I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, September 17, 2006

Shrill, hysterical lefty partisan blogger

I began writing a post in response to this truly ridiculous Op-Ed by John Yoo in this morning's NYT -- in which Yoo gleefully celebrates every authoritarian transgression of the Bush administration, from torture and pre-emptive wars to endless invocations of presidential secrecy, the issuance of "hundreds of signing statements" declaring laws invalid, and even what Yoo calls the President's assertion of his power to "sidestep laws that invade his executive authority" (what we used to call "breaking the law") (emphasis added in all instances).

But then I thought better of it, because, at this point, anyone who fails (or refuses) to recognize that the President does not have the power in our system of government to violate laws by invoking national security concerns is never going to recognize that. Yoo's Op-Ed is so flagrantly frivolous that it ought not be taken seriously. He even goes so far as to claim that the "founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action." How can you be on the faculty of a major law school and say this?

It is indeed true that the President has the power to "check" legislation that he considers "wrongheaded or obsolete" -- by vetoing bills before they're enacted into law, not by violating them after they're enacted into law. The whole point of Hamilton's Federalist No. 73 is to explain the purpose of the veto power, and specifically that "the case for which it is chiefly designed" is "that of an immediate attack upon the constitutional rights of the executive." That is how the President in our system of government defends against Congressional encroachments on his power and imposes "checks" on "wrongheaded or obsolete legislation" -- by vetoing such bills (an action which is then subject to being overridden), not by secretly violating laws at will.

Why is it even necessary to point out that the U.S. President does not have the power to violate laws which he thinks are "wrongheaded or obsolete," or that Presidents have no authority to disregard "wrongheaded or obsolete judicial decisions" (whatever that might mean)? And what permits a "law professor" to claim otherwise on the Op-Ed page of the NYT? Under this administration, there is no notion too radical or authoritarian to be off limits not only from being subject to debate, but from being implemented.

Just look at the things we're debating -- whether the U.S. Government can abduct and indefinitely imprison U.S. citizens without charges; whether we can use torture to interrogate people; whether our Government can eavesdrop on our private conversations without warrants; whether we can create secret prisons and keep people there out of sight and beyond the reach of any law or oversight; and whether the President can simply disregard long-standing constitutional limitations and duly enacted Congressional laws because he has deemed that doing so is necessary to "protect" us.

These haven't been open questions for decades if not centuries. They've been settled as intrinsic values that define our country. Yet nothing is settled or resolved any longer. Everything -- even the most extremist and authoritarian policies and things which were long considered taboo -- are now openly entertained, justifiable and routinely justified.

Rather than dissect Yoo's lawlessness-venerating Op-Ed, I instead want to quote a "lefty blogger" who makes some critically important points even though he is (admittedly) rather shrill and imprudent with his language and often sounds a bit like a partisan hysteric (he uses regrettably shrill words like "tyranny" and "despotism"). But on two issues in particular -- (a) secret prisons and detentions, along with punishment without trials, and (b) claims (such as those by Yoo and the White House) that courts are acting improperly by "interfering" in the President's national security programs -- he really does articulate some important points.

Here is the first post:

The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: "To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

Here is the second one:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .

The interpretation of the laws is the proper and peculiar province of the courts.
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

This lefty blogger fails to take seriously the existential threat posed by Islamofascist-Nazi Terrorists, because he resists the notion that the Constitution changes as a result of that threat. Instead, he claims that the Constitution can only be changed by the amendment process set forth within that document, not by whimsical reactions to contemporary events. Apparently, he hasn't heard the brilliant insight that the Constitution is not a "suicide pact"-- which means we can disregard it any time doing so makes us safe -- or that, as the President said, Judge Taylor's decision ruling the NSA program unconstitutional happened because she "simply do[es] not understand the nature of the world in which we live":

. . . yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.

Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

The vision of John Yoo and the Bush administration is exactly what this country was founded in order to avoid. The powers Yoo insists the President possesses are exactly those which were identified by the Founders as the hallmarks of tyrants and despots. Of course, if Hamilton said anything like he said in the above-excerpted quotes as part of our current debates, he would be branded a shrill, unserious, soft-on-terrorism, partisan hysteric by the Washington Post Editorial Board and certain highly serious and very responsible magazines.

If only Alexander Hamilton and the other Founders had understood the grave, existential, unprecedented threat posed by Islamicfascist Nazi jihadists, they would have understood all of this and would have enthusiastically embraced all the things they waged war to prevent and which they impetuously and shrilly called "notorious acts of despotism." But there is no need to change the Constitution they created and for which they advocated. It can just be decreed to be different by the President whenever national security demands it. Just ask John Yoo or Richard Posner or any Bush followers. That's what they'll tell you.

* * * * * *

At 2:20 pm EST today, I will be on the Ian Masters Show on KPFK 90.7 FM public radio in Los Angeles -- along with Marty Lederman -- to discuss the FISA and military commission issues. You can listen to the live audio feed here.

And more shrill, partisan lefty bloggers -- here and here -- respond to John Yoo by claiming that we ought to maintain the rule of law and Constitutional limits on government even though Islamofascist Nazis want to stage more terrorist attacks.

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