When The President Does It, That Means It Is Not Illegal

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THE PLANK APRIL 2, 2008

When The President Does It, That Means It Is Not Illegal

You may have been wondering: Just how shoddy did John Yoo's legal advice to the Bush administration have to be for even a conservative lawyer like Jack Goldsmith to be taken aback by it? Answer: very. Full text of Yoo's newly declassified Justice Department memos on detainee treatment here (part one) and here (part two). Emily Bazelon:

What takes my breath away about the Yoo memos,
now that we can finally read them, is their air of utter certainty.
One after another, complex questions of constitutional law are
dispatched as if there's no cause for any debate. The president has all
the war making power. Congress has none. The president's
commander-in-chief powers extend to interrogations (no matter how far
in space and time from the battlefield they take place). Guantanamo Bay
and enemy aliens enjoy no constitutional protections. ... Congress cannot prohibit any sort of
treatment that the president chooses to allow. No wonder Jack Goldsmith
thought Yoo was reaching far beyond where he needed to go, not to
mention what the state of the law would actually support.

It'll be interesting to see how Republicans in Congress (and John McCain) react to this. When you think about it, it's somewhat breathtaking that, as a group, they were--and remain--so docile, willing to embrace (or, at least, quietly tolerate) a constitutional theory that renders them toothless. Our system relies pretty heavily on the assumption that naked self-interest will make Congress reluctant to just roll over and cede power to the executive, but heightened partisanship might be making that notion obsolete.

Update: Goldsmith has a piece in Slate today with some worthwhile recommendations for how the next president should conduct the war on terror. Not surprisingly he favors retroactive immunity for telecom companies who helped with the administration's wiretapping program, but he also calls for greater declassification of intelligence documents, closer collaboration between Congress and the White House, closing Guantanamo, and establishing a new national-security court for trying terrorists (as TNR contributor Ben Wittes also recommends).

--Josh Patashnik

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