On the Separation of Powers

"The doctrine of the separation of powers was adopted . . . not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." -- Louis D. Brandeis

Brandeis, by my lights, was not consistent in his concern for liberty, but this is a wondrously enlightened remark. I suppose it seemed appropriate today because I attended a luncheon where the speaker was John Yoo, author of the notorious "torture" memos and noted advocate of "plenary" or "unitary" power in the executive, especially in time of war or national security crisis (defined much more broadly than I would). The speech was not on the record so I'm not at liberty to say much beyond that it was about Lincoln's use of extraordinary powers during the civil war -- one reason why, in contrast to establishment historians, Lincoln vies in my mind with Wilson and FDR for worst president in our history rather than best, where a recent C-SPAN-sponsored poll of historians put him. Yoo didn't find his conduct shocking or especially reprehensible, not surprisingly.

I hate it when people whose political views I find dubious or even reprehensible turn out to be pleasant and likeable, and that is the case with John Yoo. He is soft-spoken, pleasant and unfailingly civil, and I liked him personally. Maybe that's an advantage, however. He agreed to spend a couple of hours with me in the near future in an on-the-record interview. He says he's almost libertarian on domestic issues but thinks the constitution gives the president extraordinary latitude when war or near-war is the issue. I'll see if I can't prod him to be a bit more libertarian on foreign policy.