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January 05, 2009

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Eric, if it was merely John Yoo we were talking about, it would be bad enough. But the combination of Yoo and Bolton is almost more than my stomach can bear. The last line of the Op-Ed is the most cynical thing I have ever read, with its detached air of superiority implying that the two authors had nothing to do with the serial dismantling of checks and balances during the last few years.

I'm trying to think back to when I took a couple classes from Yoo at Berkeley (including constitutional law on the separation of powers, wheee!) if he gave any indication that he was prone to being a hack. Certainly it was no secret that he was a right-winger, and he taught Con Law out of Chemerinsky's hornbook so he was familiar with the traditional notions of what the President could and couldn't do, which may explain his ability to talk out of both sides of his mouth on these things.

But still, nothing comes to mind other than one remark he made, that I've mentioned here before I believe, in response to a student's question that because republicans believed in federalism they weren't likely to use the federal gov't to this or that, where he said "don't think that when they get their hands on ultimate power they won't be willing to use it." I guess if he had said "we get our hands" that would have been a tip-off.

He also remarked that he didn't consider Supreme Court justices to be real judges, which I guess could have been an indication of his view that they can do whatever they want, and he admired such ability (since he said he would never want to be a judge).

John Yoo isn't even a consistent authoritarian. He's just an utterly cynical, partisan hack, who's willing to countenance war crimes and demand an authoritarian "unitary exeutive" when the GOP controls the White House, while demanding robust checks-and-balances, open government, and libertarianism when the Democrats do.

I understand why such a guy is convenient for the Republican Party, but he remains an utter embarrassment to Boalt Hall, who would even have been better advised to hire an out-and-out fascist, as such a person would at least have principles to defend.

Shorter Ben Alpers: Say what you will about the tenets of National Socialism...

I believe Yoo was tenured before his war crime enabling stint at OLC.

And note specifically what they're talking about in this piece: "binding down American power and interests in a dense web of treaties and international bureaucracies;" "America needs to maintain its sovereignty and autonomy, not to subordinate its policies, foreign or domestic, to international control"; "an administration determined to tie one hand behind America’s back"; "an International Criminal Court, which would subject American soldiers and officials to unaccountable international prosecutors and judges for alleged war crimes"; "Other international regimes might restrict America’s freedom of action to defend itself" etc.

IOW, such treaties might tie the hands of future executives, and if there is one thing they can't stand is an executive branch that might be limited in some way. So while the might be nominally arguing to restrict executive power, their real goal is to preserve the executive's ability to do whatever he/she wants to do in the future.

Why does Yoo think it matters? Surely, as Commander-in-Chief, the President has the authority to disregard laws, and treaties count as laws under the Constitution...

[/snark]

Another point to remember when tossing opprobrium at Yoo is that he is almost directly responsible for the mess that is the case against Ali al-Marri. Because (apparently) much of the evidence against al-Marri was obtained from Khalid Shaikh Mohammed under torture, it is thus inadmissible. Strong work, John Yoo!

Well, he would know about executive overreach wouldn't he?

As to the merits, what is up with all of the attempts to avoid the Constitution on the issue of treaties anyway? It isn't like you can appeal to everyone's favorite bugaboo--lack of clarity. It is pretty darn clear that treaties require a 2/3 affirmation of the Senate. If you think that doesn't make sense, convince a bunch of people and amend the Constitution. The Constitution makes treaties have a Constitutional-level of legal importance. Unless you like the idea of the 4th amendment being subject to majority rule, I don't see much argument that treaties should be remarkably easier to ratify.

"Surely, as Commander-in-Chief, the President has the authority to disregard laws, and treaties count as laws under the Constitution..."

FWIW, Article.">http://www.usconstitution.net/const.html#Article6">Article. VI of the Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
So treaties, while not superseding the Constitution, do supersede mere laws.

See, also, Missouri v Holland (1920), and the very recent MEDELLN v. TEXAS.

I believe Yoo was tenured before his war crime enabling stint at OLC.

Indeed. But I suspect that his record of partisan hackery was already pretty clear, though it would have been in its GOP-out-of-power, libertarian-concern-trolling phase when he came to Boalt in the 1990s.

Shorter Ben Alpers: Say what you will about the tenets of National Socialism...

I am aware of all internet traditions... ;-)

Yoo is nothing more then a war criminal, and should be treated as such...the NY Times giving him a soapbox to warn Obama against overreach as president is beyond delusional!

And the once proud reputation of Boalt Hall has been sullied and lessened by his presence there...teaching CONSTITUTIONAL LAW fer God's Sake!

Seb, FWIW: I tend to agree with Yoo when he criticized Clinton, and in their critique of their hypothetical Obama.

It's just the rank hypocrisy I can live without.

Gary: So treaties, while not superseding the Constitution, do supersede mere laws.

I thought the rule on law/treaty conflict was "later in time", which provides that if the two are in conflict the later enacted of the law/treaty controls (thus, treaties can supersede laws, but laws can turn around and supersede treaties).

Sebastian:what is up with all of the attempts to avoid the Constitution on the issue of treaties anyway? It isn't like you can appeal to everyone's favorite bugaboo--lack of clarity.

Well sure you can. What is a "treaty" anyway? And if the congress passes and the president signs a law that states the U.S. shall be subject to the jurisidiction of the ICC, is that somehow a treaty, rather than a U.S. statute? More pernicious in my mind are "executive agreements" where congress has no input whatsoever.

"And if the congress passes and the president signs a law that states the U.S. shall be subject to the jurisidiction of the ICC, is that somehow a treaty, rather than a U.S. statute?"

Similar tactic ok with free speech? Very few countries have 1st amendment-style rights nearly as expansive as the US.

Abortion rights? Very few countries have abortion rights nearly as expansive as the US.

4th amendment? Very few countries have search and seizure rights nearly as expansive as the US.

In each case, characterizing international norms and codifying them in treaty would be a back door method of restricting Constitutional rights.

The New York Times is well within its rights to publish a piece by Bolton and Yoo. Paraphrasing Voltaire, I may not like what they say but they have a right to say it.

Out of respect for their readers (and possibly themselves), however, they should have run another piece pointing out the unmitigated gall and rank hypocrisy of those two b**tards.

I hope to see something along those lines in the next few days. But then, I'm foolishly optimistic.

"In each case, characterizing international norms and codifying them in treaty would be a back door method of restricting Constitutional rights."

Oh, goody, we get to talk about the Bricker Amendment.

So far as I know, this has been a talking point of the maniac rightwing since the days of the John Birch Society, the founding of the U.N., and the fricking Bricker Amendment, and it's never been other than nonsense, as Eisenhower consistently explained.

Eisenhower's famous response to this concern about treaties being backdoor ways to get around the Constitution (see prior link):

Senator Bricker wants to amend the Constitution . . . By and large the logic of the case is all against Senator Bricker, but he has gotten almost psychopathic on the subject,
More (same link):
The Supreme Court in 1957 declared that the United States could not abrogate the rights guaranteed to citizens in the Bill of Rights through international agreements. Reid v. Covert and Kinsella v. Krueger concerned the prosecution of two servicemen's wives who killed their husbands abroad and were, under the status of forces[109] agreements in place, tried and convicted in American courts martial.[110] The Court found the Congress had no constitutional authority to subject servicemen's dependents to the Uniform Code of Military Justice and overturned the convictions. Justice Hugo L. Black's opinion for the Court declared:
There is nothing in [the Constitution] which intimates that treaties and laws enacted pursuant to [it] do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.[111]
In Seery v. United States the government argued that an executive agreement allowed it to confiscate property in Austria owned by an American citizen without compensation.[112] But this was rejected, the Court of Claims writing "there can be no doubt that an executive agreement, not being a transaction which is even mentioned in the Constitution, can impair constitutional rights."[113]
I'm surprised to find you talking up a position, Sebastian, that Ike thought was "psychopathic."

"The Supreme Court in 1957 declared that the United States could not abrogate the rights guaranteed to citizens in the Bill of Rights through international agreements."

So abortion rights are definitely on the table for treaties right?

And again, I'm not particularly worried about it *so long as you have a check like 2/3 in the Senate*.

Which we do now.

Which seems to irritate a lot of people on both the right and the left.

Which is no reason to try to work around it all the time.

"So abortion rights are definitely on the table for treaties right?"

Sorry, I've lost the thread, and can't tell what you mean by this. You're suggesting that Roe can be overturned by treaty, when I've just explained that's not possible? Or... what?

Sebastian: In each case, characterizing international norms and codifying them in treaty would be a back door method of restricting Constitutional rights.

Wait wait wait. I thought I was suggesting that passing a statute was a way of by-passing the treaty power, in that the House, Senate & President could do what the President & Senate could not. As Gary's links suggest, and IIRC, the President and Senate cannot by-pass the Constitution via the Treaty power, with possible limited exceptions (such exceptions may have been suggested to me by John Yoo, of all folks).

Am I misunderstanding?

Yoo and Bolton are unprincipled power mongers, plain and simple. Their performance during the Bush years has been despicable, and their hypocrisy in this op-ed reeks of partisan opportunism. Here's hoping that their influence on the national scene wanes for good and forever.

Bolton was a busy little Op-Ed beaver yesterday, btw, with another piece at the WaPo with a Pony Plan for the Mideast, and I described and link to at the bottom of this post, which is an adaption otherwise of stuff I wrote here.

I don't think there's any way that an unconstitutional treaty provision (eg, lowered standard for search and seizure) would be enforceable in a US court. Casey can't be gotten to this way either.

(I can't think of anything polite to say about the war criminals who've set off this discussion.)

Constitutional treaty provisions are hard enough to enforce -- but that's another story . . .

It seems to me that there are two modes of expertise available in the public sphere at the moment.

In one mode, the expert says, "My expertise is available for rental: you pay, and I'll add a legitimating stamp of expert authority to your policy, to your public relations, or to your court testimony". Experts develop brands, of course, so they're not completely plastic to their clients: you brand yourself as conservative or liberal, as specializing in certain domains, etc. But you don't have positions which stand autonomously apart from potential clients, which you pursue whether or not someone's paying, unless you're doing a bit of loss-leader extension of your brand.

Then there's experts who don't marketize their knowledge in this way. The problem is that they generally don't have much of a presence in the public sphere: first, because the major media outlets turn to the marketized experts preferentially precisely because they're easy to find, because they know in advance what they'll say and that they'll say it in compact, reproducible forms; second, because an expert who isn't selling legitimacy on the corner like a tweedy street-walker may not be constantly pounding the pavement looking for media megaphones.

That other practice of expertise is still very valuable in public life: in many cases, these may be the experts that government, business, journalism and so on turn to when they genuinely want to know something, or genuinely want to think through a difficult problem. But we don't often hear about all the times that an expert like this is asked to legitimate hackery and refuses. I suspect that happens more than we think, in both political and corporate contexts: an institution goes looking for a fig leaf and gets turned down until they finally come to a true hack.

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