John C. Yoo the former assistant attorney general for the Justice Department’s Office of Legal Counsel, the lawyer whose unusual interpretation of the constitution provided the justification – the legal underpinning – for the administration’s position that the president, as commander-in-chief of our armed forces in time of war, was not really subject to any law passed by the legislative branch, nor had to abide by any decisions about the law made by the judicial branch, as long as he knew, or sensed, or asserted, that what he did was done as part of the effort to win the war on terror. He needed only to state that what he did was done as commander-in-chief. The constitution said that was his job and no one else’s. And of course this was convenient, as this particularly war is one in which he alone decides when it is won and over, if ever, and also a war where he has said that the “battlefield” is everywhere, even some email server in Iowa or telephone switching device in San Francisco. Nothing is forbidden to the president. He has a job to do. That makes things a whole lot easier. The president answers to no one.
Yoo was also the author of the “torture memo” that was written for the Justice Department’s Office of Legal Counsel in August of 2002 – and that became public in the summer of 2004, and is still used to defend the legality of the president’s right to torture terrorism suspects. The Office of Legal Counsel subsequently withdrew the memo, but it formed the basis for the president’s signing statement attached to the McCain bill that outlawed torture and said we’d abide by the Geneva Conventions. The president in his signing statement noted that as commander-in-chief he reserved the right to do what he alone decided was necessary to terrorism suspects, and that interpreting what the Geneva Conventions actually allowed and didn’t allow was his job and no one else’s.
Yoo is no longer in the government – he’s now a law professor out here at UC Berkeley – and a visiting scholar at the American Enterprise Institute. Somewhere in there he managed to write War by Other Means – elaborating on these ideas of executive exception.
He’s come up in these pages before – December 18, 2005, The Founding Fathers Superseded by John C. Yoo, and, most recently, in Torture Codified from September 24, 2006 – with a number of mentions between those items. He’s endlessly fascinating. But he’s history.
So what was he doing in the Los Angeles Times on March 21, telling is all that it was time to break up the FBI right now.
It was standard stuff –
Like a bloated corporate conglomerate, the FBI cannot execute its core missions with focus and flexibility. The FBI is rife with mismanagement. In recent years, it has lost weapons and laptop computers and has been unable to complete a $170-million computer system to manage cases.
In the financial world, markets identify companies that have become too large and should split up. Investment groups take over such companies and either streamline them or spin off units into new, smaller companies.
Federal agencies have no such creative destruction mechanism. Instead, Washington’s knee-jerk reaction to every crisis is to encrust already dysfunctional bureaucracies with more layers – witness the monstrously large Department of Homeland Security created after 9/11, or the post of director of national intelligence created after prewar intelligence on Iraq was found wanting.
It makes less and less sense for one agency, the FBI, to be grappling with Internet-savvy Al Qaeda terrorists while also dealing with drug trafficking, insider trading on Wall Street, copyright violations and industrial espionage.
He may have a point there, not that such reorganization would ever happen. But he does like to shake things up –
The 9/11 attacks forced us to reconsider the nature of war. They should now make us rethink how we organize the government. We have a government whose basic outlines and functions have not changed significantly since the end of World War II. Instead of new limits on the Patriot Act or more layers of inefficient bureaucracy, our leaders in the executive branch and Congress could take a lesson from the financial markets and ask whether it is time for a breakup and spinoff of the FBI.
Ah, he likes to think big. That 9/11 business may or may not have changed everything – but it changed him. It’s time to rethink the whole notion of how we do things here.
The odd thing is how he now thinks things should be. The question is what sort of logic this man actually uses.
That wasn’t available in the Los Angeles Times, but Marty Lederman at “Balkinization” (choosing blog names is an art) points to an interview given by John Yoo to the British weekly Spectator, and reprinted in the Montreal Gazette that sheds some light on how the man really thinks. Lederman is a careful lawyer and is amazed that Yoo is still defending torture as policy – and even more amazed that Yoo has a new take on the whole issue, something even more basic, a logic deeper than the “what is permitted by the constitution if you look at it in a new way” arguments he previously advanced.
Now we get the real underlying logic – how the man thinks – the “greater-power-includes-the-lesser-power” analysis of it all.
Yoo explains to his interviewer – “Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them.”
Yoo says one must be brutally logical – “I don’t see how it can be reasonable to have an absolute prohibition on torture when you don’t have an absolute prohibition on killing.”
Dahlia Lithwick does a riff one this, and has some problems with the logic –
At first it sounds like a defensible argument: The power to do something substantial includes the power to do something less so. If the president has the power to appoint ambassadors, for instance, he probably also has the power to invite them over for dinner. If I have the legal authority to control and care for my son, this probably includes the power to choose his T-shirts.
Lately we’re hearing an awful lot of this greater-power-includes-the-lesser-power analysis. As the president recently noted: “I have broad discretion to replace political appointees throughout the government, including U.S. attorneys. And in this case, I appointed these U.S. attorneys and they served four-year terms.” He claims that his power to appoint all 93 U.S. attorneys includes the power to fire them for any reason. Or, as his supporters routinely argue, since Bill Clinton fired all 93 U.S. attorneys when he took office and no one peeped, the power to fire all 93 when you take office must include the lesser power to fire only eight midterm.
That way of thinking has its merits, and in fact, has some legal precedent. Lithwick notes that in 1986, the Supreme Court held in Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.” In fact, Chief Justice Rehnquist wrote the majority opinion – “if Puerto Rico could do away with gambling altogether, it could certainly limit – without running afoul of the free-speech laws – advertising about gambling.”
Hey, that’s logical. But John Paul Stevens in his dissent in that case said it was too easy to assume what actually was the greater thing that including the lesser. Maybe Rehnquist had it backwards. You had to think about it. Whether or not the state has the power to outlaw gambling really might be the secondary matter – “The First Amendment surely does not permit Puerto Rico’s frank discrimination among publications, audiences, and words.” Do you really want to throw out the whole freedom of speech thing over the issue of outlawing gambling? Let’s get serious here.
Lithwick notes Steven point of view actually won the day –
The court hasn’t exactly rushed to embrace this reasoning from Posadas in subsequent cases. And that’s probably because – paraphrasing Stevens’ dissent here – at bottom this logic is insane.
Imagine if that sort of syllogism were really an acceptable form of legal analysis: Professor Garrett Epps at the University of Oregon law school wonders whether the president’s greater power to pardon might somehow give him the “lesser” power to direct a verdict of acquittal in criminal trials. Duke University’s Erwin Chemerinsky posits that since the government can draft people, it can maybe just exercise its lesser power to keep them from criticizing the war. And Harvard Law School’s Laurence Tribe observes: “You might as well argue that because the Constitution permits California to shut down the state-run law school where John Yoo teaches, the Constitution would permit it to choose the ‘lesser’ step of just firing professor Yoo for his outlandish views.”
Or – as my 3-year-old patiently explains to me every once in a while – the greater power to stay up past his bedtime and watch movies clearly includes the lesser power to eat the entire box of Oreos.
In short, the greater-than-lesser-than argument is nothing more than a “debater’s point.” That’s from the University of Virginia’s Jody Kraus. The problem is premise – the whole thing assumes that the speaker has some basis from which to claim that the lesser power is, in fact, the lesser. That’s what Steven was getting at, or as Lithwick puts it –
You can certainly say that the power to ban speech is lesser than the power to ban gaming. Or you could say the opposite. I, for one, feel a lot more strongly about my right to speak than my right to split eights and aces. So, by what measure, other than Yoo’s assertion, is the power to water-board someone “lesser” than the power to kill? And if it is, why does Yoo draw the line at water-boarding rather than eye-gouging which is, by his logic, still better than death? You can similarly claim, Kraus notes, that since the state has the greater power to execute criminals, it also has the “lesser” power to “stick him in oil, just for a minute or so.”
But there’s more – the leap in the logic that what applies to the greater applies also to the lesser –
The real trick, as Jack Balkin of Yale Law School points out, is convincing your listener that the same rules and norms that govern the “lesser” category also govern the “greater.” You need to convince them that if the state is allowed, for instance, to execute criminals, any laws regarding cruel and unusual treatment simply go away. In the case of the U.S. attorney firings, that would mean insisting that the same rules and norms that govern presidential authority over U.S. attorney appointments govern everything to do with the Justice Department’s oversight of individual (partisan, political) criminal investigations and prosecutions. You would similarly need to insist that the rules that govern the president’s power to kill someone during wartime also govern his authority to torture a suspect during an undeclared war on terror. Professor Dave Glazier makes this point very clearly at the blog Balkinization.
This craziness underlies Yoo’s thinking – the claim that the laws of war somehow “vaporize” the laws governing everything else “that may be incident to war.”
People finally have the guy figured out – executive power in wartime vaporizes the laws governing virtually everything else –
And if that’s truly your starting point, I suppose all the other constraints imposed by those other “lesser” laws – from being required to obtain a FISA warrant to having to give a lawyer and a court date to Americans picked up in Chicago – would evaporate as well.
All of which explains, I imagine, some of the nuttiest legal positions taken by the president over the past years. If you assert absolutely vast “greater” powers, it’s cheap and easy to swallow up those pesky little “lesser” ones. I don’t know how much longer this trope will have currency for the Bush administration. But I would suggest that their greater power to offer this as a serious legal argument does not trump our lesser power to laugh at it.
Hey, who’s laughing? Watch Fox News. All the law professors noted here may have a good handle on the absurdity of such arguments, but the Yoo way of thinking is fed to the nation hourly. And people buy it. It won’t be long before Bill O’Reilly is shouting that the president’s greater power to pardon really does give him the “lesser” power to direct a verdict of acquittal in criminal trials – and he should have does so with Scotter Libby. Heck, even CNN’s Lou Dobbs has been on his soap box saying those on two border patrol agents sent to prison for shooting a drug smuggler should be freed, as the “greater” thing – keeping the evil Mexicans out – supersedes the “lesser” – criminal excessive use of force and attempted murder.
And the argument that the need to “win” the war or terror must really grant the government its logically lesser power to keep it citizens from criticizing the war is something you hear every day – Joe Lieberman is forever pleading for colleagues to just not say anything about the war for the next six months or a year and give “the surge” a chance to work.
Perhaps we need to consider our priorities, again. We can disagree on those. But having everyone take a course in symbolic logic would be even more useful.