At the start of the week, I wrote about the ongoing scandals swirling around former Bush administration lawyer John Yoo, who has a lot to say as a monthly columnist for the Inquirer but didn't feeling like talking to investigators seeking to learn more about a legally questionable spying prgram known as the President's Surveillance Program. I wrote that Yoo should talk -- preferably to investigators or to the Inquirer, or someone. It turns out that "someone" was the friendly confines of Rupert Murdoch's Wall Street Journal, where Yoo penned an op-ed today. Given my earlier post, I'd be remiss if I didn't take note of that effort.
That said, I'm not going to write a long rebuttal of Yoo, because his argument really isn't very complicated at all. You know that famous line in "Frost/Nixon," when the disgraced Nixon says that "if the president does it, that means it is not illegal." Yoo's position is that when "national security" (as defined by the president, or, presumably, John Yoo) is involved, that "when the president does it, and John Yoo writes him a note, that means it is not illegal."
It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda's inner workings, could not detect its operatives' entry into the country, nor predict where it might strike next.
Uh, not exactly.
Yoo soldiers on:
Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S.
I think this gets at the essence of what it means to be a modern neoconservative: Your brain needs to go all kablooey at the mere mention of the word "terrorist." Yoo believes that the Soviet Union with all its nuclear missiles pointed at the United States wasn't a scary as al-Qaeda. It's ironic that Yoo will note -- to justify a massive spying scheme -- that "terrorists are hard to identfy" but would never acknowledge that the Bush-Cheney policies imprisoned and in some cases tortured at Gitmo scores of people who indeed were not terrorists, herded up for bounties by Afghan warlords or just wrongly arrested or people like the Uighurs who don't seem to be waging jihad against the United States.
But Yoo thinks the notion of terrorists somewhere out there gives the president the ability to pick and choses the laws of the United States that he is going to obey, and among the duly enacted laws that Yoo believes the president doesn't have to follow are FISA and the War Powers Act, among others. When it comes to any serious matter involving national security, Yoo believes that in essence there is only one branch of government, a chief executive who might as well be called "king" for all the powers that Yoo would vest in him, despite the fact that the founding notion of these United States was to break free of monarchy. Yoo's view of the Constitution and the separation of powers between the branches of the U.S. government is practically indefensible, well out of the mainstream of traditional legal thought on the subjects.
In fact, Yoo completely -- and not surprisingly -- skirts the very issue that made the recent report by the intelligence inspectors' general so newsworthy, which is that Bush and Dick Cheney used Yoo, a mid-level Justice Department lawyer outside the normal loop of decision making, as a tool for getting around the Constitution with his dubious legal justifications. Ironically, you can still understand why that happened simply by reading between the lines of today's op-ed.
Clearly, Bush, Cheney and Cheney's henchmen like David Addington understood that possibly no other lawyer in America, and certainly no other lawyer in government, would give them the legal "permission slip" that needed to pull off their schemes that included spying, torture, and death squads. I think that one reason that Yoo is so eager now to write op-eds for the Inquirer and the Wall Street Journal is to cast this of all as merely a legal "he said, she said" kind of thing, when what really happened here was a serious plot to evade the Constitution, just like Watergate and just like Iran-Contra.
This is what made John Yoo into Dick Cheney's favorite lawyer. Clearly, with his extreme opinions, he was that one-in-a-million Yoo.