John Yoo: Once again besmirching the pages of the Inquirer

Yes, I’m a little grumpy that the Philadelphia Inquirer keeps giving op-ed space to John Yoo. It’s not that I’m opposed to conservatives having a voice in prominent Philadelphia media. It’s that in most cases, a lawyer who thinks the president should have the power to crush a child’s testicles — provided, you know, the president means well — generally gets moved to the margins of polite discourse instead of claiming a prominent platform smack dab in the spotlight. Bryan Tierney has other ideas. I’m not the only one who gets cranky about this. Our friends at City Paper aren’t happy either. Neither are Young Philly Democrats. Nor is Brendan Skwire.

But John Yoo, like any other citizen, has the right of free speech. Guess he’s lucky President Bush apparently didn’t act on Yoo’s theories about junking the First Amendment. So let’s consider what Yoo has to say.

I’m tired and I’ve got a cranky baby, so I’m going to dispense with a carefully thought-out fisking of Yoo’s op-ed today, in which he defends newly released memoranda in which Yoo, working in the Office of Legal Counsel, at various points asserted President Bush’s wartime authority to dispense with the First and Fourth amendments to the Constitution.* (The memos were rescinded just before the election; the Bush Administration apparently didn’t want Barack Obama to have the same powers it had reserved it itself.) We’ll skip instead to Yoo’s final paragraph, where he poses the key question:

The question is not whether some imaginary perfect world of civil liberties has been destroyed, because we do not live in that world. What we should ask of the Bush administration and its successor is whether they struck the right balance between security policies and civil liberties.

That’s an easy question to answer, at least where the Bush Administration is concerned: No.

Why do I say that? Well, because the foundation of civil liberties is the limitation of government power. And John Yoo’s secret memoranda — as well as other memos of his that have been disclosed throughout the years — seem to recognize no limits on the president’s wartime power. I’ll let Glenn Greenwald sum up Yoo’s outlook, as revealed in the new memos:

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments.  It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.  And it wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls “domestic military operations” was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying — in secret and with no oversight — on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

Right. Yoo asks us to consider whether the Bush Administration “struck the right balance” with regard to civil liberties. But there’s no evidence that any balance-striking was attempted. Instead, what you see time and again Yoo’s memoranda are assertions that a wartime president is empowered to do pretty much anything he wants, that there are no limitations.

Have we detained thousands of U.S. citizens, like we did in World War II? No. Are the Alien and Sedition Acts enforced against disloyal Americans? No. But we have tortured. We have ignored the privacy rights of Americans. And we — the Bush Administration, acting on behalf of the American people — have tried to deny American citizens their due process rights. The list goes on. Yoo — whose legal advice made those violations possible — wants you to believe that because the awful actions of other wars have been absent since 9/11, everything’s OK. It isn’t.

* Conservatives like to mock expansive readings of the Constitution, but where does the Constitution empower the president to disregard it? Somewhere in the penumbras and emanations, perhaps?