What to Do About John C. Yoo? That is the question posed in a Wall Street Journal Law Blog post. The post is quite fair and balanced; after all, it’s not a NY Times post. But the post does discuss a front-page NY Times article which lays out how many are calling for Yoo to be indicted, disbarred, arrested or otherwise punished for helping frame the rights and obligations of the executive branch in time of a terrorist crisis unlike anything this nation faced before.
I have written before about the lunacy of the attacks on Bush administration lawyers, including the claim that one of the lawyers (now a federal judge) should be impeached. Yoo himself has given a solid defense of his actions:
According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001, which concluded that the September 11 attacks triggered the government’s war powers and allowed the president to use force to counter force. Alexander Hamilton saw things differently than critics of the Bush administration. He wrote in Federalist 74: “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”
Whether Yoo was correct in his interpretation of the constitutional powers of the executive in time of war — and this war in particular — is something about which reasonable people can differ. What is outrageous is the attempt to criminalize what amounts to policy differences for political gain. I don’t recall the Bush administration seeking to prosecute Janet Reno and Eric Holder for the killing of dozens of civilians in Waco, Texas. They made the judgments — as to the legal powers of the government and the policy actions to be taken — under difficult and to some extent unprecedented circumstances.
The real harm from this political witchhunt is that the executive branch will hesitate to take actions to protect the country. As Yoo pointed out in his defense:
The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of “reasonableness” — as they might review a police officer who fires in self-defense — rather than demand a warrant to use military force to stop a terror attack.
In releasing these memos, the Obama administration may be attempting to appease its antiwar base — which won’t bother to read the memos in full — or trying to look good for the chattering classes.
But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future.
I applaud the reported reluctance of the Obama administration to go down this path, perhaps because they know opening the door to politicized investigations of the executive branch works both ways. Obama has made, and will have to make, decisions under difficult circumstances which may result in loss of innocent life, or which in hindsight may be deemed unnecessary or unconstitutional. The executive branch, particularly in time of war, does the best it can based upon the best legal and military advice it can get under exigent circumstances. To criminalize this process will cause loss of innocent American lives through failures to act, as took place during the Clinton administration regarding al-Qaeda.
I have a better idea. Rather than indicting Yoo, why don’t we give him a medal for helping to frame policies which have largely been upheld by the courts, have been implemented by bipartisan congressional action, and have helped keep the country safe.