No Comment — March 7, 2009, 11:45 pm

Yoo’s Boundless Powers of War… and Imagination

In today’s Wall Street Journal, John Yoo offers a defense of his memorandum dealing with the President Bush’s right to use the military on American soil in war time.

Suppose al Qaeda branched out from crashing airliners into American cities. Using small arms, explosives, or biological, chemical or nuclear weapons they could seize control of apartment buildings, stadiums, ships, trains or buses. As in the November 2008 Mumbai attacks, texting and mobile email would make it easy to coordinate simultaneous assaults in a single city.

In the weeks after the Sept. 11, 2001, strikes on New York City and Washington, D.C., these were hypotheticals no more. They became real scenarios for which responsible civilian and military leaders had to plan. The possibility of such attacks raised difficult, fundamental questions of constitutional law, because they might require domestic military operations against an enemy for the first time since the Civil War. Could our armed forces monitor traffic in a city where terrorists were preparing to strike, search for cells using surveillance technology, or use force against a hijacked vessel or building? In these extraordinary circumstances, while our military put al Qaeda on the run, it was the duty of the government to plan for worst-case scenarios–even if, thankfully, those circumstances never materialized.

The idea that the 9/11 attacks raised the prospect of domestic military operations “for the first time since the Civil War” is infantile nonsense. Military plans for domestic operations have consistently been at the ready, and they were always necessary. This was a constant during World War II and the Cold War that followed. Moreover, acts of sabotage against vital infrastructure and acts of terrorism have always figured as risks which needed to be the subject of preparation and planning. But this is a standard part of the John Yoo repertoire–namely, the need to turn the world on its head in the wake of 9/11. And of course that meant redefining the Constitution in terms suspiciously familiar to anyone who’s read John Yoo’s scholarly writings and his political polemic.

John Yoo asks us to believe that the discussion of the Fourth Amendment was peripheral, the reference to the First Amendment a pure aside. All of this was of no consequence. He might be right about all of this–but in fact, as this memo was in preparation, plans were underway for a massive domestic surveillance program that would sift through the communications of tens of millions of Americans without warrants. John Yoo was dispensing advice to support the effort, arguing that it was lawful in the face of a criminal statute that made the requirement of a warrant explicit and punished violations as felonies. As Bart Gellman describes the developments in his book Angler, when details of the program Yoo had apparently cleared became known it caused a stir within the Justice Department leading ultimately to a decision by Deputy Attorney General James Comey, Jack Goldsmith (Yoo’s successor at OLC) and others to threaten to resign unless the President changed the program. They were all, like Yoo, movement conservatives, not civil libertarians. But they were horrified by Yoo’s manipulations of the law.

Yoo’s Journal piece suffers from some other fundamental shortcomings. It fails to note, for instance, that his memorandum was repudiated by the Bush Justice Department itself. And it fails to note the forthcoming report of the Justice Department’s ethics watchdog, completed in the Bush term, which Yoo has seen and been asked to comment upon.

On the other hand, I’m delighted that Yoo has published a piece discussing the circumstances in which he prepared the memo. Now I expect to hear no invocations of privilege when he is called to testify about it under oath.

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