261. Law by other means

John Yoo isnt the sort of guy I would have pegged as an acolyte of William S. Burroughs, the gay junkie avant-grade novelist.  But then Burroughs was an enthusiastic – dare one say over-enthusiastic? – gun owner, and he did come from money, and he certainly favored a gray flannel look.  Reasons blog is probably right that his politics, to the extent they possessed any coherence, were libertarian-conservative.  Take a look at these quotes: many would sound incongruous coming from Wayne LaPierre, but by no means all of them.

So maybe its appropriate, after all, that Yoo seems to have appropriated Burroughs cut-up technique.   His book, War by Other Means: An Insiders Account of the War on Terror, reads as if a short memoir of his two-year visit to real life, random pages from his law review articles and a years worth of Karl Rove blast-faxed talking points were cut up, sprinkled on a roll of butcher paper and then printed in the order in which they fell.  They were adorned with a not-exactly-complimentary lede from a New York Review of Books review ("[f]ew lawyers have had more influence on President Bushs legal policies in the War on Terror than John Yoo") and dumped on an unprepared public.   The New York Times review captures the weird shifts of tone in the book.

(Many of our best known and most influential lawyers, such as Antonin Scalia and Ruth Bader Ginsburg, hardly practiced law, but Yoo does them one better: hes never practiced the profession.  No wonder hes so confident in his legal opinions.)

But the thing about Yoos views, and the "unitary executive", and all the rest of the Bush Administrations half-revealed legal doctrines, isnt how weird and far-out they are.  Its how familiar they should seem to lawyers.

I ran a Westlaw search for law review articles by Yoo that used the phrase "inherent power" and came up with 10 hits, and thats not even counting two articles by Professor Christopher Yoo that use the same phrase.  (Has anyone ever actually seen the two Yoos in the same room?)  John Yoos whole theory (and for all I know, Christopher Yoos theories, too) are wholly built on the foundation of inherent power.

Back in 1924, Felix Frankfurter and James M. Landis co-wrote an article in which they warned that "[t]he accumulated weight of repetition behind such a phrase as inherent powers … is a constant invitation to think words rather than things."  (37 Harvard Law Review at 1022-23) 

When you think things rather than words, you realize that "inherent power" simply means extra-constitutional power.  (See post 32.)  Power thats granted by the Constitution isnt inherent in the office, but – by definition – is power bestowed on the office by the Constitution,  a source external to it.  Only power that isnt conferred by the Constitution can be said to be inherent.

Most of the powers exercised by the United States Supreme Court are inherent in this sense.  Even the basic concept of judicial supremacy – euphemistically known as "judicial review", as if it occurred in the back pages of a highbrow magazine – isnt granted by the Constitution, but was assumed by the judiciary.  The power to make prospective rules of universal application, a core legislative function, was first assumed by courts only in the post-WW I era (sometimes with legislative acquiescence).  And its really only since the 1960s that courts have discovered in themselves a power to refuse to enforce criminal laws.  

If these powers arent inherent in the judiciary, then the judiciarys exercise of them is politically illegitimate.   Therefore – by the usual lawyers technique of constructing syllogisms backwards, beginning with the conclusion – they must be inherent.

The Bushies concept of executive power, I think, boils down to this: The executive branch has the same authority as the judiciary to begin exercising power and then claim it possessed it all along.  True, the Constitution doesnt grant the power, but thats because the power was latent, like secondary sexual characteristics in an infant, to be revealed in the fullness of time.

If you force yourself to think words rather than things, you can (apparently) believe this.  And thats the other way in which the Bush Administrations constitutional vision should be familiar to lawyers: its faith in the efficacy of editing reality. 

Our judiciary has committed us to Trials Without Truth, in Professor William Pizzis phrase, just as our administration has committed us to a foreign policy based on the careful construction of an alternative reality.  Judges routinely conceal crucial information from juries, while the Bush Administration conceals crucial information from the public and Congress.

And not just from them.  One of the striking revelations of Rajiv Chandrasekarans beautifully-written, scrupulously-reported Imperial Life in the Emerald City: Inside Iraqs Green Zone is the extent to which the neoconservatives alternative foreign ministry inside the Pentagon deliberately concealed important information from the Americans charged with reconstruction. 

For example, Jay Garner was sent over to Iraq to organize the occupation government without having seen "any of the reams of postwar plans and memoranda produced by the State Department, or any of the analyses generated by the CIA, or even the unclassified report written by the militarys own National Defense University based on a two-day workshop involving more than seventy scholars and experts."  In fact, Undersecretary of Defense Douglas Feith told Garner that no such studies existed.

Why?  Feith figured that, "without a clear blueprint for the political transformation, Garner would turn to [Ahmed] Chalabi and his band of exiles.  Feith would get the outcome he wanted [that is, Chalabi in power] without provoking a fight ahead of time with State and the CIA, both of which regarded Chalabi as a fraud."

(As it turned out, "fraud" may be the least of it: you may recall that Chalabi was accused of passing key American military intelligence to Iran, charges that the Bush Administration seems disinclined to investigate.)

Feith is another lawyer whos spent little time actually practicing law.  But his belief that you can produce optimal results by withholding relevant information from the decisionmaker puts him right in the mainstream of American legal thought. 

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