"Unitary Executive Theory" is perhaps a term of art, but it is one that captures a school of constitutional thought, according to which the vesting clause of Article II, section I - which declares that the executive power shall be vested in a President of the United States of America - confers vast unenumerated powers upon the executive branch, and, according to certain of its theoreticians, plenary powers, such that the Constitution is read to impose strictures upon the courts, and upon the Congress, yet none upon the executive. It is the ideology of the President as the Decider, the mystagogue who, by invocation of 'national security', or 'emergency powers', decrees exceptions to the law - himself as an exception, to whom the law does not apply, as the invocation renders him the sole judge of his own determinations, and exceptions to the process of law, by which persons become simultaneously entitled and not entitled to legal protections and procedures, at his discretion. It is the legal philosophy undergirding the infamous torture memorandums of John Yoo, war criminal, in defense of which he averred that the president could order a child's testicles to be crushed, if by doing so, a terrorist might be 'encouraged' to divulge information.
Alas, for such sibyls hymning the imperium and its pretenses of unlimited power, the foundation of this doctrine in the Constitution is negligible. According to Gene Healy, author of The Cult of the Presidency,
But there are a number of hurdles to jump before one can conclude that the president has plenary power over foreign affairs - and domestic affairs as well, to the extent that his actions can plausibly be characterized as serving the end of national security. First one has to establish that the constitutional text indicates a general grant of power to the executive - that the president's powers go beyond those specifically enumerated in Sections 2 and 3 of Article II. Second, if "the executive Power" is a general grant of power, one still has to unpack what that power contains. What is "the whole thing"? Is it broad enough, as many unitarians suggest, to allow domestic surveillance and imprisonment without trial, so long as those activities are incident to the president's wartime goals?Is the vesting clause, namely, the first sentence of Article II, a general grant of "executive" power? If it is, then the enumeration of specific executive powers that follows in Article II, Sections 2 and 3, is largely redundant. If the president has "the whole thing", whatever it is, surely it must be broad enough to include requiring "the Opinion, in writing," of the heads of each executive department, ro to allow him to "receive Ambassadors." (Emphasis mine.)
Further, if the vesting clause is a general grant of power - a font of significant "residual" authority not contained in the specifically enumerated Article II powers - it's surprising that so little of the discussion at the Philadelphia Convention, in the Federalist, and at the ratification conventions appears to reflect that. It's worth noting that, for all the emphasis unitarians put on the difference in wording between the introductory clauses of Article I (applicable to Congress) and Article II (applicable to the president), at the convention, few, if any, of the delegates noted the difference. The "herein granted" language was added to Article I by the Committee of Style, which had no official power to make substantive changes. At no point during the Constitutional Convention did any participant argue that the vesting clause constituted a general grant of power. (Emphasis mine)
Hamilton's defense of the office in the Federalist centers on the powers listed in Article II, Sections 2 and 3, rather than addressing the clause that unitarians claim would have been understood by 18th-century Americans to include broad powers over war and peace. Historian Jack Rakove notes that the proponents of the vesting clause thesis have failed to provide evidence that any participant in the extensive debates over the Constitution's ratification understood the clause that way:
If we know anything about the public discussions of 1787-1788, it was that when it came to identifying potential sources of tyranny and misrule in the Constitution's numerous clauses, Anti-Federalists wrote with promiscuous abandon. Here is one case where the inability to produce a single source positively falsifies the claim being made
Finally, the vesting clause thesis - at least in its broadest incarnations - fits uneasily with the principle that our Constitution is one of enumerated, and thus limited, powers. Madison's assurance in Federalist No. 45 that "the powers delegated by the proposed Constitution to the federal government are few and defined," was also the key argument the Federalists presented against a Bill of Rights. Since no power had been granted that could threaten private rights, Hamilton asked, "why declare that things shall not be done which there is no power to do?"
Unitary executive theory not only facilitates the subversion of duly-enacted laws and the checks and balances of the constitutional order, and not only finds employment as a legitimating myth for war crimes and other injustices, it is simply, nakedly, unconstitutional. The Constitution does not provide for the obscene secret supplement to itself, by which its provisions may be disregarded where this suits the executive. The veritable conditions of its ratification render this constitutional theory inconsistent with any plausible doctrine of original intent. It is a more contemporary innovation and distortion, and if it is one made seemingly persuasive on account of modern myths of the activist presidency, that is a failing of the American people, who have embraced such fables. We cannot, however, use the Constitution as a fig leaf.
Comments (28)
"Unitary executive" does not mean "unlimited power," and it is a fundamental mistake to conflate the two. Those are just two completely different theories.
Unitary executive theory simply means that the executive branch should be under the control of the President -- which would mean, for example, a suspicion towards independent administrative agencies or independent prosecutors operating as an executive branch unto themselves. Thus, one of the most famous statements of unitary executive theory was Scalia's renowned dissent in Morrison v. Olson, where the Court's majority upheld an independent prosecutor looking into Reagan's officials.
But unitary executive theory says absolutely nothing about HOW MUCH power the executive branch should have vs. the other branches of government, or how much power it should have in any absolute sense. Thus, the fact that Scalia opposed independent prosecutors in no way implies that he thought federal prosecutors should have boundless authority, or that they would be exempt from legislation passed by Congress, etc. That would be a totally different argument.
Cass Sunstein, no friend of the Bush administration, had a good explanation of these points: http://uchicagolaw.typepad.com/faculty/2007/08/what-the-unitar.html
Posted by Stuart Buck | August 6, 2008 4:16 PM
I appreciate the clarification, as Healy's terminology seemed a bit "off". He certainly appears to conflate the two claims.
FWIW, Sunstein's delineation allows for a substantial functional overlap between the theories, such that a defense of a strong unitary, independent executive correlates with a defense of various prerogatives. Theoretically, the two claims may be distinct; operationally, the picture is much more opaque.
Posted by Maximos | August 6, 2008 4:27 PM
http://jonathanturley.org/2008/07/21/obama-adviser-cass-sunstein-rejects-prosecution-of-possible-bush-crimes/
Cass Sunstein is a friend to the Bush administration, whether he will admit it or not.
Posted by Step2 | August 6, 2008 4:42 PM
Step2:
Just because Sunstein does not believe Bush commited crimes does not mean he's a friend of the administration. After all, if I do not believe that Bill Clinton clubbed baby seals for fun, that does not mean I am a fan of Clinton's.
Sunstein is a liberal scholar who tries very hard to be careful in his scholarship. I usually don't agree with him, but he's on balance a fair-minded fellow. We need more people like this--on both sides of the aisle.
Frank
Posted by Francis Beckwith | August 6, 2008 7:00 PM
Just because Sunstein does not believe Bush commited crimes...
The problem is that Cass does believe Bush committed crimes, which is good because Bush is strangely proud about admitting his defiance of the law, he is just unwilling to hold Bush accountable. According to him, this is because torture and lawless surveillance do not reach the threshold of egregious crimes. Which kind of makes me wonder what should count as egregious, if such an animal exists.
Posted by Step2 | August 6, 2008 7:33 PM
Thanks for the link. I disagree that I conflate the two claims. I open the book's discussion of UET by talking about the narrower and more defensible claim that the president controls the executive branch, and how many unitarians shifted to a broader, Yoo-like perspective post-9/11. In fact, I cite the same Sunstein blogpost Stuart Buck cites above.
Posted by Gene Healy | August 6, 2008 7:38 PM
Citing Hamilton (aka "Pacificus") to rebut claims of broad executive power is problematic. Also, Hamilton rejected the notion that constitutional interpretation should be decided on the basis of the original intent of the Framers.
Posted by Perseus | August 6, 2008 10:53 PM
ubermensch?
Posted by Letitia (The Damsel) | August 7, 2008 2:32 AM
Mr. Healy -- I haven't read your book, and am not accusing you of conflating the two issues. The post seemed to do so, however, right from the initial sentence (the claim that "unitary executive" equates to "vast unenumerated powers" or even "plenary power"). Maybe that gets blurred in practice, but in theory, "unitary executive" just means that executive agencies and prosecutors should be part of the executive branch -- not operating as a fourth branch of government unto themselves -- regardless of whether they have a little power or a lot.
Posted by Stuart Buck | August 7, 2008 9:58 AM
Maximos,
Buried in your post (which I think makes a strong case, along with Mr. Healy, against Yoo's interpretation of "unified executive theory") are two links that attempt to make a case that John Yoo is a war criminal. Let me simply suggest that to endorse such a view, which is a familiar trope of the Left, seems to make a number of factual and logical errors and is frankly borderline libelous of the brilliant and dedicated Mr. Yoo. I will simply point out a couple of these errors and let readers do additional research to confirm my allegations:
1) there is zero evidence that the so-called "torture memos" had anything to do with what happened at Abu Ghraib (or supposed abuses at Guantanamo) as Heather MacDonald explained a couple of years ago here:
http://www.city-journal.org/html/eon_01_25_05hm.html
and here: http://www.city-journal.org/html/15_1_terrorists.html
and here: http://www.city-journal.org/html/eon_01_27_05hm.html
2) what torture means legally versus what you want it to mean (from a moral perspective) are two different things and is a distinction that is important to make, especially when you're going to accuse someone of a war crime, see here:
http://article.nationalreview.com/?q=ZjhkM2YyZmE5MThjZGNlN2IyMGI4MmE3MWM1OWQ5MjA=
and here:
http://article.nationalreview.com/?q=YzU3OWUxOTM5NGZhZmYzODM2ZTI4ODhiYzU1NjdkNzE=&w=MQ==
3) finally, I'll leave the last word to Mr. Franck, who responded to the Yoo controversy earlier this year related to his tenure, with this comment about Yoo's critics:
"Indeed, identifying just what those "war crimes" are (committed by others, mind you), for which he could be held responsible even in the most remote sense, would tax Yoo's critics beyond even their imaginative abilities. Then again, some of them blame him for Abu Ghraib, so perhaps I should not underestimate their hallucinations."
(you can read the whole post here: http://bench.nationalreview.com/post/?q=ZGRmODExNDE1OTA0MTEyMTRjZmYzY2MzMDEzODI2MGE=)
Please, please, please, do not accuse Mr. Yoo again is such a serious charge without detailing a serious argument for your position (which "Vox Nova" and Glenn Greenwald do not do -- they simply assert a reality for which they do not provide back-up evidence)!
Posted by Jeff Singer | August 7, 2008 2:59 PM
Jeff, there are two aspects of the entire John Yoo/Abu Ghraib controversy in which I have no interest whatsoever: first, the relationship between Yoo's counsel to enter into evil and what transpired at Abu Ghraib, Guantanamo Bay, or in secret locations throughout the world; second, positivist hairsplitting concerning the definition of torture. Yoo authored memorandums establishing the rationale, the legitimating myth, the theoretical framework, for Bush administration policies regarding "enhanced interrogation procedures", arguing that The Decider may authorize whatever means he deems requisite to his "national security" ends. When the Bush administration grasped for a fig leaf, Yoo was there, sewing some together. Torture, moreover, is what it is, and not what cunning lawyers are paid to say that it is; and therefore, war crimes are what they are.
Yoo opined that The Decider is legally empowered to authorize war crimes, up to, and inclusive of, the torture and maiming of third parties; and - surprise, surprise! - the Bush administration subsequently authorized the commission of war crimes. The precise causal path wending its way between Yoo's secretions and specific acts of torture holds no fascination for me; do we honestly imagine that there will surface a genuine document explicitly authorizing act of torture A, on the basis of argument X in Yoo's work? I mean, the Bush administration is staffed with utter incompetents, but I'd expect better than such amateurish work from them.
The linked posts are interesting, albeit primarily in a positivist sense. Abu Ghraib does not exhaust the register of injustices perpetrated by the established interrogation and detention regime, so the arguments to the effect that the "techniques" employed there were expressly forbidden is duly noted, but not terribly pertinent. Legal definitions of torture, as I have indicated, hold no interest for me. If the Congress, or the administration, should define a category of persons to whom electroshock treatments and waterboarding could be applied, and added that these acts would not qualify as torture for the purposes of law, would they thereby cease to be torture? Please. Finally, Franck's post is a tantrum, a classical attempt to reduce to a matter of "political disputation" a controversy which is about rather more than differences between the administration and its critics; moreover, it is an exercise in - surprise, surprise! - more legalistic sleights of hand, much as if a consigliere were known to have advised his Mafia clients to violate some law, but were to protest that his counsel could not be connected to any specific instance of lawbreaking. Again, please. That John Yoo holds a tenured position at an American university is a disgrace of the same nature (not magnitude) as it is that some academics continue to obfuscate the nature of the Soviet experiment upon humanity: running interference for atrocities.
Posted by Maximos | August 7, 2008 3:40 PM
Jeff Singer:
Excellent post.
Maximos:
Does it give you even a moment's pause when you consider that your accusations of war crimes are the same that are constantly echoed both by communist front groups and America-hating leftists -- that is, by the most undiluted collection of liars and morons in the country?
Because it should.
Posted by George R. | August 7, 2008 4:51 PM
Hamilton asked, "why declare that things shall not be done which there is no power to do?"
<sarcasm>Why indeed?</sarcasm> I guess one does wonder whether the constitution might've (somehow) been intepreted more strictly over the years, if, in fact, the Bill of Rights had not been included... something like fences providing a temptation to transgress.
Posted by anonymous | August 7, 2008 6:36 PM
Maximos,
This is the problem I have with your entire analysis:
"Torture, moreover, is what it is, and not what cunning lawyers are paid to say that it is; and therefore, war crimes are what they are."
I guess you rule out the possibility that men of good will and acting in good faith could come to different conclusions about what constitutes torture? Waterboarding is a good example -- I'm not sure whether or not I would consider it torture, but at the very least it seems reasonable to argue that it isn't. We aren't talking about cutting off fingers. And can you point to a single instance of the U.S. military (or agencies like the C.I.A.) using electroshock on a detainee (which is what you seem to imply has already occured), even though they are expressly forbidden from doing so?
Posted by Jeff Singer | August 7, 2008 7:17 PM
Speaking for myself, I'd say it is just really obvious that waterboarding a prisoner for information is a form of torture; and I do have concerns about folks for whom that is not really obvious.
Posted by Zippy | August 7, 2008 7:21 PM
When Yoo cannot answer basic questions before Congress about his own policy, there is very little reason to suppose good will, but a good chance of him being a liar.
http://balkin.blogspot.com/2008/06/john-yoo-testimony.html
Posted by Step2 | August 7, 2008 7:45 PM
"I guess you rule out the possibility that men of good will and acting in good faith could come to different conclusions about what constitutes torture?"
Is this the "I meant well defense"? Water boarding, in all of its forms has been considered torture for decades and in some forms centuries. It is almost impossible to use stress positions without causing lasting and often permanent injuries.
As for electroshock:
"Scarring on Yasser’s thumbs was
highly consistent with the scarring caused by electric
shock. Further, reports of rape and sexual assault were
corroborated in two cases by medical examination"
The full report may be acessed here:
http://brokenlives.info/?page_id=69
Major General Taguba wrote the preface.
"That John Yoo holds a tenured position at an American university is a disgrace of the same nature (not magnitude) as it is that some academics continue to obfuscate the nature of the Soviet experiment upon humanity: running interference for atrocities"
A quibble here. Are there still apologists for that failed experiment? If there are they are merely fools as were their predecessors who fellow-traveled unless they actually worked for some communist government. Yoo is a war criminal who actively worked to enable torture, not as a mere advocate but as a government employee actively working to enable torture. I see a difference between some well meaning but deluded professor and someone working in the Kremlin to further torture in the Lubyanka. Yoo isn't a war criminal for his work at UC, he likely is for his work at DOJ. War crimes are of a different nature than academic speculation Marx was not just an academic he was an active revolutionary.
Posted by Al | August 7, 2008 9:14 PM
Waterboarding has been historically considered a form of torture, as it was a form of torture authorized for use by the Spanish Inquisition, en espanol se llaman, 'la tortuga del agua'...
Posted by MikeT | August 8, 2008 1:05 PM
Most of my critics seem to enjoy employing rhetotical slight of hand to make the case that I'm one of those people that Zippy has "concerns" about.
The post Step2 linked to makes a number of silly arguments about the details of Yoo's testimony before Congress. And I use the word silly in the sense that anyone who testifies before Congress might not reference every last footnote or elaborate on every last detail. Marty Lederman, if you read the Heather MacDonald posts I linked to above, is a blowhard who turns his disagreements with the Bush Administration into a moral crusade.
The report Al linked to was useful in that it exposed me to yet another organization that uses the real fact that some prisoners were abused (and yes, electro-shock was apparently used...so I appreciate the clarification) to claim it was all a result of Bush Administration policies. So again, we have the Maximos argument -- thanks to John Yoo's legal opinions "the Bush administration subsequently authorized the commission of war crimes". Maximos doesn't say what these specific crimes are, or what specific order was issued by Bush in their commission. For Maximos and other Administration critics, it is enough to assert that because they interpret Yoo's legal memos as authorizing torture, and because some prisoners were tortured, it must be the case that absent Yoo's memos no torture would have taken place in Iraq.
Finally, MikeT's claim regarding history is only partially true. Again, read the first post I linked to from Andrew McCarthy as he deals with this exact question. Clearly, men of good will thought it wasn't torture (in the common sense most people think of the term, e.g. slowly cutting off an ear) as the technique was used by the U.S. armed forces in training our own men.
Posted by Jeff Singer | August 8, 2008 3:53 PM
Jeff, I've already addressed your criticisms of my position. To wit, the Bush administration, while unusually incompetent, would not be so daft as to leave a paper trail regarding the authorization of torture, which is the war crime in question. Second, Yoo's memos authorize torture; this is not a matter of debate, any more than it is a matter of legitimate debate that the earth orbits the sun. He said it, time and time again. And, furthermore, to argue that Yoo cannot be responsible in any sense of the term, because torture may have occurred, or would have occurred, even in the absence of his counsels of wickedness, is as dishonest as the mafia lawyer in my analogy. That crimes would have occurred in the absence of the counsel to commit them does not absolve one of responsibility for providing guidance in the matter of their commission.
Posted by Maximos | August 8, 2008 4:06 PM
Maximos,
Just to make sure I understand your position on John Yoo, I wanted to pose the following question to you:
do you routinely and casually refer to any and all lawyers, legal scholars, and judges who think (and argue) the Supreme Court decision "Roe v. Wade" was correct as murderers?
I ask under the assumption that you believe abortion is evil and a form of murder. Because it seems to me that this entire legal framework (allowing abortions in America) is equivalent to John Yoo making the case that in some cases, under certain circumstances, the President would be authorized to use what would be considered torture under certain international treaties and maybe even U.S. law. John didn't tell the President he should "torture" (and despite your insistance that his memo is clear on this matter, it all depends on what you mean by torture) an individual prisoner of war or that it was wise to do so -- only that it would be legal.
So it seems for consistency sake, that if you are going to accuse Yoo of being a war criminal, I expect you'll also refer to someone like Senator Obama as a murderer.
Posted by Jeff Singer | August 9, 2008 10:51 AM
Weak analogy. The stronger analogy would be between a lawyer who counsels an abortionist or abortion provider organization, such as Planned Parenthood, as to how best to evade, subvert, or otherwise traduce laws regulating abortion, and John Yoo's counsel of wickedness to the Bush administration; but that analogy would tell against attempts to exculpate Yoo. Yoo does not earn a pass because he is advancing a theory of the president as supra-sovereign, possessed of plenipotentiary powers to override and dispense with the execution of the laws; not only did he counsel lawlessness, but his theory, in addition to being controversial, is manifestly a theory of ultimate lawlessness. Specifically, Yoo confabulated a reading of the Constitution according to which the president can dispense with the observance of both duly-enacted domestic law and international treaty obligations; there is no legitimate question as to whether torture is consistent - because permissible - for certain classes of persons, in certain sets of circumstances, with those laws. It is not. Period. Yoo essentially told the president, "Here's how you can get away with pissing on the law." That makes him formally complicit in war crimes. Period.
Posted by Maximos | August 9, 2008 2:15 PM
Maximos,
You yourself have said that if Congress passes a law tomorrow making torture legal in some "special" cases, it would still be wrong. In which case now both Yoo and Congress would be "formally complicit (hmmm, that word 'formally' sure sounds like positivist thinking is creeping into your argument) in war crimes".
So again, why don't you regularly label judges, legal scholars, lawyers, etc. who make a case that abortion is legal under the U.S. Constitution murderers or "complicit in murder"?
And for the record, Yoo's entire argument, whether you disagree with him or not, is that under the U.S. Constitution (i.e. our legal framework) the President is compelled to ignore certain domestic laws and/or treaties when defending the U.S. from enemies. In other words, whether you like it or not, Yoo is arguing not lawlessness, but a theory that suggests the opposite: the only lawful action the President must take from time to time (i.e. depending entirely on specific security situations) is to ignore the aforementioned laws and treaties. I know you frown on such consequentialist thinking (e.g. see the previous WWWtW thread on shooting down Flight 93), but Yoo's argument basically boils down to the notion that sometimes to protect people, you will have to hurt (or kill) other people (some of whom may be innocent).
Posted by Jeff Singer | August 9, 2008 3:00 PM
So again, why don't you regularly label judges, legal scholars, lawyers, etc. who make a case that abortion is legal under the U.S. Constitution murderers or "complicit in murder"?
Because there is a difference between the articulation of a morally reprehensible theory of abortion rights and the provision of direct counsel to a client, as to how he might violate laws restricting the provision of abortion services and successfully evade prosecution.
In other words, whether you like it or not, Yoo is arguing not lawlessness, but a theory that suggests the opposite: the only lawful action the President must take from time to time (i.e. depending entirely on specific security situations) is to ignore the aforementioned laws and treaties.
No, that is a specific application; the essence of the theory, and its implications, are much broader. Moreover, the argument you attribute to Yoo is internally incoherent: it cannot be lawful to violate the laws, inclusive of the fundamental law, the Constitution. There is no obscene secret supplement.
Yoo's argument basically boils down to the notion that sometimes to protect people, you will have to hurt (or kill) other people (some of whom may be innocent).
Not exactly. If we want to distill down to its essence that festering pot of jenkem Yoo fobbed off as an "argument", the distillation would be something to the effect that, in order to accomplish the good end of (non-specific) "national security", it is permissible, even mandatory, to enter into evil; the Constitution, moreover, expressly authorizes this (which, in fact, it does not). Yoo's counsel is that we may, indeed ought, to perform evil that good may come of it. Those evils, moreover, are unlawful, according to multiple levels of jurisprudence.
FYI, "formal complicity" is not positivist language; it expresses the condition of express mental and volitional assent to the evils performed.
Posted by Maximos | August 9, 2008 3:25 PM
Well, at the very least I learned a delightful new word: "jenkem".
When I said Yoo's theory suggested that the President "ignore the aforementioned laws and treaties" I was referring to lesser federal stautues and/or international treaties that would be subordinate to the U.S. Constitution, not an "obscene secret supplement."
Now, you say the following:
"Because there is a difference between the articulation of a morally reprehensible theory of abortion rights and the provision of direct counsel to a client, as to how he might violate laws restricting the provision of abortion services and successfully evade prosecution."
But although Yoo was providing direct counsel to the President, Yoo's counsel was obviously intended to be more than "if you, person A, are faced with a specific situation X, you can do Y". It was a counsel that suggested ANY person, not just person A, who holds the Office of the Presidency, can do Y when faced with a variety of situations that are similar to situation X. In effect, Yoo saw himself as formulating policy for the U.S., not just a specific client.
Likewise, I assume that given your definition of "formal complicity", you have no problem characterizing all the judges, legal scholars, and lawyers who have allowed abortion to become legal in America as "formally complicit" in the evil of abortion post-"Roe". Without their work, abortion would remain illegal and limited in practice to those who evade the law. So if Yoo is a "war criminal", it seems this pro-abortion group of actors are "baby killers" or "formally complicit" in allowing murder to flourish in America post-"Roe".
Posted by Jeff Singer | August 9, 2008 4:10 PM
I'd certainly say that the justices who crafted Roe itself are formally complicit in the evil of abortion. I wouldn't call them "baby killers." I'd call them "deliberate enablers and helpers of baby-killers," which is hardly more complimentary. As for all the other lawyers and judges, I'd have to know what they, specifically, had done before I decided how the issue applied to them. I do think that a judge is less culpable if he believes that he is obligated to apply Roe as a precedent and does so in some case (to strike down some other law? to release an abortionist?) than the original crafters of Roe. Not that I agree with him about that; I'd rather see him step down or recuse himself than take any such positive action to apply Roe.
For the most part, the "application" of Roe has been either a) by the Supreme Court itself, who were in a position to overturn it rather than striking down more laws, hence were very culpable, b) by lower federal courts striking down additional state or federal laws passed post-Roe by applying Roe as precedent (see above), or c) passive, and hence not properly called "application"--just state prosecutors' _not_ prosecuting abortionists and so forth. And whatever I might think about c and about what would have been a better course of action, it's hardly the same thing as some definite action that could even putatively be a matter of cooperation with evil.
Posted by Lydia | August 9, 2008 4:26 PM
In effect, Yoo saw himself as formulating policy for the U.S., not just a specific client.
"President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. 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. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.
Source: John C. Yoo, The Imperial President Abroad, in Roger Pilon, ed., The Rule of Law in the Wake of Clinton 159 (2000).
h/t Volokh
Posted by Step2 | August 9, 2008 4:28 PM
Posted by Zippy | August 9, 2008 5:24 PM