It seems as though with each passing week, Americans are learning more and more about the disturbed conservative mind of John Yoo. Currently the quintessential fish-out-of-water (he teaches law at UC Berkeley), Yoo worked in the Department of Justice under George W. Bush when the legal underpinnings of unitary executive rule were being established. As it turns out, Yoo - then a fairly low-level DOJ staffer - authored several influential memos supporting the legality of torture, unitary executive power and the suspension of habeas corpus. Because of the far-reaching scope and questionable legality of these memos, Yoo is currently facing charges of war crimes while the National Lawyers Guild is calling for Yoo to be fired and disbarred.Some of Yoo's greatest hits:
Torture
In 2002, Yoo helped author the now infamous "Torture Memo," which was essentially a liberal interpretation of the interrogation techniques allowed by international law. The memo defined the illegal practice of torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." It also stated that the infliction of such pain must be intentional. Such narrow definition of torture opened many loopholes with which the U.S. could conduct a host of "enhanced interrogation techniques." So when the President says the United States "does not torture people," he is technically right, because his administration has exempted itself from international treaties and the Justice Department has worked to redefine torture to legalize what interrogators were already doing.
Habeas Corpus
Keeping with the unprecedented idea that combating terrorism was primarily a military operation, Yoo has argued that the 4th Amendment need not apply to counter-terrorism efforts. This memo concluded that, "the Fourth Amendment [has] no application to domestic military operations," essentially stating that even U.S. citizens under the protection of the constitution are not immune to illegal search and seizures, as long as the country is engaged in any kind of "War on Terror." Of course this is a frightening conclusion. Simply put, the president can determine what is considered terror, who can be considered an enemy combatant, and when and how the military should be used. This leads to a remarkably brash definition of presidential powers, which will be described next.
Unitary Executive Power
Yoo is a proponent of consolidated executive power during wartime. Yoo stated in a 2001 memo:
In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
Yoo also stated in a 2005 debate that no treaty could prevent the President from authorizing enhanced interrogation techniques, including crushing the testicles of a detainee's child. According to Yoo, the authority to torture "depends on why the President thinks he needs to do that." So, in essence, the President is above the law. Yoo believes there is no law that can limit Presidential powers during wartime, and that the legality or illegality of an interrogation technique is determined solely by what the President thinks.
We can now start to see the neoconservative mindset come into focus. If presidential powers increase when the nation is at war, it's no wonder that the United States has been at war for all but one year of the Bush presidency. And the "Global War on Terror" isn't so much a single operation, but an infinite campaign to somehow eradicate something that can never fully be eradicated. It would be akin to the President declaring that as long as there is crime to fight in the U.S., the president alone can determine how to define crime, how to deal with criminals and which parts of the constitution he needs to adhere to. Like crime, there always has been, and always will be throughout history, acts that could be defined as terrorism.
It would be interesting to hear how Yoo, who has also been a visiting scholar at the conservative American Enterprise Institute, feels about unitary executive power when a Democrat is in the White House. Luckily for us, Yoo has in fact contradicted himself numerous times to fit his political agenda du jour, as Salon's Glenn Greenwald documented last July. Yoo has flip-flopped on presidential use of the military, use of executive privilege and FISA laws. If a Democrat wins the presidency in 2008, expect Yoo to moderate his views on executive power to fit his own political agenda.
If John Yoo's sick totalitarian view of constitutional government weren't enough to cement his place among the insane, he recently delved into the world of election politics, the results of which are equally troubling.
In a March 24, 2008 Op-Ed in the Wall Street Journal, Yoo blasted the Democratic Party's use of superdelegates in the nomination process:
That the 2008 Democratic nominee for president will be chosen by individuals no one voted for in the primaries flew for too long under the commentariat's radar. This from the party that litigated to "make every vote count" in the 2000 Florida recount, reviled the institution of the Electoral College for letting the loser of the national popular election win the presidency, and has called the Bush administration illegitimate ever since.
ThinkProgress highlighted Yoo's hypocrisy, as one who would criticize a party's "undemocratic" nomination process while at the same time espousing totalitarian views of the executive office.
More troubling than Yoo's hypocrisy, however, is his startlingly vapid argument. As simple as it may seem to most, Yoo fails to grasp the fact that primary elections do not elect a president. In fact they are not really "elections" at all, but a nomination process, a process that is much more democratic than most other democracies around the world and more certainly democratic than at earlier times in our nation's history. Primary elections were not seen in the United States until the 20th century, and before that relied completely on congressmen and political bosses to nominate a presidential candidate.
Yoo makes the fundamental error of conflating a primary election (a method by which a political party has determined it will nominate it's candidate) with a national election. Yoo claims that the "delegate dissonance wasn't anything the Framers of the U.S. Constitution dreamed up. They believed that letting Congress choose the president was a dreadful idea." The problem with Yoo's analysis is the notion that the founding fathers had some concept of political primaries. They barely had knowledge of political parties, and certainly didn't lay down any foundation as to how parties nominate their candidates.
In addition, one could easily argue that the Democrat's is a more democratic nominating process than that of the Republican Party. The RNC employs a "winner-take-all" system similar to the electoral college in the general election. By allocating delegates based on a percentage of popular votes won, the Democratic nominating process is more representative of the general public than the Republican system. For example, let's say a state has 10 delegates at stake in the primary. In the Democratic Party primary, if Candidate A wins 60% and Candidate B wins 40%, then Candidate A wins six delegates to Candidate B's four. In a Republican primary, Candidate A wins all ten delegates. The Republican system is one that says, essentially, "Get on board with the leading candidate, or your vote won't count." Doesn't sound very "Democratic" to me.
Yoo is correct that the superdelegate system does have the ability to stymie the hopes of a more populist candidate. In close primary elections, as we have this year, the idea is that the superdelagates are there to help cast a deciding vote for the more "mainstream" candidate. This year, we would have to assume that candidate is Hillary Clinton, and the populist is Barack Obama. If the superdelegates are here to overrule the will of the common Democrat in favor of someone whom they feel is more of a Washington "insider" (Clinton), then, I would not care for that kind of system.
It's not that Yoo is incorrect in noting that certain flaws exist in the superdelagate system. It is the fact that he somehow believes primary elections should be governed by the the same standards as general elections that completely invalidates Yoo's position. Yoo's column, while not unusual by WSJ's standards, is special in its purely partisan scope and utterly untenable premise. From what we have seen from Yoo thus far, it is safe to assume that the Op-Ed was less an educated critique of the Democratic nominating process than a petty partisan jab at what is perceived as a divided party.
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