John Yoo, a brilliant lawyer, played an important role in writing major aspects of the administration’s legal policies respecting detentions and surveillance. So, not surprisingly, he has been under attack for several years now. Today’s Washington Post has an article in which the first paragraph states:
“John Yoo knows the epithets of the libertarians, the liberals and the lefties. Widely considered the intellectual architect of the most dramatic assertion of White House power since the Nixon era, he has seen constitutional scholars skewer his reasoning and students call for his ouster from the University of California at Berkeley.”
I reject completely the claim that the Bush administration has pursued “the most dramatic assertion of White House power since the Nixon era.” The fact is the Clinton administration asserted more power than either the Bush or Nixon administrations. Despite the Supreme Court’s precedent in United States v. Nixon, compelling President Nixon to turn over evidence relevant to a criminal investigation (including the tapes), Clinton threw up phony roadblock after phony roadblock claiming presidential authority to obstruct the Starr investigation, all of which ultimately failed. He claimed attorney-client privilege (even where he improperly used government lawyers to work on his private legal matters); executive privilege (again, to prevent prosecutors from gaining access to information surrounding his private activities); and Secret Service protective function privilege (a concoction of the Reno Justice Department to prevent the taking of testimony from Secret Service personnel who witnessed Clinton’s wrongdoing). In each case, courts at every level shot down these unprecedented claims.
And, as we know by now, the ECHELON project has been intercepting electronic communications of every sort, gathering them into a giant database and analyzing the communications, for years, including during the Clinton administration. Clinton bypassed FISA by extending warrantless searches to include physical searches. And he used a spy satellite to gather intelligence on a white separatist compound in Oklahoma after the Oklahoma City bombing. We didn’t hear word-one about threats to civil liberties. So much for the intellectual seriousness of the sanctimonious Left.
Since December 16, when the New York Times published the first NSA story, the big media have largely ignored the actions of past presidents in extending warrantless searches via executive orders; a Supreme Court and four circuit court decisions recognizing the president’s inherent constitutional authority as commander-in-chief to order the intercepts; a FISA Court of Review decision acknowledging presidential authority; and the Constitution itself in trying to portray the Bush administration’s NSA program as unlawful. Now, it ignores the Clinton administration’s abuse of power in an attempt to paint Bush as Nixon, i.e., to raise the specter of Watergate and the imperial presidency. And you thought things would get better when Dan Rather left?
John Yoo deserves a medal. He’s a patriot.