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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.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Freddie Gray’s relatives arrived for the trial in the afternoon, after the prep-school kids had left. By their dress, they seemed to have just gotten off work in the medical and clerical fields. The family did not appear at ease in the courtroom. They winced and dropped their heads as William Porter and his fellow officer Zachary Novak testified to opening the doors of their police van last April and finding Freddie paralyzed, unresponsive, with mucus pooling at his mouth and nose. Four women and one man mournfully listened as the officers described needing to get gloves before they could touch him.
The first of six Baltimore police officers to be brought before the court for their treatment of Freddie Gray, a black twenty-five-year-old whose death in their custody was the immediate cause of the city’s uprising last spring, William Porter is young, black, and on trial. Here in this courtroom, in this city, in this nation, race and the future seem so intertwined as to be the same thing.
Average speed of Heinz ketchup, from the mouth of an upended bottle, in miles per year:
After studying the fall of 64,000 individual raindrops, scientists found that some small raindrops fall faster than they ought to.
The Playboy mansion in California was bought by the heir to the Twinkie fortune, and a New Mexico man set fire to his apartment to protest his neighbors’ loud lovemaking.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”