The Ash Twins Blog

Berkeley Law Professor Brad DeLong offers useful commentary on the case for Berkeley Law Professor John Yoo’s termination:

It appears that what happened is this: The Bush White House directed the U.S. armed forces and the CIA to torture people we had captured, some of whom were terrorists, some of whom saw themselves as lawfully fighting a just war against invaders, and some of whom were innocents in the wrong place at the wrong time, people whose names had been screamed out by others on the rack or had been sold to the CIA by local enemies or opportunists.

When the CIA and armed forces interrogators and lawyers resisted this demand, Vice President Richard Cheney’s staff went to Yoo at the Justice Department’s Office of Legal Counsel and asked him to write a memorandum stating that the tortures they envisioned were perfectly legal. Cheney and company then went back to the armed forces and the CIA: Here is a letter from the Justice Department stating that this is all perfectly legal, they said. There is no way that anything bad will happen to you if you obey the president’s orders. You have a get-out-of-jail-free card.

Without John Yoo or his colleague Jay Bybee (or somebody else willing to write a similar memo) the torture would not have gone forward, and the United States would not have sustained the enormous damage that was inflicted on it.

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Yoo’s memos concern presidential powers in a time of war. One famous precedent with which any lawyer would have to grapple is the Supreme Court’s decision in Youngstown, concerning President Truman’s seizure of the country’s steel mills to keep them rolling during the Korean War. The Supreme Court ruled his action unconstitutional. The Youngstown case set out the Supreme Court’s judgment as to how far the president’s inherent powers go in a wartime emergency and to what degree those powers are subject to congressional authority.

In his memos, however, Yoo never mentioned Youngstown—either to distinguish it as sufficiently different that the decision does not control, or to argue that it was wrongly decided and should be overturned. This, the lawyers say, is compelling evidence that Yoo was acting not so much as a lawyer but as a political hatchet man.

However, most of my colleagues say that just because John Yoo did a bad thing while working for the Bush administration doesn’t mean the university has cause to censure or dismiss him. We believe in academic freedom, they say, that professors have the right to say what they think and believe without fear of sanction—as long as they act in good faith.

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But in The Rule of Law in the Wake of Clinton, a book published in 2000 by the libertarian Cato Institute, John Yoo took an entirely different view of “The Imperial Presidency Abroad,” as his contribution was titled.

Yoo wrote: “President Clinton has exercised the powers of the imperial presidency to the upmost … [and] undermine[d] notions of democratic accountability and respect for the rule of law … .”

It’s a provocative claim, especially coming from Yoo. How does he claim that Clinton did so? By using his powers as commander in chief to place American troops under the command of British NATO generals. “War power questions to one side, President Clinton’s military adventures raise a second legal and constitutional difficulty—their unprecedented reliance on multilateral cooperation,” Yoo writes. “That position has serious constitutional and policy defects …. [T]he Constitution nowhere permits the president … to delegate federal power completely outside of the national government.”

Yoo’s Bush-era writings support presidential powers so wide-ranging that the president can order the torture of captives regardless of what treaties the U.S. has signed or what laws the U.S. Congress has passed. Yet we are expected to accept that Yoo previously believed that the president’s power as commander in chief is so puny and circumscribed that he cannot lawfully put American troops under the command of allies?

Dwight D. Eisenhower—not the commander in chief but merely the theater commander—in December 1944 placed the U.S. First Army under the command of British Field Marshal Montgomery. President Wilson put the army of Gen. Pershing under the command of French Field Marshal Foch. Commander in chief George Washington put American troops under the command of Jean-Baptiste Donatien de Vimeur and Marie-Joseph Paul Yves Roch Gilbert du Motier.