Which is It?: Yoo and Presidential Authority
I'm trying to get over the amount of space the New York Times gave to John Yoo on Sunday. And much has been made, by Josh and others, of his notion that President's gave up too much power in light of the lack of a national security threat from basically the Viet Nam War till 9/11. I actually found the piece somewhat liberating, a reminder about why the Bush Doctrine has been so utterly flawed and so careless. Yoo seems to sweep through the Bush Presidency and his national security strategy as if it were a success. [A quick caveat: I was asked, but had to decline due to our primaries tomorrow -- vote!!!-- a congressional hearing with Posner and Yoo on the British airplane bomb threat, would have been "fun", don't miss it tomorrow afternoon].
But, the terrible analysis is not only about history. Bush has spent considerable time -- in courts and in the public -- claiming that his assertions of power are not ahistorical. The "every President does it" rhetoric. And Yoo doesn't drop that point. In the piece, as elsewhere, he basically invokes Truman to Clinton on the notion that Presidents have always been grand about the Commander in Chief authority. But, that seems inconsistent with his notion that what Bush is doing is actually reasserting authority the other Presidents have declined or given up. Which is it? And its important, because they can't coexist.
Yoo is basically right (right in a descriptive sense) in his first analysis -- Bush has followed Cheney's lead on the reassertion of power they viewed as lost after Viet Nam. It is worth remembering that Cheney was President Ford's chief of staff, the man who had to live through the Church Committee hearings, the man who convinced Ford to sign an Executive Order prohibiting assassination lest Congress act first and really tie the President's hands. But, that means that Bush's assertions of "the other guys did it" isn't right or accurate. This is different. No hiding behind Bosnia, Haiti, or elsewhere.
It's bizarre that Dick Cheney views the Iran-Contra non-scandal (in his mind) as an example of how the President's national security authority should be unconstrained because besides the legal aspects, the Iran-Contra operation was marked by total incompetence in its implementation. That alone should be a warning against executive branch scheming.
And I also don't think Yoo should be let away with his seemingly banal claim that the President is the only official "elected by the nation ... as a whole." The existence of the electoral college severely qualifies that statement.
September 18, 2006 8:47 PM | Reply | Permalink
Concentrating power in the executive at the expense of the essentially democratic system of checks and balances seems attractive in some respects. For one, checks and balances are often obstructive to an executive given the task to make decisions that have to be implemented on the spot to have a chance to be effective. The more a president is constrained by the legislative and judicial branches, the less options he has before him/her to choose from.
On the downside of concentrating power in the executive can best be exemplified within the situation we have here today: systematic ineptness that goes unchecked--apparently--by anybody.
Sure, in an ideal world we would gladly give all the power to the Philosopher King and he would rule wise in all matters. But even so, as Aristotle first saw, even philosophers disagree, and their disagreements are usually deep. (I'm not saying that Aristotle was a champion of democracy, but he did temper Plato's revulsion towards democracy quite a bit). So John Yoo can wax eloquently about the virtues of a unitary presidency all he wants, it does not alter the existential fact that it is not the "presidency" that makes decisions, but individual, fallible, and sometimes disastrous flesh and blood Presidents that do. The attraction of an all powerful all wise potentate is perennial, and perhaps motivates religious speculation in mankind, but it cannot be the basis for a modern complex state such as ours.
September 18, 2006 9:01 PM | Reply | Permalink
The Yoo op-ed was notable also for its bizarre assertion that presidential signing statements are necessary so the President can "check" action by Congress and the courts -- an apparent misunderstanding of the word "executive", as though the legislative and judicial branches had the power to actually take executive action.
Also mind-boggling was this passage, with reference to 1970s legislation reigning in the presidency's powers:
"These statutes have produced little but dysfunction, from flouting of the war powers law..."
Apparently, it's not the President who flouts the War Powers Resolution; it is the legislation itself that has mysteriously "produced" the flouting. This leads to:
"The 1970’s shifted power from the president to Congress, and the latter proved a far more accommodating boss to federal agencies looking for budget dollars — a fragmented legislature is obviously much easier to game than a chief executive."
In the real universe, it is Bush's expanded powers which have coincided with an explosion of pork-barrel spending, and he has never lifted a finger to attempt to reign it in. But in Yoo's World, it's all the fault of Democrats in the 1970s (like everything else). Which brings us, finally, to this:
"But 535 members of Congress cannot manage day-to-day policy."
Neither, of course, can President George W. Bush. The problems we have today aren't the fault of the institution of the Presidency. They're the fault of the President.
"All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." - I.F. Stone
September 18, 2006 10:42 PM | Reply | Permalink
IIRC and contrary to Yoo's revisionist history, Truman sent troops to Korea as America's contribution to fulfilling its obligations under the treaty approving the United Nations Charter. At the time the Senate debated the Charter, senators understood that military actions taken pursuant to Security Council resolutions were not "war" as defined in the U.S.Constitution and that the President would decide whether we would participate in enforcing a Resolution.
GHWB invaded Panama to enforce U.S. drug laws; Clinton acted in Haiti and Bosnia to enforce UN and NATO demands, both treaty obligations.
Frankly, I wish Yoo's recounting of our history were correct. Instead, since WWII we've lived under a system that allows one man to decide whether we go to war. Bush, the Decider, may be the loudest among them, but they've all had and many have exercised, in one way or another, that unilateral power.
September 19, 2006 12:36 AM | Reply | Permalink
I listened to Yoo yesterday on PBS and thought how does this profoundly ignorant monarchist deserve the kind of attention he routinely receives.
Ron Byers
September 19, 2006 5:10 AM | Reply | Permalink
I generally remember John Yoo as the person who advised the President on the issue of torture without any obvious understanding of the Pinochet case.
(See Philippe Sands all but advise Yoo not to travel outside the country.)
It's one thing for a lawyer to hold a bizarre view of history, another thing to make seemingly contradictory arguments, but quite something else not to be familiar with the law.
September 19, 2006 5:46 AM | Reply | Permalink
Ah, the good old days of presidential authority. Was that before Congress had the power to declare war?
Yoo's longing for a king and dislike for the American system of government is bad enough, but he could at least be aware of how much presidents have gained the war power in the time he's describing as an erosion of authority.
As for problems with bills Bush wishes he didn't have to sign, he doesn't have to. Well, I'd like to think, then, that his ignorance of the Constitution accounts for how remarkably few he vetoed, but I suppose it's more likely to be disdain for the law. If you don't really care what the law is, why not sign a bill into law?
John
http://www.haberarts.com/
September 19, 2006 6:38 AM | Reply | Permalink
I'm baffled by the contention that there were no threats to national security in the 1970s nad 1980s. The Committee on the Present Danger reached its peak in the late 1970s, and helped defeat Carter and elect Reagan. What exactly was its "present danger" if we had no threats? And Reagan swept into office promising massive increases in defense spending, and a rebuilding of our nation's defenses, particularly our nuclear weapons. Why, if there was no threat? Oh yeah, now I remember. The Soviet Threat. Reagan and his cronies were looking for commies under their beds every night, they were so scared. Maybe there really was not threat to be scared of, but, as a nation, we certainly acted like we felt threatened with the possibility of a disarming Soviet first strike and an ensuing global nuclear war.
September 19, 2006 6:57 AM | Reply | Permalink
The Yoo piece was utterly laughable. Here's what I sent to the Times:
"Mr. Yoo's aspirations for the Presidency remain imaginary. The President serves at the pleasure of Congress.
The first and longest Article in the Constitution discusses Congress and lists many specific Powers. Included among others, such as the power to make rules concerning captures on land and water, is the power to impeach. No matter what theories of authority an executive follows, they evaporate when Congress decides to remove authority. If the executive is powerful it is because Congress allows it.
Whether Congress is wise to act in a particular way is another question, addressed at the ballot box. "
The three-branch concept is often mistakenly used to assert the equivalence of the executive and Congress, and where the balance should lie. This is completely wrong thinking; they are not equivalent but completely different. Congress is the board of directors representing the stakeholders, voters, and the President is merely their employee. The Court is the legal dept or ombudsman.
The source of authority is Congress, as the most representative body.
September 19, 2006 7:07 AM | Reply | Permalink
"Reagan and his cronies were looking for commies under their beds every night, they were so scared." I found commies under my bed the other day. Oh, sorry, those were dust bunnies. But seriously, I appreciate the reminder that the right-wing strategy of manufacturing fear as a pretext for power grabs and militarism has been so consistent.
John
http://www.haberarts.com/
September 19, 2006 7:40 AM | Reply | Permalink
One of the reasons real democracy seems so good and healthy as a political system is that it depends on -- it demands -- participation of each individual. That in turn means a society made up of people who are as devoted to others as to self. Good balance. Ideal!
But we have a system which has evolved into what is essentially corporatism and essential to the deal corporations make with us is that we love ourselves and treat ourselves well in partnership with them. From our healthcare to our consumerism, we lapse willingly into concentrating on Number One.
That's why authoritarianism/executive power is so attractive to the very people whose liberties it puts at risk. After all, to maintain our own and others' political liberty and the health of the community we have to set aside a good deal of personal time and pleasure to participate fully in our governance. We "don't have time" for that anymore, thanks to the delicious opportunities offered by decent salaries, access to plenty of play space, and a lot of toys and more new toys every day.
September 19, 2006 7:50 AM | Reply | Permalink
Yoo is a third rate legal scholar trying to justify any and all actions of the president.
A much more serious threat comes from Richard Posner. He has just written a new book on why it is OK to trash the constitution and, unlike Yoo, he is a sitting federal judge.
We get it that there will always be monarchists in any society, the real question is why is congress willing to give away its authority? We haven't gotten to the stage yet where brown shirts are beating up opponents of the regime. Is the power of election funds so strong that it can cower politicians?
--- Policies not Politics
Daily Landscape
September 19, 2006 7:52 AM | Reply | Permalink
"Is the power of election funds so strong that it can cower politicians?" I think that's the wrong canard for the occasion, too much like the GOP spin that the K Street project doesn't exist and Abramoff, of course, benefitted both parties. The president had several things going for him here in keeping Congress under control, starting with the usual mindlessness that at least temporarily attends a perceived threat or call to war. Anyone would have had an inordinate gain in power at least briefly after 9/11, and don't forget how unpopular Bush was before that.
But some other factors. First, if the Democrats seem divided, to some extent they are, to some extent that's good (democracy, debate), and to some extent it's bad (lack of leadership), but don't forget that it will seem that way relative to a group as ruthless and hierarchical as the GOP has been, a model that isn't so easy or even desirable to emulate as one might think.
Second and perhas more important, there's the actual GOP control of both houses (and increasingly the courts). A lot of lousy legislation and court appointees turned on that at least as much as the cravenness of a few RINOs like Lieberman.
Third and perhaps most important of all, the mass media, even apart from the cowardice of particular editors or the reactionary strength of particular owners, give the president power by allowing him direct access to the public, creating events and selling them his way. When you think about it, early politicians had oratory, FDR had the radio, and JFK had a TV personality, each with increasing force, but nothing compares to the omnipresent virtual reality of today. If Democrats feared to speak up in the days leading to war, I can almost forgive them. Ordinary citizens could be denounced by friends and neighbors in much of the country as un-American for opposing the president then. And much of the country still believes in myths about Saddam Hussein and WMD.
John
http://www.haberarts.com/
September 19, 2006 8:11 AM | Reply | Permalink
Mickey Edwards, former Republican Congressman from Oklahoma, participated in a seminar on Congressional oversight by the Center for American Progress. C-Span carried it. Here is a link to the conference. Edwards made some profound remarks with respect to Congressional oversight especially in "unified" government, i.e. executive and congressional branches of same political party. Edwards remarks were those of a true statesman. Too bad they are not being widely circulated. Here is one quote.
September 19, 2006 8:18 AM | Reply | Permalink
Yes, except he got it wrong. Congress doesn't so much oppose the President as employ him.
September 19, 2006 8:21 AM | Reply | Permalink
The strange thing about Yoo's analysis and that of so many self-proclaimed conservatives is that the real genius of the Founders was placing sovereignty in the American Peoeple. The People then delagated power to both the states and national government.
There is no doubt that most at the Constitutional Convention believed, or feared, that the House would be the most powerful arm of the national government. The presidency, a non-sovereign executive officier was a new idea and only Washington's presence allowed the Constitution to leave the President's powers relatively vague, not that it was a crypto monarchy. It was only when Hamiliton was seen as turning the Washington Administration into something too closely resembling an European monarchy that Madison and Jefferson went into opposition.
I do not understand how "strict constructionists" or "originalists" can believe that the United States president has royal like powers. The irony of this is that it was WWII, the Cold War and television that gave a succession of Democratic Presidents increased powers that led Arthur Schlesinger to refer to the Republican Nixon White House as an "Imperial Presidency."Daniel A. Greenbaum
September 19, 2006 8:43 AM | Reply | Permalink
The important thing to me about this editorial is that Yoo has just admitted that Bush has an agenda to change American government to one in which power is more centralized in the hands of the president.
And he's admitted that this agenda has nothing to do with the War on Terror but is considered a goal in itself.
People have attacked us as raving conspiracy theorists for suggesting that Bush has some dark hidden agenda behind his stretching of executive power in war time.
Yet, here we finally have at least part of that agenda laid out before us and it is an agenda that neither Bush nor any of his people have ever made any proposal or public case for. It's all been done in secret, with secret legal opinions decided in secret meetings.
If this is a restoration of power to its rightful place, then why all the secrecy about it?
And now that it has been admitted that there has been a secret agenda at work, why shouldn't we ask what other agendas the administration is pushing that are secret?
Couple this powerful executive Bush envisions with what we've learned about his partisan hiring practices that restrict hiring to loyalists and ideologues. What kind of government do you get when you combine the two??!!!
It seems to me that when a leader asks for more power, the people have right to ask why.
When a leader seizes more power without asking and without even telling anybody, then we have not only the right to ask why but the obligation to ask -- and ask forcefully -- what are his intentions.
September 19, 2006 9:00 AM | Reply | Permalink
The trend toward centralization of power in executive will likely continue regardless of the original intent of founders, historical precedent, and the objection of minute elite. Don't miss the forest by wrongly isolating political institutions from the rest of the social landscape. M. Weber considered the fate of democratic institutions in an increasingly bureaucratized world a hundred years ago and his fairly pessimistic outlook has held. It's apparent, to me at least, that the pop. of U.S. and other states have become quite comfortable with the corporatization of culture at large. Included here of course are our systems of state order making and decision making. There is a small minority of elite, you are representative, that recognize how arguably antithetical these trends are to much of what came before and how dangerous they are for individual liberty. The entire corporatization of the American political process from K street to Wall street from the NYT to the major and minor t.v. networks is an affront but grinds away day in and day out. But realize what a small minority you are, even among the elite. In this regard the neo-cons seem to be light years ahead in their understanding of and ability to manipulate populations. What came before is irrelevant if you are repackaging history for a population that has no time or inclination for history- even history as recent as three years ago. Face it folks, Americans like to be told what to think, what to eat, what to aspire to, how to save their marriage and how best to mourn their dead. Intellectual consideration, dare I say what goes on at this site, is for an effete corps and the likes of John Kerry. Stalin would be pleased. Maybe the corrosive changes to our systems set in motion during our hegemonic tussle with the Soviets are only being fully realized now. Naw! We clobbered them good is more easily digestable. What was Eisenhower talking about anyway? Some military industrial thingy. Centralization and corporatization really ramped up after WWII and shows no signs of abating. Where was the tipping point? Who cares. There were probably lots of them, but the slide continues. I would imagine that most important people have passports and residences or destinations in other countries. Could the Congress impeach the crowning example of the true danger and nature of elite privilege that is G.W.? Sure why not. But would it change much of anything? No not really b/c it is a symptom, and likely presently and in the future a contributor, but not signficant cause of much larger and dreadful problems.
Did you all make contributions to your 401s today?
September 19, 2006 9:08 AM | Reply | Permalink
"People have attacked us as raving conspiracy theorists for suggesting that Bush has some dark hidden agenda behind his stretching of executive power in war time." Good point about what the article reveals. It parallels the shift from a time when torture at Abu Ghraib was about a few bad apples at the lowest level of military personnel, when those prisons abroad that Bush has just shut down didn't publically exist, and when the torture policies that Bush is now seeking Congressional approval for weren't acknowledged policies.
Presumably, they can trust the public to have no memory. And, alas, they're right.
John
http://www.haberarts.com/
September 19, 2006 9:46 AM | Reply | Permalink
Unwise to think of "Americans" in any unitary way. They are not stupid, or smart, as a whole. They are so, individually.
There is a continuum of interest in the details. Some are way down there, not even noticing technological advances so that manipulated imagery seems like true magic (or devilish bewitchment). Some are savvy enough to launch indepedent sources of knowledge and understanding, like Wikipedia and Google.
At the same time that corporate centralization is occurring, decentralized power is developing. It's far from a sure thing that the centralized power of government will grow unopposed. Blogs and home-based data-miners are becoming a major force.
September 19, 2006 9:55 AM | Reply | Permalink
I've heard the relationship among the three branches of government in the U.S. described as follows: Congress is the first among equal branches of government due to its legislative and oversight functions.
The checks and balance function applies to the executive branch as well, doesn't it.
The judicial branch provides the forum for the exercise of oversight to some degree.
So I disgree that the Congress employs the executive. The citizens of the U.S. do.
September 19, 2006 10:33 AM | Reply | Permalink
With respect, if you would edit your post by employing paragraphs, it would be easier to read, not to mention more appealing to the eye.
Thanks.
September 19, 2006 10:36 AM | Reply | Permalink
In reading the comments on this thread I see many people making a lot of good points.
I guess my take on it is the founders didn't want to put more or less power in the hands of the executive and dilute the power of the other 2 branches. Do average Americans understand the implications of consolidating power into the executive's hands and if they do, do they even care? In my mind the answer to those questions are not relevant.
Yoo makes the observation that over the course of our history while the 3 branches might be seperate they are no longer equal. That observation, while arguably correct, doesn't make the result right. Our government has done bad things in the past and just because they did them doesn't mean it is something permissable to continue doing. And on principles trying to consolidate the power in the office of the POTUS is something that we need to fight against vigorously. Because it will turn our government into a de facto dictatorship or monarchy...and will signal the end of democracy in America.
September 19, 2006 10:40 AM | Reply | Permalink
Fine points there Ellen:
That has been his job. Yoo's primary job has been to find the loopholes and redefine vague wording to allow for excuses for the Boy King...
That is a link to the archives at George Washington University with a pointed memorandum written by John Woo providing arguments to keep US officials from being charged with war crimes for the way prisoners were detained and interrogated. That memo contains argument's in support of the administrations assertions that the Geneva Conventions did not apply to the detainees from Afghanistan.
~OGD~
September 19, 2006 10:43 AM | Reply | Permalink
Eddie... Here is the link to the memorandum ...
Yoo's whole job was to twist the law, so as to facilitate for contradictory arguments.
~OGD~
September 19, 2006 10:50 AM | Reply | Permalink
Crissie shoots ... and scores...
~OGD~
ps: Although, Tom Wright's point is also correct in light of our Republic form of representative government.
September 19, 2006 11:01 AM | Reply | Permalink
While we maintain the formality of the Electoral College, in fact we vote for Electors, they report to Congress, and Congress chooses the President.
I stand by my point that Congress is more than first among equals, since it can remove authority from any elected offical, including Supreme Court Justices. It is inherently dominant, if it wishes to exercise that dominance.
Neither of the other two branches can assert authority over Congress without the concurrence of Congress. The situation is not symmetrical. Any actions by the executive that counter Congress' decisions amount to a coup.
September 19, 2006 11:16 AM | Reply | Permalink
Tom W.:
The American collective, and any group for that matter, is more than a sum of its constituent parts. Powell isn't so much worried about my reputation, or your reputation, but our reputation- and he certainly has a responsibility to that end I might add. I think we can get a pretty good read on what a group or combination of groups looks like at any point in time by taking account of measures of educational attainment, wealth and income distribution, age, ownership and so on. More clarity is offered when we put this in historical and cross-cultural context. I'm generally interested in what the power-elite is up to as the poor just don't matter (I know how that sounds outside of realpolitik) and the middling classes become more irrelevant everyday.
Wikipedia and Google are no more going to alter the ongoing centralization of power than Ben&Jerry's reorganized the corporate model. If that's all we can muster we are screwed indeed. What % of the population even has access to this internets thingy? The idea that blogs and these other networks of info. are a major force of decentralization is absurd. They are largely a series of jobs or pass times for elites.
Red or white with dinner, hon? Be right there.
September 19, 2006 1:57 PM | Reply | Permalink
I agree that, most of the time, and more so these days, the poor don't matter. This in the sense of having an effect. Of course terrorism and revolution can change that, but set that aside.
If what matters what the money is doing, the internet is what the money is doing (among other things). Remember also, that most revolutionary movements, whether military like our Revolution, or political like the Reaganites, are founded and promulgated by elites with good communication capability.
Google's ad revenue and earnings have more than doubled this year, and last year they had revenue of over $1 billion.
September 19, 2006 2:54 PM | Reply | Permalink