SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
John Yoo, still (amazingly) a law professor at the University of California at Berkeley, teams up with unconfirmed Bush U.N. ambassador John Bolton (last seen advocating a pre-emptive war against Iran before Bush leaves office) to suggest the basic foreign affairs plank for the Senate Republicans in the Obama Administration: obstruction.
The Constitution’s Treaty Clause has long been seen, rightly, as a bulwark against presidential inclinations to lock the United States into unwise foreign commitments. The clause will likely be tested by Barack Obama’s administration, as the new president and Secretary of State-designate Hillary Clinton, led by the legal academics in whose circles they have long traveled, contemplate binding down American power and interests in a dense web of treaties and international bureaucracies.
Like past presidents, Mr. Obama will likely be tempted to avoid the requirement that treaties must be approved by two-thirds of the Senate. The usual methods around this constitutional constraint are executive agreements or a majority vote in the House and Senate to pass a treaty as a simple law (known as a Congressional-executive agreement).
In a Republican administration, per Yoo and Bolton, the Senate’s proper role is to shut up and allow the imperial executive to run the foreign affairs show. Moreover, the president is free to go out and negotiate treaties in the form of executive agreements (as Bush did with Iraq and, apparently, Georgia) and conclude them without Senate review or approval. However, in a Democratic administration, the Senate is supposed to regain its voice and use it aggressively to obstruct the foreign policy initiatives of the administration, particularly by voting down any treaties he concludes. “A foolish consistency,” said Emerson, “is the hobgoblin of little minds.”
Note the authors’ mortal fear of international law, especially international criminal law. The Founding Fathers placed their confidence in a “decent respect to the opinions of mankind” and made the “law of nations” a cornerstone of our legal order. But the radical agenda of the neoconservatives would be impeded by all the constraints of law.
In this case, is that because Yoo feels that a lawless world is in the nation’s best interests? There are particular rules of international law with which John Yoo has personal problems. The prohibition on torture and the cruel treatment of prisoners, for instance. John Yoo is a principal author of the Bush Administration’s torture policies, and as such, if the United States were to take its responsibilities under international law seriously, he faces the near certainty of a criminal investigation and the likelihood of prosecution for his role in the war crimes that flowed from the implementation of his opinions. He has a special agenda, and the readers of his column should keep this in mind.
More from Scott Horton:
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
No Comment — March 28, 2014, 12:32 pm
On CIA secrecy, torture, and war-making powers
Chance that a movie script copyrighted in the U.S. before 1925 was written by a woman:
Cari Beauchamp, Without Lying Down: Frances Marion and the Powerful Women of Early Hollywood, Charles Scribner's Sons (N.Y.C.)
Engineers funded by the United States military were working on electrical brain implants that will enable the creation of remote-controlled sharks.
Malaysian police were seeking fifteen people who appeared in an online video of the Malaysia-International Nude Sports Games 2014 Extravaganza, and Spanish police fined six Swiss tourists conducting an orgy in the back of a moving van for not wearing their seatbelts.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.”