07 Jul Yoo on Hamdan
John Yoo has a predictably critical L.A. Times op-ed today on Hamdan. The piece trots out the Lincoln and FDR comparisons, and argues that the decision will “hamper the ability of future presidents to respond to emergencies.” The analysis is no more persuasive than previous defenses of the Administration’s anything-goes approach. It may be true that the Court’s “lack of judicial restraint . . . would have shocked its predecessors.” But there are other things going on here that would have shocked them, too. (For one small difference in the m.o. of the Roosevelt and Bush administrations, see this post by Eric Muller.) And Hamdan hardly qualifies as an exercise in “judicial micromanagement,” as Yoo charges. Although the ruling focused on particulars, the Court was sweeping broadly at the same time that it was careful not to take the last word if the President and Congress decide otherwise (which of course Yoo also has to recognizes, somewhat incongruously). As for future administrations, if a real emergency presents itself in such a way as to require the Court to step aside, I’m sure it won’t have a problem getting around Hamdan to do so.
At some level one has to admire Yoo’s persistence in sticking to his guns on the policies he helped to frame. On the other hand, he may be too personally invested in those policies to illuminate them usefully as they play out in directions he obviously didn’t predict. It would be encouraging to see some sort of recognition in his post-DOJ writings and appearances that things haven’t worked here quite as they should have, and that it’s not all the Supreme Court’s fault.