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January 05, 2009

Hypocrisy Alert
Posted by Michael Cohen

Today, in the New York Times there is an op-ed by two former Bush Administration officials urging President-elect Obama to resist the temptation to "avoid the requirement that treaties must be approved by two-thirds of the Senate." They go on to assert, "The framers required a supermajority to ensure that treaties would reflect a broad consensus and careful, mature decision-making."

It certainly is unusual for Bush Administration officials to defend the institutional prerogatives of the U.S. Senate, particularly when it comes to foreign policy. This is especially true when one considers that one of the authors of this op-ed is John Yoo. That would be the same John Yoo who when he previously served at the Department of Justice wrote this:

Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President....Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

However, Yoo and his co-author John Bolton go a step further by arguing that if Obama were to seek a majority-vote on international treaties as opposed to a two-thirds vote, it "would pose a serious challenge to American principles of law and democratic governance."

Yet, this same author, Mr. Yoo, has written that the President can pretty much override treaty obligations or international law if he so chooses:

International law is not federal law and the President is free to override it at his discretion.

And, he also wrote this:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

But then perhaps I shouldn't be so blase. After all, John Yoo is largely responsible for the legal opinions underpinning the Bush Administration's assault on the Constitution and adherence to the rule of law by the executive branch.

So I suppose when he warns about challenges to American principles of law and democratic governance . . he knows of where he speaks.


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Most legal scholars -- even those on the right after you buy them a few rounds -- will admit that, despite his apparent academic pedigree, John Yoo is quite an intellectual lightweight on legal issues, especially Constitutional questions. Of those Constitutional issues he doesn’t grasp, he seems to have a fundamental lack of understanding of matters such as separation of powers and the powers vested (and not vested) to the Congress and President under Articles I and II of the Constitution, respectively. This legal ignorance, and his irrational reverence to all things related to the “Commander-in-Chief”, made him quite a harmful entity in the Justice Department during the Bush Administration.

Frankly, if Yoo, David Additington, and their ilk were being completely honest, most of the legal opinions they drafted in the early part of this decade would have specifically stated that “International law is not federal law and George W. Bush is free to override it at his discretion”, and other such declarations. Theirs was not an interpretation of what the Constitution enabled the President of the United States to do. It was a retroactive fig leaf to justify their reckless overreaction after 9/11. Unless a Republican were elected after Bush, none of their opinions giving the President extraordinary powers were to apply to Bush’s successor.

It’s also important to note that most of Yoo’s key opinions, particularly those dealing with Habeas Corpus and Geneva Convention rights for detainees/terrorism suspects, have either been significantly limited by Congress, curtailed or overturned by DOJ’s Office of Legal Counsel, or outright discredited and rendered moot by the U.S. Supreme Court.

Ironically, Yoo, who wrote in an OLC opinion that “International law is not federal law and the President is free to override it at his discretion”, is now teaching Constitutional Law and International Law courses at UC-Berkley’s law school. According to the Supremacy Clause of the Constitution, international treaties signed by the President and ratified by the Senate carry the same legal weight and obligation as other federal laws.

I wonder how Yoo spins that one at Boalt Hall . . .

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