There have been several diaries in the past few days about the Dep't of Justice Office of Professional Responsibility report whitewashing the actions of Prof. John Yoo and Judge Jay Bybee while they served in the Bush/Cheney DOJ.  There is, however, an especially troubling aspect of that report that does not yet appear to have been diaried.  Prof. Yoo openly espoused a view of untrammeled presidential power while he was interviewed for that report.  The OPR's ultimate finding that Yoo and Bybee merely showed "poor judgment" is a tacit finding that this view of excutive supremacy has merit, and it is a tacit rejection of the process that led to Richard Nixon's forced resignation.

As Michael Isikoff now reports in Newsweek, the following exchange took place between Yoo and OPR investigators:

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney's legal counsel, that the president's wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally -"

"Yeah," Yoo replied, according to a partial transcript included in the report. "Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."

"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.

"Sure," said Yoo.

A similar exchange took place between David Frost and Richard Nixon during Frost's legendary 1977 interview of Nixon:

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

Perhaps others who are better at parsing words than I am can find a difference between Yoo's and  Nixon's views of presidential power.  I certainly cannot find one.  In the potentially vast and fundamentally amorphous field of "national security," both Nixon and Yoo explicitly reject the core concept of separation of powers that lies at the heart of our Constitution.

As Isikoff's article notes, the initial OPR report called for both Yoo and Bybee to be referred to their respective state bar associations for possible disciplinary proceedings.  That report, however, was subsequently modified to merely find that Yoo and Bybee showed "poor judgment."

Poor judgment apparently means different things to different people.  To me, it means not looking in one's mirrors before changing lanes and sideswiping another vehicle.  Openly espousing the principle that, "if the  president does it, it's not illegal" isn't poor judgment.  It's an expression of fundamental principle that was expressly rejected by our Founding Fathers in 1787.

This viewpoint of Yoo's (ratified by Bybee) led them to authorize waterboarding and other forms of torture in their infamous memo.  Philosophies can have real-life consequences, and their philosophy clearly had consequences here.  Those consequences should have led to Yoo and Bybee suffering consequences themselves.  Instead, Yoo is a tenured prof at a top law school, and Bybee is a federal appellate judge w/ life tenure.

The OPR report is a poor man's version of Gerald Ford's pardon of Nixon.  In fact, since Yoo and Bybee still hold positions of public trust, maybe the OPR report isn't a poor man's version of the former whitewash at all.  Either way, the report effectively ratifies actions that were taken in direct contravention of our founding principles.

I honestly expected more from a DOJ that ultimately reports to the only Con Law expert ever to sit in the Oval Office.

Originally posted to RFK Lives on Sun Feb 21, 2010 at 07:36 AM PST.

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