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New Boss, New Rules? Yoo and Bolton on Executive Power


 

Some corners of the blogosphere are having a belly laugh over an op-ed co-authored the other day by John Yoo and John Bolton, published in the NYT. The column is styled as a warning to incoming president Obama to beware the temptation to use the office of the president to unilaterally entangle the US in a “dense web of treaties and international bureaucracies.” In a nutshell, it looks like they are concerned that Obama will go all Koyto or landmine-treatyish or something, thus tying one of America’s economic or military hands behind its back. And so they remind Obama that the Constitution requires that treaties gain the approval of 2/3 of the Senate for precisely this reason, viz.,  

“to protect the interests of the states from being bargained away by the president in deals with foreign nations. The framers required a supermajority to ensure that treaties would reflect a broad consensus and careful, mature decision-making.”

So why the chortling? Well, because there are few men in America over the last eight years who have had less time for constitutional limits on executive power. Yoo, in particular, is the author of the notorious “torture memos” that offered a rather narrow definition of “torture” and which many people claim led directly to the horrors of Abu Ghraib.

Is there any more to this change of heart than the usual flip-flopping of principles that happens whenever one party takes over from another? Is there any relevant difference between the sort of executive power exercised by someone like George Bush, and the same power as it might be exercised by Obama? Bolton and Yoo argue that the key difference is in the kind of power likely to be affected. Eoconomic agreements, like Bretton Woods or NAFTA, might not need 2/3 approval in the Senate, but international agreements that touch on national security certainly do.  

Over at Volokh, Eric Posner argues that this is a bogus distinction:

Certainly, the framers did not make such a distinction, and Bolton and Yoo do not explain why there should be different rules for different types of treaties. If the Obama administration can further erode the Senate’s role in treatymaking, this will strengthen the president’s hand. John Yoo thinks that the president has the power, and ought to have the power, to make war, control American troops, and dominate American foreign policy; if he can do all that, why shouldn’t he also have the power to make the agreements that America’s foreign policy requires?

Essentially, Posner is asking the obvious question: Why shouldn’t Obama be entitled to the same presidential powers that Bolton and Yoo claimed for their guy?

There is one line of argument that preserves consistency for someone sympathetic to Yoo’s position. For Yoo, there is a crucial distinction between a treaty that touches on the state’s economic authority, and a treaty that limits its power to make war and direct national security. Since the primary task of the President, during a time of war, is protecting US citizens, any hindrance to that capacity, whether US and international law or even Congress, can be considered unconstitutional.”

John Yoo is heavily influenced by the writings of the Weimar political theorist Carl Schmitt. Schmitt believed that the liberal commitments to a division of powers, checks and balances, a charter of rights, and so on, are only sustainable during times of “normal” politics, i.e. peacetime. When faced with an existential threat, Schmitt argued, essentially, that liberalism shows itself up as a sham — that a liberal state will inevitably abandon all of these commitments in the name of self-preservation. In abnormal times, the state becomes highly centralised, almost monarchical in operation, with everything, including the rule of law, subordinated to the demands of national security and survival. It is easy to see how this line of reasoning could be used to justify an unencumbered executive in the post-9/11 era. 

In short, I don’t think Yoo and Bolton are being as inconsistent it might appear. Of course, that consistency comes at the cost of adopting an extraordinarily cynical view of liberalism democracy. and the state that borders on the nihilistic. 

For further reading: David Dyzenhaus of UofT has an excellent book on the subject of the newfound relevance of Carl Schmitt post 9-11.


 

New Boss, New Rules? Yoo and Bolton on Executive Power

  1. What was it Nixon said? ” I’m saying if the President says it’s so, it’s so” or words to that effect. How godamn convenient is that? If they’d only nailed that SOB when they had their chance…Precidents folks precidents.

  2. Easy solution: declare Yoo and Bolton an “existential threat” and have them both sent off to Gitmo. See, it’s easy!

  3. You mean the wars are over? When is the parade?

  4. “For Yoo, there is a crucial distinction between…”

    Let’s be serious. Neither Yoo nor Bolton give a rat’s ass about intellectual consistency. The only “crucial distinction” they recognize is Republican vs. Democrat.

    Lots of people disgraced themselves in the service of the Cheney administration – these two yahoos actually manage to stand out as particularly disgraceful – two of the biggest useful idiots in an army of useful idiots. To even stoop to analyze their bullshit is to accord them far more respect than they deserve, Andrew.

    • Why is no one ever happy here? We blog about the goofy stuff and we get accused of being lazy and merely feeding the partisan gamesmanship. Blog about the serious stuff and, well, it’s a failure to realize that it’s all about partisan gamesmanship.

      Make up your minds people.

      • “We blog about the goofy stuff and we get accused of…”

        This *is* the goofy stuff. The Times piece is an all-clown mockery of a legal argument. To stroke your chin and seriously consider Bozo’s reasoning, as supported by Blotto the Sad Clown, is just silly.

        Nothing these two “intellectual” whores have to say can ever be trusted as a good-faith contribution to society. They’re either covering their own disgraced asses or advancing some agenda from within the depths of the right-wing swamp that created them.

        • If we are ever to defeat intellectual whores, it won’t be by calling them names.

          JS Mill preached that the best way to eradicate villanous ideas, to overcome intellectual dishonesty, to prevail over the Big Lie, it is far better to expose it to the light of day, to turn it over and examine it – wrinkled noses are acceptable – and to then do our best to refute it.

          The best article I have read on the topic of ideals versus the pragmatism articulated by the likes of Schmitt is reprinted here in Dan Gardner’s Blog:

          http://communities.canada.com/ottawacitizen/blogs/katzenjammer/archive/2008/12/31/torture-and-the-ticking-bomb.aspx

          • JS Mill preached that the best way to eradicate villanous ideas, to overcome intellectual dishonesty, to prevail over the Big Lie, it is far better to expose it to the light of day, to turn it over and examine it – wrinkled noses are acceptable – and to then do our best to refute it.

            Seems kind of quaint now. Besides, I don’t think JS Mill envisioned a polity that can’t remember what happened last week. Bolton and Yoo have been exposed as intellectually dishonest over and over again and very few remember anything about that. And they count on that now.

            The second-last time I bothered listening to Bolton was in an appearance on The Daily Show. He invented history on the spot, and since Jon Stewart isn’t an expert, he couldn’t challenge him on it. The following day, some constitutional expert refuted Bolton’s position utterly. The last time was a Munk debate on Darfur. Besides being thoroughly unpleasant, the man does not know the difference between an assertion and an argument; or he knows, but understands that no public appearance will allow everyone stopping and demanding that the assertions he makes be substantiated.

            A pathological liar, in other words.

      • I think the problem is that this “serious” issue cannot be considered serious if it involves Bolton and Yoo.

        Whatever Schmitt argued about the failings of liberal democracies in times of existential threat cannot be relevant here. The Cold War represented a real existential threat and it was ended by upholding the principles of liberal democracy, not by abandoning them. 9/11 was never an existential threat and had been largely predicted beforehand: a similar, less cinematic disaster anywhere else in the World would have probably been forgotten by now. Indeed calling this the “post 9/11 era” is intellectually bankrupt.

        This premise needs to be re-examined, but I doubt it will be (‘post 9/11 era’ just sounds too compelling to be dismissed out of hand). The Bush Republicans were history’s actors and got to create the reality that is recorded in a wealth of documented fabrications (polls, “news” media, government documents, analysis by academic shills etc.). The rest of us know right now that it never really happened the way future history will tell the story.

        • Well I think this comment thread can not be considered “serious” if it involves Ti-Guy.

      • Personally, I love it when you run your blog like a university seminar Dr. Potter – complete with suggestions on further reading. That we have to weed through the boring/sensless/inane/uninformed comments of some other people is actually not much different from a seminar. Also alot like some seminars, remember that much of your class (readers) are probably paying close attention but not saying anything.

  5. “When faced with an existential threat, Schmitt argued, essentially, that liberalism shows itself up as a sham — that a liberal state will inevitably abandon all of these commitments in the name of self-preservation. In abnormal times, the state becomes highly centralised, almost monarchical in operation, with everything, including the rule of law, subordinated to the demands of national security and survival.”

    As we’ve seen Andrew, this premise simply motivates some of those in power to create a constant state of “existential threat” or “abnormal times”, thereby “centralising” power.

    • Couldn’t agree more Phil. In case it wasn’t obvious, I am not defending Yoo and Bolton’s views — just trying to clarify them in a way I thought might be helpful. On your point, Dyzenhaus has a very good piece on the normalisation of the abnormal in the instant book on the anti-terror legislation that was published by UofT press/Law school in 2001. Worth looking up.

      • Will do. Thanks.

  6. Bush has also expanded the powers of the presidency in that his Treasury Sec is spending billions of $$$ without any oversight/input from Congress. The President has no formal role in spending money but somehow his admin is now doing it freely without a peep from Congress.

    I don’t think Yoo/Bolton are totally off base. Has the Supreme Court ruled the President has exceeded his constitutional powers? If not, others are just projecting their beliefs. It seems to me Bush has done lots using Exec Orders but he hasn’t used them to entangle the US with foreign interests in a variety treaties.

    Andrew P

    When Libs/libs say they want serious posts, what they really mean is they want liberal shibboleths so their little minds won’t be troubled. Otherwise they might be forced to examine their ideas and that just isn’t acceptable.

    • “When Libs/libs say they want serious posts, what they really mean is they want liberal shibboleths so their little minds won’t be troubled.”

      Gosh, a cheap and completely unsupported insult from jwl. I’ve come to expect no less… or rather, no more.

      • I think it’s a bit cheeky to be accusing others of cheap insults after you have called distinguished people ‘useful idiots’ (wrongly may I add), Bozo, Blotto the Sad Clown and ‘intellectual whores’.

        Listen to Brad, he has good advice, if you don’t agree with something refute it.

        • Ah, so you have respect for Yoo and Bolton – you consider them to be making good-faith arguments, yes?

          Both are widely regarded as having sold themselves out in support of a right-wing agenda. Yoo in particular is widely considered to be a disgrace to the legal profession having knowing developed disingenuous legal positions in support of a president who wanted to torture people.

          Having been misled by these people over and over, it’s pretty reasonable to disregard what they have to say. And having whored themselves out to the right wing, I’m pretty content to call them the whores that they are. They’re not distinguished people, they’re disgraced people.

          See? MY insult makes sense in the context of this discussion. You? Another cheap, unsupported shot at “liberals” – can you back that up at all?

          Incidentally, my point was that engaging with these liars again is to provide them with respectability that they do not deserve. I specifically disagree with Brad in the case of these people. Or did you not read that part?

          • As my link to Gardner’s article would indicate, I agree with you that the Scmitt line is not supportable.

            You and Ti-Guy disagree with me that seizing every opportunity to specifically reduce lies into readily identifiable bits to the point where uttering them is to bring derision raining down upon oneself is not worthwhile.

            If you read these post strings long enough – and you both have quite a history of doing so here – you see that little headway is ever made by calling out the credentials of so-called experts. It seldom, if ever, deters those who use them. Therefore, you make no dent in their worldview, you fail to change their course and – most importantly – you fail to make a convincing case to the contrary for those coming fresh to the idea in dispute.

            The recent strings on global warmning provided me with new ideas and sources and helped me to more firmly develop my ideas. Kody will be disappointed to learn that he had the greatest influence in helping to understand that he is dead wrong. The Gardner article helped me with the issues involved here.

            JSMill may have been quaint, but he was a smarter guy than I am and I believe that in the long run his approach has more meaningful impact than dismissing the messengers with name calling versus dismissing their message with surgical logic or evidence.

    • I seem to recall an earlier exchange with you on O’s team looking at the allegations of criminal behaviour by the outgoing Executive. You didn’t seem to think there was any call for it, and I agreed that a frivilous investigation on little substance would be a dangerous politicization of the power transfer dynamic and shouldn’t be indulged gratuitously.

      Now you are saying that the lack of an SC ruling – before he’s out of office and therefore before an AG independent of his influence can investigate – is an exoneration. He may not have used executive power to create treaties, but the allegations that he used them to abuse civil liberties should, to me anyway, be more troubling than the idea that a treaty migh fetter him in the declaration of a war to avenge his daddy and to appear to be doing somehting.

      If I may stereotype the right wing a bit to ask a question: how is it that Republican Kool Aid drinkers can accept the alleged suspension of civil liberties and defend the personal ownership of guns as a hedge against a corrupt Government? To me there is a logical inconsistency there that can only be explained by confirmation bias.

      Please help me to understand.

      • Just to be clear, in the context of these reply links, my question was to jwl

      • I am no fan of Bush, I think he’s a lib in con clothing, so I am not actually a Repub Kool Aid drinker.

        All I meant about the Supreme Court was that many people talk about Bush and his alleged breaking of Constitution as a fact when in reality it’s their opinion. If American civil liberties had in fact been abused in way that was against the law, the ACLU or similar org would have been screaming bloody murder, launched countless court cases and Federal courts would have ruled in their favour.

        “how is it that Republican Kool Aid drinkers can accept the alleged suspension of civil liberties and defend the personal ownership of guns as a hedge against a corrupt Government?”

        I assume the Kool Aid Drinkers in your scenario here don’t agree with the civil liberty allegations and are waiting for the courts to rule otherwise. Personal ownership of guns is in the constitution.

        I am against incoming admin investigating the outgoing admin because of ideological ideas. If there is serious proof that Constitutional law was broken, I am all for court cases, but so far all I read are liberals/progressives getting their knickers in a twist about policies they don’t like and think should be punished.

        • Bush is a creation of the right-wing, who supported him with religious fervor throughout his entire disastrous reign. Liberals have opposed Bush furiously since he got the Repub nomination almost 10 years ago. Bush a liberal? Even you, jwl, shouldn’t be able to say that with a straight face.

          As for breaking the law, the ACLU and other organizations HAVE been screaming for years and HAVE launched countless lawsuits, particularly with respect to Bush’s warantless wiretapping within the US (which is quite specifically illegal). The Bush admin has pushed the notion of executive privilege and national security secrets to absurd lengths and prevented most of these lawsuits from going anywhere and the plaintiffs lack the clout to overcome the stonewalling.

          There is plenty of good reason to believe the Bush admin has broken the law but only the force of a new administration can pry the relevant information from the claws of those who would bury it forever.

          Funny how the “rule of law” is nothing but a campaign slogan to conservatives.

  7. Bush has at least doubled Fed spending on Medicare/Medicaid, foreign aid and education. Also doesn’t care that illegal immigrants are in his country illegally and has no desire to send them home. Too right he’s a liberal in conservative clothing.

    I don’t know the case exactly but I seem to recall Supreme Court ruling that Gitmoe detainees had to be treated differently than they currently were a couple of years ago. Are you arguing people in Gitmo have clout and haven’t been stonewalled? You are looking for excuses on why the courts didn’t agree with your liberal shibboleths. Repubs are following the ‘rule of law’ as far as I can tell because they aren’t ignoring any court rulings.

    • Pfft – he allowed all government spending to grow out of control, to the detriment of the US’ financial state. Just like his father, just like Reagan and just like Harper. Just because health care and education were among those programs allowed to balloon doesn’t mean he held or accomplished any liberal goals.

      Do you honestly have such a shallow, cartoonish world view? Anybody you disagree with must be liberal? All liberals want is to grow government spending for its own sake and let foreigners run wild?

      I didn’t say anything about Gitmo. Go read up on Bush admin violations of FISA within the US – FISA is a law, with letters and all, that the Bush admin violated. Anyone who has taken them to court has been denied access to relevant documents during discovery for reasons of “executive privilege” and “national security”.

      There’s also a solid argument that – having signed on to the Geneva conventions – they are the rule of law in the US. By ordering the violation of those conventions, the Bush admin broke the law there too. This one is much less likely to be prosecuted in any way because it’s a “time ‘o war”. Nevertheless, to argue that Republicans have respected the letter or spirit of the law is either disingenuous or willfully ignorant.

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