How to Subvert Rule of Law

Here is an article in the Washington Post by Carrie Johnson and Ellen Nakashima entitled "'Inappropriate' Secrecy Hurt Surveillance Effort, Report Says":

"Extraordinary and inappropriate" secrecy about a warrantless eavesdropping program undermined its effectiveness as a terrorism-fighting tool, government watchdogs have concluded in the first examination of one of the most contentious episodes of the Bush administration.

A report by inspectors general from five intelligence agencies said the administration's tight control over who learned of the program also contributed to flawed legal arguments that nearly prompted mass resignations in the Justice Department five years ago.

The report written in the most anodyne style possible hides the outrageous subversion of rule of law. For me the key paragraph was:

Yoo's November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program. Yoo acknoledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence," but opined that "[s]uch a reading of FISA would be an unconstitutional infringement on the President's Article II authorities." Yoo characterized FISA as merely providing a "safe harbor for electronic surveillance," adding that it "cannot restrict the President's ability to engage in warrantless searches that protect the national security." According to Yoo the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. Yoo wrote that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid such a reading."

Here are my problems with this "reasoning" by Yoo:

1. I watched the movie A Few Good Men this weekend. This reeks of the same kind of manipulation and hypocrisy. Yoo and Bush's minions broke the law in their zeal for a "law" which made a travesty of the rule of law. In the plot Dawson and Downey execute a "code red" on a slacker (who actually had a serious heart condition and wasn't slacking off). This unwritten Marine Corps "code" was the higher law that the self righteous Colonel Jessep bullies his men with. The poor soldiers think they are serving a higher good and carry out cruel acts for this "good" and lose sight on the truly higher good established by a rule of law. Yoo is very much in the mold of Lt. Kendrick, a minion in the employ of the elite, only too happy to do dark deeds to further the career of his mentor.


2. Yoo see's Article II of the Constitution as giving the President nearly unlimited powers as the executive responsible for the safety and security of the country. But that responsibility is not especially highlighted in this text. In fact, the text makes very clear that there are a number of hedges and restrictions on the power of the presidency. Yoo has simply invented "powers" to fulfill a fantasy. His interpretation effectively creates a dictatorship.


3. Yoo's contention that a "presidential order" somehow has precedence over Law -- laws passed by Congress and signed by the President -- is bizarre. Yoo argues that, when the President decides to understake surveillance which clearly exceeds his authority under the FISA act, it is incumbent upon the Congress to reel in the President by passing further laws to explicitly forbid what the President has undertaken. This is insane. If the Congress passes a transportation act that forbids X, which the President dislikes, and the President then issues presidential orders that trains, planes, cars, buses, and ship are to do X. That in most people's mind is a contravention of the law. But Yoo argues that since the law does not explicitly say "trains, planes, cars, buses, and ships" then the President is free to interpret as he will and clearly go against the spirit of the law. And of course, when Congress passes a law saying that "cars must not do X", then Yoo would argue that it is within the President's power to say "Fords can do X, Chevrolet's can do X, etc." because the law does not explicitly name these particular cars. This is insane. But that is Yoo's argument. (What makes this all surprisingly bizarre is that the same Republican party which argues that justices must be "strict constructionists", i.e. reach into the minds of the Consitutional writers and rule within the strict confines of their intentions, here decides that the President can ignore the intentions of Congress and re-interpret law at will until Congress passes successively narrower and narrower laws to try to pin him down!)


4. The argument that FISA is an infringment of the President's Article II powers "except where limited by the Fourth Amendment" is another distortion. This reads the Constitution as if there are no sections setting up powers for Congress, the Judiciary, and reserves power to the States and the people. It makes the President pre-eminent and plenipotent. The President has all powers except where some explicit (and very narrowly interpreted) Contitutional text manages to leave the President without a way to argue that this power too rests with him. This is the kind of reading that only a toadying lawyer intent on instituting a dictatorship has the stomach for. It is too ridiculous to merit consideration except for the fact that under the Bush administrations "unitary executive" claims to power, these things were taken seriously!


5. Fundamentally no paper protects any rights. As the Civil Rights demonstrators discovered in the 1960s, as the women suffragettes discovered in the late 19th century, as the emancipationists in 1860 discovered, and as Thomas Jefferson succinctly summarized: The tree of liberty must from time to time be refreshed with the blood of patriots and tyrants. It is its natural manure. Sadly, toadying worms like Yoo inevitably mean that the time when justice and freedom are so hemmed in by the lawyers that the time for patriots to lay down their lives has come again. Of course Yoo will never understand how he has undermined the Constitution and the liberties it established. He is part of the elite. They get a pass on everything. The test of the law is how the underclass, the outcast, the minorities are treated.