Quote of the day: It's time to begin sorting out and undoing the destructive legacy of one of the Bush regime's evil geniuses, John Yoo

"Unless it is properly addressed by the government, Yoo's troubling legacy could affect the history of American civil liberties for decades to come."
--David Luban [right], in "The Defense of Torture," in the March 15 New York Review of Books

As I write, the new issue of The New York Review of Books doesn't appear to be up on the website yet. For now, the website seems content to taunt me with all the things I somehow haven't gotten around to reading in the March 1 issue. (Huh? I never read Russell Baker on Ronald Reagan? How is this possible? I always read Russell Baker pieces the day the damned magazine turns up in the mailbox.)

If you click on the one visible link to March 15, you're taken to a page that proclaims, "There is no issue of The New York Review of Books for March 15, 2007." This seems to me a shockingly defeatist attitude, which is happily not borne out by the facts. Come on, nybooks.com, I'm holding the bloody thing in my hand! There really is a March 15 issue--you'll see!

In the new issue, I haven't yet read Peter Galbraith on "The Surge," or Michael Tomasky on "The Democrats" (jumping off from a whole bunch of books that have already been published in the new political season), but I have read David Luban (a law professor at Georgetown) on John Yoo and his new screed, War by Other Means: An Insider's Account of the War on Terror, maybe because Howie and I were just chatting about Yoo the other day while he (Howie, that is) was in New York. He's reading Joe Conason's apparently terrific new book, It Can Happen Here, where Yoo receives some close-up scrutiny.

In case you've been lucky enough to forget, John Yoo is the punk Berkeley academic who slithered into the Bush Justice Department, indeed into the extremely powerful policy-wise Office of Legal Counsel, on a self-appointed mission to shred the Constitution to line the bird cages of the far, far, no farther right.

Among other things, Yoo is generally presumed (authorship of OLC documents is never attributed, except to the head of the unit) to be the author of the original Bush regime We Love Torture memo.

Now Luban is remarkably generous to Yoo, as for example when he writes that "Yoo argues forcefully and intelligently, but not always honestly. Half-truths, straw men, double standards, selective quotations, significant omissions, and caricatures of his opponents' positions--all are characteristic of War by Other Means. While you may not find this all that generous, I'm wondering how, in the face of everything that follows, one can claim that Yoo argues "intelligently."

The stuff that Yoo writes, whether it's about torture or any of the other other things he fantasizes a president has the power to do in time of war (when you get right down to it, there doesn't seem to be any limit to what he thinks a president can do--as long as he's a far, far, far right-wing, deeply authoritarian president), may be technically true but highly misleading, often so close to untruths that they're within a hair's breadth of being lies, or sociopathic misinterpretations of actual facts, or just plain whoppers.

One of Luban's nice touches is pointing out that:

Only once has Yoo complained that a president "exercised the powers of the imperial presidency to the utmost . . . in our dealings with foreign nations." He added, "Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system," and "the administration has played fast and loose with the law." He added that "when it comes to using the American military, no president in recent times has had a quicker trigger finger." Yoo wrote those words about President Clinton in 2000.

Luban's generosity to Yoo extends to accepting his assertion "that the struggle against al-Qaeda actually is a war."

The problem lies not in the label, but in the consequences that supposedly follow from it. For Yoo, labeling the struggle "war" activates every war power formerly associated with battle commanders. The central contradiction, which Yoo never overcomes, is that while he insists that the US is fighting a new kind of war, he also insists that it should be fought with the full panoply of traditional presidential war powers. But these war powers were designed for conflicts in which the enemy is in uniform and belongs to an identifiable foreign government, and whose duration and conclusion are defined by victories, surrenders, and peace treaties.

It appears that in Yoo's psychotic fantasy world, these unchecked and uncheckable presidential war powers all derive from his constitutional role as commander in chief. But as with the entire case for the supposedly "unitary executive," the supposed constitutional doctrine on which the modern-day right-wing loonies base their argument for what amounts to a right-wing dictatorship, it's all made up ini their diseased heads. The Constitution doesn't say any such things--they've taken a few wispy threads and applied the full potency and majesty of their screeching mental illness.

"There is absolutely no reason to believe," Luban writes, "that either the framers of the Constitution or its early interpreters would have given broad war powers to a commander in chief if they thought that those powers could displace civilian law anywhere, perhaps for decades, just on the president's say-so."

Now comes a crucial paragraph:

Yoo might reply that whatever we think the framers would have intended, hey made the president commander in chief. But this brings us to a disabling weakness in Yoo's constitutional theory: the relevant clause of the Constitution says nothing about the breadth of the president's war powers. The clause designates the president as commander in chief of the army, navy, and militias "when called into the actual Service of the United States"--period. It never explains what powers the commander in chief possesses, and the Philadelphia debates were equally silent on this issue. Is the authority of the commander in chief a narrow power of military command or a vast set of "war powers"? Yoo assumes the latter, but his assumption has no textual support in the Constitution, and he falls back again and again on [Alexander] Hamilton's call for executive "energy" and "dispatch." He does not mention that many of the founders had deep suspicions of Hamilton's pro-executive views.

When it comes to "energy" and "dispatch," Yoo has few equals. Luban cites Yoo's strong identification with Hamilton ("the most pro-executive and militarist of the constitutional founders, and also the most prolific and polemical") and notes, "He has written a staggering number of speeches, Op-Ed pieces, and articles defending hard-line policies since leaving the OLC," and now two books.

Luban concludes:

It remains now for a Democratic Congress to hold hearings to clarify Yoo's role in changing government policy and go on to propose changes in repressive laws--a the chair of the Senate Judiciary Committee, Patrick Leahy, has urged. For unless it is properly addressed by the government, Yoo's troubling legacy could affect the history of American civil liberties for decades to come.

With luck, by the time you read this, nybooks.com will have discovered that its pessimism was unwarranted, that there is indeed a March 15 issue of The New York Review of Books, and Professor Luban's piece will be one of those offered for free viewing, so you can see how he fleshes out these arguments.