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The Hypocrisy of John Yoo


After everything from the war in Iraq to Hurricane Katrina, I'm not sure why I even allow myself to be surprised by any hypocritical information about Bush administration cronies.

And yet.

I studied John Yoo's unitary executive theory at college for my constitutional law classes...I've known for a while now that, despite all his Ivy League schooling, he does not seem to have a comprehensive understanding of the U.S. Constitution (or, even worse, he does and he just chooses to ignore it).  I haven't been surprised to see his name come out as one of the primary authors of the torture memos.

And yet.

Mr. Yoo blatantly flouted the Constitution to get more powers for President Bush, for a war based on lies, and buried what essentially boiled down to a 'torture can be legal, sometimes, as long as it's not done on Americans' argument underneath mountains of legalese, justifying the types of torture for which we executed Japanese soldiers after WWII. So I'm pretty damn surprised to find out that the same Mr. Yoo once argued that President Clinton was subverting the Constitution in order to stop an investigation into the Lewinsky scandal. Whether Clinton was or not is irrelevant: it's the fact that in March 1998, Yoo was outraged about "a privileged executive" in this Wall Street Journal article, and just a few years later, he was arguing for an unprecedented expansion of presidential powers and disregard of national and international laws.

Or, as the authors of this glorious post write, "Notably, while Yoo has argued that he and President Bush has the right to violate as many 200 year old liberties as they please without answering to the American people, he has vocally and publicly argued the exact opposite in regards to Bill Clinton getting a beej."

Nonetheless, Clinton opponents and supporters alike must question the president's decision to risk the authority and prestige of the presidency on such weak claims, which will only undermine the ability of future chief executives to act secretly when the national interest demands it.


Reading this, maybe he honestly believes that everything he did during the Bush administration was for the sake of national security. It's a bit of a stretch, seeing as how most people knew Colin Powell's now-infamous dramatic speech to the U.N. building the case for the war in Iraq was full of falsified/exaggerated evidence at the time...and considering how apparent the lack of WMDs became soon after the March 2003 invasion...and given that certain detainees were waterboarded 266 times without yielding useful information...okay, actually, nevermind, I have no idea how he could honestly believe he was acting in the name of national security.

And then there's this:

A decision to invoke executive privilege in this case would be yet another example of the Clinton administration's failure to understand the distinction between the office of the president and the person who happens to be the president. In democracies, we distinguish between a public office and the person who holds that office; people for whom the office and the person are one and the same are called kings.


Clinton had an imperial presidency? That's Bush's legacy. Cheney himself (albeit in 1987) called the invocation of executive privilege a "monarchical notion." But somehow, Yoo criticized Clinton and deemed it fit to justify Bush/Cheney's many unconstitutional actions. (Not just torture, but warrantless wiretapping and indefinite detention without trial.)

Words fail me. But the Dickipedia entry on Yoo does make me feel a little better.




16 Comments

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I'm no fan of Yoo but has a stronger reasoning than You, sadly.

His argument relies on historical legal precedents going back to the beginning of this country. Use of precedent to argue unitary executive in a time of war is a stronger argument than obstruction of justice to cover up a personal matter. And finally, in contrast to what you say, his output in the torture saga has been to provide a legal determination that these interrogation techniques were NOT torture.

Again, I don't like it but I don't see any inconsistency in examples you wrote about.

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Yoo has been complicit in war criminality and justification. How does that make his reasoning superior to Versha's?

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You should know, Professor, that lawyers do not give orders. They give opinions on the legality of orders. Yoo gave an opinion on the legality of what CIA wanted to do.

I have no intention of defending Yoo, per se, but you issue is much bigger than any lawyer, whether you like to admit your desire to scapegoat or not.

Secondly, we didn't have to wait for the administration to leave office in order to prosecute it after the fact. We have laws on the books prescribing how a sitting administration should be prosecuted. Pelosi could have made a world of difference but she looked another way. Yoo provided an opinion and Pelosi didn't act.

Singling out one lawyer "after the fact" is scapegoating and show trials. Everyone should be brought to justice.

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Wrong, Pelosi became speaker in 2006, after Yoo provided the opinions. The Republicans have worked together to obstruct any legal process from the beginning and are still working hard to prevent a full investigation.

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Pelosi was a ranking member of the intelligence committee when Yoo gave legal opinions. She had been repeatedly briefed and given a "virtual tour" of secret prisons. She admitted it but you can't.

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There is a world of difference between having something characterized and reading it. Pelosi has been pretty adamant that they were giving her the mushroom treatment when she was on the intel committee.

But how is that relevant to Yoo's legal malpractice? And isn't is somewhat counterproductive to bring charges against people while one of the principals has a pardon pen and a misguided conceptualization of a (dubiously argued) unitary executive?

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Yeah, and she of course fixed it as soon as she became the speaker. Righted all wrongs.

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Again ... why would you pursue charges when the person ultimately responsible (Bush) has the ability to negate any possible legal sanction with the stroke of a pen? It made no sense to move forward with impeachment. It wouldn't have worked. We needed someone in the executive to release the information that could form the basis for action.

We have that now. It's no longer a conflict between branches as it would have been with Bush in office. This created a far stronger position for those who want to see action.

Or am I missing something? What would YOU have done in Pelosi's position?

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"unitary executive" probably doesn't mean what you think it means. It doesn't mean "all powerful executive", for instance. Please make it clear what meaning that is supposed to have in your discussion/argument.

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John Yoo, my former 7th grade American history student at the Episcopal Academy, gives legal opinions that make no sense. The unitary executive is what the Founding Fathers were trying to prevent.

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"The Executive Power shall be vested in a President of the United States of America"

Article 2 of US Constitution.

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I see. You know, corporations are run by executives. So what you are saying is that Obama is constitutionally mandated to head all of the corporations in America? And my sister's pool association to boot! Those pesky socialist founding fathers.

I'm quite certain a few other fragments of legalese can be bastardized to totally support my analysis. Can I teach a constitutional law class now?

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You have no idea what you're talking about. Unitary executive power is a very old legal theory and it's widely accepted that a president needs to be able to control the executive body of government to be effective. Just ask Obama what he'd like.

Yoo is simply personifying a more far-reaching interpretation of that, but just because it's Yoo doesn't negate the merit of the constitutional debate.

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Now you are being intentionally obtuse. Clearly, I'm aware of this. The existence of a principle is completely irrelevant when the general methodology of a legal "scholar" is to grant that words "mean" something different than the body of legal interpretation has previously allowed. His work is often referred to as "novel" - rarely a term used to describe a well worn legal principle.

How far afield does one need to reach in their interpretation before the result becomes absurd? We're not talking about ALL arguments related to the concept of a Unitary Executive, we're talking about Yoo's theory of unrestrained power nominally sold under the packaging of the extant principle of the Unitary Executive.

Are today's conservatives even close to the actual definition of conservative? Use a word to mean something else long enough and the original meaning of the word is lost. Rove 101 ... or more historically.

You have causality wrong. The lack of merit in Yoo's work negates my respect for Yoo. I consider him to be completely discredited. His theories should not be taught any more than those of Hans Frank. The legal theory of the Unitary Aryan also has historical precedence ... should we embrace it and teach it in our schools?

And frankly, I don't give a fuck what Obama would like.

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Article 2? See Article 1 - The legislative branch.

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Executive privilege is of course not the same as Executive powers, so Yoo isn't contradicting himself on these.

I'm not sure just what in which Yoo memo is most disturbing to you. Can you cite a specific troublesome section of one?

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