Sunday, January 03, 2010
John Yoo's publisher sent me a free copy -- two, actually -- of his new book on presidential power. It looks interesting, although it may be a while before I can dig in to it. Herewith, the Amazon link if you are so inclined to inoculate yourself against the spate of anti-Yoo screeds that are, no doubt, lurking just around the corner of the calendar. The left, you see, hates Yoo for having authored the "torture memos" while head of the Office of Legal Counsel in the Justice Department, and will no doubt attack this book -- to be released on Tuesday -- by hammer and tong.
It'll be interesting to find out whether Yoo has finally heard of the Youngstown Steel Seizure case, the defining case on the limits of presidential power.
His memos to the Bush Administration completely omitted it, so either he didn't know how to do 1L level research, or was deliberately providing biased analysis.
Yup, we'll be waiting for him.
Dawnfire, here's a link:
The case defines the limits of presidential power, and no court ever has limited its precedential value in the way you suggest.
Yoo's failure to anticipate and respond to the best and obvious arguments against his conclusion suggestion he was writing a propaganda piece and permission slip.
Jack Goldsmith, who was Yoo's successor and revoked Yoo's memos, walks through the issues in his very balanced book "The Terror Presidency," which I very much recommend. I'll have to go back and see if the Youngstown Steel case figured so prominently.
Great Caesar's Ghost, I actually agree with Brian on this. Brian and I don't exactly see eye-to-eye on AGW, as regular readers here know.
You can't pick and choose which parts of the Constitution you like ... that kinda defeats its purpose. Through the 20th Century, both Left and Right have torn the Constitution with their picking and shredding ... so much so that it's in tatters. There's been mostly one-sided criticism of this here on TH -- to which I've sometimes contributed. So for balance, allow me to retort in support of Brian's point:
Lincoln was duly elected, was only a month into office, and hadn't done much of anything ... yet South Carolinian Beauregard still led an organized military attack on Fort Sumter. This wasn't a Timothy McVeigh operation. It was the opening salvo in a very real civil war. A lot of people died, if you didn't know. As the Civil War unfolded, the practical necessity of Total War forced Lincoln to take extra-Constitutional liberties of action. This was difficult for Lincoln -- as his devotion to law was so extreme as to approach the religious fervor of a Thomas More.
Almost a century later, WWII happened. A lot of people died, if you didn't know. FDR & Co put huge numbers of ethnic Japanese US citizens into concentration camps, as Total War led to the fear that some of our own citizens might prove more Japanese than American. The Supreme Court blessed this at the time with the excuse that our Constitution wasn't a suicide pact. This was understandable but regrettable, in retrospect.
But War is War. Total War even more so. We shouldn't dumb down the concept, or invite compromising our Constitution as we do ... lest we risk the hard-won patrimony of our liberty.
The "Youngstown Steel Seizure" case was over Korea ... a "tweener" war ... but still a very real military engagement for those involved. How do you compare 9/11 to the Korean War? Read "The Coldest Winter" and then try to compare the Korean War to one shithead kid getting on a plane -- a kid who didn't even kill anyone.
Our enemy is 1,000 to 10,000 dispersed hard-core bad guys ... and about 10,000 to 100,000 ordnance-in-waiting wannabees ... it's not a billion. Most of this number are such ragheads that they couldn't hail a Pakistani-driven yellow cab in Manhattan if their lives depended on it. These days, few of them are in Iraq and Afghanistan. The Brits had a more a capable terrorist threat in the Provo IRA. Until we deal with our threat rationally, we'll never solve it. Instead we'll have things like 20,000 Newark passengers -- panicked and terribly inconvenienced over nothing -- as a frequent incurrence.
Or is that the object? Is it that we don't want to deal with terrorism -- or anything substantial -- rationally? Do we just want "he said-she said" political talking points?
I fear our own federal government -- and our own enabling collective idiocy -- far more than any threat from abroad. Edward Gibbon chronicled the fall of the Roman Empire as the collective loss of civic virtue. Is that where we're going? Am I crazy for thinking this way?
Revisiting the merits of our Constitution is the answer for how we can rebuild. That -- and our allegiance to national sports leagues -- can hold us together as a nation.
ps. Bronze Star winner Tim McVeigh still holds the home-grown record, and is #2 on the all time list. #3 isn't even close.