Yoo-Hoo!
President Obama (don't those words make a lovely couple?) has ordered the DOJ and OLC to side with the defense in Jose Padilla v. John Yoo (pdf). Next week they'll be filing a motion to dismiss the suit.
I think this is the right move but I also think it's awkward, for two reasons. First, Obama’s pick to head the OLC, Dawn Johnsen, wrote an article in Slate last year calling one of Yoo’s memos “plainly flawed” and his defense of it “irresponsibly and dangerously false.” Now she's been instructed to defend him. I don't know about you, but I hate it when that kind of thing happens to me.
Second, it's apt to piss off the hefty contingent of left-leaning voters who confuse our President with a Messiah by forgetting that he is constrained practical realities. Right or wrong, it's hardly indisputable that it's a good idea to encourage litigation against government agents acting within their discretion and official capacity, on behalf of what they perceive to be the national interest. Nor is it a wise investment in the future vitality of the current administration to allow civil suits to proceed against the former one. In other words, it's entirely possible for Bush and Obama, both being Presidents, will be common creatures in the face of common problems. Principled or not, this is reality.
I think this is the right move but I also think it's awkward, for two reasons. First, Obama’s pick to head the OLC, Dawn Johnsen, wrote an article in Slate last year calling one of Yoo’s memos “plainly flawed” and his defense of it “irresponsibly and dangerously false.” Now she's been instructed to defend him. I don't know about you, but I hate it when that kind of thing happens to me.
Second, it's apt to piss off the hefty contingent of left-leaning voters who confuse our President with a Messiah by forgetting that he is constrained practical realities. Right or wrong, it's hardly indisputable that it's a good idea to encourage litigation against government agents acting within their discretion and official capacity, on behalf of what they perceive to be the national interest. Nor is it a wise investment in the future vitality of the current administration to allow civil suits to proceed against the former one. In other words, it's entirely possible for Bush and Obama, both being Presidents, will be common creatures in the face of common problems. Principled or not, this is reality.
Labels: Yoo-Hoo
posted by Patrick Bageant at 6:20 AM
11 Comments:
The timing is great. See today's WSJ opinion page for Yoo's candid opinion about the President's first decisions in anti-terror policy. Spoiler alert: Yoo does not think that closing Gitmo and trying terrorists in civilian courts is a good idea.
Re the original post: I think the President is wise to support the freedom of employees of the executive to map the contours of the law, even if in hindsight, one thinks that Yoo's opinions were not correct. The President is also wise to avoid sanctioning the politicized truth commissions proposed by the likes of Conyers and Levin.
Thanks for the heads up. Link here.
It is naïve to say, as Mr. Obama did in his inaugural speech, that we can "reject as false the choice between our safety and our ideals." That high-flying rhetoric means that we must give al Qaeda -- a hardened enemy committed to our destruction -- the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.
I disagree, but I admit its complex. Still, isn't the executive the executive, and aren't its policy decisions in a dynamic and fast-moving threat entitled to tremendous deference? Isn't wonky Monday morning quarterbacking the same thing he accused the dems of doing for the last eight years?
I'm not especially clear with the law in this area, but I reject the view that Obaama's rhetoric means Al Qaeda detainees are automatically entitled to the same rights as criminals.
For example, Boehner said the other day that we might have to let a terrorist go because he wasn't read his Miranda rights. Granted, I didn't do so great in Crim Pro, but doesn't Miranda only apply to police conduct? It seems like a number of 5th and 6th Amendment rights that apply in the police station and on the streets would simply not be at issue for prisoners detained by soldiers during a war.
Obama's rhetoric was a rejection of torture, not a sweeping expansion of the rights of prisoners of war.
Again, I'm not sure how they're working all this out, but it seems to me the correct set of rights to apply would be those in the Geneva convention.
"Isn't wonky Monday morning quarterbacking the same thing he accused the dems of doing for the last eight years?"
Not really. He's been debating the issues on their merits, and saying that the dems are wrong. He has not said that the dems are not entitled to a difference of opinion--but he has stuck up for the executive's power to conduct the war on terror as he sees fit. So while he's all for differences of opinion, he believes that Congress and the punditocracy can't impose its will on the executive.
Dan--good point. The basic protections of Common Article III of Geneva apply if you agree that the war on terror is a war, and not a beefed-up law enforcement action. If you see the paradigm as the latter (as many on the left do), then the much more stringent requirements of Miranda and all that come into play.
You beat me to it! I was going to post this when I got to campus.
It's good to see that the DoJ under Obama will be defending Yoo. All I can hope for is that they do the best job they possibly can, despite any awkwardness that results from Yoo's polarization.
Most important to me is that the DoJ becomes less political and more focused on the rule of law. The last 8 years have been disastrous for the DoJ, and has reflected poorly on the rest of the country as well.
If you're inclined to watch, it's calendared for next Friday, 9:00 in San Francisco. (Judge White is Courtroom 11 on the 19th Floor of the Federal Courthouse.)
This is my favorite part:
"Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial."
I would have gotten away with it too, if it weren't for that pesky Constitution!
Toney - You forgot the next sentence - the best part of the whole thing: "The first thing any lawyer will do is tell his clients to shut up."
N&B mentioned on Volokh Conspiracy: http://volokh.com/posts/1233262560.shtml
Why can't we see "Hail Hussein's" passport, legal name change records, college writings, etc.? Why has he spent $800K with six law firms to hide birth cert.?
Why is his law license suspended by the BAR? Why did his HI grandmother never make a public statement on behalf of BO?
THESE are the major questions that need answering!
The previous post is the answer to the question "What is the opposite of Berkeley?".
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