Extreme cases of oppression justify ...a resort to the original right of resistance, a right belonging to every community, under every form of Government... - James Madison
This diary was originally conceived as a light-hearted dismissal of John Yoo. The idea was to evaluate the degree to which Yoo’s thinking jives with that of the Father of the Constitution by placing quotes from the two men side by side. As I became imbued in the thought of Madison, the diary felt increasingly serious. James Madison understood the horrors of tyranny. He devoted his life to creating a government which might have some small chance of protecting its citizens from totalitarianism. Reading Madison’s committed and careful reasoning—reasoning at once more profound and more practical than what passes for discourse today—I was temporarily lifted from the superficial wasteland of personality-obsessed politics and transported to a place from which I can see that our republic is slipping away.
Madison would be heart-broken: despite the tireless efforts of the founding fathers to teach us, to warn us, to protect us, we have lost our way and are losing our dearly won liberty. This mornings pathetic hearings on a truth commission serve only to underline how far we have fallen from the original vision of the founding fathers. The proposed hearings can best be described as PR attempt to revive the American brand; "freedom" has become our slogan. If we are to honor our ancestors and maintain our liberty, we must honor the actual meanings of words and actions.
In his justly famous Farewell Address, George Washington called our unified respect for the authority of the constitution
a main pillar in the edifice of your real independence
Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty.... the Constitution ...is sacredly obligatory upon all.
He warned us of the neocons. Such groups
are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.
Our duty is clear:
Towards the preservation of your government ...it is requisite ...that you resist with care the spirit of innovation upon its principles....
John Yoo’s proposed innovations upon the principles of the constitution are nothing less than a full assault on the bulwark of our "very liberty which" we "so highly prize." Do words still carry sufficient meaning for us to appreciate what is at stake?
Yoo's Thoughts by the Light of Madison
James Madison is acknowledged as the primary author of the Constitution of the United States of America; John Yoo pretended to interpret that constitution. We presume that, in his efforts, Yoo was bound by an obligation to be consistent with the intentions of the founding fathers. Fortunately for us, and not so much for Mr. Yoo, Madison wrote prolifically, clarifying his views of how the constitution should work as well as the most likely means by which a government elected by free men might be transformed into a tyranny. Madison’s philosophy stands in plain and forceful opposition to John Yoo's distinctly unAmerican claims of presidential prerogative.
I strongly believe that there is enough evidence already in the public domain to prosecute Yoo for war crimes. I'm not addressing that question here. Rather, I propose that by stepping back from the details and into the general philosophical framework of our constitution, we will see more clearly how novel, wildly skewed, and very dangerous are Yoo's ideas
I had hoped to set quotation beside quotation. We find Madison's thoughts set out plainly and honestly, with concision. When I turned to Yoo, however, I found slippery notions buried beneath mountains of cherry-picked legal precedents and perversely narrow--not to say whimsical--interpretations of the constitution. It is probably by design that Yoo seldom stated his pernicious interpretations in succinct form. Nonetheless, there is widespread agreement as to the significance of Yoo's memos.
Yoo's Five Claims of Executive Perogative
In the October 25, 2001 memo, Yoo stated that the government could use the military to fight terrorism in the United States, and in the process the POTUS could unilaterally place himself above the reach of two amendments and an act of Congress: 1) the Fourth Amendment (unreasonable search and seizure); 2) the First Amendment (freedom of speech and of the press); and 3) the Posse Comitatus Act (the military cannot be used for domestic law enforcement). Furthermore, in several Office of Legal Counsel (OLC) claims, Yoo named two more areas in which our traditional checks and balances can be suddenly and unilaterally suspended: 4) the Congress cannot interfere with or regulate what the POTUS does with captured or detained individuals, including banning torture; and 5) the Congress cannot restrain the ability of the President to engage in warrantless domestic surveillance.
Let’s examine these five extraordinary claims in the light of Madison’s stated views on government, tyranny, and the constitution.
Unreasonable Search and Seizure
In the New York Times Neil A. Lewis tells us
... The [October 23, 2001] memorandum discussed the use of military forces to carry out "raids on terrorist cells" and even seize property.
"The law has recognized that force (including deadly force) may be legitimately used in self-defense,"... Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they [Yoo and Robert J. Delahunty] said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.
Hmm. Swept away, huh. Let's check in with Madison:
The means of defense against foreign danger historically have become the instruments of tyranny at home.
If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.
Of all the enemies of public liberty, war is perhaps the most to be dreaded, because it comprises and develops the germ of every other
.
Freedom of Speech and of the Press
In the October 23 memo, Yoo said
First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.
[snip]
...the current campaign against terrorism may require even broader exercises of federal power domestically.
Madison tells us:
[T]he right of freely examining public characters and measures, and of free communication among the people thereon...has ever been justly deemed the only effectual guardian of every other right.
We are right to take alarm at the first experiment upon our liberties.
I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.
The Posse Comitatus Act
As Neil Lewis puts it:
Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.
Madison warns us:
It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.
No nation could preserve its freedom in the midst of continual warfare.
Torture and Rendition
A March 2002 memo stated that (interpreted by Neil Lewis)
Congress lacks any power to limit a president’s authority to transfer detainees to other countries.
Other memorandums said Congress had no right to intervene in the president’s determination of the treatment of detainees.
This latter interpretation has already been overturned by the Supreme Court. Astonishingly enough, for Madison's view we can appeal to a fairly unambiguous power given to Congress by the constitution in Article I, Section 8:
The Congress shall have power to ... make rules concerning captures on land and water.
Warrantless Domestic Surveillance
Yoo stated that a FISA law passed by Congress would be unconstitutional if it prevented the president from disobeying its limitations. What? Huh? A law whose specific and sole intent is to proscribe behavior of the executive is unconstitutional if it so proscribes that behavior? [Head shake--rattle rattle rattle]
In keeping with the inherent self-contradiction of this claim, Woo himself has argued against such over-riding presidential secrecy (in the context of the Clinton Presidency) in the WSJ. As the icing on the cake, Yoo quotes Madison, thus bringing us full circle and back to solid ground. Where it leaves Yoo, however, is anyone's guess:
James Madison wrote that a "popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both."
And what of the executive's peremptory claim to power in disputes with the legislative:
The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.
Madison's General Remarks Concerning the Likes of John Yoo
Madison anticipated that language might be mutilated or divorced from its context to pervert the constitution:
It may often happen, as experience proves, that erroneous constructions, not anticipated, may not be sufficiently guarded against in the language used...
[E]rrors which have their sources in an oblivion of explanatory circumstances, and in the silent innovations of time on the meaning of words and phrases.
Innovations--that's a good word for Yoo's imaginative view of the unfettered powers of the Commander-in-Chief.
Is it wise to allow the president alone to determine that an individual may be seized and detained indefinitely without recourse to legal process?
The truth is that all men having power ought to be mistrusted.
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.
Madison understood the necessity of consistency in interpretation and practice.
A construction of the Constitution practised upon or acknowledged for a period of nearly forty years, has received a national sanction not to be reversed but by an evidence at least equivalent to the national will. If every new Congress [and by extension, the executive] were to disregard a meaning of the instrument uniformly sustained by their predecessors for such a period, there would be less stability in that fundamental law than is required for the public good in the ordinary expositions of the law.
After just forty years, Madison felt that attempts to make drastic changes in practices would be detrimental to the common good, yet Yoo is encouraging the executive to violate the Bill of Rights, ignore laws, use the military in domestic security operations, and grant the president freedom from Congressional authority, none of which has ever been accepted practice.
[A] continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.
Madison even offers a global disapproval of the very practice of abstract legal argument, such as Yoo offered, in bending the law:
I have always supposed that the meaning of a law, and, for a like reason, of a constitution, so far as it depends on judicial interpretation, was to result from a course of particular decisions, and not those from a previous and abstract comment on the subject.
Can the President Crush a Child's Testicles?
On December 1, 2005 Yoo appeared in a debate in Chicago with Notre Dame professor Doug Cassel, a long time human rights legal scholar. Cassel asked Yoo
If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo's reply, in part:
I think it depends on why the President thinks he needs to do that.
Clearly Madison and others designed the constitution so that it is the duty of the legislative and judicial branches to ensure that such thinking never becomes policy. Here is how Yoo responded to attempts by the legislative branch to make clear its authority to enact laws which apply to the POTUS, as to all Americans:
JOHN CONYERS: During a public debate, it was reported you were asked if the President could order that a suspect be tortured in gruesome fashion and you responded—I think it depends on why the President thinks he needs to do that. Is that accurate?
JOHN YOO: Mr. Chairman, I do not believe is accurate because it took what I said out of context. The quote stopped right before I continue to explain a number of things, which I appreciate the opportunity to do.
JOHN CONYERS: So far, what I read was accurate, but there was more?
JOHN YOO: It stops like midsentence. I finished the sentence during the debate—
JOHN CONYERS: OK, thank you. Is there anything that the President cannot order to be done to a suspect if you believed it necessary for national defense?
JOHN YOO: Mr. Chairman, I think that goes back to the quote you just read.
JOHN CONYERS: No, I’m just asking you the question. What do you think?
JOHN YOO: I think it is the same question.
JOHN CONYERS: What is the answer?
JOHN YOO: Can I make clear I’m not talking about—
JOHN CONYERS: You do not have to make anything clear, just answer the question. You do not have to worry about not saying—just answer the question.
JOHN YOO: My thinking right now—
JOHN CONYERS: Yes, right now at this moment.
JOHN YOO: At this moment, Mr. Chairman, is that first the question you’re posing—
JOHN CONYERS: What is the answer?
JOHN YOO: Mr. Chairman, I am trying to make you—
JOHN CONYERS: Oh, I get it. You are wasting my time. Look, counsel, could the President order a suspect buried alive?
JOHN YOO: Mr. Chairman, I do not think I have ever—
JOHN CONYERS: I am asking you that.
JOHN YOO: I did not give him advice.
JOHN CONYERS: That is not what I’m asking you. I said, do you think the president could order a suspect buried alive?
JOHN YOO: I do not think a president—no American President would ever order that or feel it necessary to order that.
How dangerous are the now discredited writings of John Yoo? The above testimony makes plain that our legislative branch of government has failed to assert it's proper constitutional authority in definitively clarifying claims by lawyers in the executive branch that the president is above the law. In his testimony Yoo dismissed his questioners without sanction. At least he appeared, unlike the several executive officers who have ignored congressional subpoenas with apparent impunity. I expect little more effectiveness than this in a truth commission on torture. After the last two years of a Democratic Congress, no thinking person can imagine that Congress will exercise power commensurate with the fascist machine they propose to expose.
The founding fathers well understood the common challenges to freedom. After risking their lives in war, they devoted their remaining energy to protecting government of the people. The opinions of John Yoo are much worse than poor legal documents; they are a bald attempt to trample on constitutional liberties and enable tyranny. They are a direct attack on the constitution in both letter and spirit. If we are to maintain our freedom, we must act forcefully to repel these assaults on our constitution, the "palladium of our political safety and prosperity."
If we are to be true to our founders, it is time for prosecution or revolution.