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April 15, 2008

John Yoo's Dilemma

David R. Henderson

John Yoo, a law professor at the University of California, Berkeley, faces a dilemma. You might recall that he was one of the most controversial lawyers in the Bush administration's early years. Yoo was the deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice from 2001 to 2003. During that time, Yoo wrote memos in which he advocated a major expansion of the U.S. president's power in wartime. Actually, he argued that such an expansion had taken place much earlier, during FDR's administration, and that he was essentially recognizing that fact. Yoo even went so far as to claim, in a debate, that the U.S. president has legal discretion about whether he can crush the testicles of a suspect's child. In a Dec. 1, 2005 debate in Chicago with Notre Dame Law School Professor Doug Cassel, the following exchange occurred:

Cassel: "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"

Yoo: "No treaty."

Cassel: "Also no law by Congress. That is what you wrote in the August 2002 memo."

Yoo: "I think it depends on why the president thinks he needs to do that."

Now, to claim that a president can and should have that degree of discretion, Yoo has to think one of two things: (1) The president is so trustworthy and so omniscient that he will make very few, if any, mistakes, or (2) the president is just a regular guy who will make lots of mistakes, but it doesn't matter because Yoo doesn't care about the results of the president's mistakes. I don't know which he believes, but let's grant that Yoo cares about people in general, including foreigners. In that case, he must embrace option (1).

Of course, there's a third option. Yoo could believe that the president makes a lot of mistakes and Yoo could care about people, but he could still believe that the U.S. Constitution gives the president the powers he claims. Of course, to believe this rather bizarre view of the U.S. Constitution, Yoo would have to, at a minimum, ignore the actual words in the Constitution. Yoo, for example, claims that the president has the power to make war without a declaration of war by Congress (John Yoo, War by Other Means, Atlantic Monthly Press, 2006, p. 11). But he doesn't justify this view by pointing to any clause in the Constitution. That would be hard because, as Cato legal scholar Roger Pilon points out, the U.S. Constitution is a set of enumerated powers. If the Constitution does not explicitly give power to someone, then he doesn't have it. Instead, Yoo points to the fact that presidents, for decades, have gotten away with making war without a congressional declaration. Hmm. So getting away with something is enough to justify doing it. My parents would have been shocked to hear that – as, I suspect, would yours. And maybe even John Yoo's.

But let's give Yoo the benefit of the doubt. Let's assume that he actually cares about people and thinks that the president is competent to exercise the powers that Yoo thinks the president has.

To believe that the president is so trustworthy and mistake-free, Yoo would have to believe either that this is true only of this president – George W. Bush – or that it is true of presidents in general. If it's true only of President Bush, how did this happen? Did President Bush somehow get an incredible amount of education and experience that allows him to make almost all the right judgments? Does that really make sense? It seems unlikely. Maybe, then, President Bush has chosen great advisers and such a great Cabinet and sub-Cabinet that they will make almost mistake-free judgments. But then that still goes back to President Bush's judgment. Again, how is it that President Bush, among all presidents, has made such good judgments?

So, maybe Yoo is claiming that presidents, in general, make good judgments. That seems like the only option left if we are to accept his conclusion that a great deal of discretionary power in the hands of the president is a good idea. But wouldn't this judgment carry over to other important decisions the presidents make, such as which judges and justices to appoint to the federal courts?

Where am I going with all this? Here's where. The U.S. government arrested U.S. citizen José Padilla for allegedly plotting a "dirty bomb" attack in 2002. Rather than charging Padilla with a crime, the government labeled Padilla an "illegal enemy combatant" and placed him in a military prison. He was finally brought to trial, but he was not charged with having plotted a "dirty bomb" attack. Instead, he was convicted of setting up a terrorist cell in Miami. Padilla was given a harsh sentence of 17 years and four months for committing what blogger Andy Worthington has called "little more than a thought crime." Padilla has responded by suing John Yoo for his role in Padilla's detention. Padilla is asking for:

"A judgment declaring that the acts alleged herein are unlawful and violate the Constitution and the laws of the United States;

"Damages in the amount of one dollar;

"Attorneys' fees and costs; and

"All other appropriate relief as the Court may determine to be just and proper."

Yoo admits that he had a role in crafting a legal opinion that Padilla could be held as an "enemy combatant" (War by Other Means, p. 140). But, he claims, he should not be liable for his opinion.

In a Jan. 29 op-ed in the Wall Street Journal ("Terrorist Tort Travesty"), Yoo argues his case. Under current law, writes Yoo, "executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights."

You (not Yoo) might think this legal precedent would make Professor Yoo comfortable. After all, Yoo claims that he did not intentionally violate someone's clearly established constitutional rights. According to Yoo, the president has the power to do what he did, and the Constitution does not prevent the president from doing things like imprisoning Padilla. So why should John Yoo sweat this suit? He's innocent.

Yoo writes:

"The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees."

But how could this be? If Yoo is within his rights, wouldn't a court find that that's the case? Couldn't Yoo hire a cheap, run-of-the-mill attorney to defend him, confident in the knowledge that whatever judge the case lands before, that judge will throw out the case? The attorney's fees and court costs, then, would be minimal. John Yoo can relax.

Why should Yoo trust the courts? Because the judges were chosen by presidents and, if Yoo's earlier thinking is to be believed, presidents make few mistakes. So Yoo's trust in the system is being tested. And that's John Yoo's dilemma. Either he has to trust the system to justify the extreme power he wants the president to have, or he has to distrust the system. Yoo's understandably fearful op-ed in the Wall Street Journal shows that he distrusts the system, as well he should. And notice that he distrusts it in a case where he might have to pay courts costs plus $1, and there is no prospect of his going to prison, let alone being tortured.

So here's the Dr. Phil question for John Yoo: "And how's that working for you?"

The fact is that all of us should be fearful of extreme government power, whether we're comfortably ensconced in the U.C. Berkeley law school, the Naval Postgraduate School, or anywhere else. In an Oct. 29, 2006 conversation on presidential power with John Yoo and Hoover fellow Peter Robinson, University of Chicago Law Professor Richard Epstein said it best (as he often does):

"No person shall be deprived of life, liberty, or property without due process of law. There's no territorial limit in that sentence." (38:40 mark)

"When you have constitutions, the last thing a system of separated powers means is that a president can say on every important issue of the times, 'Trust me' and have everyone else bow down and say, 'We do.'" (39:00 mark)

Copyright © 2008 by David R. Henderson. Requests for permission to reprint should be directed to the author or Antiwar.com.

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David R. Henderson is a research fellow with the Hoover Institution and an associate professor of economics in the Graduate School of Business and Public Policy at the Naval Postgraduate School. He is author of The Joy of Freedom: An Economist’s Odyssey and co-author, with Charles L. Hooper, of Making Great Decisions in Business and Life (Chicago Park Press.) His latest book is The Concise Encyclopedia of Economics (Liberty Fund, 2008.)

He has appeared on The O’Reilly Factor, the Jim Lehrer Newshour, CNN, and C-SPAN. He has had over 100 articles published in Fortune, the Wall Street Journal, Red Herring, Barron’s, National Review, Reason, the Los Angeles Times, USA Today, and the Christian Science Monitor. He has also testified before the House Ways and Means Committee, the Senate Armed Services Committee, and the Senate Committee on Labor and Human Resources. Visit his Web site.

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