Yoo on Hamdan

by Peter Spiro

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.


4 Responses

  1. Professor Spiro,

    Please see my comment to the post below.

  2. Professor Spiro,

    With all due respect and deference owing to your expertise (and my lack thereof), the comment that ‘whatever IL might apply as a formal matter, it’s not going to make much of a difference,’ seems rather on the order of a self-fulfilling proposition. Imagine, if you will, this same comment being made when the various human rights conventions were ratified, indeed, if I’m not mistaken, there was much in the manner of ‘realist’ skepticism about such things.

    Pointing out the conspicuous weaknesses of the international legal system in no way denigrates or lessens the validity or necessity of international legal rules, and that which appears merely ‘formal’ need hardly remain so. Indeed, I think the international legal community may bear some responsibility (or complicity) here, as comparatively few international law scholars take it upon themselves to examine this conflict with the full array of tools intrinsic to their field (notable exceptions: Francis Boyle, Richard Falk, Lisa Hajjar, Adrien Wing…). International law scholars can certainly contribute to enhancing the various properties of what Professor Franck termed the ‘legitimacy’ of legal rules. This, in turn, would go some measure in the direction of instantiating, embodying, realizing that which appears merely formal (analogous to the function of opinio juris). I suspect that this is one reason what Professor Shaw remindes us that ‘International law is clearly much more than a simple set of rules. It is a culture in the broadest sense in that it constitutes a method of communicating claims, counter-claims, expectations and anticipations, as well as providing a framework for assessing and prioritising such demands.’

    How well publicized, for instance, is the fact that, as Professor Falk states, ‘in international law, Palestinian resistance to occupation is a legally protected right’? [owing, in Falk's words, to 'Israel's failure as a belligerent occupant to abide by international law,' thereby denying 'the Palestinian right of self-determination....'] What would it mean if the U.S. actively backed the applicable resolutions passed by the Security Council and the General Assembly of the United Nations? What would it mean if the U.S. was committed to applying the principles of international law contained in the Fourth Geneva Convention concerning the Protection of Civilian Persons in Time of War? Etc., Etc.

    For better and worse, John Yoo himself is some evidence for the proposition that legal scholars could do far better here in assuring that which is ‘formal’ (i.e., toothless, impotent, insignificant, ignored…) does not remain so.

  3. Prof. Yoo has been flushed from cover — he’s just repeating an argument that the Court specifically (and correctly) ruled was fallacious:

    “But its effort to inject the Geneva Convention into the war on terrorism — even though the treaties do not include international conflict with non-states that violate every rule of civilized warfare — smacks of judicial micromanagement.”

    If the alleged “war on terrorism” really is a war, what Geneva says is that “international” conflicts are those between two or more parties (nations), and fall under CA2; otherwise an armed conflict is non-interntional under CA3.

    The expression “international conflict with non-states” is the logical equivalent of an “apple-pie made from oranges”.

    Further, if it is an international armed conflict as he claims, then the “terrorists” are civilians protected by Geneva IV art. 4, which in essence defines a civilian as anyone who is not protected by Geneva I-III. Note also that Geneva IV art. 4 applies to cases of total or partial occupations in the territory of a party and that 190 nations are party to Geneva (191 counting Montenegro).

    This is just another case of Prof. Yoo making sophist arguments to the effect that 1 + 1 = 0.

    All detainees in an armed conflict are protected by Geneva one way (CA2), or the other (CA3), and the United States is obligated to “respect and insure respect for” Geneva in “all circumstances” by CA1 — including the circumstance where Prof. Yoo thinks it’s a good idea to commit a crime in violation of Geneva 1949, IMT 1945, or Hague IV 1907.

    Denying such protections to a prisoner in an armed conflict of any type is an offense pursuant to 18 USC 2441(c)(1-3); see also 18 USC 371 (Conspiracy).

    1 + 1 = 2,

    Charles Gittings

  4. The expression “international conflict with non-states” is the logical equivalent of an “apple-pie made from oranges”.

    Wait … maybe, probably, the Geneva Accords etc. apply to international conflicts with non-states, but I don’t think an international conflict with a non-state actor is a logical fallacy.

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