John Yoo in the LA Times: D+ Essay

John Yoo, the legal mind behind much of the President’s post-9/11 consolidation of power, today writes an op-ed in the LA Times disagreeing with the recent Supreme Court decision in the Hamdan case. In Hamdan the court essentially found a variety of positions Yoo had supported when he work for the Department of Justice to be without merit. In the op-ed, Yoo tries to argue back but his defense is laughably weak. It is work unworthy of a law school student, let alone a professor.

Yoo makes three claims about the need for strong presidential powers: Presidents “can act with a speed, unity and secrecy that the other branches of government cannot match. By contrast, legislatures are large, diffuse and slow” [italics mine]. Later in the article, Yoo reformulates this same idea by quoting from the Federalist Papers on the ability of presidents to act with “decision, activity, secrecy and dispatch.”

Okay let’s take these points one by one. “Speed” (or dispatch) hardly seems relevant in this case. Guantanamo has been in operation for over four years now. That is hardly a situation that seems to require speed. Skipping unity for a moment, next consider “secrecy.” This isn’t even relevant to the question at hand. While secrecy is in play in related cases, such as Bush’s wiretapping and bank monitoring, the military tribunals at issue in Hamdan were publicly known. Thus, what Yoo calls a Supreme Court power grab didn’t take any power away from the executive in this case.

Finally, the last issue is that of “unity” (which I take to mean essentially the same thing as decision and activity). Certainly the president can act with more unity that the “large, diffuse and slow” legislative branch. But this advantage is largely negated when there is no need for quick action. As noted above, there was plenty of time for the Congress to act in this case. Sure, having Congress authorize the tribunals might have taken some time and might not have been as decisive but those facts alone hardly would have put the nation in any danger. A year would have been plenty of time for Congress to act (if it was truly important a week would have been enough). That is, it would have been the case had Bush tried to get Congressional approval rather than following Yoo’s legal opinions and claiming not to need support.

This brings up a point Yoo makes at the end of his article: “But here, unlike abortion, the Supreme Court does not have the last word. Congress and the president can enact a simple law putting the court back in its traditional place, allowing for the usual combination of presidential initiative and general congressional support.” While Yoo states it like he is making some novel point, this was exactly what the court said in its decision: the president’s actions needed Congressional approval. This is radically different from the Yoo’s and the president’s position that the executive can do whatever he wants. Thus Yoo obscures the essential point of the Hamdan decision, the president doesn’t have unlimited powers, even in a time of war.

Law professor Peter Spiro of Opinio Juris takes some shots at Yoo here and spork incident calls out Yoo’s reasoning here. Carol Platt Liebau agrees with Yoo but only quotes from his op-ed. Anyone care to offer a stronger defense of Yoo’s position?