WAITING FOR AN ARGUMENT. Better lawyers than I will have fun conducting a weeklong autopsy of John Yoo's execrable attempt in the Sunday New York Times to recast American history as Peronism In Powdered Wigs. However, I was struck by this particular passage:
A reinvigorated presidency enrages President Bush�s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. But the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.
The changes of the 1970�s occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia in the wake of Richard Nixon�s use of national security agencies to spy on political opponents. Congress enacted the War Powers Resolution, which purports to cut off presidential uses of force abroad after 60 days. It passed the Budget and Impoundment Act to eliminate the modest presidential power to rein in wasteful spending. The Foreign Intelligence and Surveillance Act required the government to get a warrant from a special court to conduct wiretapping for national security reasons.
These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks.
Let's examine only the pure ahistorical truthiness that's there right from jump. How many missiles aimed right at my keister did the USSR have in, say, 1970? If Yoo had argued there were "no serious national security threats to U.S. soil" in, say, 1971, in the Nixon White House, Gordon Liddy would have black-bagged his den. If he'd argued it in, say, 1979, at Reagan campaign headquarters, Jim Baker would have tossed him out into the street. And it's nice of Yoo, a professor of law, mind you, to state what the Founders intended without ever actually citing any of them. (How'd I miss professors like this?) And then he piles up example after example after example of laws passed during that period without noting that most of them -- most especially the FISA law -- were passed in reaction to criminal acts committed by the Executive of the time. Yoo, of course, has neither the imagination nor the guts to use his shiny doctrine to retroactively defend the Plumbers. And he's trimming the truth about "the wall" again, too.
And then there's this: "The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority." Well, that certainly settles that, doesn't it?
They're not even trying hard any more.
--Charles P. Pierce