An Interesting Contrast:
One more thought on John Yoo's op-ed. It's interesting to contrast Yoo's comment about the Bush Administration's view of the Executive power with what he wrote a few years ago about the Clinton Administration's view of Executive power. Here is Yoo today:
To be fair, in the 2000 essay Yoo suggests that he himself favors a strong executive, such that having an "imperial presidency" isn't all that bad. But I think it's interesting that in 2000, Yoo thought that President Clinton was "exercis[ing] the powers of the imperial presidency to the utmost," with the resulting "costs to the Constitution," whereas today he seems to lament that before Bush the Presidency was excessively weak and not playing its proper strong constitiutional role. Am I missing something, or are these statements diametrically opposed to each other?
A reinvigorated presidency enrages President Bush’s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. . . .Contrast this with what Yoo wrote back in 2000 on the Clinton Administration's approach to executive power, as I blogged about back in February:
The changes of the 1970’s 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. Congress enacted the War Powers Resolution, which purports to cut off presidential uses of force abroad after 60 days. It passed the Budget and Impoundment Act to eliminate the modest presidential power to rein in wasteful spending. The Foreign Intelligence and Surveillance Act required the government to get a warrant from a special court to conduct wiretapping for national security reasons.
These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks.
President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.Source: John C. Yoo, The Imperial President Abroad, in Roger Pilon, ed., The Rule of Law in the Wake of Clinton 159 (2000).
To be fair, in the 2000 essay Yoo suggests that he himself favors a strong executive, such that having an "imperial presidency" isn't all that bad. But I think it's interesting that in 2000, Yoo thought that President Clinton was "exercis[ing] the powers of the imperial presidency to the utmost," with the resulting "costs to the Constitution," whereas today he seems to lament that before Bush the Presidency was excessively weak and not playing its proper strong constitiutional role. Am I missing something, or are these statements diametrically opposed to each other?
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It does appear to be contradictory.
Maybe Op-ed's and blogging could turn out to be not such a good thing for profs. As I understand it, they are generally supposed to be objective, non-ideological and fair in their instruction. Hard to do in the age of information. Now I see why Prof. Adler kept his identity under wraps, but it begs the question of whether they should continue to stay under wraps.
Yoo may have been referring to the Clinton's placement of US troops directly under foreign operational and tactical command during Kosovo. In "The Powers of War and Peace" (2005), Yoo criticizes this decision, and the Clinton OLC's defense of it, as inconsistent with historical practice and principles of nondelegation and the unitary executive. That said, Yoo also cites other Clinton administration actions in the foreign policy sphere with apparent approval, such as the commitment of troops to Kosovo beyond the time period authorized by the War Powers Act. Without more context, it does seem inconsistent, at the very least.
The 2000 article is not available online, but the 2006 article is. And Yoo’s 2006 article does not argue that before Bush the Presidency was weak in all respects. On the contrary, Yoo notes that neither George H. W. Bush nor Bill Clinton had clear congressional authority for their actions in Panama and Kosovo, respectively.
Rather than admit, however, to a desire for authoritarian, un-American government (as long as the Republicans are at the top), he has dressed up his argument in falsehoods. It's not an accident that no one has supplied the historical precedents Yoo claims for his beliefs: they do not exist, unless you want to count my citation of the 1933 Enabling Act—ending the rule of law in Germany.
By that, I mean, not all changes are due to partisanship or hypocrasy.
Yes. You're missing 9/11.
I'm curious about something.
Al Qaeda had declared war on the U.S. long before 9/11. Al Qaeda had also attacked the U.S. before 9/11 --- it had even attacked and tried to bring down the very same building as it attacked on 9/11. Why didn't those events change the picture? Why didn't the first WTC bombing change everything?
The Bush administration is run by a true believer. Bush, unlike Clinton, has a strong worldview that he wanted to protect and nurture from the begining. 9/11 gave the current administration both an excuse(for the machiavellians) and a rationale(for the believers) for a naked power grab. 9/11 showed Bush that the heathens really were out to get him, they really did want to destroy all he held dear. He took the blind faith of a convert and the "with us or against us" mentality of a populist and decided to defend what he loved at all costs. The fact that his tactics make him more and more like the people he fights escapes Bush and it always will.
The fundamental difference between Clinton and Bush is that one unwound by chasing skirts and the other by reading Revelations.
And the wheel.... goes round.
Third time's the charm :)
In hindsight, perhaps they should have. I didn't realize that in 2000. And so I don't blame Yoo for not realizing it then either.
I suppose it comes down to whether or not you think we are in a state or war. If so - and I do - then the powers of the Presidency should expand to deal with the war appropriately. Were we in a state of war prior to 9/11? Quite possibly. How does one describe a state of war, after all? But while that may have been a debateable question for me on 9/10, it wasn't on 9/12. (And, as a side note, to forestall the inevitable objection, a "state of war" does not require a Congressional Declaration of War. I don't recall the precedents, but I'm pretty sure that's what the Supreme Court has said. But I'd have to wait to go home and get out the old Con Law textbook.)
Now, I admit, I favor a strong Executive, regardless of what party. I can't think of any unilateral Executive actions taken by Clinton to which I'd object from a separation of powers point of view. (I was perfectly fine with Clinton taking military action without Congressional authorization, for example - even in breaking the 60-day limit under the War Powers Act for the Kosovo action.) I haven't read Yoo's book. Perhaps he provides examples of Clinton actions to which I'd object based on separation of powers principles, but there are no examples provided in your excerpt.
Out of curiousity, under what conditions would this "state of war" end, such that the President's powers would go back to their "unexpanded" versions?
You do realize this is a serious question, right?
Even with respect to our "cold war" with the Soviet Union, we knew it was over when the Soviet Union collapsed.
So can you actually define the end of this "state of war"? Or is your answer literally just, "I'll let you know when and if it ever happens."
So to be clear, in your view the President should have his "expanded" powers until there are no longer exist any terrorist organizations with "global reach"?
The 2001 AUMF authorized no such thing. Its terms were limited to those responsible for 9/11:
That does not stretch to cover "When al Qaeda and other terrorist organizations of global reach are no longer a threat."
And probably we will be able to move smoothly into a new "state of war" given the apparent requirements: it appears to take just the existence of an enemy of the United States with "global reach". And since a plane ticket is all it takes to have "global reach", that requirement isn't adding much.
So, really, we will be in a "state of war" until the United States has no more enemies at all in the world. And I am guessing that will be a long, long time.
Of course, on the A.S. theory, apparently it doesn't actually matter if Congress declares war, or indeed does anything whatsoever. Rather, the President can apparently "expand" his powers sua sponte as soon as he determines a "state of war" exists.
Yes, I realize that is the A.S. view, and the Yoo view.
I don't think these Bush surrogates should be granted the status of plausible deniability. A vote for their faction, the Bush-dominated party of 2006, is a vote for those who believe this president can go to war in Iran or Lebanon whether Congress agrees or not. Members of that faction holding seats in Congress would provide no check on unilateral warmaking.
If Bin Laden and perhaps a few others were captured, this AUMF would expire of its own terms. Bush has said recently that capturing Bin Laden "is not a priority". Isn't that convenient.
Well, we continually hear that al Qaeda itself has had its fangs pulled, and that the threat is from "franchises," each of limited reach.
And I'm not sure what "terrorist organization of global reach" exists today ... SPECTRE? Oh, wait, fictional; sorry.
So ... the war is over, and we won? Karl Rove will be thrilled to hear the news; I'll e-mail him right away! (On 2d thought, I'm sure he's a daily VC reader.)
That is correct. In general, I would suggest any member of the Republican Party who is reasonably well-informed about these matters has to choose in this election between allegiance to their party and allegiance to our Constitution and the republican (small "r") system of government it provides.
The War Powers Act doesn't come into play unless congress invokes it. And they never did.
I don't know about "mainstream", but I think there was a great deal of academic commentary after-the-fact on the legality of Clinton's actions in Kosovo.
At the time, though, I think many "mainstream" legal commentators were on the "impeachment beat". And the favored argument of those opposing Clinton's actions in Kosovo was the "wag the dog" notion (that he was trying to distract the nation from the impeachment issue).
Huh? Conducting warrantless surveillance is a "technical violation" of a statute requiring warrants for surveillance?
I guess my running a stop sign the other day was only a "technical violation" of the law, as well.
As for why there's a different reaction, let's see: Bush regularly maintains that he has power to set aside statutes he dislikes; spying on phone calls is a bit closer to home than bombing Serbs ... that should get you started, I think.
I don't see how under any possible reading of the AUMF this would be true, since at the very least the AUMF would continue in effect until al Qaeda was completely destroyed:
Perhaps you should listen to places other than the Daily Kos. Those of us in the Reality-Based Community know that al Qaeda continues to have global reach.
This is, of course, completely false.
Anyone who watched a Frontline documentary on Bin Laden, which aired in 1999 (produced by Martin Smith, and written by Llowell Bergman and Smith) would have known who he was, and all about his and Al Qaeda's declaration of war on the US, two years before 9/11. I remember on 9/11 (before my federal government agency's office closed for the day and I went home), remarking to a colleague, that the WTC attacks must have been the work of "that f**ker, Bin Laden." My colleague, who had watched the same Frontline program, agreed (he had also visited Afghanistan in 1999 or so and was personally familiar with the Taliban).
Now, I would posit that hundreds of thousands of other Americans watched that very same Frontline show, and therefore, knew about Al Qaeda's attacks on US interests in Kenya, Yemen (the USS Cole), the attempted plot in the Philippines, and the first WTC attack.
So, even if our dearly incurious George W and his crew did not know, or perhaps did not recognize, the threat posed by Bin Laden on 9/11 (see Clark's book Against All Enemies, for a detailed description), and even if AS did not know nor recognize that very same threat, I do blame Yoo, who purports to criticize the "Imperial" Clinton presidency, in 2000, for not knowing about Al Qaeda. Yoo's hypocritical criticisms of Clinton reveal him to be nothing more than a partisan hack; his statements about US history and foreign policy show that he is an ignoramus on such matters. I personally would not waste time noticing his numerous inconsistencies, except that others appear to find him knowledgeable and seek out quotes from him.
This parathetical shows just how dishonest Yoo is in his "scholarship." No one who has actually read Hamdan can plausibly interpret the majority's decision as a rebuke of Congress. Perhaps Bush W. should create a Ministry of Truth and appoint Yoo as its first Minister.
The authorization is not to Al Qaeda as an organization, but to the specific perpetrators. The authorization is limited to those who "planned, authorized, committed, or aided" 9/11. Most of those individuals died while committing their crimes. Some others have died since or been captured. We don't know exactly how many are still around, but it's likely not a large number.
President Madison, who earlier had helped draft the Constitution, and wrote portions of the Federalist Papers, went to Congress for a declaration of war in 1812.
He understood that "Congress declares war." He understood that there's only one Constitution...not a second unwritten one that gives the President additional powers in wartime.
Maybe you think the War of 1812 wasn't so serious. I bet Madison did. The British attacked Washington D.C. and burned the capitol. Sounds serious to me.
Did you read the rest of my post??? I quoted the text of the AUMF!
(emphasis added)