Quote Of THE Day
By Justin Gardner | Related entries in Law, The War On Terrorism“We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.”
- John Yoo, former Justice Department lawyer and key legal theorist for Bush.
So, what do you think? Has this point-of-view worked to our advantage or disadvantage?
(h/t: San Francisco Chronicle)
This entry was posted on Monday, September 11th, 2006 and is filed under Law, The War On Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
September 12th, 2006 at 7:19 am
Disadvantage - mainly because our CEO president sucks at being a CEO (look at his private track record before politics). By any reasonable measure our reaction to 911 has been and will continue to be a failure as long as Bush and his administration remain in charge (note- I’m not slamming conservatives here, I’m critical of the past 5 years under one very specific conservative administration. Others may do better).
BTW, most everything I’ve seen about Yoo and his interpretations places him firmly in a very small minority of constititional scholars. His quote above sounds reasonable until you find his “gravity shift” literally means the executive can do anything it wants without oversight or limits. That’s clearly not in the language or intent (based on private and public correspondance of the time) of the founders who wrote the rules. Bush and Cheney like Yoo because they don’t agree with the Constitutional limit on executive power and he pretends to give them an excuse to do what they want.
September 12th, 2006 at 7:47 am
Not when we opportunistically create a state of “long war,” during which we can continue to pluck away at our peacetime values.
This is why only Congress can declare war–they know they’re turning over power. In this case, Congress did no such thing.
Tragic.
September 12th, 2006 at 7:49 am
I like what Glenn Greenwald has posted about this on his blog at
http://glenngreenwald.blogspot.com/
“The Constitution is actually pretty clear on that score. Article I says “All legislative Powers herein granted shall be vested in a Congress of the United States” — Article II says the President “shall take Care that the Laws be faithfully executed” — Article III says “the judicial Power of the United States, shall be vested in one supreme Court, and in . . . inferior Courts.” That arrangement isn’t really a side detail or something that shifts based on circumstance. It’s pretty fundamental to the whole system. In fact, if you change that formula, it isn’t really the American system of government anymore.”
September 12th, 2006 at 10:40 am
In this, as in his justification of torture, it is pretty clear that Professor Yoo lives in a world of “the ends justify the means.” Which makes his arguments something other than Constitutional scholarship, of either majority or minority point of view.
September 12th, 2006 at 10:58 am
Even if you don’t believe the state of long-war has been opportunistically created (believing long-war to be an unavoidable reality), you have to acknowledge that THIS war has many properties that make it a poor comparison to previous wars.
We simply can’t rely on the “well, Presidents have always made necessary power grabs during a time of war” to justify the Bush administration’s conduct since 9/11. We need REAL guidelines and REAL checks-and-balances, rather than the “I am the decider” mentality of the President. This war is far too important and will last far to long for us to reduce Congress to an observer. We need Congress to be highly involved in the new rules and new methods developed to combat this new threat. Otherwise we open ourselves up not just to Executive Branch abuses but to Executive Branch incompetence.
A long war cannot be fought with the same standards used for finite wars. To think it can is rather small-minded.
September 12th, 2006 at 1:11 pm
I agree with eural. Its not just that the administrations goals are particularly evil (though I believe so, thats something with room to be argued). It’s that they are SO bad at getting done what they want and then have to go to all sorts of lengths to fix it or…that not being possible shift the blame.
September 12th, 2006 at 2:23 pm
Professor Yoo is right on target. The founders understood that once war has begun, the jus in bello issues are better left to one person rather than dealing with many distinct and various voices of the legislature. This has made the fight better and will continue to do so if we simply follow what both Madison and Hamilton believed to be the correct course to follow. Remember, the legislature still retains the power of the purse and can cut off funding if they deem the war has gone wrong. In addition, in the past, up until the last couple of years, the Supremes have stayed out of such issues and left such decisions to the executive branch. If the President was permitted to still remain in office beyond the 8 year point, it could be problematic. But as it stands now, it appears apropos. Thus, as a matter of constitutional law, the historical data speaks for itself.
September 12th, 2006 at 4:18 pm
Agreed, and that’s the problem here. We’re fighting an idea, not a country. Given that, this is much like the Cold War and the President should have the same authority (and the same checks and balances) that previous Presidents have had during similar times in our nation’s struggle against an -ism.
And seriously, to those who disagree, this is a war WITHOUT end. Terrorism will never go away. So what to do? Do we give the President supreme authority to do whatever he pleases just because he says it’ll help win a war that is, by its very nature, unending? Or do we return to the principles that made our country great and demand substantial proof before we make another preemptive strike?
September 12th, 2006 at 9:10 pm
Greg wrote: “In addition, in the past, up until the last couple of years, the Supremes have stayed out of such issues and left such decisions to the executive branch.”
Sorry, but that’s absolutely false. During the Korean War, President Truman directed the government to seizure control of steel mills during a threatened strike, claiming that he had the inherent executive power to ensure continued production of steel during wartime. As every first-year law student knows, the Supreme Court held that the President had acted beyond his authority.
The notion that the Supreme Court has given the executive branch a blank check during wartime is simply untrue.