New LAT op/ed from JOHN YOO, the legal enabler of the IMPERIAL BUSH

[Nothing Without Hope]

The author of this opinion piece, John Yoo, wrote the infamous "Yoo Memo" of 2001, possibly the single greatest source of "legalizing" rationalization for Bush being in effect a dictator. (For full text and links to analyses and commentaries, see the links after the excerpt in this post.) He, along with Alberto Gonzales, has enabled the imperial hubris of George Bush in encouraging him to believe that he was above all law and could do anything he wanted.

He sees the President as the only true power in the US government, rationalizing his strange readings of the Constitution and other documents to support this view. Previously he has stated explicitly that ONLY the president has the power to declare war - and the permission of Congress is not required. Needless to say, the Bushies love him and use his opinions as gospel.

http://www.latimes.com/news/opinion/la-oe-yoo20dec20,0,7002002.story?track=tothtml
December 20, 2005
latimes.com : Opinion

A president can pull the trigger

By John Yoo, JOHN YOO, a UC Berkeley law professor, is the author of "The Powers of War and Peace" (Univ. of Chicago Press, 2005).

IRAQ SEEMS to have the imperial presidency in retreat. Last week the White House accepted Sen. John McCain's proposal to prohibit cruel, inhumane or degrading treatment of enemy combatants. President Bush is under fire for authorizing the NSA's warrantless interception of international phone calls and e-mails that were linked to possible terrorists and that ended or originated in the U.S.

My name has come up for criticism over these issues because of my service in the Justice Department during Bush's first term. I've defended the administration's legal approach to the treatment of Al Qaeda suspects and detainees. I cannot address the National Security Agency's program, which remains classified. But both instances bring up the issue of presidential power in times of war, and I can speak directly to that: The Constitution creates a presidency that is uniquely structured to act forcefully and independently to repel serious threats to the nation.

Let's consider the president's right to start wars. Liberal intellectuals believe that Bush's exercise of his commander-in-chief power has exceeded his constitutional authority and led to a quagmire in Iraq. If only Congress had undertaken the solemn process of declaring war, they have argued, faulty intelligence would have been smoked out, the debate would have produced consensus, and the American people would have been firmly committed to the ordeal ahead. But they are off the mark.

Neither presidents nor Congress have ever acted under the belief that the Constitution requires a declaration of war before the U.S. can engage in military hostilities abroad. Although this nation has used force abroad more than 100 times, it has declared war only five times: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II. Without declarations of war or any other congressional authorization, presidents have sent troops to fight Chinese Communists in Korea, to remove Manuel Noriega from power in Panama and to prevent human rights disasters in the Balkans. Other conflicts, such as the Persian Gulf War, received "authorization" from Congress but not declarations of war.

(snip)

Here is addtional reading to put this sorry piece of imperial rationalization into perspective:

The full text of the 2001 Yoo Memo itself:
http://www.usdoj.gov/olc/warpowers925.htm

And some COMMENTARIES & ANALYSIS:

• http://www.thenewamerican.com/artman/publish/article_186.shtml
  Title: "The Bush Administration's 'Enabling Act' "
  Summary from the article: (January 24, 2005)
  

  In early December {2004), without a word of public notice, the Justice Department placed on its website a lengthy September 25, 2001 memorandum entitled "The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them." That document sets out, on behalf of the Bush administration, a plainly totalitarian view of presidential power.
  

  
  (Read this article to see some of Yoo's outright falsehoods about what the Constitution and the Founding Fathers said and intended.)
  
  
• http://www.msnbc.msn.com/id/6732484/site/newsweek
  title (Newsweek, 11/18/04): 2001 Memo Reveals Push for Broader Presidential Powers
  
  
• http://www2.boomantribune.com/story/2005/11/1/15621/9951
  title (Booman Tribune, 11/1/05): "John Yoo: Only the President Should Declare War"
  
  
• http://thinkprogress.org/2005/12/16/shame-on-yoo
  title (Think Progress, Dec 16): Shame on Yoo

(I'm sure there are many others as well and hope readers will post additional links.)

How much damage this man and Gonzales have done, though the Bushies could doubtless have found other enabling lawyers to tell them what they wanted to hear: that Bush is effectively a king who can do whatever he wants, and that Congress has no purpose at all except to fund what Bush has ordered.

* * * * * * * * * * * * * * *

In fact, Bush's own words in April 2004 show that HE KNEW HE WAS BREAKING THE LAW AND HIS OATH OF OFFICE when he secretly ordered the warrantless spying:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5643625
thread title (12/20 GD): April 2004: Bush tells audiences Wiretaps Require a Court Order

No wonder he took such a personal interest in shutting down the NYT story breaking Spygate!
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5641346
thread title (12/19 GD): BREAKING: SHRUB MET WITH NYT EDITORS IN LAST-DITCH EFFORT TO STOP SPYGATE
He is guilty of a crime and he knows it.

And Gonzales appears to have, at the least, severely misled (I consider it perjury, but as Condi says, I'm not a lawyer) the Senators on the subject of response to extralegal presidential capers like the current scandals in his sworn Senate confirmation hearings in Jan 2005:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5643708
thread title (12/20 GD): AmProg"The Truth About Bush's Warrantless Spying" (& Gonzo planned to LIE)
(By the way, this American Progress article is also a superb compilation of Spygate links and documentation.)

[lostnfound]

1. Once again, they print his Op-Ed without correctly identifying him as

author of the torture memos.

No, they identify him as "a UC Berkeley law professor" and "the author of "The Powers of War and Peace" (Univ. of Chicago Press, 2005)."

Even when he was writing op-eds about the torture case, they neglected to mention that he was involved and potentially culpable.

And it will probably be carried in many papers around the country like this.

[Nothing Without Hope]

2. Here is an except from the New Yorker on Yoo's role in TORTURE ENABLING:

He's the main author of the infamous torture memos telling Bush that he had the power to set aside the Geneva Conventions:

http://www.newyorker.com/fact/content/?050214fa_fact6

OUTSOURCING TORTURE

The secret history of America’s “extraordinary rendition” program.
by JANE MAYER
Issue of 2005-02-14
Posted 2005-02-07

(snip)

Laying the foundation for this shift was a now famous set of internal legal memos—some were leaked, others were made public by groups such as the N.Y.U. Center for Law and National Security. Most of these documents were generated by a small, hawkish group of politically appointed lawyers in the Justice Department’s Office of Legal Counsel and in the office of Alberto Gonzales, the White House counsel. Chief among the authors was John C. Yoo, the deputy assistant attorney general at the time. (A Yale Law School graduate and a former clerk to Justice Clarence Thomas, Yoo now teaches law at Berkeley.) Taken together, the memos advised the President that he had almost unfettered latitude in his prosecution of the war on terror. For many years, Yoo was a member of the Federalist Society, a fellowship of conservative intellectuals who view international law with skepticism, and September 11th offered an opportunity for him and others in the Administration to put their political ideas into practice. A former lawyer in the State Department recalled the mood of the Administration: “The Twin Towers were still smoldering. The atmosphere was intense. The tone at the top was aggressive—and understandably so. The Commander-in-Chief had used the words ‘dead or alive’ and vowed to bring the terrorists to justice or bring justice to them. There was a fury.”

Soon after September 11th, Yoo and other Administration lawyers began advising President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the war on terror. The lawyers classified these detainees not as civilians or prisoners of war—two categories of individuals protected by the Conventions—but as “illegal enemy combatants.” The rubric included not only Al Qaeda members and supporters but the entire Taliban, because, Yoo and other lawyers argued, the country was a “failed state.” Eric Lewis, an expert in international law who represents several Guantánamo detainees, said, “The Administration’s lawyers created a third category and cast them outside the law.”

The State Department, determined to uphold the Geneva Conventions, fought against Bush’s lawyers and lost. In a forty-page memo to Yoo, dated January 11, 2002 (which has not been publicly released), William Taft IV, the State Department legal adviser, argued that Yoo’s analysis was “seriously flawed.” Taft told Yoo that his contention that the President could disregard the Geneva Conventions was “untenable,” “incorrect,” and “confused.” Taft disputed Yoo’s argument that Afghanistan, as a “failed state,” was not covered by the Conventions. “The official United States position before, during, and after the emergence of the Taliban was that Afghanistan constituted a state,” he wrote. Taft also warned Yoo that if the U.S. took the war on terrorism outside the Geneva Conventions, not only could U.S. soldiers be denied the protections of the Conventions—and therefore be prosecuted for crimes, including murder—but President Bush could be accused of a “grave breach” by other countries, and be prosecuted for war crimes. Taft sent a copy of his memo to Gonzales, hoping that his dissent would reach the President. Within days, Yoo sent Taft a lengthy rebuttal.

Others in the Administration worried that the President’s lawyers were wayward. “Lawyers have to be the voice of reason and sometimes have to put the brakes on, no matter how much the client wants to hear something else,” the former State Department lawyer said. “Our job is to keep the train on the tracks. It’s not to tell the President, ‘Here are the ways to avoid the law.’ ” He went on, “There is no such thing as a non-covered person under the Geneva Conventions. It’s nonsense. The protocols cover fighters in everything from world wars to local rebellions.” The lawyer said that Taft urged Yoo and Gonzales to warn President Bush that he would “be seen as a war criminal by the rest of the world,” but Taft was ignored. This may be because President Bush had already made up his mind. According to top State Department officials, Bush decided to suspend the Geneva Conventions on January 8, 2002—three days before Taft sent his memo to Yoo.

(snip)

Besides the tragic history told here, note Yoo's nice neocon credentials - former clerk of Clarence Thomas and a member of the Federalist Society.

[HysteryDiagnosis]

3. They hate us because our executive condones torture of

human beings, many of whom have been innocent. That is another reason why they hate us.

[eppur_se_muova]

6. Sounds like this Taft tried to do the right thing.

Kind of disconcerting if you know about Governor Taft in Ohio.

[Nothing Without Hope]

10. Yes, Ohio's Taft is as corrupt as they come. Opposite extremes with

the same surname.

[ToeBot]

19. Not exactly, W.H. Taft IV was responsible for constructing the legal...

justification for the invasion of Iraq (or at least one of those responsible). So not the opposite of his cousin, just not as far down in the abyss.

[Pachamama]

8. I'm on vacation, but I just wrote a LTE to the LATimes about this Oped

I said how disgusted I was that the very same person who has justified the use of torture now seems to use his same twisted logic to further try to argue that our Constitution should allow the President to do as he will. John Woo seems to think very little of the purpose of Congress other than to support the will and desires of President.

What a scum bag....

[DemReadingDU]

4. K&R

Thanks NWH for these links about John Yoo, much reading to do

[Nothing Without Hope]

5. kick - this needs to be seen, needs 2 more votes n/t

[Pachamama]

7. I think we need to start a letter writing campaign to the Regents of the

University of California system....as a resident of the State of California and taxpayer, my tax dollars go to paying the salary of Mr. John Yoo at Berkeley where he apparentely is teaching (of all things) "The Law".

I think that we need to start a letter writing campaign and protest his employment by the University and paid for using our tax dollars.

:grr:

[Nothing Without Hope]

9. Good idea. My guess is that this is why he wanted to write a self-serving

"editorial" in the LA Times. He's trying to cover his ass because some people ARE complaining. I absolutely agree that a huge letter-writing campaign to the U of Calif system and the Calif media - inlcuding the LA Times, who print THIS perverse garbage instead of the fine truth-telling by the fired columnist Robert Scheer.

Of couse, with a Repub governor of CA, Yoo may have some protection.

[Nothing Without Hope]

11. kick n/t

[Supersedeas]

12. Outstanding collection NWH...Thanks for this great post!! Recommended

[Just Me]

13. Yoo is a freakin' nut and a REAL threat to our democracy and security.

He's an advocate for giving a president authoritarian rule which is anti-democracy and opens the door wide open for a dictatorship.

The guy should be disgraced for his ridiculous positions. So should the stupid "Federalist Society".

[Nothing Without Hope]

15. Yoo is apparently not a Federalist Society member currently, but

he clearly still agrees with their nutcase political views. Except that he may think they don't go FAR enough in promoting fascist dictatorship...

Bush, at least, KNEW he was breaking the law. In addition to the link in the OP about his April 2004 statement about a court order being required for wiretapping, don't miss this VIDEO compilation on this by liveoaktx:
warrantless spying:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5646915
thread (12/20 GD): VIDEO-April 2004 Bush Court Orders Versus Dictator/King

A must-see. Let's hope to see it on TV too.

[SushiFan]

14. Yoo's right up there next to WoefulWits -- hang em by the bal..... nt

[Nothing Without Hope]

16. Even CONSERVATIVE legal scholars are saying the warrantless wiretapping

is an impeachable offense:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5648984
thread title (12/20 GD): Conservative Scholars Argue Bush’s Wiretapping Is An Impeachable Offense

[Nothing Without Hope]

17. kick n/t

[Nothing Without Hope]

18. kick n/t

[Peachhead22]

20. F**K Yoo!

John Yoo that is.

[Nothing Without Hope]

21. kick n/t

[Oilwellian]

22. Wikipedia has the goods on Yoo (no pun intended)

http://en.wikipedia.org/wiki/John_Yoo

[Nothing Without Hope]

23. thanks! In all his photos he is smiling. Like Shakespeare wrote,

(paraphrasing here) a man can smile and smile and be a villain.

[DemReadingDU]

24. Kick, already recommended

[Nothing Without Hope]

25. kick n/t

[Patsy Stone]

26. Here's my Yoo thread from the other day.

What do you know about John Yoo? http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=5626777

He is a slippery sucker. I probably should have used an "f" there.

Hi, Hope! :hi: K&R!

[Nothing Without Hope]

27. Hi Pats, and thanks!

yes, he is a sorry, slipper sucker for sure. And now he is a professor at Berkeley teaching the NEXT generation of young lawyers how it's done.

I don't understand why more people in the Dem party aren't worried about stopping the attack on Iran which is likely to happen in the next few months. The warning signs are more than signs, they're a major highway with a conveyor belt. Here's the latest:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5650584
thread title (10/20 GD): Goss asked Ankara to be ready for a possible US AIR OPERATION!!!!

When the Bushies, with their Israeli hawk buddies, pre-emptively attack Iran in a few months, they will do it based on John Yoo's "interpretation" of the Constitution, which says that ONLY the President can declare war.

Have a peaceful and haopy holiday season, Patsy. :hug: :party:

[Patsy Stone]

28. A happy and healthy to you too, Hope.

You should probably add Syria to that list while you're at it. :scared:

Anytime AEI calls something a "brilliant reconstruction of the original understanding of the foreign affairs power", be afraid. Be very afraid.

[Nothing Without Hope]

29. ***Another important new Yoo thread, based on 12/23 NYT article:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x2003343
thread title (12/22 LBN): NYT: Untested Aide Laid Legal Basis For White House Terror Policies

This focusses on Spygate. Too many people are still not making the connection that Yoo told Bush that the Constitution gives the President the SOLE POWER TO DECLARE WAR, so that Congress cannot refuse him this right as Daschle says they did in 2001. The Administration plans to attack Iran in the next few months, I fear. The signs are clear and they would not get Congress' approval first.

[Binka]

30. The Iran Angle Is Key

Yoo is an evil fucking NAZI.

[many a good man]

31. NYR smackdown of Yoo

Last month the New York Review of Books published a critique of Yoo's book written by David Cole. IMO it is a MUST READ for all DUers who want to get their heads around the issues at stake. It surgically dissects and destroys the arguments made by Yoo and Gonzales who are trying to fabricate an originalist legal justification for the destruction of our Constitution.

When read in the context of BushCo's attempt to include domestic spying as part of the "war on terror" the right wing's goals become painfully obvious. We are indeed living in historic times!


http://www.nybooks.com/articles/18431

What Bush Wants to Hear
By David Cole
New York Review of Books
Volume 52, Number 18 · November 17, 2005

...

Many of the framers passionately defended the decision to deny the president the power to involve the nation in war. When Pierce Butler, a member of the Constitutional Convention, proposed giving the president the power to make war, his proposal was roundly rejected. George Mason said the president was "not to be trusted" with the power of war, and that it should be left with Congress as a way of "clogging rather than facilitating war."<2> James Wilson, another member, argued that giving Congress the authority to declare war "will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."<3> Even Alexander Hamilton, one of the founders most in favor of strong executive power, said that "the Legislature alone can interrupt by placing the nation in a state of war."<4> As John Hart Ely, former dean of Stanford Law School, has commented, while the original intention of the Founders on many matters is often "obscure to the point of inscrutability," when it comes to war powers "it isn't."<5>

In the face of this evidence, Yoo boldly asserts that a deeper historical inquiry reveals a very different original intention—namely, to endow the president with power over foreign affairs virtually identical to that of the king of England, including the power to initiate wars without congressional authorization.

...

Yoo's views on the war and treaty powers share two features. First, they both depart radically from the text of the Constitution. He would reduce the power to "declare War" to a mere formality, a courtesy to the enemy; and he would render entirely superfluous the Supremacy Clause's provision that treaties are the "Law of the Land." It is ironic that a president who proclaims his faith in "strict construction" of the Constitution would have found Yoo's interpretations so persuasive, for Yoo is anything but a strict constructionist. One of the arguments most often made in defense of "originalism" is that interpretations emphasizing a "living" or evolving Constitution are too open-ended, and accordingly they permit judges to stray too far from the text. Yoo unwittingly demonstrates that his brand of originalism is just as vulnerable to that criticism as other approaches, if not more so. He not only departs from the text, but contradicts the principles that underlie it.

Second, and more significantly, all of Yoo's departures from the text of the Constitution point in one direction—toward eliminating legal checks on presidential power over foreign affairs...

...

The consequences of Yoo's vaunted "flexibility" have been self-destructive for the US—we have turned a world in which international law was on our side into one in which we see it as our enemy. The Pentagon's National Defense Strategy, issued in March 2005, states,

Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak, using international fora, judicial processes, and terrorism.

The proposition that judicial processes —the very essence of the rule of law —are to be dismissed as a strategy of the weak, akin to terrorism, suggests the continuing strength of Yoo's influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong. Michael Ignatieff has written that "it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does."<22> Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing.

[long_green]

32. In that review, the President's enablers make a fetish of the word

"flexibility." It is funny to see the administration of a man beloved by Christian fundamentalists setting such store by flexibility.
The mental contortions necessary to reconcile "originalism" with this new modern "flexibility" rival those necessary to explain the Trinity.
And I don't think that is an accident. It is, I believe, a goal of the Hegemonic conservatives to so muddy the notions of law, constitutionality, and political morality that the average citizen cannot make heads or tails of his government's actions and must therefore trust in wise and benevolent Caesars.