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An Interesting Contrast:
One more thought on John Yoo's op-ed. It's interesting to contrast Yoo's comment about the Bush Administration's view of the Executive power with what he wrote a few years ago about the Clinton Administration's view of Executive power. Here is Yoo today:
A reinvigorated presidency enrages President Bush's critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. . . .

The changes of the 1970's occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia in the wake of Richard Nixon's use of national security agencies to spy on political opponents. Congress enacted the War Powers Resolution, which purports to cut off presidential uses of force abroad after 60 days. It passed the Budget and Impoundment Act to eliminate the modest presidential power to rein in wasteful spending. The Foreign Intelligence and Surveillance Act required the government to get a warrant from a special court to conduct wiretapping for national security reasons.

These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks.
Contrast this with what Yoo wrote back in 2000 on the Clinton Administration's approach to executive power, as I blogged about back in February:
President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.
Source: John C. Yoo, The Imperial President Abroad, in Roger Pilon, ed., The Rule of Law in the Wake of Clinton 159 (2000).

  To be fair, in the 2000 essay Yoo suggests that he himself favors a strong executive, such that having an "imperial presidency" isn't all that bad. But I think it's interesting that in 2000, Yoo thought that President Clinton was "exercis[ing] the powers of the imperial presidency to the utmost," with the resulting "costs to the Constitution," whereas today he seems to lament that before Bush the Presidency was excessively weak and not playing its proper strong constitiutional role. Am I missing something, or are these statements diametrically opposed to each other?
Humble Law Student (mail):
What specific events did Yoo have in mind when he wrote that about Clinton? Kosovo?

It does appear to be contradictory.
9.17.2006 11:48pm
Medis:
Yoo seems to have decided that the rule of law and democratic accountability is not all its cracked up to be.
9.17.2006 11:59pm
breen (mail):
Well, I think Yoo would say that article is soo September 10th.
9.18.2006 12:14am
Jack S. (mail) (www):
Well, it's the way I read the two together (opposed). My deference for law professors' opinion continues to spiral downward. (that doesn't included you Prof. Kerr).

Maybe Op-ed's and blogging could turn out to be not such a good thing for profs. As I understand it, they are generally supposed to be objective, non-ideological and fair in their instruction. Hard to do in the age of information. Now I see why Prof. Adler kept his identity under wraps, but it begs the question of whether they should continue to stay under wraps.
9.18.2006 12:15am
JonC:
What specific events did Yoo have in mind when he wrote that about Clinton? Kosovo?

Yoo may have been referring to the Clinton's placement of US troops directly under foreign operational and tactical command during Kosovo. In "The Powers of War and Peace" (2005), Yoo criticizes this decision, and the Clinton OLC's defense of it, as inconsistent with historical practice and principles of nondelegation and the unitary executive. That said, Yoo also cites other Clinton administration actions in the foreign policy sphere with apparent approval, such as the commitment of troops to Kosovo beyond the time period authorized by the War Powers Act. Without more context, it does seem inconsistent, at the very least.
9.18.2006 12:24am
JonC:
That should be "the Clinton administration's placement of US troops."
9.18.2006 12:26am
Andrew Hyman (mail) (www):
Professor Yoo's main point in the article from 2000 mentioned by Professor Kerr was that President Clinton had abused constitutional restraints on his foreign affairs powers while (according to Yoo) ceding the authority of the federal government to international institutions. That 2000 thesis is arguably consistent with Yoo's 2006 New York Times article.

The 2000 article is not available online, but the 2006 article is. And Yoo's 2006 article does not argue that before Bush the Presidency was weak in all respects. On the contrary, Yoo notes that neither George H. W. Bush nor Bill Clinton had clear congressional authority for their actions in Panama and Kosovo, respectively.
9.18.2006 12:38am
Andrew J. Lazarus (mail):
Why exactly are we treating John Yoo seriously? He's a lickspittle courtier whose contribution to American History is telling a stubborn, incurious, imperious president that he has powers generally thought to have been lost in the Glorious Revolution of 1688. That he is a hypocrite about his anti-democratic beliefs (small and capital 'd' both) is secondary to the vile un-American beliefs themselves.
9.18.2006 1:15am
boonelsj (mail):
Yoo's logic seems straightforward enough to me: Democrat + Strong Executive = Imperial Presidency. Republican + Strong Executive = Just doing what the framers intended.
9.18.2006 2:03am
Greedy Clerk (mail):
Yoo again shows that he knows nothing of history. His assertion that we did not have serious national security threats in the 1970's is simply absurd. Beyond very serious terrorism, there were also nuclear warheads pointed at us by a little country called the Soviet Union, which at the time was still hell bent on taking over Western Europe and Latin America. Serious moves by the Soviets in Western Europe could easily have unleashed nuclear war -- I think that is a "serious national security threat to United States soil" (and US lives, etc.). How quickly we forget. . . .
9.18.2006 2:52am
whig (www):
Only in a liberal stronghold like Berkeley can we find such a thoroughgoing fascist.
9.18.2006 3:18am
whig (www):
I think to analyze John Yoo's arguments as legal in nature is to misunderstand the point. John Yoo favors a particular form of government which is not democracy. He writes in support of his goal by constructing legalistic arguments that he hopes will help obtain it. Bill Clinton did not stand for the same thing as John Yoo and so Yoo made arguments to try to deny authority to Clinton. George Bush is as thoroughgoing a fascist as John Yoo, and John Yoo likes that.
9.18.2006 3:22am
whig (www):
The real analysis which John Yoo needs is psychoanalysis. There is no sane reason for him to pursue this course. He will be the first up against the wall if the administration needed to sacrifice someone. The first thing we'll do, and all that.
9.18.2006 3:26am
Donald Kahn (mail):
Glorious Revolution? Thoroughgoing Fascists? Take it to Daily Kos, or fold it into a neat package, and... oh, never mind.
9.18.2006 4:05am
Andrew J. Lazarus (mail):
The Daily Kos take on John Yoo is exactly correct. In recent op-eds, not to mention his former work in the Administration, he has set forth a vision of Presidential Power that is incompatible with—by his own description—the rule of law in wartime. In his own words,
We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.

Rather than admit, however, to a desire for authoritarian, un-American government (as long as the Republicans are at the top), he has dressed up his argument in falsehoods. It's not an accident that no one has supplied the historical precedents Yoo claims for his beliefs: they do not exist, unless you want to count my citation of the 1933 Enabling Act—ending the rule of law in Germany.
9.18.2006 4:16am
Kristian (mail):
Of course, could not 9/11 have altered the lens on which the actions of the President are viewed? Is it possible the the 2006 John Yoo would not have written that article in 2000?

By that, I mean, not all changes are due to partisanship or hypocrasy.
9.18.2006 7:09am
A.S.:
Am I missing something

Yes. You're missing 9/11.
9.18.2006 9:34am
Anderson (mail) (www):
Everything I've seen about the guy suggests that "Yoo" is a three-letter word for "hack." File that away for crossword-puzzle use, folks.
9.18.2006 10:52am
OrinKerr:
A.S.,

I'm curious about something.

Al Qaeda had declared war on the U.S. long before 9/11. Al Qaeda had also attacked the U.S. before 9/11 --- it had even attacked and tried to bring down the very same building as it attacked on 9/11. Why didn't those events change the picture? Why didn't the first WTC bombing change everything?
9.18.2006 10:54am
WilliamF:
Because, at the end of the day, the Clinton administration helmed by a politician. Clinton, for all his faults, didn't have a cause or a worldview that drove him. The Clinton administration was interested in accumulating power in the interest of completing small tasks. No big picture, no elaborate plan, just the basics of running the country. You can agree or disagree with Clinton's vision of how the country should be run and what role the government should play, but at the end of the day he was just an executive.

The Bush administration is run by a true believer. Bush, unlike Clinton, has a strong worldview that he wanted to protect and nurture from the begining. 9/11 gave the current administration both an excuse(for the machiavellians) and a rationale(for the believers) for a naked power grab. 9/11 showed Bush that the heathens really were out to get him, they really did want to destroy all he held dear. He took the blind faith of a convert and the "with us or against us" mentality of a populist and decided to defend what he loved at all costs. The fact that his tactics make him more and more like the people he fights escapes Bush and it always will.

The fundamental difference between Clinton and Bush is that one unwound by chasing skirts and the other by reading Revelations.
9.18.2006 11:52am
WilliamF:
that should read "the Clinton administration was was helmed by a politician."
9.18.2006 11:54am
Ugh (mail):
As a former student of his I once described John Yoo in a comment at Unfogged. My description caused one of the regular posters over there to state that Yoo was the perfect embodiment of the banality of evil. I have sadly come to the conclusion that that poster was correct.
9.18.2006 11:56am
plunge (mail):
Let's not forget that all throughout Kosovo, we had the right making almost exactly the same shrill "defeatist" statements and warning about the death of troops and troops in bodybags and so forth. Bush campaigned against nation building: which is no doubt why he's been so incompetant in it.

And the wheel.... goes round.
9.18.2006 12:29pm
Justin (mail):
WilliamF,

Third time's the charm :)
9.18.2006 2:46pm
A.S.:
Al Qaeda had declared war on the U.S. long before 9/11. Al Qaeda had also attacked the U.S. before 9/11 --- it had even attacked and tried to bring down the very same building as it attacked on 9/11. Why didn't those events change the picture? Why didn't the first WTC bombing change everything?

In hindsight, perhaps they should have. I didn't realize that in 2000. And so I don't blame Yoo for not realizing it then either.

I suppose it comes down to whether or not you think we are in a state or war. If so - and I do - then the powers of the Presidency should expand to deal with the war appropriately. Were we in a state of war prior to 9/11? Quite possibly. How does one describe a state of war, after all? But while that may have been a debateable question for me on 9/10, it wasn't on 9/12. (And, as a side note, to forestall the inevitable objection, a "state of war" does not require a Congressional Declaration of War. I don't recall the precedents, but I'm pretty sure that's what the Supreme Court has said. But I'd have to wait to go home and get out the old Con Law textbook.)

Now, I admit, I favor a strong Executive, regardless of what party. I can't think of any unilateral Executive actions taken by Clinton to which I'd object from a separation of powers point of view. (I was perfectly fine with Clinton taking military action without Congressional authorization, for example - even in breaking the 60-day limit under the War Powers Act for the Kosovo action.) I haven't read Yoo's book. Perhaps he provides examples of Clinton actions to which I'd object based on separation of powers principles, but there are no examples provided in your excerpt.
9.18.2006 3:24pm
Medis:
A.S.,

Out of curiousity, under what conditions would this "state of war" end, such that the President's powers would go back to their "unexpanded" versions?
9.18.2006 4:09pm
A.S.:
Good question. I'd take as a first indication that our troops are no longer fighting Taliban and al Qaeda in Afghanistan. If we cross that hurdle, get back to me, and I'll let you know if, IMO, we are no longer in a state of war.
9.18.2006 4:26pm
Medis:
A.S.,

You do realize this is a serious question, right?

Even with respect to our "cold war" with the Soviet Union, we knew it was over when the Soviet Union collapsed.

So can you actually define the end of this "state of war"? Or is your answer literally just, "I'll let you know when and if it ever happens."
9.18.2006 4:38pm
A.S.:
OK. When al Qaeda and other terrorist organizations of global reach are no longer a threat.
9.18.2006 4:43pm
Medis:
A.S.,

So to be clear, in your view the President should have his "expanded" powers until there are no longer exist any terrorist organizations with "global reach"?
9.18.2006 4:48pm
Medis:
Sorry: delete "are".
9.18.2006 4:49pm
Mark Field (mail):
Medis, I think the "war on terror" is like the Spartan declarations of war on the Helots: merely a ritual to excuse oppression.
9.18.2006 5:04pm
Just an Observer:
To reinforce a point I made in one of the parallel threads, it is one thing to talk about a generalized "war on terror," which seems to be what A.S. espouses. But there is a distinction between a metaphorical war or even a policy against terrorism, and a real state of war as authorized by Congress.

The 2001 AUMF authorized no such thing. Its terms were limited to those responsible for 9/11:

IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

That does not stretch to cover "When al Qaeda and other terrorist organizations of global reach are no longer a threat."
9.18.2006 5:19pm
Medis:
At the very least, it does seem like we are likely to be in this particular "state of war" for a very long time.

And probably we will be able to move smoothly into a new "state of war" given the apparent requirements: it appears to take just the existence of an enemy of the United States with "global reach". And since a plane ticket is all it takes to have "global reach", that requirement isn't adding much.

So, really, we will be in a "state of war" until the United States has no more enemies at all in the world. And I am guessing that will be a long, long time.
9.18.2006 5:21pm
Medis:
JaO,

Of course, on the A.S. theory, apparently it doesn't actually matter if Congress declares war, or indeed does anything whatsoever. Rather, the President can apparently "expand" his powers sua sponte as soon as he determines a "state of war" exists.
9.18.2006 5:25pm
Just an Observer:
Medis,

Yes, I realize that is the A.S. view, and the Yoo view.

I don't think these Bush surrogates should be granted the status of plausible deniability. A vote for their faction, the Bush-dominated party of 2006, is a vote for those who believe this president can go to war in Iran or Lebanon whether Congress agrees or not. Members of that faction holding seats in Congress would provide no check on unilateral warmaking.
9.18.2006 5:47pm
Mark Field (mail):

The 2001 AUMF authorized no such thing. Its terms were limited to those responsible for 9/11:


IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


That does not stretch to cover "When al Qaeda and other terrorist organizations of global reach are no longer a threat."


If Bin Laden and perhaps a few others were captured, this AUMF would expire of its own terms. Bush has said recently that capturing Bin Laden "is not a priority". Isn't that convenient.
9.18.2006 5:50pm
Anderson (mail) (www):
OK. When al Qaeda and other terrorist organizations of global reach are no longer a threat.

Well, we continually hear that al Qaeda itself has had its fangs pulled, and that the threat is from "franchises," each of limited reach.

And I'm not sure what "terrorist organization of global reach" exists today ... SPECTRE? Oh, wait, fictional; sorry.

So ... the war is over, and we won? Karl Rove will be thrilled to hear the news; I'll e-mail him right away! (On 2d thought, I'm sure he's a daily VC reader.)
9.18.2006 6:13pm
Medis:
JaO,

That is correct. In general, I would suggest any member of the Republican Party who is reasonably well-informed about these matters has to choose in this election between allegiance to their party and allegiance to our Constitution and the republican (small "r") system of government it provides.
9.18.2006 6:13pm
Davebo (mail):

That said, Yoo also cites other Clinton administration actions in the foreign policy sphere with apparent approval, such as the commitment of troops to Kosovo beyond the time period authorized by the War Powers Act.


The War Powers Act doesn't come into play unless congress invokes it. And they never did.
9.18.2006 7:01pm
AF-other one:
The more interesting thing from this contrast is the fact that actions of Clinton that strengthened the Presidency -- such as violating the War Powers Resolution in Kosovo -- were not subject to much, if any, mainstream criticism based on their _legality_. Instead, the criticism based on legality was pretty much limited to those who were serious partisans (Yoo, and the congressmen who filed suit challenging the Kosovo action), while mainstream analysis did not question legality, and instead addressed viability of the policy. This President, on the other hand, is questioned at every turn about the source of his authority. I remember lots of folks making policy complaints about Clinton's Kosovo policy, but very little assertions of illegality or unconsitutionality were part of the mainstream discussion. Why the distinction? Why is it so important that Bush authorized what was at worst a technical violations of the FISA; whereas no real debate on Clinton's authority to order Kosovo bombed? This is even more shocking because most everyon agrees that Bush's policy is a good one -- listening to international calls where one party is/related to Al Qaeda. Both Presidents were, in my view, correct. But the legalization of the analysis overwhelming policy debate is really noteworthy in the case of President Bush.
9.18.2006 9:18pm
Medis:
AF,

I don't know about "mainstream", but I think there was a great deal of academic commentary after-the-fact on the legality of Clinton's actions in Kosovo.

At the time, though, I think many "mainstream" legal commentators were on the "impeachment beat". And the favored argument of those opposing Clinton's actions in Kosovo was the "wag the dog" notion (that he was trying to distract the nation from the impeachment issue).
9.18.2006 9:38pm
Anderson (mail) (www):
Why is it so important that Bush authorized what was at worst a technical violations of the FISA

Huh? Conducting warrantless surveillance is a "technical violation" of a statute requiring warrants for surveillance?

I guess my running a stop sign the other day was only a "technical violation" of the law, as well.

As for why there's a different reaction, let's see: Bush regularly maintains that he has power to set aside statutes he dislikes; spying on phone calls is a bit closer to home than bombing Serbs ... that should get you started, I think.
9.18.2006 10:33pm
Andrew J. Lazarus (mail):

This is even more shocking because most everyon agrees that Bush's policy is a good one -- listening to international calls where one party is/related to Al Qaeda.
This is a deceptive summary indeed. Bush's policy is listening to international calls (probably wholesale) without warrants. Many people don't seem to like that at all. But after 9/11, we must learn to love Big Brother.
9.18.2006 11:26pm
A.S.:
If Bin Laden and perhaps a few others were captured, this AUMF would expire of its own terms.

I don't see how under any possible reading of the AUMF this would be true, since at the very least the AUMF would continue in effect until al Qaeda was completely destroyed:


the President is authorized to use all necessary and appropriate force against those ... organizations ... he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 ... in order to prevent any future acts of international terrorism against the United States by such ... organizations ...
9.19.2006 1:13am
A.S.:
Well, we continually hear that al Qaeda itself has had its fangs pulled, and that the threat is from "franchises," each of limited reach.

Perhaps you should listen to places other than the Daily Kos. Those of us in the Reality-Based Community know that al Qaeda continues to have global reach.
9.19.2006 1:20am
A.S.:
The War Powers Act doesn't come into play unless congress invokes it.

This is, of course, completely false.
9.19.2006 1:22am
Christopher Cooke (mail):

In hindsight, perhaps they should have. I didn't realize that in 2000. And so I don't blame Yoo for not realizing it then either



Anyone who watched a Frontline documentary on Bin Laden, which aired in 1999 (produced by Martin Smith, and written by Llowell Bergman and Smith) would have known who he was, and all about his and Al Qaeda's declaration of war on the US, two years before 9/11. I remember on 9/11 (before my federal government agency's office closed for the day and I went home), remarking to a colleague, that the WTC attacks must have been the work of "that f**ker, Bin Laden." My colleague, who had watched the same Frontline program, agreed (he had also visited Afghanistan in 1999 or so and was personally familiar with the Taliban).

Now, I would posit that hundreds of thousands of other Americans watched that very same Frontline show, and therefore, knew about Al Qaeda's attacks on US interests in Kenya, Yemen (the USS Cole), the attempted plot in the Philippines, and the first WTC attack.

So, even if our dearly incurious George W and his crew did not know, or perhaps did not recognize, the threat posed by Bin Laden on 9/11 (see Clark's book Against All Enemies, for a detailed description), and even if AS did not know nor recognize that very same threat, I do blame Yoo, who purports to criticize the "Imperial" Clinton presidency, in 2000, for not knowing about Al Qaeda. Yoo's hypocritical criticisms of Clinton reveal him to be nothing more than a partisan hack; his statements about US history and foreign policy show that he is an ignoramus on such matters. I personally would not waste time noticing his numerous inconsistencies, except that others appear to find him knowledgeable and seek out quotes from him.
9.19.2006 1:25am
Christopher Cooke (mail):

"This is why the Hamdan decision was less a rebuke of the presidency than a sign of frustration with Congress's failure to update our laws to deal with the terrorist menace."

This parathetical shows just how dishonest Yoo is in his "scholarship." No one who has actually read Hamdan can plausibly interpret the majority's decision as a rebuke of Congress. Perhaps Bush W. should create a Ministry of Truth and appoint Yoo as its first Minister.
9.19.2006 1:35am
Mark Field (mail):

I don't see how under any possible reading of the AUMF this would be true, since at the very least the AUMF would continue in effect until al Qaeda was completely destroyed


The authorization is not to Al Qaeda as an organization, but to the specific perpetrators. The authorization is limited to those who "planned, authorized, committed, or aided" 9/11. Most of those individuals died while committing their crimes. Some others have died since or been captured. We don't know exactly how many are still around, but it's likely not a large number.
9.19.2006 1:01pm
Publicus:
What did the founders intend? Here's a clue:

President Madison, who earlier had helped draft the Constitution, and wrote portions of the Federalist Papers, went to Congress for a declaration of war in 1812.

He understood that "Congress declares war." He understood that there's only one Constitution...not a second unwritten one that gives the President additional powers in wartime.

Maybe you think the War of 1812 wasn't so serious. I bet Madison did. The British attacked Washington D.C. and burned the capitol. Sounds serious to me.
9.19.2006 2:05pm
A.S.:
Mark Field wrote: The authorization is not to Al Qaeda as an organization, but to the specific perpetrators.

Did you read the rest of my post??? I quoted the text of the AUMF!

the President is authorized to use all necessary and appropriate force against those ... organizations ... he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 ... in order to prevent any future acts of international terrorism against the United States by such ... organizations ...

(emphasis added)
9.19.2006 6:02pm
Mark Field (mail):
AS, my mistake. You're correct.
9.19.2006 7:25pm