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.

Quote of the Day

"In war, too, the discretionary power of the Executive is extended. Its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war ... and in the degeneracy of manners and morals engendered by both. ... No nation could preserve its freedom in the midst of continual warfare." -- James Madison

That's what the Father of the Constitution thought. That John Yoo and other Bush lawyers could offer the opinion that a state of war means the president can do virtually anything he wants, including violating the Fourth and First Amendments, without informing or telling Congress - when there hasn't even been a declaration of war by Congress, as the constitution requires -- is beyond shocking.

More on Yoo's folly

Here's a link to my Antiwar.com column last week, which discussed at somewhat greater length than in last week's post that a little torture now and again might not be illegal during wartime. The assumption that during a war the president can override laws that were specifically written to be applied during wartime is simply beyond parody. Conservatives who feel comfortable with the chief executive having that kind of power should spend a moment considering how they will like Hillary Clinton or even Barack Obama with expanded executive power and the the power to decide which sections of laws he/she will take seriously and which are to be ignored.

Back in the days of James Burnham writing "Congress and the American Tradition," conservatives weren't so crazy about "energy in the executive." I believe Russell Kirk coined the tern "imperial presidency." But back in that day there had been Democratic or "modern" Republican presidents for decades. Principles seem to disappear when somebody with an "R" behind his name has the power.

Toward monarchical/dictatorial power

The most interesting and potentially troubling news yesterday was the release of former Justice Department lawyer John Yoo's March 2003 memorandum on the use of "enhanced" interrogation techniques, including measures that any civilized person would define as torture by the military during the ill-defined and malleable "war on terror." Here's the Register's editorial on the subject. The most alarming aspect of the memo is that Yoo (now a professor at UC Berkeley) posits a concept of presidential power during wartime that is virtually unlimited and capable of overriding or ignoring both U.S. law and international treaties.

As I have noted about previous memos from various Justice Dept. lawyers during the reign of Bush, this one reads like something a consigliere to a Mafia Don might put together to let the Godfather do whatever foul thing he wanted while skating right up to the edge of the law (at least as it would be presented by an aggressive defense attorney). It seems obvious now that the Bushies were fascinated with the idea of using torture and wanted to do it, especially when some of the al-Qaida detainees at Guantanamo resisted more ordinary interrogation techniques.

Two things, and I'll throw in links to other peoples' takes. This memo and others like it suggest that the Bushies were moving aggressively, and still are, to enhance executive power (something that has been an obsession of Cheney's since Watergate) way beyond the proper constitutional scope in anything resembling a republic. One commentator suggested that if they had their way the president would be like a pre-Magna Carta king. The treaties and laws that this memo says can be ignored in wartime were written specifically to apply during wartime. This issue of expanded executive authority should be an issue in the general election campaign. Typically, presidents are more than happy to exercise whatever expanded authority previous presidents have arrogated to themselves, though they might use them for different purposes. Barack and Hillary (I suspect McCain is hopeless, but he should be asked anyway) should be asked whether they will roll back the executive power Bush has seized.

Second, the evidence, based on what we know of techniques at Guantanamo, is that torture doesn't work to get reliable intelligence. The CIA says Khalid Sheikh Muhammad gave reliable information, and it might be so, but generally detainees under torture give what they think the interrogator wants to hear to make it stop, which may or may not be reliable, especially if they're trained. And Detainee 063 at Guantanamo, whose resistance to "normal" interrogation was a factor ig the government wanting to move toward torture, according to this invaluable Vanity Fair piece, still refused to offer anything useful after being tortured for seven months.

All right, one more thing. It's becoming clear that the most likely hypothesis (not yet utterly proven and we may never know) that the impetus for torture came from the top down rather than arising from pleas from those running prisons or being the work entirely of "rogue" military people at Abu Ghraib and other prisons. It makes me weep for my country.

Glenn Greenwald's response was invaluable. He's right that John Yoo should be shunned by decent people rather than treated as respectable. Here's Scott Horton arguing that the memo should never have been kept secret, and certainly not for five years. The AP studied the footnotes and found evidence of other memos. This is only the tip of the iceberg of the Bushies' systematic assault on civil liberties.

And here's the memo itself, in PDF format. It's 81 pages. Part One. Part Two. Part Three. Part Four. Decide for yourself.