Man, Orin Kerr is working John Yoo like a speedbag right now. In his latest post at Volokh, he finds yet more evidence of Yoo's utter hypocrisy in defending the Bush administration's attempts to expand executive power. He provides this transcript of a portion of a talk Yoo gave at the Cato Institute in 2000:
First, I think, in order to achieve their foreign policy goals, the Clinton Adminisitration has undermined the balance of powers that exist in foreign affairs, and have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration. The second thing is that the Clinton Administration has displayed a fundmental disrespect for the rule of law. Not in the sense that they don't make legal arguments to defend their positions, but the legal arguments are so outragous, they're so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is. And the the third thing is a matter of consistency. I think one of the things the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions. And I think the Clinton Administration, as I'll discuss in a moment, has been wildly inconsistent. It has gone to the point of disavowing previous executive branch opinions, and when it does things that it finds so inconvenient legally that it overturns too much law, it just doesn't say anything at all, and goes ahead and does what it intends to do anyway.
Absolutely stunning, isn't it? The details of that talk make it even worse, as Kerr points out. Here's his first complaint about Clinton:
Yoo's first example is the Clinton Administration's creative intrepretation of the Anti-Ballistic Missile treaty in early 2000. The treaty blocked building an ABM system, but the Clinton Administration wanted to start building a radar system that would be the beginning of an ABM system. According to Yoo, the Clinton avoided the treaty obligations by interpreting the treaty implausibly to allow for building radar that might be the beginning of an ABM system. Yoo criticizes this creative executive interpretation for "trampling on the Senate's role" in making treaties and avoiding having to go through a democratic process to change governing policy.
And yet he defends the Bush administration, who didn't just interpret the ABM treaty broadly but actually withdrew from it without ever consulting the Senate. So Yoo is in the absolutely bizarre position of arguing that Clinton's reinterpretation of the ABM treaty (which I agree should be condemned) tramples on the Senate's role in making treaties, but Bush's unilateral decision to withdraw from the treaty completely was, as he said in his op-ed piece this weekend, was justified because it "rested on constitutional precedents going all the way back to Abraham Lincoln." Just how much of a hypocritical buffoon is Yoo willing to be in public? Oh, it gets worse.
Yoo's second example is Administration's expansive approach to executive war powers, and the fact that the Administration was eager to act without Congressional approval in deploying troops. Yoo argues that the Clinton Administration was "one of the ones that most easily goes for the gun in foreign affairs" among recent Presidential Administrations, and states that while most Presidents had "never admitted" that the War Powers Act was constitutional and binding on the Executive Branch, they had always complied with it anyway until Clinton violated the Act in Kosovo. Yoo criticizes the Clinton Administration for never offering a public explanation for its apparent violation of the War Powers Act.
This is the same John Yoo who said in the NY Times yesterday that the War Powers Act had "produced little but dysfunction" and applauds Bush for "reinvigorating the Presidency." And as those late night infomercials always say: But wait....there's more:
Finally, Yoo criticizes "liberal academics" for their failure to criticize the Clinton Administration for taking these steps. Yoo suggests that these liberal academics are only interested in opposing conservative Administrations, and that they have been silent in Clinton's case because they approve of his politics.
Not only has Yoo contradicted himself multiple times over the years purely for political gain, he has the sheer chutzpah to accuse other people of hypocrisy in an area where he has exhibited that particular trait in spectacular fashion. Truly, this is a bravissimo performance from Yoo. Even in our modern political system, where such hypocrisy is virtually mandatory to hold elective office, this is beyond the pale. What on earth will he do for an encore?
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Truly, this is a bravissimo performance from Yoo. Even in our modern political system, where such hypocrisy is virtually mandatory to hold elective office, this is beyond the pale. What on earth will he do for an encore?
Run for political office?
If you can stomach more of John Yoo, you can listen to the audio archives of presentations he gave the World Affairs Council of Northern California (http://www.itsyourworld.org/). Look in the media archives and search for John Yoo. I don't remember much of what he talked about. I do remember him spending much of the time justifying the Patriot Act (how proud he was to have had a hand in crafting it!).
As I noted, if someone wants to argue that 9/11 changed their view of things, that's one thing, and that happens, and is legitimate. But Yoo hasn't acknowledged any change or repudiation in the least. He sneered and accused liberals of hypocrisy before, and now that his own position is 180 degrees opposite, he's still sneering, without any hint that he repudiated or even disagrees with his past positions.
That takes an almost pathological disinterest in what you are thinking or saying.
Run for political office?
Wrong...
In a monarchy/theocracy, one does not run for office, the emperor appoints them for life.
Yoo obviously is an example of why lawyers have bad reputations with the public, since lawyers when they are representing clients can make one argument one day and seemably the opposite argument the next. That is OK when a lawyer is representing a client, since he is obviously speaking on behalf of a client. But this is not OK in Yoo's case, since he is really acting as a politician in lawyer's garb.
I would take issue with Yoo claiming (per Kerr) that Clinton's interpretation of the ABM treaty to allow for building radar that might be the beginning of an ABM system was implausible. Aside from the fact that radar systems can have many uses, the radar systems standing alone would not be ABM systems.
I would also take issue with Yoo's claim (also per Kerr) that the Clinton Administration was "one of the ones that most easily goes for the gun in foreign affairs" among recent Presidential Administrations. (Although "recent" is a bit ambiguous.) It was Eisenhower who initially got the US involved in the disastrous adventure Vietnam following the Vietnamese defeat of the French at Dien Bien Phu. It was Carter, Reagan and Bush that got the US involved in Afghanistan (1979-1988). It was Reagan who got the US involved in the disastrous adventure in Lebanon (1982) which led to the deaths of 241 Marines in Beirut. It was also Reagan who got the US involved in Grenada and elsewhere. It was Bush I who got the US involved in Panama in the late 1980s to capture Manuel Noriega. It was also Bush I who initially got the US involved in Somalia, in two phases towards the end of his term, the latter of which was merely extended by Clinton ultimately leading to the tragedy described in Black Hawk Down. I'm sure that I could come up with other examples. Yoo's claim is preposterous.
RAJ:
You're dead on with your post about the public's perception of lawyers who make an argument one day and contradict themselves the next.
I'd like to emphasize that the justice system expects this and has procedural safeguards to protect against it. That's why you have a prosecutor, a defense attorney and a judge.
Yoo's mistake is that he carries this samurai ethic outside of the court-room and into the world of public opinion. There, it is appropriate to ask if Yoo is spouting something he believes in... or is merely a political hack hiding behind an academic veneer. Obviously, Kerr is exposing him for what he is.
Yoo scares me. There are others like him, but they are not so horrifically brazen. By all appearances he is a fascist. Worse yet, his work appears to legitimizes fascism. And worst of all, he appears to promote the fascism of a specific cabal for whom he once worked.
Yoo scares me. There are others like him, but they are not so horrifically brazen. By all appearances he is a fascist. Worse yet, his work appears to legitimizes fascism. And worst of all, he appears to promote the fascism of a specific cabal for whom he once worked.
It is refreshing to hear someone use the word fascism where it is appropriate. Yoo most definately is that - his hipocrasy aside.
From Yoo's testimony: Audio-MP3
Rep. Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
John Yoo: No treaty.
Rep. Cassel: Also no law by Congress -- that is what you wrote in the August 2002 memo.
John Yoo: I think it depends on why the President thinks he needs to do that.