More Hypocrisy From John Yoo

Yoo has been on an extraordinary roll lately, one bit of breathtaking hypocrisy after another. Marty Lederman correctly lampoons him for his latest, an op-ed in the Wall Street Journal cheering the MIlitary Commissions Act. Yoo emphasizes the court-stripping component to the legislation, its most dangerous and indefensible party, and he cheers wildly. I'll post an excerpt from Lederman's dead on reply below the fold:

Eliminating the checks and balances of judicial oversight has been the primary goal of the Administration all along, as John's own memos and other writings quite forthrightly reveal. In his new book, John describes how in the weeks after September 11th, an interagency task force of lawyers was convened to study the wide array of legal issues related to the detention and trial of suspected Al Qaeda personnel. Presumably there were many difficult questions that the task force debated. But there was, as John recounts, "one thing we all agreed on" -- namely, "that any detention facility should be located outside the United States."

Why was this the one point of absolute consensus within the Administration? Isn't that odd -- that the easy point of unanimous agreement was to keep our detention operations outside of our own nation, above all else? It's not as if these captured persons were all detained where they were found. No -- they were shipped halfway around the world; but instead of, say, detaining them at a military brig in South Carolina, which would have been the logical plan, the planes and ships made a sharp left turn at the last moment so that these folks would disembark in Cuba, which is less than 100 miles from the Florida coast.

The reason, of course, for such a resolute determination to keep the detainees offshore, was (as John quite candidly writes) because the lawyers assumed GTMO was a law-free zone -- a location imperious to any judicial oversight. And of course, in light of what we were doing to these detainees, there was damn good reason to keep our operations out the plain sight of any courts, lest they have the temerity to insist that the Administration follow the law.

The Supreme Court rejected this gambit in the Rasul case, and John is correct that the MCA attempts, in effect, to reverse Rasul and to render the President's conduct nonreviewable.

John unabashedly celebrates this move. But he doesn't give much of a justification for it, except that he does not like the idea of the courts reviewing the legality of the Executive's actions in wartime. There is a certain irony in this, given the source: This is, after all, the lawyer who has most aggressively promoted the view that notwithstanding all of its war-related article I powers, Congress is entirely disabled from regulating the Executive's wartime decisions. And yet he not only thinks that Congress can strip the courts of their constitutional functions in wartime -- he positively revels in it.

Presumably, John would agree that if these detainees were being held a few hundred miles away, in Florida or in South Carolina, they not only would have had traditional habeas rights, but also would enjoy substantive constitutional rights of due process with respect to their treatment in detention and their ability to challenge their detention. OK, but then doesn't that cast a cold light on his gleeful defense of the MCA? Is there any good, persuasive reason why those constitutional rights should suddenly disappear -- and that we should encourage Congress to eliminate the cognate statutory rights -- simply because we chose to turn left at Florida rather than to turn right?

Of course there isn't. The reason John and his colleagues are so spooked by the prospect of judicial review is that they want the President to be able to act in accord with very radical and questionable legal interpretations, without any risk that anyone will ever call them on it. If this Administration had not chosen to take such a cavalier and dismissive attitude toward the substantive legal norms (of statute, treaty and laws of armed conflict) that govern the conduct of war, it would have nothing to fear from judicial review. The only reason they are desperate to shut the courts out is that their conduct is of such dubious legality.

Bingo.