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Julian Ku on Me and Yoo:
Over at Opinio Juris, Julian Ku argues that John Yoo's criticisms of the Clinton Administration in 2000 aren't inconsistent with his defense of the Bush Administration today. If you've been following this thread, definitely check it out.
Ship Erect (mail) (www):
So Bush's enabler isn't getting a fair hearing in the blogosphere. Yoo didn't seem to care much for rules or fairness when he worked for the DoJ--why should anyone offer this courtesy to him?
9.19.2006 6:28am
Medis:
Kevin Heller's followup is exactly right, and indeed significantly understates the case. This claim is simply laughable:

"In contrast, Yoo can argue that the Bush Administration's claim of, say, authority from the Sept. 11 War Resolution or the Commander in Chief Clause of the Constitution is more of a 'Rule of Law' approach since it does offer a legal justification for its actions and it has been consistent in defending these views."

As Heller points out, President Bush actually secretly violated FISA, and only started to offer a legal justification when forced to do so by revelation of the program.

Moreover, Heller doesn't note that in public, President Bush actually sought and received amendments to FISA in the USA-PATRIOT Act while he was at the same time secretly deciding to simply bypass FISA, a fact which I think significantly enhances the damage to the Rule of Law in this case.

Also, Heller doesn't note the inconsistencies over time in the President's legal rationales. Early on, the Administration was relying primarily on their 2001 AUMF argument. As the merits of that argument was seriously called into question, they started raising the Article II argument as a "constitutional questions" helper. But since the Supreme Court in Hamdan effectively negated the 2001 AUMF argument, the government has largely avoided discussing the issue entirely, although in various briefs they have hinted at a reliance on some version of the Article II argument.

Which leads me to my last point: Heller also doesn't note how the President has done everything he can to avoid any actual review of his legal arguments in a court of law. What that really shows is that the President is not seriously attempting to offer a legal justification for his actions in the ordinary sense. Rather, what we have gotten is a series of shifting legal rationalizations designed for political consumption.

In short, if the President knows his legal rationalizations are highly unlikely to survive serious review, then offering them hardly counts as respect for the Rule of Law.
9.19.2006 7:32am
lewp (mail):
Medis, very well put.

Question for Ku: Please name one legal justification for the NSA program that the administration has presented in a court of law.
9.19.2006 9:09am
Anderson (mail) (www):
Lewp, didn't they advance the argument that the AUMF authorized the program? See Glenn Greenwald's post on the much-maligned D.-Mich. opinion.
9.19.2006 11:35am
lewp (mail):
Anderson, my understanding is that the administration hid behind the issue of standing, first, and state secrets, second, in the Michigan case. They never advanced an argument defending the program on the merits.

The arguments have been good enough for press conferences, but not good enough for the courts. As Medis notes, they're designed only to provide political cover.
9.19.2006 12:17pm
Anderson (mail) (www):
You may be right, Lewp, but I don't see how or why the court would address an argument that the feds didn't even make.
9.19.2006 12:51pm
Medis:
Anderson,

We don't really know what the government argued in Detroit. But as an aside, I would note that on a Motion for Summary Judgment, a district court is not bound to consider only those legal arguments advanced by the opposing the party. Rather, the District Court can deny summary judgment if in its judgment the moving party is not entitled to judgment as a matter of law, and can supply its own legal reasoning to that effect. So, the District Court was free to address any relevant legal matters.
9.19.2006 12:57pm
Anderson (mail) (www):
Rather, the District Court can deny summary judgment if in its judgment the moving party is not entitled to judgment as a matter of law, and can supply its own legal reasoning to that effect.

I've worked for one judge who wouldn't do that--wouldn't supply a party with arguments they didn't raise--but I defer to your understanding of the law.
9.19.2006 1:40pm
A.S.:
As Heller points out, President Bush actually secretly violated FISA, and only started to offer a legal justification when forced to do so by revelation of the program.

Soooo, the President should have revealed a super-secret signals intelligence program just so he could offer the legal justification publicly??? This kind of "logic" astounds me.
9.19.2006 1:48pm
Medis:
Anderson,

I don't think there is any reason why a judge couldn't do that as a prudential matter. And on appeal, generally arguments not raised before the trial court will be deemed waived, or at least subject to a heightened clear error standard. But as far as I know, these are all prudential matters.
9.19.2006 1:51pm
Medis:
A.S.,

First, I don't see any warrant for your apparent assumption that the President would have to reveal the operational details of the program in order to provide his legal justification for bypassing FISA.

Second, the idea that the laws which govern our nation should be public is fundamental to the Rule of Law, and indeed public laws are part of the very essence of a republican (small "r") form of government. So, yes, I would say that if there is a public law which the President is violating, he has to make that fact known, even if he would rather not.

Of course, I realize that you are not really a fan of the republican form of government and the Rule of Law, and would just as soon dispense with those notions on a more or less permanent basis. But the genesis of this discussion is John Yoo arguing at one point that the President respecting the Rule of Law did in fact matter, and then at a later point apparently assigning as little value to the Rule of Law as you do.
9.19.2006 1:59pm
A.S.:
Rather, the District Court can deny summary judgment if in its judgment the moving party is not entitled to judgment as a matter of law, and can supply its own legal reasoning to that effect. So, the District Court was free to address any relevant legal matters.

The issue isn't whether the District Court addressed all the "legal matters". To be entitled to judgement as a matter of law, the moving party needs to provide evidence that all of the elements of its claim are met. The judge can deny the summary judgement motion simply on the basis that the moving party did not meet its burden, even if the opposing party did not make any arguments on its behalf.
9.19.2006 2:02pm
A.S.:
First, I don't see any warrant for your apparent assumption that the President would have to reveal the operational details of the program in order to provide his legal justification for bypassing FISA.

So, if the President said "I need to you to amend FISA, but I'm not telling you why", you think Congress would go along with it?

Second, the idea that the laws which govern our nation should be public is fundamental to the Rule of Law, and indeed public laws are part of the very essence of a republican (small "r") form of government.

Of course, I don't disagree with this at all. My only disagreement with you is that I believe that Article II of the Constitution is part of "the laws which govern our nation" and you apparently don't.
9.19.2006 2:05pm
Justin (mail):
AS, I understand you aren't a lawyer, but it's pretty clear that the plaintiffs so did that - they showed a warrantless search.

The plaintiffs do not need to initially overcome affirmative defenses that have not been raised.
9.19.2006 2:11pm
Mark Field (mail):

My only disagreement with you is that I believe that Article II of the Constitution is part of "the laws which govern our nation" and you apparently don't.


I think it's more accurate to say that you believe Art. II contains words which it manifestly doesn't contain.
9.19.2006 2:18pm
A.S.:
but it's pretty clear that the plaintiffs so did that - they showed a warrantless search

A "warrantless search" isn't sufficient to meet plaintiff's burden. They need to show that ALL elements of the claim are met. Including, for example, the element that the TSP consituted "electronic surveillance", as defined in FISA.

The plaintiffs do not need to initially overcome affirmative defenses that have not been raised.

No "affirmative defense" is involved. Plaintiffs (the moving party) have simply not met their burden under FRCP 56, which states a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (emphasis added) Defendant, as the non-moving party, simply has no need to do anything at all if the plaintiffs, as moving party, does not meet its burden.
9.19.2006 2:57pm
Medis:
A.S.,

You ask: "So, if the President said 'I need to you to amend FISA, but I'm not telling you why', you think Congress would go along with it?"

First, I note that this is a different scenario than the President telling the public that he has decided to bypass FISA and explaining his legal justification for doing so. You now appear to be contemplating the President doing what he should have done, which is go to Congress.

Anyway, there is in fact a procedure to deal exactly with this problem. The President can go to the congressional Intelligence Committees, which can have secret proceedings. If necessary, Congress as a whole can have secret proceedings, although usually it would be enough if the Intelligence Committees recommended a bill.

You also write: "My only disagreement with you is that I believe that Article II of the Constitution is part of 'the laws which govern our nation' and you apparently don't."

Actually, I would like to see Article II enforced in this case. In particular, Section 3 of Article II states, "[the President] shall take care that the laws be faithfully executed."

And if the President refuses to comply with Section 3 of Article II, then Section 4 states: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Of course, it is also worth remembering that there is an Article I. In Section 1, Article I states, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." And in Section 8, Article I variously states, "The Congress shall have power to . . . regulate commerce with foreign nations, and among the several states; . . . define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; . . . declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; . . . make rules for the government and regulation of the land and naval forces; . . . make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

Oh, and again, if necessary there are the provisions in Sections 2 and 3 for the impeachment and trial of the President.
9.19.2006 3:03pm
Justin (mail):
AS, their claim was constitutional, not based directly on a statutory cause of action under FISA. FISA would be relevant as an affirmative defense that the search was not "unreasonable" under the Fourth Amendment, but that is an affirmative defense.
9.19.2006 3:26pm
A.S.:
AS, their claim was constitutional, not based directly on a statutory cause of action under FISA.

No, the claim was both constitutional and statutory (FISA, through the APA).
9.19.2006 6:26pm
Randy R. (mail):
I know I will sound like I have a superiority complex when I say this, but say it I will:

Having read John Yoo's articles and comments, he stikes me as a medicre mind. He might have a good mind for legal sophistry, but that's about it.

I'm so over these partisan hacks for whom Bush can do no harm, and Clinton had done no good.
9.19.2006 7:41pm
Christopher Cooke (mail):
My favorite line from Yoo's New York Times article is when he states that Hamdan represented "less a rebuke of the presidency than a sign of frustration with Congress' failure to update our laws to deal with the terrorist menace."

I certainly can see how any rational law professor would view Hamdan as a "sign of frustration with Congress."

Just what have you been smoking professor?

Yoo's inconsistency is shown in the single line from the video in which he criticizes the Clinton administration in 2000 for coming up with "outrageous" legal justifications for its conduct, and thus encouraging disrepect for the rule of law.

Professor Ku glosses over this point by saying that what Yoo (his friend) really meant to say was that Clinton didn't offer any justifications, and just violated the law, but that isn't what Yoo said.

I suppose if Professor Yoo actually thinks his concocted justifications for Bush's illegal detention and torture of enemy combatant/prisoners, and warrantless wiretapping by the NSA, are not "outrageous" legal positions, he probably doesn't see himself as hypocritical. So, that is the only defense I can see. But, his delusional views of himself and his legal positions hardly instills respect for the "rule of law."
9.19.2006 8:11pm