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More on John Yoo's Criticism of the Clinton Administration:
I mentioned John Yoo's 2000 essay on the Clinton Administration's view of executive power in my earlier post, and while it's not online, I did find a video of him presenting the paper at the Cato Institute. The substance of Yoo's talk begins around the 26:30 mark. It's very interesting to watch. At the 28:30 mark, Yoo states his basic view that the Clinton Administration's foreign policy has undermined the rule of law in three fundamental ways:
First, I think, in order to achieve their foreign policy goals, the Clinton Adminisitration has undermined the balance of powers that exist in foreign affairs, and have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration. The second thing is that the Clinton Administration has displayed a fundmental disrespect for the rule of law. Not in the sense that they don't make legal arguments to defend their positions, but the legal arguments are so outragous, they're so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is. And the the third thing is a matter of consistency. I think one of the things the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions. And I think the Clinton Administration, as I'll discuss in a moment, has been wildly inconsistent. It has gone to the point of disavowing previous executive branch opinions, and when it does things that it finds so inconvenient legally that it overturns too much law, it just doesn't say anything at all, and goes ahead and does what it intends to do anyway.
  Yoo's first example is the Clinton Administration's creative intrepretation of the Anti-Ballistic Missile treaty in early 2000. The treaty blocked building an ABM system, but the Clinton Administration wanted to start building a radar system that would be the beginning of an ABM system. According to Yoo, the Clinton avoided the treaty obligations by interpreting the treaty implausibly to allow for building radar that might be the beginning of an ABM system. Yoo criticizes this creative executive interpretation for "trampling on the Senate's role" in making treaties and avoiding having to go through a democratic process to change governing policy.

  Yoo's second example is Administration's expansive approach to executive war powers, and the fact that the Administration was eager to act without Congressional approval in deploying troops. Yoo argues that the Clinton Administration was "one of the ones that most easily goes for the gun in foreign affairs" among recent Presidential Administrations, and states that while most Presidents had "never admitted" that the War Powers Act was constitutional and binding on the Executive Branch, they had always complied with it anyway until Clinton violated the Act in Kosovo. Yoo criticizes the Clinton Administration for never offering a public explanation for its apparent violation of the War Powers Act.

  Finally, Yoo criticizes "liberal academics" for their failure to criticize the Clinton Administration for taking these steps. Yoo suggests that these liberal academics are only interested in opposing conservative Administrations, and that they have been silent in Clinton's case because they approve of his politics. Yoo ends with a criticism of the Clinton Administration's willingness to cede U.S authority to international law and international organizations.

Related Posts (on one page):

  1. Julian Ku on Me and Yoo:
  2. More on John Yoo's Criticism of the Clinton Administration:
  3. An Interesting Contrast:
  4. John Yoo on the Intent of the Framers:
whig (www):
You should realize that Yoo is projecting. Psychological projection is one of the most common of human behaviors. When he says what he does about "liberals" he is describing his own intentions.

Another way of looking at it is like the angry kid who thinks the other kids are unfair to him. So what he does to get back at them is he does what he thinks they did right back to them, but worse, because he has to teach them a lesson.

I'm sure he justifies it in his mind. I'm sure he's getting back at a lot of people for a lot of persecution he thinks he's had to suffer.
9.18.2006 4:32am
davod (mail):
Projection is the right word to use - applied to Orrin.

Orrin. Are you writing a book and just need a few more quotes to pad the manuscript.

[OK Comments: No, I don't teach or write in this area. I just find it puzzling that Yoo seems to have reversed course.]
9.18.2006 6:51am
steve (mail):
All of that was before Yoo took the King's shilling...or took
to shilling for the King.
9.18.2006 7:04am
Richard Aubrey (mail):
At one point, the Sovs were building what was frankly an ABM battle management radar at Krasnoyarsk. They solved the treaty-breaking problem by insisting it was for something else. After the USSR went to bed, Shevardnahdze admitted it was really an ABM radar
Treaties are supposed be honored by all signatories--except when Israel is a signatory--and the failure by one side frees the other side. Except when Israel is a signatory.

The US response was to build warning radars in Greenland and the UK, which fit the treaty because they were not in a position to cover the US. The allowed radars could be on the periphery (the US radars were farther out than that), not within the country, as Krasnoyarsk was.

Creativity is necessary when the other side ignores treaty obligations and the US and international left ignores or condones the other side's breaking of the treaty.
9.18.2006 10:11am
Evan H (mail) (www):
Yoo is one of those thinkers who, in the end, care more about achieving their favored results than they do about having a coherent philosophy. I would also put Scalia in this category.
9.18.2006 10:14am
Medis:
"Not in the sense that they don't make legal arguments to defend their positions, but the legal arguments are so outragous, they're so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is."

That really is too funny.
9.18.2006 10:29am
Just an Observer:
I really worry less about Yoo the academic commentator than I do about Yoo the OLC attorney, and his replacements. They have elevated the gaming of "manipulable" law to a new level, abusing the objective prudential function of that office by subsuming it to crass advocacy and rationalization of the boss' actions.

The duty to "take care that the laws be faithfully executed" means little without good faith.
9.18.2006 10:57am
AppSocRes (mail):
I agree with Yoo. But everything he said about the Clintonistas applies even more to this administration. Perhaps some of the anger the left feels towards Bush is because Bush has so successfuly utilized earlier toleration of the Clinton administration's lawlessness to expand lawless behavior in this administration.
9.18.2006 11:15am
CJColucci:
Professor Pot, meet Kettle.
9.18.2006 11:21am
publius (mail) (www):
high comedy - particularly #3
9.18.2006 11:42am
Derrick (mail):
I agree with Yoo. But everything he said about the Clintonistas applies even more to this administration. Perhaps some of the anger the left feels towards Bush is because Bush has so successfuly utilized earlier toleration of the Clinton administration's lawlessness to expand lawless behavior in this administration.


I understand your obviously partisan point but I don't think it applies. To me its similar to the whole torture argument. I am firmly against torture and believe in our laws against it, but I readily admit (simillar to the "Israeli" position) that there will be times where torture may be necessary for matters of imminent danger. And the answer may be to break the law, but make no mistake that the law has been broken for necesity. The problem that many liberals have with the Bush Administration is that they are setting up a legal framework for a change in policy that ingrains many of the extreme steps that are necessary in limited use, as the permanent law. Everyone knows that in times of war that the Executive branch naturally gains power disproportionately to the other 2 branches, but this Administration is making an unnatural grab for power that will ultimately cause a permanent imbalance in powers between what are set up as 3 equal branches of government. That should be scary for anyone who respects our Constitution.
9.18.2006 11:44am
Ugh (mail):
Jeebus. I can't believe I used to defend the guy. He really and truly is a right-wing partisan hack that has no shame.
9.18.2006 12:06pm
plunge (mail):
Looks almost quaint and comical today, no?

"Humiliating??? what does THAT mean! Why, it's so vague, I'm sure it doesn't include being stripped naked, given hypothermia, and then wetting yourself as you are repeatedly made to feel like you are drowned."
9.18.2006 12:33pm
Cold Warrior:
It's important here to separate Yoo's valid points on constitutional law and treaty obligations from his political point.

The constitutional/treaty law points are old hat, going back to the early Reagan Administration's efforts to reign in what they thought was the runaway expansion of Congressional authority (at the expense of the Executive) in the post-Watergate/Vietnam era.

See, for example, this 1988 summary of similar issues (the War Powers Act, the proper interpretation of the ABM Treaty, including what weight, if any, should be given to the Nixon Administration's statements to the Senate at the pre-ABM Treaty ratification hearings), from old Cold Warrior (!) Eugene Rostow:

http://www.ndu.edu/inss/McNair/mcnair03.pdf

Whether you think Yoo's political point has merit depends on which side of the aisle you find yourself on. The point is pretty simple:

1. Reagan and Bush II (and to a lesser extent Bush I) have been strongly criticized for seeking to expand the Executive power.

A. They have done so by interpreting away restrictions on U.S. action agreed to by prior administrations/Senates in treaty obligations. Reagan did it in the ABM "reinterpretation" debate [see the Rostow paper]; Bush II did it with respect to the Geneva Conventions and the Convention Against Torture.

YOO'S RETORT: But Clinton did the same thing in his Administration's own reinterpretation of the ABM Treaty; however, his administration's actions somehow escaped criticism.

B. Bush II has been vilified for ignoring Congressional authority, and asserting that Congressional authorization for the use of force in Afghanistan and Iraq gives him virtually unlimited powers, including the power to conduct surveillance outside the Congressionally-mandated process.

YOO'S RETORT: If "liberal" critics are so worried about the President's use of war powers other than those expressly authorized by Congress, why weren't they outraged when the Clinton Administration committed U.S. forces to the Balkans? Was there any Congressional authorization for the use of force in that affair? How did that not run afoul of the War Powers Act?

I'm generally unpersuaded by Yoo's political point (although I agree in part with his legal point; i.e., that Congress has in some cases attempted to usurp or limit the Executive's constitutional powers over the conduct of foreign affairs and the use of military force).

The "you criticized Reagan over his creative ABM interpretation, but you gave Clinton a free pass" argument has some merit. But let's live in the real world: the Reagan reinterpretation occurred in the context of a very warm moment in the Cold War, whereas the Clinton Administration's creative reinterpretation was obviously a response to the end of the Soviet threat and the emergence of new threats (North Korea and renegade states/non-state actors). The other example is similarly unconvincing. Yes, the Clinton Administration did what ever other post-Ford Administration has done: it expansively defined the War Powers Act to allow for "peacekeeping" operations in the Balkans and elsewhere without express Congressional WPA authorization. But nobody's really too worked up over Bush II's commitments of armed forces to Afghanistan and Iraq with an alternative form of Congressional approval. They're worked up about Bush's expansive reading of the Geneva Conventions -- including actions taken in secret --and by the Bush Administration's assertion of a broad and seemingly unchecked intelligence gathering authority in time of war.

Poor little John Yoo, so misunderstood ...
9.18.2006 12:43pm
Eric Rasmusen (mail) (www):
Hey, liberals---watch out for a trap here. In your eagerness to go after Yoo, you discredit yourselves. Here are your choices:


1. Yoo's two examples are bad. It's okay for the president to interpret treaties even more broadly than Bush II does, and not only go to war with a squishy Congressional vote, as he did, but to go to war without any Congressional authorization whatsoever.

2. Yoo's two examples are good. Clinton was as bad or worse than Bush II.

I think you probably really prefer alternative 2. You don't have as much ammo on Professor Yoo then, but you get to keep on criticizing Bush II.
9.18.2006 1:11pm
Mark Field (mail):
Eric, your post makes no sense. Bush went to war with a "squishy" vote? Your pronouns are confusing here.

Nobody is discussing the fighting in Afghanistan or Iraq. The issues do NOT involve committing forces to combat, they involve what powers the President claims after forces have been committed. The Clinton example is irrelevant to this latter issue.
9.18.2006 1:22pm
Eric Rasmusen (mail) (www):
"Squishy" was deliberately vague. As I recall, Congress did pass a resolution, but it was worded unclearly enough that people could disagree as to what it meant.

Here's what the post said: "Yoo's second example is Administration's expansive approach to executive war powers, and the fact that the Administration was eager to act without Congressional approval in deploying troops. Yoo argues that the Clinton Administration was "one of the ones that most easily goes for the gun in foreign affairs" among recent Presidential Administrations, and states that while most Presidents had "never admitted" that the War Powers Act was constitutional and binding on the Executive Branch, they had always complied with it anyway until Clinton violated the Act in Kosovo. Yoo criticizes the Clinton Administration for never offering a public explanation for its apparent violation of the War Powers Act."
9.18.2006 1:25pm
Pantapon Rose (mail):
I don't understand how Yoo can be retorting to criticism of Bush II in a paper written in 2000.
9.18.2006 1:52pm
Mark Field (mail):
It's still not clear which resolution was "squishy": was it Bush's or Clinton's? It sounded like you meant Bush's, but they weren't "squishy" at all; certainly not the first one.

Yoo's second argument is attacking a straw man, as I pointed out above. Bush DID get Congressional approval, so even if Clinton failed to do so -- and that's contentious -- it doesn't matter. Bush is not being criticized for that.
9.18.2006 1:55pm
Medis:
I don't know anything about the details of how Clinton's Administration treated the ABM treaty in 2000, but for the record, I think that is a real problem ("creative" interpretation of treaties by the Executive Branch). It remains an open question whether the President can unilaterally withdraw the United States from treaties, but at least that is what he should do if he wants to get out of treaty obligations (as opposed to playing cute with them).
9.18.2006 3:05pm
Q the Enchanter (mail) (www):
9.18.2006 3:30pm
A.S.:
Yoo criticizes the Clinton Administration for never offering a public explanation for its apparent violation of the War Powers Act.

I haven't watched the video, so I'm going on this description. If it is correct, then I think that Yoo is flat wrong. The Clinton Administration DID INDEED offer a public explanation for its violation of the 60-day provision in the War Powers Act - and through the appropriate vehicle, an OLC opinion. That explanation was after-the-fact, and, to my mind, not very convincing (sorry, Marty!). But I think the 60-day provision is flat-out unconstitutional in any event, so I don't much care.

The OLC opinion is here.
9.18.2006 4:14pm
Just an Observer:
Mark Field,

I agree that Bush is not accused of violating the War Powers Act. He did seek and get two AUMFs pursuant to that act -- one in 2001 authorizing action against those reponsible for 9/11, and a second in 2002 authorizing action against Iraq.

However, those specific resolutions do not stretch to cover an expanding war that recent rhetoric and reality seem to be moving towards. The 2001 AUMF did not authorize a generalized "war on terror" or "war" against "Islamofacists." And Chairman Warner has openly suggested that the 2002 Iraq resolution does not cover our involvement in a civil war there. Additionally, I wonder if the lame-duck Bush administration will seek authorization from Congress before attacking Iran.

So Yoo may be striking at a strawman, or he may be laying the groundwork for the next stage. The neoconservative faction with whom he is allied accepts as a policy imperative the view that it is all "one big war."
9.18.2006 4:15pm
Jim Hu:
I'm wondering if Prof. Yoo thinks his own thought is internally consistent or if he would argue that this a "9/11 changed everything" case. It seems to me that the discussion has been based on the assumption that he would not disavow his earlier stance. I would think he's been asked...anyone seen any response?

If he's claiming that it's all of a consistent constitutional theory, then I agree that it's awfully damned contingent on who was in power. But what if he says "when I saw the towers coming down I realized what a partisan hack I was to try to undermine Clinton"? I'm not betting on that, mind you! Just wondering in a theoretical kind of way...
9.18.2006 4:17pm
Mark Field (mail):

However, those specific resolutions do not stretch to cover an expanding war that recent rhetoric and reality seem to be moving towards. The 2001 AUMF did not authorize a generalized "war on terror" or "war" against "Islamofacists."


I agree.


So Yoo may be striking at a strawman, or he may be laying the groundwork for the next stage. The neoconservative faction with whom he is allied accepts as a policy imperative the view that it is all "one big war."


Agreed.
9.18.2006 4:20pm
Former Republican (mail):
Anyone who isn't just plain discouraged at the level of hypocrisy on the part of the political leaders and their supporters -- in both parties -- just isn't paying attention.
9.18.2006 5:12pm
Hans Gruber:
"I am firmly against torture and believe in our laws against it, but I readily admit (simillar to the "Israeli" position) that there will be times where torture may be necessary for matters of imminent danger. And the answer may be to break the law, but make no mistake that the law has been broken for necesity."

I really am perplexed by this line of thinking. You think that torture is a good thing in certain circumstances but you are unwilling to legally allow it in those circumstances. In other words, you want better men than yourself to risk jail time and the destruction of their careers in order to keep this country safe, so that you can keep your conscience clean? Is that about right? And why do you assume that the law will be broken when it needs to be?
9.18.2006 5:47pm
Medis:
Hans,

I can't answer for the other poster, but this is generally how the defense of "necessity" works in the criminal law--namely, we don't attempt to codify all the extraordinary circumstances in which breaking the law may be justified.

So, for example, we don't have to write into our drunk driving statutes an exception for taking a severly ill person to the hospital, or for fleeing an unlawful attacker. And with respect to torture, we have even more reasons than usual to refuse to codify exceptions to a ban on torture, such as the damage which would be done to the reputation of the United States and to our long-term strategies in the world by the mere existence of such an exception in our law.

So, this way of dealing with extraordinary circumstances is nothing new, and indeed makes particular sense in this context.
9.18.2006 6:07pm
LeftLeaningVolokhReader:
In Clinton's time, the president gets a BJ. Accordingly, any reaction to the first attacks on the twin towers constitutes "wagging the dog."

In Bush's time, the unilateral executive is necessary to fight the war on terrorism.

Legal conclusion - If the president refrains from oral pleasures, the executive is at the twilight of its executive powers to conduct foreign affairs.

(and no, this is not a serious post)
9.18.2006 6:30pm
Andrew J. Lazarus (mail):

I am firmly against torture and believe in our laws against it, but I readily admit (simillar to the "Israeli" position) that there will be times where torture may be necessary for matters of imminent danger.


I don't think that's the Israeli position. For quite some time, Israel had a policy not so different from what Bush is looking for: secret techniques practiced widely. And like Bush, the parties responsible babbled about the various evils that they had uncovered, although the public face of the program was mistakes, deaths, false confessions, and spurious threats. The idea that this was all about ticking bombs gave the torture side a face-and-conscience saving pretext, which was hard to accept in the teeth of the fact that abuse was sometimes ongoing, during which interrogators got Shabbat and holidays off.

Even if it were true that the Israeli campaign found a few genuine terror plots that would not have been uncovered otherwise, its real purpose was to intimidate Palestinians, which for all I know it may have, to some degree. As far as I can tell, the ticking bomb is as much a Hollywood invention as other sorts of vigilante justice.

In 2000, the Israeli Supreme Court grew as tired as ours will be of euphemisms and evasions. Israel is a signatory of the Geneva Conventions, and the Court ordered that interrogations proceed according to its rules.

Our own armed forces do not wish more latitude in abusing detainees. This is entirely a project of the Bush Administration, and the transgressive nature of their demand is undoubtedly one of its main attractions. What could be more powerful than breaking a solemn treaty, and conversely what could more clearly show the peril of America's world situation and the necessity of ceding even more power to those brave officials who will stop at literally nothing in the fight against "terrorists" (whom, you will recall, they have recruited in abundance through their blunders). The last Democratic Administration suffered from a President with a teenage boy's 007 fantasies about scoring with every woman in sight. The current Administration has a teenage boy's 007 fantasies about the freedom of the "Licence to Kill".
9.18.2006 6:42pm
Steve - History Buff:
At least two of his points appear valid from a technical legal standpoint. First, Yoo accuses the Clinton Administration of trying to distort the ABM Treaty's text to support development of a national missile defense system. Yoo is effectively saying "Keep the ABM and don't build a missile defense system, or abandon the ABM and build a missile defense system, but you can't do both." Presumably Yoo would square his comment with Bush Administration policy by saying that Bush publicly repudiated the ABM Treaty. Thus, missile defense development is fine. Second, Yoo accuses the Clinton Administration of flaunting the War Powers Resolution in Kosovo, but Yoo supports President Bush's deployment of U.S. troops in the war on terrorism. But the Congress passed the AUMF in 2001, which explicitly authorizes the President to act militarily (including deploying troops for longer than the WPR) in the war against al-Qaeda and other terrorists. So Bush has the AUMF to justify extended deployment of U.S. troops (the AUMF is arguably a Congressional declaration of war, which would permit troop deployments indefinitely, absent a treaty recognizing an end to conflicts), while Clinton was operating under the WPR. One must be careful not to allow political disagreement to interfere with legal distinctions. Also, remember that Yoo's speech was delivered at the CATO Institute, a libertarian think tank, whose audience probably wasn't pleased with the Clinton Administration and whose audience probably is displeased with the Bush Administration (at least in some aspects). One hallmark of a good lawyer is the ability to adapt to one's audience. Yoo's CATO speech is subtle but coherent. Yoo provides an extended and fascinating analysis of several of these issues in his book The Powers of War and Peace (Chicago, 2005). One may agree or disagree with Yoo, but he's clearly a legal force to be reckoned with.
9.18.2006 7:17pm
plunge (mail):
Is Yoo even correct about "liberal academics" failing to criticize Clinton? I seem to remember quite a lot of criticism of him. Just not of the "oh my god, he's destroying democracy forever" school.
9.18.2006 7:18pm
Steve - History Buff:
At least two of his points appear valid from a technical legal standpoint. First, Yoo accuses the Clinton Administration of trying to distort the ABM Treaty's text to support development of a national missile defense system. Yoo is effectively saying "Keep the ABM and don't build a missile defense system, or abandon the ABM and build a missile defense system, but you can't do both." Presumably Yoo would square his comment with Bush Administration policy by saying that Bush publicly repudiated the ABM Treaty. Thus, missile defense development is fine. Second, Yoo accuses the Clinton Administration of flaunting the War Powers Resolution in Kosovo, but Yoo supports President Bush's deployment of U.S. troops in the war on terrorism. But the Congress passed the AUMF in 2001, which explicitly authorizes the President to act militarily (including deploying troops for longer than the WPR) in the war against al-Qaeda and other terrorists. So Bush has the AUMF to justify extended deployment of U.S. troops (the AUMF is arguably a Congressional declaration of war, which would permit troop deployments indefinitely, absent a treaty recognizing an end to conflicts), while Clinton was operating under the WPR. One must be careful not to allow political disagreement to interfere with legal distinctions. Also, remember that Yoo's speech was delivered at the CATO Institute, a libertarian think tank, whose audience probably wasn't pleased with the Clinton Administration and whose audience probably is displeased with the Bush Administration (at least in some aspects). One hallmark of a good lawyer is the ability to adapt to one's audience. Yoo's CATO speech is subtle but coherent. Yoo provides an extended and fascinating analysis of several of these issues in his book The Powers of War and Peace (Chicago, 2005). One may agree or disagree with Yoo, but he's clearly a legal force to be reckoned with.
9.18.2006 7:18pm
LeftLeaningVolokhReader:
Great... and someone just had to mention Israel... cue DB
9.18.2006 7:27pm
plunge (mail):
I don't think it's wrong to cite 9/11 as something that changed your views. But it's an entirely different thing to claim that without ever repudiating your past views, admitting they were wrong, and most of all, altering your sneering condescension for those that disagreed with you at the time one iota, even though you've reversed yourself 180 degrees.
9.18.2006 8:54pm
BobN (mail):
Don't worry, as soon as there's a Democrat in the Oval Office, Yoo will do another 180 return to his previous "beliefs" (and will be paid obscene amounts of money to talk to Republicans about them).
9.18.2006 9:00pm
A.S.:
But it's an entirely different thing to claim that without ever repudiating your past views, admitting they were wrong, and most of all, altering your sneering condescension for those that disagreed with you at the time one iota, even though you've reversed yourself 180 degrees.

Um, no.

All that needs to be admitted is that the facts upon which your judgement is based have changed. Conclusions that apply under one set of facts need not apply under a completely changed set of facts.

What's so hard to understand about that?
9.19.2006 1:24am
A.S.:
One other point I wanted to make about the 2000 Clinton OLC opinion on the Kosovo war. The best thing about that opinion is that, the clear meaning of it is that once the 2006 appropriation for the NSA is approved by Congress, the separation of powers case against the TSP will have changed from a Youngstown category 3 to Youngstown category 1, because at that point, the appropriation will constitute Congressional authorization for the TSP.
9.19.2006 1:27am
Andrew J. Lazarus (mail):
All that needs to be admitted is that the facts upon which your judgement is based have changed. Conclusions that apply under one set of facts need not apply under a completely changed set of facts. What's so hard to understand about that?
What's hard for me to understand is how the changed set of facts alters the Constitutionality of these acts. The wisdom or advisability, perhaps. But slamming an airplane into a building does not amend the Constitution. Only the most fanatical partisans of some super-mutable Living Constitution would hold that its meaning was so different on 9/12 as on 9/10. Do you hold this position? If so, let me ask: if Osama had been able to send only one plane, would that have justified Yoo's about face? How about one plane, and it didn't cause the Tower to fall? One plane, but the passengers regained control of it? You can't be suggesting that the Constitution has different meanings in each of the hypos, can you?

Let's be honest. What changed on 9/11 (if not on Election Night 2000) is that John Yoo discovered the beauties of an omniscient, omnipotent leader. Has anyone seen the interview where he said the President could lawfully order the child of a "terrorist" to be tortured? He is for torture because he is depraved, and I suspect so is the President whom he served.
9.19.2006 1:50am
OrinKerr:
A.S. writes:

All that needs to be admitted is that the facts upon which your judgement is based have changed. Conclusions that apply under one set of facts need not apply under a completely changed set of facts.

What's so hard to understand about that?


One thing that's hard to explain is that it's the exact opposite of your explanation in the immediately previous thread. here is what I wrote then:

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?

And here was your response, which I believe was posted yesterday or the day before:

In hindsight, perhaps they should have. I didn't realize that in 2000.

So I guess what's hard to understand is which argument you are making, A.S.: Are you making yesterday's argument that you just didn't realize the facts before 9/11, or today's argument that the facts changed?
9.19.2006 3:45am
Hans Gruber:
Medis,

Good examples. Part of the reason those exceptions are not codified, I think, is simply that society and law makers don't care to bother to think about it. A general exception providing for imminent danger to one's health would work nicely, but it's easier (not necessarily better) to leave these decisions to others, to juries and DA's, on a question that most people view pretty low on the list of government priorities. While ensuring justice for the occasional justified drunk driver ranks pretty low on public interest, can the same be said for the potential to thwart acts of terrorism? And as for as preferring duplicity to honesty to preserve our reputation as the good guy, well, that is exactly what the administration was trying to accomplish, but McCain and the press have pushed this issue into the forefront. Truth be told, if the Senate and the media weren't posturing about this, the world would care less.
9.19.2006 9:38am
Hans Gruber:
Orin,

With all due respect, is it really that hard to understand that 9/11 rearranged people's perspectives and attitudes, and that it added new facts to the equation? Of course the facts changed on 9/11, when 3,000 Americans were murdered on our soil.

Orin, you wrote: "Are you making yesterday's argument that you just didn't realize the facts before 9/11, or today's argument that the facts changed?"

So, I have a question for you: Are you making the argument that no facts changed on 9/11?
9.19.2006 9:52am
A.S.:
So I guess what's hard to understand is which argument you are making, A.S.: Are you making yesterday's argument that you just didn't realize the facts before 9/11, or today's argument that the facts changed?

As regards whether Yoo is being inconsistent, I really don't think it makes a difference. Before 9/11, either (i) we weren't in a state of war or (ii) didn't perceive ourselves to be in a state of war (if that is the case, in hindsight, the perception turns out to have been incorrect). In either case, the basis for Yoo's 2000 analysis was (rightly or wrongly) that no state of war existed. Which is a difference basis from his post-2000 analysis.

I think it is a difficult question whether we were in a state of war prior to 9/11 (and that's ignoring the philosophical question of something can exist if no one realizes it exists - the old "if a tree falls in a forest and no one is around to hear it, does it make a sound" question). That's why I replied to your initial question that "perhaps" the first WTC attack or al Qaeda's declaration of war created a state of war. But regardless of whether 9/11 actually created a state of war or merely cleared away my misperceptions as to whether a state of war existed, my legal views are based on a different set of facts today than they were in 2000. I suspect that's the case with Yoo also.
9.19.2006 11:26am
Just an Observer:
A.S.: The best thing about that opinion is that, the clear meaning of it is that once the 2006 appropriation for the NSA is approved by Congress, the separation of powers case against the TSP will have changed from a Youngstown category 3 to Youngstown category 1, because at that point, the appropriation will constitute Congressional authorization for the TSP.

Can you point us to the provision of that bill that authorizes the Terrorist Surveillance Program? Strange that the President now desperately calls for other legislation to authorize the program, which has been ruled illegal and unconstitutional by a federal judge.

Will enactment of appropriations for the CIA also comprise
authorization for the newly announced Terrorist Torture Program, as well?

If the attorney general announced a Criminal Surveillance Program with widespread warrantless wiretaps of criminal suspects, and Congress appropriated money to pay his salary, would that override the warrant requirements in Title III?

I would be interested to hear DOJ argue any of those creative points in court. Except, of course, this administration does not believe in making legal arguments in court. It prefers the new medium of anonymous blog comments and unsigned "white papers." If the next court decision striking down the surveillance program fails to engage your theory, I suppose Ann Althouse will excoriate the judge for failing to treat these "serious arguments."
9.19.2006 11:53am
Medis:
Hans,

As a general matter, the reason we don't try to codify every possible "necessity" defense is not just that it isn't high on our priority list. Rather, for one thing it would be impossible: we simply cannot anticipate every possible hypothetical in advance and specify how the law should handle that hypothetical. For another, our experience suggests that codified exceptions tend to undermine the main prohibition, both because they are consciously abused through "creative" interpretation, and also because they simply weaken the law's expression of the norm contained in the main prohibition.

And that last point is a very serious one. In our legal system, the deterrence provided by the formal enforcement of our laws is generally far from sufficient to guarantee that the laws will be followed. Rather, we rely on: (a) most people self-enforcing the laws by voluntarily attempt to comply with the law; and (b) on society also informally enforcing the laws by putting social pressure on people to comply with the law. The formal enforcement of the laws in only designed to deal with people who are not self-enforcing and who are relatively immune to informal social pressure. So, weakening the norm expressed by the law by codifying too many exceptions can lead to undercompliance with the law.

In short, there are real costs (administrative, normative, and so on) to codifying exceptions even in ordinary cases. Accordingly, when the hypothetical exception in question is sufficiently extraordinary that it is unlikely to occur with much frequency, these costs could easily exceed any putative benefits to codifying the exception in advance.

All of this logic applies to abusive interrogations. Again, for one thing it would be impossible to anticipate and explicitly provide for every possible hypothetical in which abuse might be necessary. And also again, trying to codify these exceptions would undermine the expression of the norm, and that would likely lead to insufficient compliance with the main prohibition through a comparative lack of self-enforcement and informal pressure. Indeed, unfortunately we already saw that happen in places like Abu Ghraib.

And as I noted, to this standard list of costs we can add the world's perception. This is actually related to the norm-reinforcement point: for a long time the United States has been promoting the view that abusive interrogations are evil and should never be tolerated, and we have made that argument in many cases where abusive regimes have claimed that we simply do not understand their security needs and thus we do not understand why they need to use abusive interrogations. It significantly weakens that message, and indeed makes us look somewhat hypocritical, when we use the same necessity rationale to codify exceptions after we have been attacked.

Moreover, this is also related to the undercompliance problem. The events in Abu Ghraib were not just unjust, but they were also a strategic disaster. In general, the risks associated with undercompliance with these particular norms are greatly magnified by the fact that our long-term strategy in dealing with terrorism depends on our successfully promoting our moral superiority.

And factually, I think you are just wrong that the world's attention to these matters would be minimal if the Senate and commentators in the domestic media were not attempting to check the President. Indeed, I think you will find that often the foreign media is far more inquisitive and judgmental than our domestic media, and of course there are many rivals and enemies of the United States around the world who will eagerly seize on any opportunity to make a moral case against the United States. They would certainly use any codification of exceptions to a ban on abusive interrogations to make such a case, and obviously they will also use any incidents like Abu Ghraib.

So, there are not just the normal costs, but also these added costs, that weigh against codifying exceptions. Nonetheless, if the benefits to codifying exceptions were so great, perhaps these costs could be outweighed.

But here I rely on the expertise of the professional interrogators who have actually gone on the record, such as General Kimmons. They believe that the costs to abusive interrogations are generally so high, and the benefits of abusive interrogations generally so low, that the scenarios in which the benefits of abusive interrogations would outweigh the costs are very unlikely. So, in places like the Army Field Manual, they have provided for no codified exceptions, which given these considerations is the most appropriate and indeed most strategic approach.

Of course, I am well aware that people like Bush, Cheney, and Rumsfeld have suggested that the professional interrogators are wrong. But frankly, I think the credibilitu of these people on these matters, and really on national security and military matters in general, is pretty much shot at this point.
9.19.2006 12:49pm
kevin (mail) (www):
I like Yoo, Yoo is an honest diplomat.
9.23.2006 6:37pm