. WilliamOckham says:

    ew,

    Have you done an comparison of this memo to the ”Bybee” memo? Large parts of this one are lifted directly from the earlier one, but I’d love to see you apply your prodigious textual analysis skills to them.

    • emptywheel says:

      Good suggestion. The other thing I’m going to do is use its extensive citation of earlier opinions to try to fill in a list of the OLC opinions written under GWB.

      • WilliamOckham says:

        Check out Scott Horton’s post today, referencing this Vanity Fair article. What I expect you’ll find is that Yoo structured his legal arguments to support what Rumsfeld and Haynes had already implemented at GITMO.

        • Minnesotachuck says:

          The awesome Horton (he’s almost as awesome as EW) is at his best in this post. Here’s a killer quote:

          Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make–they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.

      • klynn says:

        EW and WO,

        Like those ideas. EW can that OLC opinion list be tied into a “larger” timeline for USDOJ? It may do nothing. But I was thinking it might create some more connected dots WRT DOJ issues during this administration and give a more clear trail of evidence for EO and 4th branch.

    • rincewind says:

      Maybe that’s why Yoo tried to claim (per WaPo story) that the memo wasn’t at all controversial, it was mostly “boilerplate” — he meant to say “Bybeeplate”.

  4. merkwurdiglieber says:

    I guess Yoo was just ambitious and gave up any courage or integrity to
    the heavy mood of violence that trails around Bush. Hemingway said
    courage was grace under pressure, and Gibbon reminded us that ambition
    is a weed of early growth in the garden of Christ… so it goes.

  5. al75 says:

    Sorry for my ignorance. First I thought you were talking about “Allentown”, which is a pretty good Springstein song, but it was hard to see the relevance.

    What’s “Youngstown”?

    • scribe says:

      First off – “Allentown” is a Billy Joel song.

      Second, “Youngstown” is lawyer shorthand for Youngstown Sheet and Tube Co. v. Sawyer, a 1952 US Supreme Court case which dealt, factually, with Truman’s attempt to seize the steel mills and force them to remain open when there was a strike. His argument was that the national defense required them to remain open and he, as President, had the inherent authority to do so in the national interest/defense.
      Youngstown came down with a 3 part test for determining just how powerful the president was and how much his alleged inherent powers could be brought to bear. It depends primarily upon the extent to which Congress has occupied the field by legislation, and to a lesser degree, upon historical precedent (legal precedent could/would form a part of the larger body of historical precedent). In short, the President would have more power if Congress authorized it, less if Congress hadn’t, and still less if Congress prohibited it.

      Youngstown is central to any discussion of presidential authority, particularly in war and peace issues and wartime action. That Yoo did not discuss it is sort of unsurprising given (a) he was writing to validate that which was already being done (i.e. torture) and (b) I think he had already addressed (and found a way around) Youngstown in the so-called Flanigan memorandum of September 25, 2001. Go look at page 12 of the current memo, particularly the first full paragraph.

      • al75 says:

        Billy Joel, the Boss – boy, is my face red. Thanks for the info. I always learn somehting here…

      • danps says:

        Scribe – thanks for the great summary. I wondered the same thing too. Marcy, I thought YWAL. Now I’m really impressed with your grasp of this stuff.

        • emptywheel says:

          I fake it well. Probably 35% of my class at Amherst went on to become lawyers. Me, I have a PhD in CompLit, which is undoubtedly a better training in close reading (cause you’ve got to do it in multiple languages and multiple genres). But I have to pretend I know anything about, well, how the law works.

    • emptywheel says:

      Here’s the short version I gave my husband last night–though IANAL so it may only be mostly right.

      In the Korean War, Truman tried to take over the steel industry to prevent a Steelworkers strike from crippling wartime production. He relied on his “inherent authority.” The steel companies took him to court. And the most lasting part of the decision said that 1) if Congress had given the President power to do something, his power in that area was at its strongest, 2) If Congress had specifically limited the President’s power (for example, with a law like the War Crimes act prohibiting torture or with FISA) the President’s power is weakest, and 3) if Congress has said nothing, then the president has medium powers.

      By ignoring Youngstown, Yoo basically set aside without consideration all the laws that specifically say you cannot torture.

  6. klynn says:

    Read here on Youngstown:

    http://en.wikipedia.org/wiki/Y….._v._Sawyer

    Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)[1] (also commonly referred to as The Steel Seizure Case) , was a United States Supreme Court decision that limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress.

  9. BooRadley says:

    Thanks ew. IMO, another advantage of Youngstown is that it’s so bi-partisan. It’s against Truman.

  10. Citizen92 says:

    Is Yoo a follower of Rev. Sun Myung Moon and the Unification Church.

    It just seems so unusual that the Bush Administration would trust this critical yet sensitive work to an ethnic minority. That’s blunt, I know, but there’s some truth there.

    Does the Unification Church somehow figure into the neocons vision of Apocalypse and US foreign policy toward Israel and the Middle East?

    • Peterr says:

      Above anything else, BushCo values a minion’s ability to continue drinking the Ultimate Executive Authority koolaid, without consideration of the ethnic heritage of the one who holds the cup. It’s the Bush administration’s version of equal opportunity.

  11. radiofreewill says:

    I’m back for April, and then out again for May!

    Youngstown? What about the Magna Carta under “Ex Post Facto Law”?

    The 800lb Gorilla in this story is that Bush Abrogated the Constitution on the Pre-text of His Own Interpretation of Executive Authority, and has since resisted every attempt at Legal Review of his Unitary Assumption of Unlimited Power.

    Yoo was simply brought in – after the fact – as a ‘fixer’ to give ‘amnesty’ to Bush and All of Bush’s Blindly Loyal Henchpeople. That’s one of the primary mis-uses of Ex Post Facto Law – Amnesty Law – granting ablution for the mis-use of Power in prior acts.

    However, the story, as it’s going out now, has its emphasis on the wrong syllable: Before Yoo, Bush grabbed Unlimited Power Unilaterally to implement Torture in Our Name and Spying on US, without Constitutional Legal Constraint or Judicial Review – only a sham ‘in-house’ Executive Branch white-washing by Bush’s own unscrupulously Loyal, Ideological direct reports.

    Then, using Fear and Total Control of Congress, the Media, the Intelligence Community, the Military, and the Telecoms, he steered US with LIES to Pre-emptively Invade an Innocent Country.

    Now, to add insult to injury, Bush and Cheney are Insisting that their Super Powers – vetted after the fact by Legal Dunce John Yoo – prevent them from being called to account.

    So, Yoo may be reprehensible, but imvho he’s just another tool – another Libby – of the Monsters trying to hide behind the curtains in the Oval Office – the ones hoping to get away with Murder.

      • radiofreewill says:

        I’m six weeks into a project that I thought was going to limit me to lurking here, but now I’ve got a window until I travel out of range of the toobz in May.

        Back tonight…this place is great!

  12. JohnLopresti says:

    One quiz answer could be the memo began at the Youngstown nadir and proceeded to a new perigee building upon a house of cards.

    NYTimes today explains the genesis of the similar, prior Bybee memo, the gist being Yoo was author of both, the first having issued months prior, for the intell agency carte blanche, and the yesterday publicized second memo being a way for Rumsfeld to revise the military field rules and regs; the surprising thing to me was NYT is depicting Rumsfeld as reluctant to go the full Yoo memo2 measure of soldier authorization to torture. Perhaps Yoo was being the studious olc researcher, but I suspect he had guidance and was given goals. The promulgation of his 90-pp 2nd memo one day after Haynes’ departure was more than an all night session on the word processor workstation, and likely larger than a single law-expert’s endeavor. That is, I would imagine several aggregations of people providing input and guidance to assure both content and timing of final product. Several commenters on the prior thread developed this theme, too; and several began work to outline the career paths of the people most probably centrally engaged in the state torture paradigm creation project of which Yoo’s two memos were the definitive outputs. At one time I was in proximity to the faculty senate deliberative sessions in a disparate matter on the campus where Yoo is tenured, and learned to appreciate their difficult responsibilities in times of tension between administration and students.

  13. ProfessorFoland says:

    Outright academic misconduct (plagiarism, falsification of data) can breach the tenure firewall. Outside of that, I’ll pass along (paraphrased for a family blog) what a senior colleague once told me: “If it doesn’t involve a grand jury or the chancellor’s daughter, you’re untouchable. And the grand jury is probably negotiable.”

    (FWIW I do know of two faculty who were convicted of crimes but kept their posts. So seems he was on the money.)

  14. Mary says:

    11 – The Gonzales memo to Bush, on why he should adopt the illegal enemy combatants fiction for disregarding the Geneva Conventions spells part of your argument out pretty clearly. Rather than being solely a prospective piece of advice regarding how Taliban/Al-Qaeda captured in Afghanistan (or anyone in Afghanisan wearing drab clothes as it later expanded) could be abused for Bush’s vanity and amusement with no consequences, it goes on in the reference to the War Crimes Act to mention that the labelling helps them escape liability for things they have already done.

    Of course, all Russert and the Press could talk about from the memo was whether or not it was correct to say that things like PX provisions of the Geneva Conventions were quaint and archaic, as opposed to the memos outright admission that the President had ALREADY DONE and authorized things that would be deemed war crimes unless they found a label to put on his victims that exempted them from war crimes act coverage. Gonzales made it pretty clear that it was just too darn convenient – this opportunity to spurn the Geneva Conventions in a way that could retroactively rehabilitate the President’s war crimes – to pass up.

    From the day that memo came out, I couldn’t understand anyone in DOJ who didn’t stand up. Now, years later, the chasm has opened so wide I dont think I ever will be able to understand them.

  15. Mary says:

    22 While there are lots of other things at issue than CAT, keep in mind CAT is not self-implementing. Also, that where so much that is at issue are criminal statutes (unlike the statutes at issue in Youngstown) where sole enforcement rights, sole “implementation” rights, are vested in the Executive, you also have a different situation because by making a criminal statute, Congress is passing the authority to decide to enforce or not enforce or how stringently to enforce over to the President.

    Not to say that Youngstown isn’t important in some contexts to Yoos memo, but for the same reasons that it wasn’t necessarily a CENTRAL point in the Sup Ct opinions in Rasul, Hamdi, Hamdan, etc. I’m not sure that it would have been the centerpiece in a well drafted memo, although certainly it would have to have been mentioned and addressed.

  16. PJEvans says:

    Over at FDL, scribe noted the use of the word ‘zenith’ in connection wtih presidential powers, and commented that that’s a reference to Youngstown.

    • emptywheel says:

      Yup, he and I were emailing about it.

      But you can’t really assert power is at the zenith without first acknowleding the possibility of it being at the nadir.

  18. brendanscalling says:

    I have posted the following at FDL, BMT, and my own blog.

    Since Yoo has shamed us, I think it is only proper that Yoo be shamed in return. So I have started writing letters, and I hope others here will do the same.

    This is the ”Principles of Community” statement at UCal Berkeley, where John Yoo teaches Constitutional Law. Read it!

    This is the faculty listing at Boalt Hall School of Law, UCal Berkeley’s law school. As you will see, every single one of these professors and deans has an email address and a phone number.

    I think you can see what I’m getting at.

    Here is a copy of one of my letters to his colleagues/employers, in this case the Assistant Dean for Student Services, Victoria Ortiz. I have also written to the Dean, Christopher Edley, but believe my letter to Oritz is the stronger composition.

    I will be writing several of these letters over the course of the week. I hope to make John Yoo’s continued presence at Boalt Hall radioactive, to the point where his colleagues won’t speak to him and students won’t sign up for his classes. I would like the School to begin losing money and enrollments as a result of Yoo’s continued employment.

    Dear Ms. Ortiz:

    Please pardon this communication from a stranger, but after reading the text of John Yoo’s memos, which gave the Bush Administration broad (and most likely illegal) authority to torture detainees at Guantanamo Bay and in Iraq, I was so shocked and dismayed by what I read, I felt it was proper to get in touch with Mr. Yoo’s colleagues at Boalt Hall.

    As I am sure you have read, Mr. Yoo, acting as a government official, argues that the Bush Administration has the power to torture children. His memos, recently unearthed by the Washington Post, led directly to war crimes at home and abroad, staining our national reputation. Although many of his memos were ultimately rescinded, the underlying theory has led to violations of many US laws, including those surrounding the treatment of prisoners, wiretapping and surveillance, habeas corpus rights, and numerous Congressional oversight requirements.

    I have already suggested to my son, who is approaching college age and is interested in law, that he consider any other institution than Berkeley until John Yoo is gone from your faculty. I will be suggesting the same to my friends and family with college-age children. However, I was wondering what you think of these revelations personally: are you comfortable being associated with a war criminal like John Yoo, who advocates for the torture of children and the violation of international law? Does John Yoo bring honor to your field and to your institution? Is John Yoo the kind of person you would want instructing your children? Does John Yoo live up to your stated principles of ”honesty and integrity”, ”affirm[ing] the dignity of all individuals and striv[ing] to uphold a just community”, ”freedom of expression and dialogue”, and ”civility and respect”?

    As a concerned parent, I would be interested in hearing your views on Berkeley’s seemingly lawless law professor, John Yoo.

    Sincerely,
    Brendan Skwire

    I hope others will follow this model. Maybe Yoo will never end up in the Hague, but his public reputation at home can be destroyed and discredited with enough work. I am sure that you lawyerly types will be able to find better arguments than mine.

    Also, I spoke to the Dean’s secretary this morning. She said that ”unfortunately” (her word) there’s very little that can be done. But I would be willing to bet that Mr. Yoo can be made to feel so unwelcome and hated he simply resigns.

    • Petrocelli says:

      Can we contact the newspapers on campus and see if they will splash the info. on their front page ?

      Does anyone know the editor(s) ?

  19. Mary says:

    Follow up on 11

    From the Sands piece in VF

    Addington, Haynes, and Gonzales all objected to Geneva. Indeed, Haynes in December 2001 told the CentCom admiral in charge of detainees in Afghanistan “to ‘take the gloves off’ and ask whatever he wanted” in the questioning of John Walker Lindh.
    …
    A month later, the administration was struggling to adopt a position. On January 9, John Yoo and Robert Delahunty, at the Justice Department, prepared an opinion for Haynes. They concluded that the president wasn’t bound by traditional international-law prohibitions. This encountered strong opposition from Colin Powell and his counsel, William H. Taft IV, at the State Department, as well as from the Tjags—the military lawyers in the office of the judge advocate general—who wanted to maintain a strong U.S. commitment to Geneva and the rules that were part of customary law. On January 25, Alberto Gonzales put his name to a memo to the president supporting Haynes and Rumsfeld over Powell and Taft. This memo, which is believed to have been written by Addington, presented a “new paradigm” and described Geneva’s “strict limitations on questioning of enemy prisoners” as “obsolete.” Addington was particularly distrustful of the military lawyers. “Don’t bring the Tjags into the process—they aren’t reliable,” he was once overheard to say.
    …
    One F.B.I. special agent remembers an occasion, before any new techniques had been officially sanctioned, when military interrogators set out to question al-Qahtani for 24 hours straight—employing a variation on a method that would later appear in the Haynes Memo. When the agent objected, he said he was told that the plan had been approved by “the secretary,” meaning Rumsfeld.

    IIRC, when they worked out the plea deal on Lindh a part of it involved him waiving (I’m sure a non-coerced waiver) rights under the Torture Victims Act.

    Not related to the point at 11, also from the Sands piece re: the brainstorming on new torture ideas going on at GITMO: “‘You could almost see their dicks getting hard as they got new ideas,’ Beaver recalled, a wan smile flickering on her face. “

    I don’t think Yoo mentioned that in his memo – the legal defense of, “I was out of Viagra”

    Remember as you read through Sands article: Comey, Thompson, Philbin, Goldsmith – all effusive in their praise and push for putting Haynes on the Fourth Circuit. All knowing the truth, the dribble and dabs that are making their way out now, and all not only effusive over Haynes, but effusive over all the “right decisions” made by Bush.

    And all the elite law firms, elite law schools, and A list corporations that open their arms to embrace those kinds of men who implement those kinds of policies against the helpless.

    Not enough showers, not enough soap.

    • earlofhuntingdon says:

      And all the elite law firms, elite law schools, and A list corporations that open their arms to embrace those kinds of men who implement those kinds of policies against the helpless.

      They do it everyday. The “helpless” are usually foreign or domestic workers, sometimes foreign governments or joint ventures partners. Occasionally, they are shareholders. I call it the Calvera Doctrine: “If God had not wanted them sheared, he would not have made them sheep.” Anyone seen seven samurai looking for work?

  22. earlofhuntingdon says:

    One problem that all the comments here and at Harpers and Salon won’t fix is that to the authoritarian Base, authority is power and submission to authority is bliss.

    For those whose rationality is not impaired, there’s the problem of framing. EW, Christy, Greenwald, Balkin are right: we need to intellectually raze this administration’s after-the-fact legal justifi

    • klynn says:

      That was my 15-year-old’s question this AM…

      “Mom, right now I am studying about the Great Purge, the Chinese Second Revolution and the build up of the Nazi Party and Hitler after WWI. Once WWII began, everyday people seemed frozen towards the autrocities before their eyes and everything just happened with little opposition. Economic bad times seemed like fuel for inhumane behavior. Look at where we are now. Bad economic times ahead, a leader who thinks he’s king and policies written that walk us so far from the foundation of our country. HOw ARE WE GOING TO BE DIFFERENT?” He asked.

      I am hoping we come up with strategy(s)…

    • earlofhuntingdon says:

      This comment didn’t publish in full. Here it is again:

      One problem that all the comments here and at Harpers and Salon won’t fix is that to the authoritarian Base, authority is power and submission to authority is bliss.

      For those whose rationality is not impaired, there’s the problem of framing. EW, Christy, Glenn, Lederman & Balkin, Horton are right. We need to raze this administration’s after-the-fact legal justifications [sic] for its actions. But that’s not enough. Because it won’t faze the MSM, and it will have limited effect on the public, who know it’s wrong and should be stopped, but who have to wrestle with the more pressing problems of their limited resources.

      Making this the bigger social as well as political and legal fiasco it should be recognized as requires a simple emotional framing. The kind of thing at which GOP hacks are masters. I think that’s because we’re fighting the Irish Sweepstakes problem: everybody thinks they’ll win, everybody thinks, deep down, that they, too, might someday need that same power to override the law. From the lowly, “I hate that meter maid; I was only parked there five minutes,” to “What if I had to protect my own?”

      Hollywood makes billions from that insight, just as Cheney and Rove tried to build their legal immunity for lawlessness on it. The ungainly but artistically sensitive Charles Bronson made it his career for two decades, as have Clint Eastwood and Mel Gibson. It’s the attraction of police procedurals, most prominently the colonies of Law & Order and CSI that bore into our tv sets. It’s why we wanted Doyle Lonnegan to get it and Butch and Sundance to get away with it.

      What to do? How about a Framing Challenge? How simply and emotionally can we describe it? Bush’s lawlessness, the corruption that unleashes power and hides its abuse. What will it mean if we let it pass in a spirit of genteel compromise and shared longing for better, bipartisan days ahead? (That means you, Holy Joe.)

      x-posted in part @ FDL

  23. ralphbon says:

    Shouldn’t the case of Sami Al-Arian help inform the question of whether Yoo can hide behind his tenure?

    Al-Arian was a tenured professor at the University of South Florida when allegations that he supported a terrorist enterprise first arose. The university tried to revoke his tenure and fire him but had to back off. However, the university did later fire him when he came under Federal indictment. They did not wait for a conviction. (A jury failed to convict him of any charges, although he did untimately plea to one count of conspiracy.)

    In the eyes of Boalt and the AAUP, Yoo may not deserve to lose tenure merely because of his bogus and heinous writings, but should he come under an international war-crimes indictment, under what basis could his university claim that he deserves any better treatment than Sami Al-Arian?

  24. randiego says:

    wow, Horton’s post is amazing. Like this one, his blog is a treasure.

    He ends by quoting from the Sands article, a London judge who was presiding over Pinochet’s case in London:

    “It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”

    Those are words for members of the torture team to contemplate. In the meantime, they should think twice before traveling abroad. Around the world, and increasingly within the United States itself they are regarded as criminals whose day of reckoning is drawing closer on the horizon.

    That’s pretty powerful stuff. To this day, aren’t there places that Kissinger doesn’t travel to?

  27. 4jkb4ia says:

    “Youngstown” is a Springsteen song, from The Ghost of Tom Joad and performed on that tour.

    Glad to see EW back!

  28. klynn says:

    EOH

    From a war-peace perspective, here’s a take on framing…

    We claim that our own military is serving and putting their lives on the line to protect other’s human rights. THAT was our rationalization for going to war. To free the Iraqi people. How can we “claim” human rights as a rationalization wrapped in 9-11 if we are blatantly violating human rights in our enactment of policy and leadership?

    To respect and safeguard human rights is an important achievement in the progress of the human society and an important symbol of modern civilization. It is also a common goal of people of all countries and races and a key theme of the tide of progress in our time. . . . No country in the world should view itself as the incarnation of human rights, and use human rights as a tool to interfere in affairs of and exert pressure on other countries and realize its own strategic interests. The United States reigns over other countries and releases Country Reports on Human Rights Practices year after year. Its arrogant critique on the human rights of other countries is always accompanied by a deliberate ignoring of serious human rights problems on its own territory. This. . .exposed the double standards and downright hypocrisy of the United States on the human rights issue, and inevitably impairs its international image.

    Thus, globally, we have created an image no country would want to partner with…

    So essentially,our sons, daughters, fathers, wives, sisters and brothers are dying for nothing dignified such as the defense and establishment of rights and freedom as they were told when handed their orders.

  29. maryo2 says:

    All clips that mention Youngstown in the September 25 Yoo memo:
    http://www.usdoj.gov/olc/warpowers925.htm

    “The historical practice of all three branches confirms the lessons of the constitutional text and structure. The normative role of historical practice in constitutional law, and especially with regard to separation of powers, is well settled. (14) Both the Supreme Court and the political branches have often recognized that governmental practice plays a highly significant role in establishing the contours of the constitutional separation of powers: “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.” Youngstown Sheet & Tube Co., 343 U.S. at 610-11 (Frankfurter, J., concurring). Indeed, as the Court has observed, the role of practice in fixing the meaning of the separation of powers is implicit in the Constitution itself: “‘the Constitution . . . contemplates that practice will integrate the dispersed powers into a workable government.’” Mistretta v. United States, 488 U.S. 361, 381 (1989) (citation omitted). In addition, governmental practice enjoys significant weight in constitutional analysis for practical reasons, on “the basis of a wise and quieting rule that, in determining . . . the existence of a power, weight shall be given to the usage itself – even when the validity of the practice is the subject of investigation.” United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915).
    …
    Furthermore, the President can be said to be acting at the apogee of his powers if he deploys military force in the present situation, for he is operating both under his own Article II authority and with the legislative support of Congress. Under the analysis outlined by Justice Jackson in Youngstown Sheet & Tube Co., supra (and later followed and interpreted by the Court in Dames & Moore, supra), the President’s power in this case would be “at its maximum,” 343 U.S. at 635 (Jackson, J., concurring), because the President would be acting pursuant to an express congressional authorization. He would thus be clothed with “all [authority] that he possesses in his own right plus all that Congress can delegate,” id., in addition to his own broad powers in foreign affairs under Article II of the Constitution.
    …
    Second, Congress also found that there is a “threat to the national security and foreign policy of the United States posed by the[] grave acts of violence” on September 11, and that “such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy” of this country. Insofar as “the President’s independent power to act depends upon the gravity of the situation confronting the nation,” Youngstown Sheet & Tube Co., 343 U.S. at 662 (Clark, J., concurring in judgment), these findings would support any presidential determination that the September 11 attacks justified the use of military force in response. Further, they would buttress any Presidential determination that the nation is in a state of emergency caused by those attacks. The Constitution confides in the President the authority, independent of any statute, to determine when a “national emergency” caused by an attack on the United States exists. (31) Nonetheless, congressional concurrence is welcome in making clear that the branches agree on seriousness of the terrorist threat currently facing the Nation and on the justifiability of a military response.
    …
    1. “As Lincoln aptly said , ‘[is] it possible to lose the nation and yet preserve the Constitution?’” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).

  30. maryo2 says:

    It is really hard to believe that Yoo read this and then said that no one ever thought of what to do about pirates before 9-11-2001.

    US Constitution
    Section 8 – Powers of Congress
    10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:
    11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:
    14. To make rules for the government and regulation of the land and naval forces:

    Lovely article:
    http://balkin.blogspot.com/200…..er-to.html

  31. maryo2 says:

    Disgusting interview (Yoo on Frontline – edited transcript of an interview conducted on July 19, 2005):
    http://www.pbs.org/wgbh/pages/…..s/yoo.html

    Yoo: And the primary statute is the [1994] torture statute. And the question is, what does a statute mean? [It’s] never been interpreted by any court, never been interpreted by the federal government. No prosecutions have been brought under it. So it really is a question of first impression. People just wanted to know what does this prohibit, what does it mean, because it has some somewhat vague terms in it. When it says “severe pain or suffering,” what does that mean? Can you draw a line as to what things that prohibits, and what things that doesn’t prohibit?

    ********
    Yoo says that the 1994 Torture Statue had not been interpreted by Congress, but he also acknowledges that: “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss…”

    I would think that Congress’ not questioning the 1994 Torture Statute for six years would mean that Congress accepts the statute — that statute is “gloss” for the treatment of prisoners, and not the other way around, like Yoo claims.

  32. bmaz says:

    Hey, shouldn’t Graner and any others convicted as a result of abu Ghraib and similar incidents be moving to set aside verdicts based upon these memos? Probably wouldn’t be successful, but would be a nice touch.

    • emptywheel says:

      yes

      Though I think most of them are done serving. I know Lyndie England is out–can’t even get a job at the WalMart she worked at before enlisting.

    • earlofhuntingdon says:

      As it does for thousands of academics across the country, it means that his university employer needs to make a considerable case that his actions, not his academic or political opinions, violate his contract with the university.

      It’s a considerable hurdle, purposely so, otherwise administrators would readily dismiss those not with the program. Imagine Rumsfeld or Cheney as college president and you get the picture. It almost happened to the fictional diagnostician, Geoffrey House, in season one, as it almost happened to the real Howard Zinn in Boston. Tenure is a currently much debated way to protect academic freedom, itself an expression of the First Amendment.

      Had Yoo only written those memos as law review articles or debated them in class, this would be a tempest in a teapot. His crime is that he wrote them as a senior government official in order to give a specious legal fig leaf to other, higher government officials bent on torture. That’s an act, not an opinion, and very likely a crime. But it’s not a “crime” until somebody proves it beyond a reasonable doubt in court, a delicacy we take Bush to task for daily for refusing to taste.

      Yoo’s “crime” is also a political problem, one a creative dean (and Berkeley’s must be so), would try to fix by buying out his contract and/or securing him a place in a WingNut Welfare organization like the AEI.

      Unfortunately for the law abiding, WingNuts would rather Yoo stay at a bastion of free speech, continuing to influence tomorrow’s judge’s, general counsels, company presidents and civil rights leaders. Which will give Berkeley’s dean such a headache.

      • JohnLopresti says:

        I know of a prof embarrassed for public discipline by administration in a private institution based on the accusation of syncretism; the campus has grown with modern times since then, but the teacher sought greener fields in which to teach, and stripped the alien ideals survey so suppressed from his final semesters’ curriculum and syllabus.

  34. Mary says:

    I’m not glib and good and framing and my perspective isn’t one that is the most popular in the blogosphere.

    http://upload.wikimedia.org/wi…..dgment.png

    All I can say as a Christian is that I don’t think the scripture reads: “Father, forgive them, they had a memo from John Yoo.”

    • bmaz says:

      Heh, well I am pretty well on the other side of agnostic, and your perspective is fine by me. And if your comment was precipitated by my motion to set aside remark, I carry neither flame not water for those convicted; just kind of thought that it would be a nice prick of the torture Bushes. The devil made me do it!

    • JohnLopresti says:

      There is a lot of conditioning yet, in many societies, accommodative of the material Yoo set to print, but it is fairly alien to our national ethos, at least extrinsically, even with visual media’s continued affinity for images of all manner of novel yet banal barbarities. I think core Republicans will have difficulty with Yoo’s work because of its atavistic aspects. The citeAt59 had to do with a clothing auction bidding; Yoo’s authorizations okayed elimination of clothing.

  35. cobernicus says:

    The essence of Youngstown, courtesy of Hugo Black:

    The President’s power, if any, … must stem either from an act of Congress or from the Constitution itself.

    • bmaz says:

      The essence of Yoo, courtesy of bmaz:

      The President’s power it total…. any act of Congress, and the Constitution itself, gives way to the power of the Commander in Chief/Unitary Executive.

  36. Mary says:

    60 – no, that wasn’t in reaction to the Abu Ghraib scapegoats, it was in response to the framing question, because I just don’t have a complex reaction to torture that needs to be distilled. I’m not saying that I wouldn’t let someone who was in a sweat popping, adrenaline pumping, horrors on the line, what the hell do I dod – situation off the hook if I was on a jury, but abusing people in helpless detention just isn’t aan issue where I operate within the context of a lot of framing.

    I think when you compare the fact that the guy in the picture with the dead body is in jail, and the woman who took the picture was hounded (there’s a New Yorker article out right now on Sabrina Harman) but the guys who added the “death” to the body aren’t even being investigated – you have point. Tack on the continuing dismissals with the Haditha killings of toddlers in their mother’s arms, huddled in a bedroom, and I can’t say I’d get bent out of shape over any of Abu Ghraib MP crew revisiting the issues and dragging the more culpable MI and chain of command kids down to the trailer by the river to share the life.

    Meanwhile – a Dem Congresswoman from CA co-Authors a WSJ piece with Mr. Veracity, Mike McConnell – telling us all to be very afraid and to be happy we have cybergestapo capabilities and not to worry – that brave brave Congress will protect our liberties with magical oversight potion (which apparently works a little like homeopathy – the more you dilute them, the stronger they are).

    http://online.wsj.com/article/…..lenews_wsj
    via Wired
    http://blog.wired.com/27bstrok……html#more

    • earlofhuntingdon says:

      I was not slighting a background I didn’t know about, but joining in your criticism and extending it to commercial as well as political predators.

  38. john in sacramento says:

    Just asked this on Christy’s post from this a.m. Not sure anyone’s there. So I’m asking here

    Beuhler, Beuhler, anyone, anyone

    Hey, does anyone know if John Yoo has a brother?

    A few years ago I ran across this paper which is one in a series on the Unitary Executive Theory that is co-written a Christopher S. Yoo.

    I can’t find anything linking the two but it seems pretty curious that two people with the same last name are thinking along seemingly similiar lines (haven’t read the paper yet … no time)

    • JohnLopresti says:

      ew’s former blog had some of the information about ChristopherY, but there was a clarification about there being no kinship, as I recall; I may have notes from a few years back, later possibly.

      bmaz, nice to recognize again wysiwyg was one of Flip’s aphorisms.

  39. klynn says:

    EW,

    A cross-post irt EOH’s post @ 49 would be a great idea. We need framing for this twisted reality we are in…

    As Glenn’s book climbs th NYT’s bestseller’s list, it’s too bad an insert with “framing” on U-E and war crimes could not be put into the book as a bookmark…

    Like Christy’s idea of t-shirts with a bold “Youngstown” on it…

  40. Mary says:

    73 – sorry if I sounded serious, my response was meant to light. It’s true that a lot of the practice of law is leveraging power – I agree with you.

    It’s just not often that the lawyers get to write a memo that allows them th luxury of violating the laws and breaking the rules and not having to worry about any reprucussions because they so own the system. Even that happens in a sense (we all know places where not only do you need local counsel, you need the one right guy as your local counsel) but I still find what has been done by the DOJ shocking – despite being mostly a cynic, I get shocked by it all, over and over.

  43. masaccio says:

    Here’s an interesting sentence from the Torture Opinion:

    Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress has never attempted to restrict or interfere with the President’s authority on this score. ld.

    The id. refers to an earlier memo on the right of the president to transfer prisoners to foreign nations.

  45. masaccio says:

    Ooo, I found it:

    Thus, earlier in this current armed conflict against the al Qaeda terrorist network, we concluded that “[t]he power of the President is at its zenith under the Constitution when-the President is directing military operations of the anned forces.” Flanigan Memorandum at 3.

    Compare that with this description of Youngstown Sheet and Steel:

    Jackson’s concurring opinion has garnered much attention from constitutional scholars and is the most frequently cited opinion in Youngstown Sheet & Tube. Jackson articulated an overarching theory of federal executive power in the United States. According to Jackson, there are three tiers of presidential authority. When a president acts in conjunction with Congress, Jackson wrote, executive power is at its zenith because the president may rely on his own authority plus that of the legislative branch.

  46. Phocion says:

    Yoo did in fact cite and dismiss Congress’s constitutional authority to “To make Rules for the Government and Regulation of the land and naval Forces.” See Art. I, 8, cl. 14. His denigration of that clause and his failure to cite Congress’s power to “define and punish . . . Offenses against the Law of Nations’ (Id., cl. 10) are even more egregious than his failure to deal with Youngstown.

    Yoo rejects any argument the Government and Regulation clause can limit the president’s ability to determine the treatment of military prisoners only by reasoning from the conclusion. See p. 13, fn. 13. He admits that the Supreme Court in Ex Parte Quirin “identified and reserved” the issue of whether Congress could use this power to regulate military commissions–the Court there held that Congress had authorized the military commissions in issue. But his office, knowing better than the Court, has determined that Congress could not. If Congress could regulate military commissions, then the President would not have plenary power. But the president must have plenary power, so logically the Congress cannot regulate military commissions, or for that matter detainee abuse.

    Even worse is the failure to discuss Congress’s power to define offenses against the laws of nations. The courts have found in this clause Congress’s authority to declare the law of war, including the law on detaining prisoners. But, when the president has extra-constitutional power, Congress’s constitutionally enumerated power is irrelevant.

  47. bmaz says:

    Very cogent analysis.

    …reasoning from the conclusion.

    Indeed. Just as he was specifically selected to do by Cheney and Addington.

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