Can the President of the United States override any domestic law as well as any international law as a consequence of his war powers under the Constitution? Can he wiretap without a warrant despite the Fourth Amendment and federal statutes that prohibit such a practice? Can he snatch people off the street, including American citizens, spirit them off to hidden prisons halfway around the world, and torture them, no matter what the law says? Yes, answers John Yoo, who is now a law professor at Berkeley but who as a Department of Justice lawyer in the Bush Administration, was the primary author of a legal opinion that purportedly gave President Bush the authority to do all of that, and to ignore any law that said otherwise.
According to a February 20 report by Newsweek's Michael Isikoff, Mr. Yoo recently told Justice Department lawyers that the president's war-making authority was so broad that he had the constitutional power to order an entire village to be exterminated. And this is not some Nazified German jurist empowering Hitler in the 1940s, causing the rest of us decades later to wonder how something like this could have happened, and where all the good, decent people were who might have stood up and said "No!" This is now, this is us.
I am not making this up.
According to the Newsweek report, Yoo was interviewed by Justice Department lawyers about his legal opinions and here is what he told them:
"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally...
"Yeah," Yoo replied, according to a partial transcript included in the report.
"Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."
"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.
"Sure," said Yoo.
Yoo's legal opinions at the Justice Department, and those of his then-boss, Jay Bybee (now a federal judge!), which allowed our government to say it was acting legally when it engaged in waterboarding and other torturous brutalities, were so extraordinary that they led to an investigation by the Justice Department's Office of Professional Responsibility (OPR), initiated over four years ago, well before the Obama Administration came into power. This investigation concluded last year that Yoo was guilty of "intentional professional misconduct" when he provided that legal advice, and recommended that both he and Judge Bybee be referred to their respective state bar associations for possible disciplinary proceedings, which could result in disbarment. But, according to Newsweek, a supervising senior Justice Department lawyer, David Margolis, overruled his colleagues' conclusions, and said that Yoo and Bybee were guilty only of "poor judgment."
Margolis' tolerance for what Yoo and Bybee did strikes me as outrageous as their misconduct. Tolerating what they did -- calling it merely "poor judgment" -- is in my view a form of complicity.
In the post-WW II film, Judgment at Nuremburg, Burt Lancaster plays a respected German judge who is a defendant in a war crimes trial, and charged with providing legal cover for what war criminals did. After his conviction, he has a conversation with the American prosecutor, played by Spencer Tracy. Lancaster's character, repentant now, says (I am paraphrasing here) "I never imagined it would go that far." Tracy's character responds (I'm paraphrasing again) "It went that far the first time you bent the law to permit something you knew was illegal."
Yoo and Bybee claimed, and still claim, that the President has the constitutional power to override all laws, all legal limits on his authority. If that were so, the entire Bill of Rights could be nullified at the will of the President. Everyone, left and right, conservative and liberal, Tea Party types and ACLUers, should be chilled by and afraid of that prospect.
It is instructive to compare the current situation with the Nixon impeachment process to see how far our standards have fallen.
The key issue in the impeachment of Richard Nixon was his claim that the President, as President, had the "inherent power" to exceed the limits imposed by the Bill of Rights. This expansive and radical view of executive power was similar to Yoo's claims, except it was widely seen then as unacceptable and outrageous, and the report of the House Judiciary Committee recommending Nixon's impeachment at least implicitly rejected his claim of presidential power to act above the law.
Advocates of impeachment seized upon Nixon's claim of inherent executive power as requiring impeachment because by definition that claim, if allowed, nullified the Bill of Rights, which assures rights by establishing a specific set of legal limits on government power, including presidential power. Those advocates argued that the claim of inherent power to ignore those limits, as well as acts in furtherance of that claim, constituted a "high crime and misdemeanor" within the historical meaning of that term as set forth in the Constitution's impeachment power.
The argument at first seemed quixotic to some, but it caught fire with the public, and in turn the Congress, and less than 10 months later, Articles of Impeachment reflecting that view caused Nixon to resign in disgrace. Nixon's lawyers defended him with arguments in behalf of executive power similar to those made by Yoo and Bybee and their supporters, but few accepted such arguments and Nixon did not get away with a "poor judgment" slap on the wrist.
The difference between then and now is a difference of standards and the complicity of people in authority who tolerate it. And all of this is made worse by the fact that what was done under the legal authority provided by Yoo & Bybee was probably much worse than anything Nixon did.
The question now is what happens next? Where are the Good Americans ready to stand up and say "NO!"?