Great piece on John Yoo in Esquire. As a member of the White House, he helped shape much of Bush’s views on presidential powers:
Yoo’s analysis hinges on the Declare War Clause. Most scholars — most people — believe it was intended to give Congress power to decide whether to go to war and that the founders saw this as an essential bulwark against tyranny. Yoo makes a case that it was really meant as a formal recognition of wars already under way, and the founders intended the real bulwark against tyranny to be Congress’s power of the purse. “Several times every year, Congress has a chance to vote on funding the Iraq war,” he keeps telling me. “It’s an amazing power — if 51 percent of them refuse to vote for it, the war is over.”
Abraham Lincoln is Yoo’s best argument. Congress had already passed a statute laying out an explicit legal procedure for freeing slaves, but Lincoln ignored the law and freed the slaves under his “unilateral executive authority in wartime as commander in chief to take measures necessary to win a war,” as Yoo puts it. Lincoln used the same grounds to suspend habeas corpus, a right the Constitution explicitly grants to Congress. If you really believe that Yoo is all wrong and the unitary-executive theory completely false, you kind of have to say Lincoln behaved like a tyrant.
Good point. His views are shaped by Truman’s actions in the Korean War — Yoo and his family were an obvious beneficiary of that president’s unilateral action.
Yoo teaches law at Berkeley, a campus where his views aren’t widely embraced. Here’s a funny bit:
The anger is often directed at him. Protesters in Guantánamo orange have disrupted his class and dogged him in public forums. I talked to another Berkeley law professor who refuses to attend faculty meetings with him. “Until he atones,” he said, “I don’t want to be in the same room with him.” But Yoo shrugs it all off. He likes living among liberals, he says. “Liberals from the sixties do a great job of creating all the comforts of life — gourmet food, specialty jams, the best environmentally conscious waters.”
Wow, I’d never thought of that. As a big fan of Trader Joe’s and Stoneyfield Yogurt, I’d like to officially thank the nation’s liberals.