Fair and Unfair Criticisms of John Yoo

Orin Kerr at the Volokh Conspiracy has offered a series of posts detailing some writing John Yoo did in 2000 criticizing the Clinton administration. Orin’s posts are fair, careful and persuasive in some parts, but it has been distorted and transmogrified by the lefty blogosphere into an unfair attack on Yoo (which Kevin regrettably perpetuates below). (Disclosure: I’m a friend of John’s and we have co-authored some works together, although not on these issues).

Anyone who has read any of John Yoo’s articles and books know that he is a serious and consistent advocate of a strong executive, especially in wartime. He may be wrong (as many people think he is) but I think it is fair to say he was on record, even during the Clinton Administration, in his defense of Clinton’s use of wartime executive powers. For instance, his 1999 article on Kosovo (found here) clearly endorses Clinton’s ability to use force unilaterally in Kosovo and to lay the groundwork for using Clinton’s actions to justify future unilateral actions.

The quotes that Kevin circulates below only make sense in the context of the entire paper Yoo presented, which Kerr (unlike anyone else) has actually read and watched (see the video here). As Kerr explains, Yoo has basically three critiques of the Clinton Administration underlying his overall theme that Clinton was undermining the “Rule of Law” and “Democratic Accountability”:

– attacking the Clinton administration’s reinterpretation of the ABM treaty
– attacking the Clinton administration’s violation of the War Powers Act in Kosovo (or at least not explaining it)
– attacking Clinton for transferring operational control of U.S. military forces to foreign commanders and international institutions.

Read in the context of his whole presentation, I don’t think Yoo’s criticisms of Clinton are inconsistent with his well-known defense of executive power in this administration.

His complaint about the Clinton reinterpretation of the ABM treaty is that Clinton departed from Clinton’s prior views in adopting a reinterpretation of that treaty. His complaint about Clinton’s violation of the War Powers Act is that Clinton didn’t bother to claim that the War Powers Act is unconstitutional (in fact, according to Yoo, Clinton actually accepted the legality of the War Powers Act). Instead, Clinton simply violated the federal statute without bothering to offer any serious legal explanation.

In both cases, Yoo argued that this “violates the Rule of Law” because even though Clinton has good legal arguments for withdrawing (as opposed to reinterpreting) the ABM treaty or disregarding the War Powers Act, Clinton didn’t actually make those arguments. In fact, according to Yoo, Clinton made the opposite arguments and then reversed course without any legal explanation.

In contrast, Yoo can argue that the Bush Administration’s claim of, say, authority from the Sept. 11 War Resolution or the Commander in Chief Clause of the Constitution is more of a “Rule of Law” approach since it does offer a legal justification for its actions and it has been consistent in defending these views.

Finally, Yoo’s criticism of Clinton’s delegation of command power to international institutions is obviously not one that can be seriously raised against the Bush Administration. But it is worth pointing this out because this is the source of Yoo’s charge that Clinton is “undemocratic”. Not that Clinton is too powerful – but that he is transferring power to international institutions that are undemocratic.

Can Yoo really claim (as he does in his latest NYT op-ed) that the Clinton Administration failed to defend executive power – given his simultaneous charge that Clinton engaged in lawless behavior? I think he can. Clinton’s lawlessness, Yoo argues in the Cato essay, did not protect the Presidency because it was unprincipled. It allowed Congress to claim all sorts of legal authority – authorities that were ignored by Clinton – but authorities that stay on the books as a precedent weakening future presidents. Moreover, Yoo really has a problem with Clinton’s deference to international institutions – which offers a potential external constraint on executive power and the lack of democratic accountability.

So while I myself don’t agree with Yoo that Clinton was particularly lawless on foreign affairs, I do think Yoo has a coherent consistent critique of Clinton worthy of respect. I really do wish folks would engage John on the substance of his views or at least carefully analyze his arguments (as Orin has). But that may be too much to hope for.