John Yoo luncheon
In the orgy of leaks and recriminations that dogged the Bush administration adoption of what were, by definition,
reactionary policies in the wake the attacks of September 11, 2001, a controversial figure has emerged as the legal devil in the details of US conduct in the war on terror. Rather than the bit player in the minutia of governance he expected to be, John Yoo’s work regarding the scope of the Commander-in-Chief power has cast him forever in the blogosphere as having crafted Bush’s “imperial presidency” from whole cloth.
As a jailhouse lawyer who follows debates over the course of law and policy in this nation, it was impossible
not to notice the cavalcade of criticism that attended the release of memos authored by Yoo, most notably in April of last year. The conclusory conviction in absentia of their author for everything from academic malfeasance to war crimes lead me to worry that the soft underbelly of wishful thinking in the Bush administration would be exposed as a rash of sophomoric legal gerrymandering. So it might seem the last instinct I would have is to invite Yoo and my good friends in the Rhode Island legal, policy and academic communities to lunch before his appearance at a Brown Forum this Thursday afternoon.
But a funny thing happened on the way the Forum, I read the memos. I didn’t find them unimpeachable, but I found them far from the wildly irresponsible, legally indefensible and morally reprehensible work I had been lead to expect. Yes, you can find the salacious claims of executive exclusivity, although they are most often qualified by might, to an impermissible extent, could, etc. And, in the context of the 80 pages that surround them, they read as much as dicta, as absolutist assertions.
And I have since had the opportunity on several occasions to hear John give a good account himself, not the least of which was an appearance with Richard Epstein. I was staggered to find that I was, for perhaps the first time, not in complete agreement with Epstein whom I have always looked to for first principles in my understanding of the Constitution and the political economy. Aside from his disarming good nature–another sneeky friendly conservative–the notable traits of Yoo’s presentations have been passing reference rather than polemical insistence on ends justifying the means; an informed resort to historic policy and legal precedent; and a studied grasp of the range of constitutional and political theories that overlay this area of law.
If you are a real glutton for punishment and want to acquaint yourself with more background on this controversy–
from the jaundiced perspective of yours truly–I have attached a recent paper detailing my romp through the Yoo controversy. No quizzes will be administered. As with most of my stuff it fits in well with the literature on the back of the WC, but should you take it up, I’d be honored by your interest.
I sincerely hope you can join us for lunch, and for those who would like to see Yoo challenged by an adversary
who comes out differently on these questions, other than any of our distinguished lunch guests of course, he debates Larry Cox of Amnesty International at Brown on the larger but related theoretical question: Are There Universal Human Rights? This forum will be nearby on the main Brown campus in Salomon 101 at 4:00. This is part of the Janus Forum, a series of lectures with a student steering committee choosing topics and participants
organized by the Political Theory Project at Brown lead by Professor John Tomasi.
We are lucky that Brown has returned to the true liberal tradition as evidenced in these fora, especially because
our local Federalist Society effort does not yet have the heft to present debates on that scale, but we look forward to doing so with your participation. While it is no military secret that the society’s membership trends rightward, one of my first experiences of the Federalist Society was reading the explanation of liberal appellate counsel Marci Hamilton (of Boerne v. Flores fame) explaining why she had joined. There is no litmus test, but I can bring some pH paper if it would make anyone feel better.
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