John Yoo, the attorney who was allegedly hand-picked by the Bush administration to be read into the President’s Surveillance Program so that he would give them paper providing legal justification, has responded to last week’s report by inspector generals on the program and his role in it. In an op-ed piece in today’s Wall Street Journal, Yoo attempts to rationalize ignoring FISA and the rule of law, in part by citing Alexander Hamilton in the Federalist Papers:
The power to protect the nation, said Alexander Hamilton in the Federalist, “ought to exist without limitation,” because “it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them.” To limit the president’s constitutional power to protect the nation from foreign threats is simply foolhardy. Hamilton observed that “decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number.” “Energy in the executive,” he reiterated, “is essential to the protection of the community against foreign attacks.”
Hamilton was entitled to his opinion but that opinion was not and is not the law. And although Yoo does cite some legal precedent that is relevant, that doesn’t mean that a president is free to ignore the law based on their own analysis of what they think a court would say or “should” say.
Saying that FDR did the same thing or that every administration has ignored a law is like my kid telling me not to discipline them for cheating on a test because Johnny cheated, too. Nor did the government in Hamilton’s time have the technological capabilities that it has today.
But while civil libertarians and liberals seem to love to hate Yoo and point the finger at him, the spotlight needs to remain on the men who handpicked him, used him for their own purposes, and who ignored the rule of law.
Photo: from Wikipedia, public domain.