Law Profs Shocked By DOJ Memos About Bush Presidential Powers

J.D.
Mar 4, 2009 4:36 PM CST

I wonder how shocked they will all be when Obama reauthorizes such activity to stop another attack—- or when an attack occurs because he doesn’t reauthorize the powers.

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brad
Mar 4, 2009 8:00 PM CST

blah blah blah. When it is all said and done, what the Bush administration did on office for 8 years will pale in comparison to the destruction the Obama administartion accomplishes in less than half that time.  Congrats America, you deserve it.

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J.D.
Mar 5, 2009 9:30 AM CST

McLoed, you admit there is “no empirical evidence” to show that Bush’s policies prevented the deaths of another 3,000 people—but you also aren’t arguing that they didn’t, in fact, spare lives.

So why are you so willing to spew venom on the guy when perhaps your own life was spared by these policies?

Or do YOU have empirical evidence that the policies didn’t help?

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Paul the Magyar
Mar 5, 2009 11:47 AM CST

Most of these comments do not address the substance of the artice or call into question the premise that the legal work underpinning the memos was sloppy, poorly-reasoned, inadequate to the purposes intended, and likely to lead to major errors of policy and action.

Just give the memos’ authors a pass because their politics were “politically correct” for the Bush Administration.  “Damn the consequences, full speed ahead.”

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B. McLeod
Mar 5, 2009 12:49 PM CST

J.D., whether the Bush policies “helped” or not, they would not sustain an effort to unilaterally grab dictatorial powers.  That effort is, however, particularly absurb in the absence of any evidence that the policies even served any function (other than the intended function of backing Bush’s dictatorial power grab).  As evidenced by his own remarks concerning pursuit of “political capital,” and the observations of past staffers on his “never ending campaign,” Bush’s policies weren’t about doing ANYTHING for the country.  The pompous, egomaniacal imbecile thought the Presidency was all about him.  As it turned out, he was ultimately too stupid even to make himself look good, despite all the lies he spewed, and even with the resources of an entire nation at his disposal.  Last poll I saw, he was ranked in the bottom 5 of all past U.S. presidents, substantially below Richard Nixon and Herbert Hoover.  That’s just how completely rotten the little bastard was.

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Paul the Magyar
Mar 5, 2009 4:29 PM CST

Yes, and Mussolini and Hitler made the trains run on time, so all the rest of it is just petty carping.

Only, after we found that there were no WMD in Iraq, we argued that we were deposing a tyrant who did not respect human rights and rule of law.  We argued that we were establishing democracy, civil rights and rule of law and other ideals enshrined in our Constitution.  But now we say that those ideals are not important, either.  And we don’t just say it, we back it up with memos and action!

The inherent contradictions are too difficult to reason away—in fact, impossible.

It is so much easier—and far less time-consuming—to sound off and bluster and use exaggeration, ridicule and false analogies than to do research.  These issues are, however, matters of life and death and too serious for such shenanigans.

The problem is expressed well in an essay titled, “SENTIENT MAN’S BURDEN” which can be found at the Gin and Tacos website:  http://www.ginandtacos.com/?p=1281

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AG
Mar 6, 2009 7:03 AM CST

MeLeod, your getting away from the question that JD first asked you ... is there evidence to show that the policies did not help ... lets answer that question before we resort to angry asumptions and name calling.

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gea
Mar 6, 2009 7:28 AM CST

I agree with number 12, since I don’t care if your way of doing things, saves me money, makes me younger, keeps me from being knifed in the back, I still want to have the choice to go down that back alley and throw my money away on “whatever” and I don’t want a dictator with cronies tellliing him how to do it, as well as how to think and spell toothpaste. I also find the conservative professors comments disingenous, since Bush DID grab power and it is not a figment of our collective imagination, and we allowed him.

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CJC
Mar 6, 2009 7:38 AM CST

What about the practical reality that the executive can watch or search or arrest whoever s/he wants without any enhanced “legal opinions” or Patriot Acts?  If all of these rationalizations for the abuses of the Bush/Cheney executive power grab were occuring or true, I’m sure any lawyer could convince a judge to approve of their action.

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Rita
Mar 6, 2009 7:57 AM CST

Wow!  McLeod, only one attack on America?  I seem to recall a prior attack on the WTC, in 93.  And, reports of other foiled attacks since 9/11 (shoe bomber ring any bells?).  You can not argue “the ends justify the means” by saying nothing new HAS happened, when the action plan was (and, continues to be) to prevent anything new from happening!  President-bashing only slows down progress.  Unless anyone posting here is privy to the top-secret behind-the-scenes information, you don’t have enough knowledge to poo-poo either President’s actions.  #16… I like the analogy…

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Martry
Mar 6, 2009 8:08 AM CST

Guess we all are proving we are no different than the “non-legal” blogs in which everything political degenerates into furious, strident personal attacks on Bush or Obama.  You may not like this, but it is possible to have agreed with Bush on many things (e.g., Iraq) but not on others (e.g., the so-called Patriot Act, the TARP bailouts).  I would imagine (and hope) we find the same agreement/disagreement possibilities with Obama.

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VM
Mar 6, 2009 8:59 AM CST

People, people, people!  Is this the ABA website?  Did we all go to law school and “learn to think like lawyers”?  Most of this sounds like a conversation between non-lawyers.  Whether he was a Little Bastard, Hitler, or savior of the nation in a time of actual declared war - the issue is not whether he was justified (i.e., successful outcome) or whether unjustified (i.e., not necessary because no real threat).  The issues are (1) whether the executive branch of the government was true to the Constitution or exceeded the power granted to it by the Constitution, and (2) whether the administration violated any laws.  Other than that, this conversation sounds like a conversation in a carpool listening to Rush Limbaugh:  either you’re a dittohead or a socialist.

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UK
Mar 6, 2009 9:43 AM CST

Bush is not president anymore.  Get over him.

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James Denzer
Mar 6, 2009 10:18 AM CST

Lawyers, including those at the White House, have an ethical obligation to be zealous advocates for their clients and should argue for change, expansion, reversal, or repudiation of law where appropriate, especially where such law and its application in the present can be distinguished from the facts and circumstances that gave rise to past precedent. There should be vigorous debate about White House policies and the relation of the President to Congress and the Judiciary, and there should be vigorous debates about this. However, no one should be villified for their opinions.  By the way, these same debates raged between the branches of government at the founding of the nation, and in those days, there was no Al Quida and 3,000 civilians had not been slaughtered by terrorists on American soil.  Different times call for different solutions. However, Bush’s exercise of executive authority in the extreme and in time of crisis is nothing new.  That’s why I’m surprise that folks seem to be horrified by Bush’s conduct.  Other presidents have acted in similar fastion.  Adams did the alien and sedition act, Lincoln suspended habeous corpus, and FDR locked up a lot of loyal Americans who happened to be of Japanese ancestry.

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Andy the Lawyer
Mar 6, 2009 10:57 AM CST

There may be some reason why John Yoo and the other authors of the memos authorizing torture and elevating the American president to the status of American God-Emperor haven’t yet been disbarred for extreme professional incompetence.  But I can’t come up with one.

The least surprising headline of any ABA Journal blog story this week is: ‘John Woo says His Memos Were Not For Public Consumption.”  I don’t blame him.  No lawyer with an ounce of shame would have wanted anyone to know he’d written such nonsense.

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J.D.
Mar 6, 2009 11:23 AM CST

The problem for a lot of commenters is that they live in a theoretical world, not reality. They support bombing after bombing within the U.S. if it means upholding their interpretation of the Constitution.

Conservatives generally abhor anything that seems to be in conflict with the Constitution—but many understand that nothing matters if we’re all dead. So they support temporary protective measures.

Liberals think the Constitution is a “living document” and can be changed at will—- unless, of course, the change would protect lives. Then, it cannot be changed at all. Libs want us to die.

Mikey is spot on. The problem is that both Bush and Obama have built a bigger government that will control each of our lives in one way or another. Looking at growth of gov’t, Bush makes Clinton look like the greater conservative.

As for VA Carney’s “chihuahua & lion” metaphor, the problem McLoed has is that he is trying to argue that lions are everywhere and are attacking the girl and her dog—with no actual evidence to back it up.

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Mikey
Mar 6, 2009 11:36 AM CST

J.D. - funny you mention Clinton, because I made exactly that comment to a liberal friend of mine just yesterday who was a big Clinton fan back in the day - “your guy is sure looking good in hindsight now, compared to our current and immediate past presidents!!”

#27 - great points.

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mdw
Mar 6, 2009 12:25 PM CST

Regardless of Bush’s intelligence and independence during his terms in office, the fact remains that Yoo and others went above and beyond in their memos for support of presidential power.  I would recommend reading the memos, arguing the conclusions in the same, instead of personally attacking the current and past presidents.  We have no proof showing that Obama will continue in the spirit of the Yoo memos and we only know that Bush presided during the time the memos were written, but as that is past, we should really stop focusing on him as we can’t fix the past.  (Unless some of you insulting Bush own a time machine).  So, lets take this moment in history as a lesson and move forward, ensuring such reprehensible memos are not enforced in the future.  I know, I know, it sounds like a mature course of action.  Oppsie.

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res
Mar 6, 2009 12:47 PM CST

Admittedly, I was never a fan of Bush.  Moreover, I supported Obama during his campaign, and will continue to support his efforts at “change” provided that they are constitutionally bounded.  To the conservatives posting here, let it be clear: I will not support Obama should he step outside of constitutional authority (and don’t support any Congressional attempts do circumvent the Const. either).  However, it is difficult to forget how conservatives, by and large, whether or not you count yourselves among them, raised their voices to silence dissenters from the left in the years following 9/11/01, whose cries against the unconstitutional use of governmental power fell upon your deaf ears.  From the very way in which Bush took office, to the Patriot Act, Guantanamo Bay, wiretaps, attempts to subvert habeas corpus, torture, etc. etc. etc., virtually the entire administration was rife with constitutionally infirm actions and opinions.  This latest story does not add anything to the claims made over the last 8+ years, but merely confirms what many of us more than suspected all along.  So, while the strength of my convictions afford me the ability to question “my” president’s decisions, where were you when “Our Federalism” was being seriously undermined by “your” president?

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JohnyLaw
Mar 6, 2009 1:09 PM CST

News Flash - Law professors shocked that the real world is far different than the academic garbage they teach.  That 1 year working at a plush firm was a great foundation for becoming a law professor!

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B. McLeod
Mar 6, 2009 1:18 PM CST

Mike Appleton is right.  This is how totalitarians always start their play.  Stir up as much panic as possible, then promise to “protect” the people, in exchange for the mere abandonment of all legal rights and civil liberties.

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VA Carney
Mar 6, 2009 1:49 PM CST

Let’s make one thing clear: zealots like David Addington acted on their lunatic fantasy of the expansion of executive authority, especially with such trickery as “signing statements”, which effectively usurped the authority of the legislative branch.  The far-right had been smarting since Watergate, which, in their view, undercut and circumscribed the omnipotent executive function.  The reality is that Watergate reined in executive abuse of power.  Of course, Addington & Co. would never have advanced these principles on Bill Clinton’s watch, which underscores just how intellectually dishonest their arguments truly are.  Bush and Cheney most assuredly abused executive authority, and it will be years before we are aware of the full extent of this abuse.  Deliberately lying us into an unnecessary war and employing torture in violation of the Geneva Convention is just the tip of the iceberg.  Because of their mania for secrecy, much worse was likely undertaken by this vile crew.

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VA Carney
Mar 6, 2009 2:13 PM CST

Mikey: RE comment 44: Obama and the Democrats are merely trying to remedy the incalculable damage wrought by eight years of GOP misrule.  They didn’t create this mess; they inherited it.  These Texas oil thugs and their Wall Street handmaidens had no honorable intentions.  They used their empowerment with the single-mindedness of a gang of burglars blowing a bank vault.  And the American people are left holding the bag.

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Hadley V. Baxendale
Mar 6, 2009 3:13 PM CST

What happened to professional conduct rule 2.1 about idependent professional judgment?

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Dennis Juncer
Mar 6, 2009 5:05 PM CST

I must be missing something here.  Let’s see, Bush assumed “dictatorial” powers in regard to foreign enemy combatants and identified terrorists and abused their constitutional rights by intercepting overseas communications?  Nope, they have no constitutional rights, except perhaps if they are in this country.  I’m pretty sure the German prisoners held in America weren’t afforded constitutions rights.  You may also recall that great liberal, FDR, approved putting a lot of Americans of Japanese origin in concentration camps.
And does Bush get any credit for recognizing that the best weapon in this kind of war is timely intelligence?  Guess not.
Like the man said (#25), get over it.  Instead of hating Bush, who whatever his failings were was doing his best in extremely hard times, lets learn what we can from the past and get on with it.
.  You’ve all heard bad cases make bad law.  What makes you think it’s any differant in the real world?
As to # 46, yes capitalism leads to booms and busts.  It has also led to the most prosperous society ever seen.  Even those on the bottom have their basic needs met, if they accept the help available.
Socialism, on the other had has never been successful anywhere.  Ask the Russians and Chinese, who finally figured out capitalism leads to progress and full shelves in the grocery store.  The system needs some adjustments, but lets not throw the baby out with the bath water.

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