Yoo Say Tomato, I Say Constitution

Following on the heels of Ann Althouse's non-sequitur of a column on the Detroit NSA case (see this post by Glenn Greenwald for a debunking), today's NYT carries the amusingly named "How the Presidency Regained Its Balance. It will be entertaining to read the letters to the editor on this one (never mind the blogosphere) from the folks whose scholarship on con law and national security is a bit less, shall we way, creative than Yoo's.

I think my favorite part of Yoo's column is probably

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.

Where to even begin? By pointing out that the administration has repeatedly declined to even ask for Congress's advice on military tribunals, much less its permission or preferred rules? Maybe by pointing out, via Marty Lederman, that Hamdan was actually about the fact that

the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons). [Emphasis added.]

It takes real chutzpah to say that when the Court rebukes a President for ignoring clear Congressional statute (i.e., obey Common Article 3), that rebuke is to Congress, and for being vague. It takes even more chutzpah to do so at a time when the President is calling senior senators (from his own party, which is largely beside the point) confused, and so on, because they won't agree to enact in statute essentially what he's been doing to violate existing statute.

The second contender for best bizarro-world line in Yoo's column is this one:

The judiciary...has shown far less deference to the executive in this war than in past conflicts.

That's a funny thing to say, since Hamdan is a reaffirmation of the category logic in Justice Jackson's concurring opinion in Youngstown, which of course was decided in 1952 (during the Korean conflict) and concerned President Truman's attempt to prevent strikes at steel factories due to his concerns over national security. So there we have it: the Court affirms reasoning from the Korean conflict -- Prez can't ignore duly enacted statutes regulating his conduct just because it's wartime -- and John Yoo sees a newly aggressive judiciary showing less deference today than in previous conflicts. Sigh.

One more contender for goofy line of the column:

The changes of the 1970's [regulating such things as by-fiat wiretapping of political opponents] 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.

Think about that one. "No serious national security threats to United States soil"....Does anyone else remember the Cold War? Either Yoo is forgetting about the Soviet Union and its various nuclear devices, or he is saying that these devices were never a serious threat. That doesn't fit so well with the Reagan-saved-us-by-standing-up-to-the-evil-empire stuff that seems so popular these days. Moreover, which is it? Was Nixon spying on political opponents (he was), or were these opponents paranoid for worrying that Nixon was spying on them? (I'll have to ask that member of my family who was wiretapped by the FBI for having the nerve to work on a congressional primary campaign in the early 1970s.) Generally speaking, I don't think it's paranoia when the feared event is actually true.

This column is really quite loopy -- a long exercise in counterfactual, historically false statements together with nearly or fully self-contradicting claims.

I really do wish that the NYT op-ed page would make a practice of either insisting on basic accuracy of factual claims or providing space for opposing, critical views when such a high-profile person publishes an op-ed on such an important topic. You know what's going to happen: lots of letters, a few short ones published, few people read them, and lots of folks who know little of the details of these issues but had the misfortune to read Yoo's column wind up totally misinformed. (Although, I have to say that the whole no-serious-threat may go a long way to making readers question Yoo's crediblity, as they should.)

One last thing: read these remarks, delivered at Yale law school's commencement this past May by Dan M. Kahan, Deputy Dean and Elizabeth K. Dollard Professor of Law. John Yoo is the lawyer whom Kahan refers to as having tried

in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules.

(At issue was his role in the now-infamous Torture Memo; note the hero of Kahan's story, who was himself no political liberal.)