The law according to Yoo

Some thoughts on what John Yoo will teach his students.

Yoo's constitutional theories regarding presidential power raise some interesting jurisprudential and moral issues. If we assume Yoo isn't a moral monster, we have to assume he doesn't actually favor machine-gunning a village of civilians or crushing the testicles of a child merely because the POTUS thinks such actions will "keep us safe." Yoo's position, I'm assuming, is that such things, while morally monstrous, wouldn't be illegal under certain circumstances.

It's tempting to dismiss this view as absurd on its face (I happen to think that in this instance it is absurd on its face, because Yoo's position regarding the extent of presidential powers in wartime is extreme to the point of absurdity), but the only way to avoid the possibility of finding oneself arguing for something similar in some other situation is to claim that "the law" never permits politicians to engage in grossly immoral practices. That seems to me very implausible. To take an obvious example, slavery was a grossly immoral practice in 19th century America, and also perfectly legal until 1863.

The moral dilemma lawyers in the situation Yoo (ex hypothesi) found himself in 2002 face is this: Suppose you believe it's legal to do something which is very immoral, and you're asked your professional opinion on whether it would be legal to do this very immoral thing, by people who are asking you precisely because they intend to do it. What do you do?

The two easy escapes from this dilemma are to take the view that nothing that is very immoral can actually be legal, or to take what appears to be Yoo's position, which is that he was just being asked for his professional opinion, and what more powerful people chose to do with that opinion was their affair. Neither of these escapes seems legitimate to me. The first position is fairly incredible, while the second dodges the question of moral responsibility altogether.

The first escape appeals to what could be called legal utopians, while the second appeals to authoritarian personalities. For other people, the possibility of this sort of ethical dilemma remains very real.

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A collision of hacks

What the hell?

It wouldn't have been difficult to predict this, but the stupidity of Deborah Solomon interviewing John Yoo does indeed approach the density of a degenerate dwarf star. After describing Yoo's new book as "an eloquent, fact-laden history of audacious power grabs by American presidents," Solomon offers him the chance to set forth, without challenge, his usual fact-free assertions about how the Constitutional framers really wanted to recreate the British monarchy.

The idea is that the president’s power grows and changes based on circumstances, and that’s what the framers of the Constitution wanted. They wanted it to exist so the president could react to crises immediately.

I continue to marvel at the willingness of self-described journalists to describe views like this as "history," given that supporting historical evidence for them is in fact nowhere to be found. For Yoo's interpretation to be even remotely plausible, we'd have to find something in the Constitutional debates proving that the framers imagined circumstances in which the middle third of Article 1, Section 8 would somehow be switched off. That would require as well that we discover some proof that the framers -- operating on republican principles that far exceeded those existing in the British constitutional monarchy -- suddenly decided that the president should enjoy greater war prerogatives than the dreaded king of England had at his disposal. And we'd have to overlook the fact that the convention of 1787 was primarily animated by concerns about the weak legislative authority of the federal government and not by some brew of anxieties about the absence of vague, emergency powers vested in its executive.

But hey, I'm sure Yoo's book has a raft of eloquent, fact-laden ripostes to these small historical problems. Though I'd also imagine the book contains fewer dick jokes bout Bill Clinton, nor would it reveal the awkward fact that Yoo has no idea or interest in what his parents do for a living. Leave it to Deborah Solomon to produce something that actually makes reading John Yoo seem more appealing.

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