Yoo and Kagan: Providing Legal Cover for US War Crimes

By Kenneth J. Theisen 

On May 25, 2010 The New York Times published an opinion piece by John Yoo entitled, “An Executive Without Much Privilege.” This was disgusting on so many levels. 
 
To begin with, it continued the practice of the national media to give this war criminal a national soapbox and conferred “legitimacy” on his reactionary and widely discredited legal theories and philosophy.
In the byline the Times identified Yoo as “a law professor at the University of California at Berkeley and a scholar at the American Enterprise Institute, is the author of “Crisis and Command: A History of Executive Power From George Washington to George W. Bush.”
 
No mention was made of his role while in the Department of Justice’s Office of Legal Counsel (OLC) of authoring memos that “legalized” torture and other crimes carried out by the Bush regime. Of course I do not expect the Times to use my wording, but it could have at least raised the awareness of readers to the fact that Yoo’s work is highly controversial and, to some, criminal in nature.
 
Yoo’s piece was primarily aimed at defending his theories regarding the executive powers of the president and creating doubt as to whether Kagan would adequately defend these alleged powers. Without getting into detail on these theories, essentially Yoo believes that if the president does it, it is legal. He wraps his arguments in legal sophistry and uses theories about the unitary executive and “commander-in-chief powers”, but he defends the right of the president to conduct torture, order murders and massive spying, conduct wars without interference from the other branches of government, and to commit various other crimes which the nation’s leaders routinely do. 
 
Unlike many legal theorists who write extensively, Yoo’s theories have been widely translated into action, not only by the Bush regime criminals, but also under Obama. His work in the Office of Legal Counsel was used to “legitimize” all of the above crimes and more. He provided a “get out of jail free” card to President Bush and all of his co-conspirators. The “legitimacy” the OLC conferred on what would otherwise be clearly defined as crimes, gave legal cover to Attorney General Eric Holder and the Obama administration not to prosecute the many crimes of Bush regime officials. 
 
But this is not enough for Yoo and his supporters. They wish to continue and expand this legal cover to include the crimes of the Obama administration and other future presidents. That is why he wrote this piece and many others since leaving the Department of Justice. They want to institutionalize and “normalize” what would have been unacceptable to the public in the past.
 
In his Times piece Yoo raises questions as to whether Elena Kagan, if she becomes a Supreme Court Justice, would adequately defend and expand the powers that Yoo believes the president inherently has by the nature of his office. He is not satisfied with her record as Solicitor General where she has repeatedly gone to court to defend the national security state and to defend the actions of the Bush regime and the present administration. His piece recognizes that she defended in federal court the massive surveillance begun by the Bush regime in violation of the 4th amendment. He also gives her credit for arguing that it is legal to hold suspected “terrorists” indefinitely without trial or other due process rights.
 
But Yoo is bothered that she and others in the Obama administration do not defend these actions under the same legal theories or to the same extent that he does. He writes, “When defending its national security policies in court, this administration prefers to rely on Congress’s Sept. 18, 2001, authorization to use military force against those responsible for the 9/11 attacks rather than the president’s inherent powers as commander in chief and chief executive. President Obama may agree with George W. Bush on the usefulness of military commissions to try some terrorists, but he has different ideas about what gives a president the power to create them.”
 
Yoo wants Kagan and others to accept his expansive view of executive power under his arguments of the unitary executive and commander-in-chief. In essence he believes that the president is a virtual dictator in time of war. It is Yoo’s view that if one does not believe as he and his supporters do they can not be counted on to support the dictatorial powers when they are most needed.
He criticizes an article Kagan wrote in The Harvard Law Review, entitled “Presidential Administration” because the article “is in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch’s powers are quite limited.”  
On my! Limited powers! It can not be! To Yoo this is heresy. The president’s powers must not be subject to limitation. He accused Kagan of being “firmly in the camp of those who see the president’s powers as circumscribed.”  
As Yoo writes, “This is simply wrong. Article II of the Constitution vests in the president alone ‘the executive power’ of the United States. As Justice Antonin Scalia wrote…”’this does not mean some of the executive power, but all of the executive power.’”
In regard to Kagan, Yoo is afraid that she is not a sufficiently committed to executive power and “that she will reject executive powers of greater consequence?” He continues to write, “But if presidents cannot constitutionally command their secretaries of defense, as Ms. Kagan would allow, they certainly do not have the power to detain or interrogate enemy terrorists without criminal trial, monitor their communications or fire missiles at their leaders” To Yoo these are all within the unlimited powers of the presidency. [Obama must agree with Yoo as he has done all the above.]
 
The purpose of my article is not to get into the beliefs or actions of Kagan. I think she has more than demonstrated her commitment to U.S. imperialism in her role as Solicitor General where she has defended the crimes of not only the Bush regime but the current president too. If she is confirmed as a Supreme Court Justice she will carry on her duties to imperialism. Like Yoo before her, she has repeatedly provided legal cover for the crimes of her imperialist masters.
 
Lawyers like Yoo and Kagan are hired guns. While they may or may not believe the legal arguments they make, they serve the role of providing legal justifications for the actions of their masters. Both Yoo and Kagan have argued that “suspected” terrorists can be held indefinitely without trial. They have also both defended massive spying by the U.S. government. Yoo did it for Bush and Kagan under Obama. They offer slightly different legal theories for these criminal actions, but the bottom line is that they both provide the needed legal cover.
 
We can not get into the position of defending one reactionary against another or choosing the lesser of two evils. Yes, Yoo and his supporters have a very expansive and the most reactionary view of executive powers. These legal theories justified the crimes of the Bush regime. They led to torture, war, massive spying, assassinations, rendition, secret prisons, the stripping of rights for those captured in the U.S. war of terror and numerous other crimes. But now we are into the 2nd year of the Obama administration and the government is committing the crimes of war, torture, massive spying, assassinations, rendition, the running of secret prisons, the denial of rights to prisoners of the war of terror, and numerous other crimes. We now have different legal theorists, a different party in office, and maybe some slightly different legal theories - but the crimes of the government continue.
 
We do need to condemn the legal theories and arguments made by those who defend the unitary executive and the broad interpretation of commander-in-chief powers as broadcast by Yoo and others. But we also need to expose that those such as Kagan and Eric Holder are no better when they act as hired guns of U.S. imperialism. Crimes are crimes no matter who justifies them and no matter what legal theory provides the cover. And all lawyers, like Yoo, who make these crimes possible need to be held accountable.
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World Can't Wait mobilizes people living in the United States to stand up and stop war on the world, repression and torture carried out by the US government. We take action, regardless of which political party holds power, to expose the crimes of our government, from war crimes to systematic mass incarceration, and to put humanity and the planet first.