Bench Memos

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Milbanking One’s Way Through Life


In 1987 “bork” became a verb, defined by the OED as “to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office.” Maybe it is time to make another verb appropriate to certain phenomena in the nation’s capital.

“To milbank,” as in the Washington Post’s columnist Dana Milbank, would mean “to opine about public affairs in a persistent state of adolescent sputtering, determined to learn nothing about the subject while having access to a wealth of information about it.”

This neologism occurs to me after seeing Dana busily milbanking his way through a column today on John Yoo’s lecture yesterday at the Heritage Foundation on “The Bush Presidency and the Constitutional Powers of War.” The determination to remain ignorant about the subject under discussion, while pronouncing confidently on it, is on full display here.

Silly exaggeration of a view one is characterizing is a reliable tool in the accomplished milbanker’s kit bag, and Dana does’t disappoint. Yoo, he avers, “reduce[s] Congress’s warmaking authority to a ceremonial role, much like its authority to declare a national Boy Scout recognition month.” He has a “theory of an all-powerful ‘unitary executive’” that results in “presidential powers [that] are near absolute in wartime.” But these weren’t Yoo’s arguments at all. Anyone who wants to hear what Yoo himself had to say yesterday can check these assertions for accuracy by going here for a recording of his lecture.

The really gifted milbanker tries to intervene with an air of confidence in disputes on which he has done no homework. And Dana has that move down cold today. He gets between Yoo and George Will on the meaning of a remark that the president is the “sole organ for the nation in foreign affairs.” Will had rejected this characterization of the president’s authority without noting where that description came from. Yoo, like Andy McCarthy here at NRO last week, pointed out that it was the Supreme Court itself that said this seven decades ago. Milbank wants to set the record straight, writing: “Actually, the 1936 quotation Yoo cited referred to treaty negotiation, not spying or warmaking.”

Um, not exactly, Dana. First let’s get the quotation right. The Court referred to “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” More importantly, in the same paragraph, the Court went on to say things directly relevant to the business of spying and warmaking:

Moreover, [the president], not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.
There is a large literature on war powers questions under the Constitution. John Yoo’s work is squarely in the mainstream of that literature, albeit on the pro-executive side of it. Before one goes off on a fit of milbanking, one might acquaint oneself with some of the relevant sources.


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