Yoo to OPR: Law is “Largely Irrelevant”

(Mary has graciously tutored many of us here about the significance of the Civil War case, Ex parte Milligan, to contemporary debates about detention (see also here and here and here). So when I saw that John Yoo had written an article trying to explain why he’s been ignoring Milligan all these years, I asked Mary to rip the article to shreds. She does not disappoint.)

The hugely relevant (at least, in the context of a completed but unreleased Office of Professional Responsibility investigation) John Yoo has taken to the heavily trafficked pages of the Chapman Law Review to pursue his personal war – on law. In his piece titled, Lincoln and Habeas: Of Merryman, Milligan, and McCardle Yoo utilizes the resources of Boalt Hall and Chapman to finally find and discuss the Civil War case of Ex parte Milligan; a case which managed to elude Yoo during his time spent writing memos for the Office of Legal Counsel. Yoo chooses the cases of Ex Parte Merryman and Ex Parte McCardle to bookend his claims of the “irrelevance” of Milligan, and of law in general, during times of war.

Before we even get to that discussion, though, here’s a heads up.

A few facts and at least one important contemporaneous case – Ex parte Yerger – are as mysteriously missing from Yoo’s law review article as Milligan was from his OLC opinions. On the other hand, when your central argument is that case law means nothing, perhaps it is no flaw to fail to include relevant and contemporaneous case law.

Yoo’s argument (to OPR, the Supreme Court, state bars, and courts where claims against him for his role in torture are now pending) goes pretty much like this: Lincoln didn’t always follow the letter of the law and he “got away” with it. Ich bin ein Lincoln.

In essence Yoo claims that, when the courts try to impose law on the Executive branch, both the President and Congress will respond by disenfranchising and enfeebling the courts, so if courts know what is good for them, they’ll butt out. He uses the cases of Merryman, Milligan and McCardle to reach this remarkable deduction, starting with Merryman.

Lt. John Merryman was a member of the militia in a Union state, Maryland. Maryland was teetering on the brink of going over to the Confederacy. Merryman (did I mention he was a member of the Maryland militia) was actually recruiting for the Confederacy and was involved in burning railroad bridges to try to help isolate DC from the North. At about the same time as Lincoln suspended habeas in Maryland, Merryman was placed under military arrest.

Then-Supreme Court Chief Justice Taney (from Maryland and a friend of Merryman’s father) was acting as a Circuit Judge while the Supreme Court was not in session and Merryman’s habeas application came to Taney. Taney ruled that habeas had not been properly suspended by Congress and that militiaman Merryman should be released from military custody.

Yoo points out that Lincoln did not release Merryman (without mentioning that because of the judicial intervention, rather than hanging Merryman went on to become the State Treasurer for Maryland in 1870 – a relevant result for him at least) and notes that Lincoln continued for about 2 years to detain persons under a revocation of habeas that had not been formalized by Congress.

He is correct, in so far as he goes.

After the Merryman order from Taney, Lincoln’s Attorney General, Bates, issued an opinion that, with Congress silent on habeas rights, the President could suspend habeas in times of turmoil for the public safety.

Meanwhile, Congress jousted for a couple of years trying to decide what to do and in early 1863 they gave Lincoln and his officials indemnity for their detentions to date, but at a very significant cost to Lincoln and executive power. Far from siding with Lincoln’s decision to ignore the courts, Congress formalized the military detentions only with extensive caveats and powers granted to the courts to intervene in such detentions.
As described here (“Judicial Impotency: The Empowerment of Federal Judiciary During Reconstruction”).

In passing The Habeas Corpus Act of 1863, Congress built into the act safeguards to protect against possible abuses of authority. Section 2 of the act required that a list of all those arrested under military or civilian authority would have their names forwarded to federal judges within the district of the arrest. A grand jury was to assemble and indict the detainee. If the grand jury failed to bring back an indictment, the person would be released immediately. To ensure the safety of the judicial process, federal judges were given the power under this act of Congress to supervise the indictment process. If any lower court failed to release the detainee, having not obtained an indictment, federal judges were empowered to try and convict any officer refusing to follow the law under this Act.

Without going into a history of federal court access (or lack thereof) in the early days of this nation, suffice to say that the Habeas Act of 1863 empowered federal courts to act in cases where they had previously been barred from action. So despite the immunity Congress gave to Lincoln’s officials for past acts, Taney basically won the day over Lincoln on this front. Congress agreed with the courts that there must be grand jury indictments to justify continued detentions.

Congress not only provided for judicial review and broadened federal court jurisdiction, but also specifically empowered the courts to punish a federal officer who defied an order to release, such as the one Taney gave and Lincoln ignored.

So while Yoo argues that this huge expansion of judicial power and jurisdiction is a “win” for the Executive, because the initial detentions were ultimately given ratification and immunity by Congress, he moves on to Milligan.

Milligan involved an Indiana man, in Union loyal Indiana, who was not a member of the military and who was accused by the military of being a member of the Sons of Liberty, a group of “terrorists” who plotted all kinds of evil. Indiana was, at that time, under a form of martial law, although courts were open and operating. Milligan was seized and his home invaded, etc. all without warrant and he was brought to be tried before a military commission which ordered that he be hung. Lincoln flinched, though, when a habeas petition was filed for Milligan and no sentence was carried out during the pendency of the case. On appeal, the Supreme Court ruled that war does not, while courts are open and operating, suspend the Constitution and the protections of the Bill of Rights (including the Fourth Amendment) still attach (and unlike habeas, even Congress cannot suspend such rights). The court then held that a man who was–while allegedly a spy and combatant–never a member of a military force, could not constitutionally be tried by a military commission while the civilian courts were open and operating.

Yoo begins his discussion of Milligan, inexplicably, with the following:

Milligan took place in the midst of inter-branch strife over Reconstruction. The issues were complex, and centrally involved the Constitution. If the Confederacy were considered an enemy nation, the laws of war permitted recaptured territory to be subject to occupation by Union military authorities

Well, yeah – that was an important issue in the Reconstruction (as we will see with McCardle) but Milligan arose during the war, not Reconstruction (although by the time the appeal reached the Supreme Court Reconstruction had begun) and Indiana had never been a part of the Confederacy to invoke the claims that it was a “recaptured” territory. Like some of Yoo’s other claims (including that Milligan provably irrelevant because it failed to prevent the Supreme Court’s decision in Korematsu), the conflation of the McCardle issues of recaptured territory with the actual facts of Milligan can make for a difficult read, but only if you’re paying attention. And given Yoo’s simple conclusion – that when your President disagrees with the Supreme Court, there’s no reason to pay attention to case law – you may have abandoned that effort by now.

In any event, while Yoo manages to find time to discuss “Democrat” secret societies and their evils, he doesn’t have much time to spend with the Supreme Court’s ultimate decision in Milligan–that he could not be tried by a military commission. Instead, Yoo skips very quickly over to his new lodestar, Ex parte McCardle.

McCardle was a Reconstruction era case and did include some of the issues that Yoo misleadingly leads off with in his Milligan discussion. After the Confederate surrender and Lincoln’s assassination, President Johnson and Congress (which was at that time run by the “Radical Republicans”) had a number of skirmishes over how the re-entry to the Union of the seceding states should be handled. Johnson wanted to let them, pretty much as if nothing had happened. Congress wanted to insure that the states had to take certain steps, including new state constitutions, which would protect the rights of the freed slaves in those states.

Something even the Radical Republicans realized, but Yoo glosses over, was that the institution that most needed to be strengthened after the Civil War to accomplish Congressional goals was the federal court system. So while the interim step Congress utilized involved martial law during Reconstruction, the goal they were attempting to reach included changes to national and state constitutions that provided for the ability of all citizens of the United States to freely access the Federal courts and empowered those courts to issue orders requiring state and federal Executive branch officers to comply.

McCardle was a publisher who had been trying to incite further rebellion in Mississippi during Reconstruction. Unlike Indiana in Milligan, Mississippi had no open and operating recognized courts, as the government of the secession government of the states had been declared outlawed. Mississippi’s government was in limbo, pending the state constitutional changes being required by Congress and other matters. Federal legislation put Mississippi (and other areas) under military rule in the interim. However, as with the Habeas Act of 1863, there was an act, the Habeas Act of 1867, which gave courts the ability to review, among other things, the military detentions.

It’s a bit complex, but McCardle filed for habeas relief only under the Habeas Act of 1867, with the powers it gave to courts (both the federal circuit courts and the Supreme Court). The Supreme Court on review determined that it could hear McCardle’s case, asserting that it had that power under the Habeas Act of 1867 which McCardle invoked. However, while McCardle was pending at the Supreme Court, Congress began impeachment proceedings against President Johnson. Those impeachment proceedings required the presence of the Supreme Court Chief Justice and so the McCardle decision was delayed.

During that delay, Congress amended the Habeas Act of 1867 to remove the Supreme Court review under that particular legislation (court review in the federal circuit courts was kept, however). This became known as the McCardle repealer. As a result, the court, when back in session, decided that it no longer had jurisdiction to rule on McCardle’s petition, which had been brought solely under the Habeas Act of 1867.

OK – now for the Supreme Court sleight of hand.

The court went on, in dicta, to say, “oh by the way, you know, we also have habeas powers in connection with our appellate powers, not that anyone thought to bring their petition to us under those powers instead of the Habeas Act.”

Yoo stops at the McCardle case, and crows that Congress – which by means of the Habeas Acts of 1863 and 1867 and by the Fourteenth Amendment had wildly expanded the jurisdiction and powers of the judiciary – crippled the courts through the McCardle repealer. It’s certainly clear from the dismal picture he paints of the Supreme Court, post-McCardle, that it would never be an institution that could–oh say–during a war, enforce a subpoena to a President to turn over confidential material about a crime originating out of the White House. Yoo’s certainly proven his point; i.e., that with McCardle, the Supreme Court had been forced to capitulate and had become, “largely irrelevant.”

Or did he?

After reading McCardle, you might ask, “Gee, wonder if anyone made that appellate powers argument the court hinted it wanted to see?” Luckily for Yoo’s conclusion to his article, Chapman law review articles aren’t subject to the same candor to the tribunal issues as a brief, or he might have felt compelled to mention the follow up case to McCardleEx parte Yerger

In Yerger, a man was taken into military detention, accused of murder. He sought habeas relief to the federal circuit court. When the lower court refused him, he appealed to the Supreme Court claiming that while the Court’s power under the Habeas Act had been limited, under the Judiciary Act of 1789, the Court had an alternative ability to grant habeas under its appellate review powers. So what did Congress and the Presidency do when the post-McCardle irrelevant Court agreed with such claim and took the case?

Before the Court could hold hearing on the merits of the habeas petition, the Attorney General worked out a deal with Yerger and his lawyers and quickly mooted the case rather than have the court order release after it had assumed jurisdiction.

Meanwhile, both the Executive and Congress were learning the costs of battling against the rule of law. Lincoln was viewing with alarm martial law run amok in Missouri – where even his entreaties as President and commander in chief were unable to initially roll back the military rule and 20,000 civilians were being evicted from their homes on mere suspicions that some of them might have given succor to rebels.

In the fall of 1864, after he had won re-election, Lincoln appealed to the general in control of [Missouri] to repeal martial law.

The General in charge – Grenville Dodge – basically told Lincoln to go suck eggs. He was busy supporting the agenda of the Republicans in Missouri government and they liked having an army to back up whatever they wanted done. Horrifyingly, to Lincoln, even the Missouri Governor thought keeping martial law in place was a great idea. Lincoln’s ultimate decision–taken shortly before his assassination–to send General Pope and the army in to displace–rather than impose–martial law, was an eye opener.

In March 1865, a newspaper correspondent in St. Louis reported that many Republicans in Missouri—not just the state’s leaders—had come to admire the efficiency of martial law: “So far from being unpopular, it is believed that a large portion of our loyal people are willing to see a provision incorporated in the charter of the city, requiring six months of martial law to be imposed . . . every five years to clean up all the little cases of outraged justice, loose indictments, public corruption and private peculation, which the ordinary courts cannot reach.”

While Lincoln watched his Presidency subjugated to a self-perpetuating martial law force in Missouri, Congress was dealing with fallout from the states in connection with the attempts to disenfranchise the Supreme Court and by 1885, Congress was forced to repeal the McCardle repealer.

In light of the overlooked facts and cases, you might be tempted to wonder if it is Yoo that has become “irrelevant” rather than the Supreme Court. However, Yoo’s biggest supporters for his conclusion are probably found among the men ordered released, but still imprisoned by President Obama at GITMO. To them, cases ranging from Rashul to Boumediene have been largely irrelevant to their lives and continued detention.

While the GITMO detainees agree with Yoo’s determination that our courts and laws mean almost nothing when aligned against the power of the Presidency, there is still one source that has not spoken: the courts themselves. Whatever the outcome of the OPR investigation, the courts are ultimately going to decide for themselves, with respect to Mr. Yoo and his former colleagues at least, whether the judiciary–and law in general–are indeed “irrelevant” to lawyers who work for the President.

94 replies
  1. perris says:

    one of my very biggest disapointments is the fact that yoo has not been disbarred

    Yoo’s argument (to OPR, the Supreme Court, state bars, and courts where claims against him for his role in torture are now pending

    do tell?

  2. perris says:

    I think it goes like this;

    yoo and company do in fact make the following claim;

    “the president can do anything he wants and it’s up to congress to stop him”

    that is after all a fact

    now let’s point out, if president bush does not get charged, nor yoo disbarred, then they have set a precedent that WILL be used in the future

    • Leen says:

      “Yoo and company”

      I sure hope Yoo is not the only person involved with operating outside the law appearing that he may actually be held accountable

      To all of the legal heads here thanks for helping us somewhat understand

  3. earlofhuntingdon says:

    “Heavily trafficked” pages of the Chapman Law Review. Ouch. I imagine it includes such analytical gems as Celibate Legal Thought: Thinking with Other Head. Its frequency of use and citation ranks with going to the beach in northern Alaska.

    • emptywheel says:

      Note the date, which was September (so previously he’s been at work on it for some time).

      I gotta believe that Estrada reviewed it. Why–do you think it exposes him? I rather thought it was an effort to pre-empt the OPR report.

      • earlofhuntingdon says:

        I have gotten into the weeds of his article yet. It’s just that any argument he makes or facts he adduces should be consistent with his planned defenses, or he would be making an own goal in aid of the plaintiffs or prosecutors.

    • Mary says:

      You know, I have to think that this is his response to something in the OPR report. He flat out says that Merryman and McCardle mean that it is “ok” for President to violate law, not because of their facts and holdings but rather because no one put anyone in jail over them. I have to think that if he is this blatantly staking out the position that a court’s decisions are “irrelevant” if the President thinks it is worthwhile to disregard them, he knows the OPR report is going to pretty much show that up as being his position while he was drafting – that he wasn’t so much advising as to what was the law and what was legal as he was what his client could get by with. So he’s pre-empting that by saying, “yeah, so? no one threw AG Bates in jail”

      • earlofhuntingdon says:

        I would call that Yoo practicing politics in a kind of heavy-handed, professional bureaucrat way more common in Korea, China or France. That he claims to be doing it as a lawyer is what’s fanciful.

        • kindGSL says:

          I agree. He is shockingly un-American in his attitudes towards power and authority, very Asian.

          I thought Bush selected him for this very reason.

      • perris says:

        You know, I have to think that this is his response to something in the OPR report. He flat out says that Merryman and McCardle mean that it is “ok” for President to violate law, not because of their facts and holdings but rather because no one put anyone in jail over them

        I contend he is correct, the law is meaningless unless it’s applied

        so they need to either bush to prove yoo is wrong, or yoo is right

        it seems under obama, yoo’s opinion stand correct

        • Mary says:

          I think you have a point -not a law review article point, but a real world point (like – murders happen even though we have laws against murder). That’s why I do believe that, in the end, it’s the courts that have the power and the duty to make themselves relevant, in at least the ways that they can.

          With respect to Bush, that’s going to be tough, especially while Obama is choosing co-conspirator status. With respect to Obama, it is also going to be tough (and I think we are nearing a point where you can’t consider one without the other).

          With respect to the lawyers who have made filings in their courts; been members of a Department with knowledge of fraud being perpetrated on the court and failed to notify the tribunal; failed to preserve evidence; participated in the destruction of evidence; etc. – as well as lawyers who are before them on civil complaints – there, the courts can choose whether they will or won’t be relevant. And they have to realize what’s at stake with that choice. It’s not a selfish power grab by the courts to discipline or convict lawyers who counsel their client that they are above the law simply because they have power – rather, it’s a repudiation of stains like Korematsu, because in this context a court asserting itself is nothing more or less than the court claiming the rule of law for the nation. Or not.

          • perris says:

            the courts can choose whether they will or won’t be relevant. And they have to realize what’s at stake with that choice.

            that’s my point here, that’s the valid analogy

            the analogy with murderers would only be valid if the court were faced with said murderer and decided there was no jurisdiction, or given an “opinion” that the law was irrelevant, and then the courts to do nothing, would in fact make it so

            my point is this;

            in the face of yoo’s opinion the courts now have a greater obligation to prosecute, they have a greater obligation to disbar yoo as well

            and if they cede that obligation then yoo is correct

            in order for yoo to be incorrect the courts are now obligated to act, and that is my point

        • kindGSL says:

          And I have been calling for Bush to be impeached over it for years. The idea that others covered it up and ignored it when their jobs clearly indicated it was THEIR duty to challenge it, really frosts my cookies.

          In fact. I would call it collusion to commit treason.

        • kindGSL says:

          That also means when the local police tell your husband he won’t be prosecuted for hurting you, he won’t be.

          The lowest moment of my life was learning the local police had told my husband that I could be raped. It was legal.

          Imagine learning from the police that he was actually given permission. They looked so smug and happy informing me too. I was legal to rape. Case closed.

          The only thing worse was when I went home and he confirmed it. He knew that the police wold react that way, they told him. That is what he said. I still have a copy of the police report. It is wrong on purpose.

  4. earlofhuntingdon says:

    Chief Justice Taney was one of the court’s least illustrious members. See, Dredd Scott v. Sandford. Antonin Scalia lamented the “unfair” damage Taney’s decision in that case did to his legacy. There’s a guy you want in your corner.

    • earlofhuntingdon says:

      There’s an irony in that Merryman, as a member of the state militia called into federal service during a time of war, apparently did commit acts of sabotage against his state and federal governments, which would be treason instead of rebellion.

      Taney supported the law in this instance, despite those apparent facts. That’s a good outcome, at least in the sense that unless the government is forced to prove the legitimacy of its use of its detention powers, it will soon learn to use them illegitimately. As it has under Bush, aided and abetted by Mr. Yoo’s willful misreading of the law.

      The irony is that in the case of the Gitmo detainees, fully 2/3 of them appear to have committed no acts justifying their detention beyond being in the wrong place at the wrong time. They were picked up and sold like slaves to an occupying army for cash, which then treated them as prize collateral in an ideological war to establish torture as government policy.

  5. earlofhuntingdon says:

    Nice write up, Mary.

    Yoo avoiding Yerger and ignoring the 1885 repeal of the McCardle repealer – both of which damn Yoo’s argument – appears rather injudicious, not to mention unscholarly. As you say, had he done that in a brief, he would have been actionably negligent.

    Yoo also ignored Milligan in servicing the White House, something he and Addington must have actively or silently agreed upon, since its existence and relevance was obvious to them both. Apart from pending or future legal actions against him, the best response to Mr. Yoo would be his being shunned by the academy. He has knowingly and willingly put his intellectual prowess to low and evil purpose under color of scholarship and service.

    • kindGSL says:

      He has knowingly and willingly put his intellectual prowess to low and evil purpose under color of scholarship and service.

      Why do you think he wrote a memo to OK torture?

      I think some people think it is because he is the kind of guy who really respects the office of leadership and would do anything for his superior, or that he was heavily pressured*. But I have a nagging feeling there was a different reason. I think Bush collects friends who actually enjoy torture, and they were trying to find more and better ways to get away with more of it.

      When I look at Yoo, I always wonder if he was one of them. Did he do it for his jollies? To make the law allow for the sorts of things he and his buddies had already done?

      Looks like it to me.

      It is really scary to me that he is teaching law, hanging would be more like it – and left in the tree to rot.

      I have been thinking of a new shield, a black one. I saw a picture of him yesterday that could be the face on it. I need to make a shield against torture. And I have a track record of painting things as they die. I have been looking for the right picture of Cheney to paint, so I think he might be it.

      PS, my mom has been nagging me to paint pictures as she thinks I am good at it and could make some money. I told her my ideas are worth a lot more than my paintings and that I am too angry right now to paint anything that isn’t ugly or violent. She still doesn’t seem to be able to grasp what I am doing.

      *Chuck Todd

  6. Mary says:

    Taney was the author of Dred Scott and that’s certainly not one of the court’s finer moments, but it really tied back to what a lot of the court’s least fine moments tie to – Congressional cowardice, and in this instance even cowardice by the founders. It would be nice to say that we had a Constitution that prohibited slavery from the get go, but we didn’t. Taney was your basic strict constructionist, but unlike those who claim that mantle today he actually took fairly consistent positions all the way through.

    I did get a kick out of how Yoo pulls Dred Scott and Korematsu into his article (while ommitting Yerger and Boumediene). It’s a very “talking points” style that you don’t see as much in good law review articles. You can see him saying, “hmm, Dred Scott and Korematsu are two of the most repulsive Sup Ct cases – how can I tie Milligan to them even though there is no tie that works with my arguments?”

    For Dred Scott, he goes with the fact that Taney was the author of that and the author of Merryman, therefore – without looking at facts and rationale – Merryman must be bad as well. I actually wouldn’t have sided with Taney on Merryman, bc he was a member of the Maryland militia and I think that does put you pretty squarely within the military justice halls. But he never really tries to make any arguments as to what it is about Dred Scott that has anything to do with Merryman, other than to say in an offhand conclusion that Taney was responsible for speeding up the Civil War with Scott.

    For Korematsu, he basically argues that if the Supreme Court had followed Milligan they would have gone the other way on Korematsu, so that means – I guess – that it’s Korematsu that is “good law” and Milligan that is “irrelevant.”

  7. bobschacht says:

    Hooray for elevating Mary to the front page! Thanks, EW, for facilitating this, and for perhaps doing just a wee bit of editing. I hope this is the first of many diaries by “Mary” in this space. If we had a “recommend” feature, I’d select it. But we can all “Spotlight” this, and bring this marvelous commentary to the attention of legal analysts in the MSM!

    Bob in AZ

    • bobschacht says:

      Hey, I just have tried (several times) to spotlight this diary, but after spending minutes selecting national reporters and writing my own introductory comment, when I try to “preview” my comments, etc., I get the error message “You have made request that is not recognized.” Preview is the only button on the page to prepare and send the message. I’ve used this before; why won’t it let me now?

      Bob in AZ

        • bobschacht says:

          Thanks. I don’t know whether the mods can do anything about it, but when anything goes wrong near the end of the Spotlight process, there’s no recovery– I just have to start over from scratch. The process of selecting the list of 10 journalists to mail to can take a while, and then to compose a lead paragraph and fill in the ID info… only to have it disappear can be frustrating. The Spotlight is such a good feature I’d like to use it every day.

          Bob in AZ

          • kindGSL says:

            Email back up stuff to yourself in stages as you work.

            Like assemble the list and copy and paste it into the body of an email to yourself, mail, then do the same with your note and link or whatever. That way even if they crash your computer (or community electrical grid), you have a copy to refer to when you are rebuilding your messages.

            Thanks for doing what you do!

      • kindGSL says:

        Homeland Insecurity is protecting the nation from what you are attempting to do. I have had stuff like that and worse happen to me lots of times.

      • kindGSL says:

        I would recommend copying it into a file, turning everything off, including your cable connections, turning it all back on and trying again.

        As near as I can tell you are patched through some monitor and some yahoo (AT&T? military? moussad? Cheney? who knows?) is watching your every keystroke. You do something they don’t like and they can cut your connection, or send you to a faked page, or a spy down load site or whatever. They are not that creative, but they are very focused on keeping us on the QT.

      • kindGSL says:

        Please give us a list of the folks you are having trouble reaching. I bet that will clear up the problem immediately.

  8. earlofhuntingdon says:

    I think Yoo’s “talking points” style simply illustrates that he’s a political animal in the guise of a lawyer and that he’s out of his depth. Washington is full of political animals who are lawyers, but the ones with staying power are usually better at hiding how they manipulate the law to their clients’ advantage. Yoo is simply too clever by half.

    • Mary says:

      It really is pretty unique, even for a smaller law review. As a former (you guys are not going to believe this with my typos I know) law review editor several decades back, I’d have been floored over what to do with this piece. It was always touchy touchy dealing with authors anyway, even on things like mere grammatical corrections. How you deal with them putting flights of fancy into the guise of a law review article would be, to give the editors some sympathy, pretty tough.

      • earlofhuntingdon says:

        The good news is that the safe havens, the fora willing to publish Mr. Yoo’s commentary are shrinking, notwithstanding that he continues to peddle the politics of Cheney and Addington. BTW, anyone know what David Addington is doing now? I would assume helping Deadeye with his memoirs.

      • MrWhy says:

        There are precedents in the scientific literature, either commentary from editors or reviewers as footnote or end note or editorial, to indicate that an article is controversial.

        Are you submitting your review as a letter to the editors of the Chapman Law Review?

  9. cinnamonape says:

    So lemme see. In every LEGAL case brought before the Courts the situations were resolved by the Federal Courts being determined as the arbiter of habeas rights…even in the case of a militia member acting under the color of his position. The one case Yoo actually thinks serves his views actually doesn’t.

    One would think that a Law School prof would be interested in the law…not so much in how other bodies have tried to wrangle themselves out of legal jurisdiction. That’s an interesting (though apparently botched and self-serving) HISTORICAL tract, but it isn’t the LAW.

    It’s a bit like saying “Well Polanski didn’t have to face legal consequences because he fled to France.” Yeah, he might have “gotten away with it”, but not because of any legal decision.

    Similarly, Lincoln may have delayed or avoided legal action by dilatory acts, or subsequent Congressional immunity, or even negotiation with the appellant. But there’s little evidence that the law is on Yoo’s side.

    • Mary says:

      You know, it’s not really even clear that Lincoln might not have faced consequences had he lived.

      While Congress did grant immunities for early on habeas violations in the 1863 Act, that was with respect to an area (habeas) where Congress did have rights to suspend in circumstances like those the nation faced at the time. On the other hand, no one claimed that some of the other actions that went hand in hand with some of the commission and conduct of martial law – like the displacing of civilians and home invasions, etc. were things that Congress could “authorize” under the Constitution. So the issues of impeachments and civil suits were definitely not long gone and case closed at the time of Lincoln’s murder.

      • qweryous says:

        Thank you Mary for this post and your previous participation here.

        Every so often a point is made that leaves mind going……………..

        This is one.

        With the history of the reconstruction backlash so well documented, no doubt Lincoln would have been the legal target of many opponents of him and his policies, on as many legal fronts as could be opened.

        History would have been different had Lincoln not been assassinated, but I have never heard or read any discussion of this dimension to the story.

        • cinnamonape says:

          Perhaps we should be pleased that Bush was not assassinated by a well-placed shoe. Then John Yoo could have even drawn greater parallels between a man he apparently thinks has the stature of Lincoln.

  10. Mary says:

    There are two things that really strike me about Yoo’s piece. The one is that it really is, in one of those weird ironies, a law review piece on how law is irrelevant.

    The second, though, is his equally odd determinations of relevancy. I really do have “Reeling in the Years” playing in the back of my mind when I read this piece.

    He says in part that one reason Milligan must be “irrelevant” is that it hasn’t been used much. He then goes on to acknowledge that this may be because no Executive has been willing much, after Milligan, to repeat the facts of that case. Hmmm – so, let’s see. A case that says “neither the Executive, nor Congress, no the Executive and Congress acting together can just seize non-military American citizens and toss them to a military commission” followed by years and years of the Executive and Congress following that holding and refraining from, by Executive order or statute, providing for the seizure and military commission proceedings against American citizens means … according Yoo, that means that the case is “irrelevant” because the other two branches of government very much abided by its holdings over the decades and through many wars.

    IOW, because the other two branches of government were careful not to engage in activities that would provoke its citation – it must be irrelevant.

    He seems to really ignore the basic “check” function of the three branch government. He doesn’t see the court digging in and doing battle with both the Executive and Congress, as a necessary and very relevant part of how the system works – that the battles are as relevant in many ways as the outcome.

    Of course he doesn’t note the individual relevancy – obviously Merryman and Milligan were alive after the war because of the judicial interventions – but he doesn’t even seem attuned to the nature of both the the struggles among and the interdependence of the branches.

    It really is worth noting that Congress is more dependent almost on the judiciary than on the Executive when it comes to expanding its power and that’s what it discovered with the Civil War. With Federal courts closed on so many fronts to those to whom they were trying to extend rights, they had to open the court doors more and empower the courts more to accomplish their goals. And they had to specifically give the enforcement powers that Taney had lacked in his Merryman confrontation with Lincoln. How he can just blithely skip over those big big cracks in his firmament – and then get paid for it no less – is pretty amazing.

    @20 – Yeah, I noticed it got Chapman, not Berkely, for this one.

  11. NAVDOC3rdMAR says:

    cheney/bush/rumsfeld/rove/addington/yoo/bybee etc. Should be fully investigated for War Crimes. They should be first charged with violations of: U.S. Code, Title 18, Part 1, Chapter 113C para. 2340a – Torture.

    (a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
    (b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
    (1) the alleged offender is a national of the United States; or
    (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
    (c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

    Over 100 detainees have died in U.S. Custody. Over 25 detainees deaths have been classified as Homicides by U.S. Military Medical Examiners.

    cheney/bush/rumsfeld/rove/addington/yoo/bybee etc. When convicted should be sentenced to life in prison at hard labor without the possibility of parole. All wealth confiscated and donated to the VA. They should only be let out of prison to go empty bed pans at NMC Bethesda and Walter Reed Hospitals.

  12. Mary says:

    BTW – it’s probably worth noting that, for all the time Yoo devotes to Taney & Dred Scott vis a vis Merryman, he doesn’t mention that the Chief Justice Salmon Chase – not Taney – delivered the opinion in Milligan. You might say that Chase, as one of the most prominent anti-slavery members of the Congress before becoming Chief Justice, wouldn’t give Yoo the same talking point.

  13. earlofhuntingdon says:

    Typical of academics like Yoo, he cites his own past work for some of his most contentious arguments (citations omitted, emphases mine):

    The terrible divisions of the Civil War, and the Taney court’s role in hastening its coming, had not yet weanted the Justices from their attachment to judicial supremacy. Merryman and Milligan displayed a remarkable lack of deference to the political branches during wartime. War is the subject under which the stuctural advantages of the President and Congress are at their height, and where the courts have the least competence.

    [Citation to footnote 264 omitted, referring to Yoo’s 2005, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11.]

    Mr. Yoo displays a Confucian deference to authority. To that way of thinking, stability and continuity are paramount. Authority is rigidly hierarchical. Superior authority is inherently “right” because it is superior in status and power. The idea that a superior’s authority could be defined by and limited by the law – or that such limitations impose obligations on the superior that could be enforced against him by an inferior, would be considered a dangerous, destabilizing and heretical non sequitur.

    Mr. Yoo continues in his closing paragraph:

    While some believe that the courts should still decide cases challenging government authority without taking account of wartime conditions, this approach ignores the costs of judicial intervention, not only to the war effort, but also to the Court.

    That argument ignores the Enlightenment, the history of war and competing claims to authority inherent in the founding of America and the scheme decided upon for its Constitution. As if Mr. Yoo’s ignorant-of-history implied threat were too veiled, he repeats it in the next sentence. (He refers to Merryman and Milligan, though he almost certainly refers means Boumediene and other cases challenging Bush’s unlimited authority to detain and punish without legal limit:

    Merryman and Milligan reveal the wages of judicial supremacy, not just to the President and Congress, but to the institution of the Supreme Court as well.

    The threat to American law and its legal system – the civil rights they convey and the society they endowed – comes not from foreign terrorists, but from those like Mr. Yoo, who willfully misinterprets the law for his own and his masters’ authoritarian ends.

    • Mary says:


      It tries to dismiss all that with sniping about how stirring rhetoric didn’t mean that the Executive branch couldn’t round up Japanese Americans in internment camps, apparently conflating “nanner nanner” with legal analysis.

      Basically, he does on the domestic front what Goldsmith and Posner do on the international front with their book. Both argue a short sighted, childish without being childlike, vain and privileged mantra of, “if you and your friends are powerful enough, law doesn’t mean anything”

      That’s always true in the moment – consequences are pretty much always “down the line” and they are just as sure whether those consequences derive from the application of law, or from the societal breakdown stemming from the collapse of law. Lord of the Flies isn’t a model for a sustainable society.

  14. Mary says:


    Some non-sequitor that is still interwoven and is triggered by my seethiness (?) over the Korematsu is good law, Milligan is not – path taken by Yoo.

    Despite losing the original case, Fred Korematsu never quite gave up. When a UC San Diego Prof discovered:

    …ddocuments that indicated that when it went to the Supreme Court, the government had suppressed its own findings that Japanese-Americans on the West Coast were not, in fact, security threats

    Fred went back to court under a writ of coram nobis and based on this info of the Executive fibbing to the court,

    Judge Marilyn H. Patel of Federal District Court in San Francisco overturned Mr. Korematsu’s conviction in November 1983.

    BTW – what happened when the Supreme Court court followed Yoo’s advice to just lie back and think of England the President rather than defend the Bill of Rights and Constitution?

    Well – they invited and abided with fraud on the court; they issued a decision that heaped the court and the nation with shame; they had to be apoligized for by multiple Presidents and Justices thereafter; they caused untold individual and national damage; the court lost integrity and credibility; the nation paid out millions in reparations late for their bad law; no nominee for the Supreme Court has avowed the outcome in Korematsu since in their nomination proceedings and Congress is not likely to ever confirm one who did.

    But for that, I guess Yoo has a good point.

    • cinnamonape says:

      A similar case occurred when the role of the Executive and Judicial branches were blurred when President James Buchanan expressed his concerns ex parte with at least one Justice who were in the process of deciding the Dred Scott Case. Buchanan argued that a decision favoring Southern slave-owners repatriating their “property” was essential to maintaining peace between the North and South. Apparently his political arguments convinced one of the Northern Justices who, unusually, broke with his Northern colleagues.

      Yoo would apparently say that Presidential power prevails in such cases. But every court since Plessy v. Ferguson have held that decision with scorn.

    • kindGSL says:

      They were not war threats but they did have some very nice land holdings and productive farms. It could easily be argued that seizing their land and assets was the major motivator for their internment.

  15. earlofhuntingdon says:

    The “wages of sin judicial supremacy.”

    Mr. Yoo is speaking in code for the base, but his snark remains as breathtaking as his disdain for the Constitution.

    • Mary says:

      Disdain is such a good word for the tenor of his piece. I like the revelation from this reference by Yoo, commenting on Gen. Cadwalader, who held Merryman on Lincoln’s orders and refused to hand him over:

      Cadwalader was no simple-minded soldier, but the son of a distinguished Philadelphia family.

      Yeah – right. You can tell Yoo’s default – soldiers are “simple-minded” but hey, those who come from a “distinguished family, well, class speaks to Yoo. It’s no wonder that the pushback from all the decent members of the military, who didn’t need a “distinguiished Philadelphia family” behind them to avoid being “simple-minded” soliders, came as such a surprise to him.

      • earlofhuntingdon says:

        Mr. Yoo also seems to have disdain for John Marshall and cases such as Marbury v. Madison and its progeny.

      • cinnamonape says:

        One can almost hear this refrain in Yoo’s mind:

        “I’m no simple-minded Korean FOB like those others…but the son of two University educated psychiatrists.”

  16. earlofhuntingdon says:

    Lord of the Flies isn’t a model for a sustainable society.

    Like you, I thought that was one of William Golding’s points. I guess these guys missed it when they skimmed the novel or read their Cliff Notes.

    Yoo’s default characterization of the “simple-minded soldier” seems to parallel his Confucian reading of presidential authority. The coming from a “good family” background, means high in the hierarchy, educated and powerful, someone who it would be expected would be loyal to the emperor over a command from his adviser-judge. Mr. Yoo, I guess, mentally lives in another age.

  17. Jeff Kaye says:

    A superlative job of explaining pertinent legal issues to people like me, i.e., non-attorneys. As Bob notes, much thanks for putting Mary at the top of the page. I see that Yoo’s paper was originally part of some 2008 talk he gave, so I’m not sure if it’s a reply to the OPR.

    • Mary says:

      44,46 – thank you for saying such nice things, but I think it’s more the abilities of the readers/commenters here to handle lots of diverse information than any skill set on my part in offering it up.

  18. fatster says:

    Mary, you’ve done it again. Not only are you an Ace when it comes to the law and our Constitution, engaging the other legal beagles here in fascinating discussion, but you write so clearly, providing in sufficient detail the historical (as well as legal) context, that interested non-lawyers such as even I can grasp the issues. Also you wend your way gracefully not just through multiple, complex issues but with awareness of the disparate backgrounds and knowledge of your audience as well.

    Thanks so much. I hope you’ll do this more often. December 19th it is.

    • bobschacht says:

      Mary, you’ve done it again. Not only are you an Ace when it comes to the law and our Constitution, engaging the other legal beagles here in fascinating discussion, but you write so clearly, providing in sufficient detail the historical (as well as legal) context, that interested non-lawyers such as even I can grasp the issues. Also you wend your way gracefully not just through multiple, complex issues but with awareness of the disparate backgrounds and knowledge of your audience as well.

      Couldn’t have said it better meself. Amen!

      Bob in AZ

    • Mary says:

      You know, right now there are a number of “just following order” cases of older alleged Nazi civilian murderers, just now being brought to trial.

      In addition to John Demjanjuk, there’s Ladislav Niznansky and Herbertus Bikker and this guy Heinrich Boere, who has said – sure I killed those guys, the Dutch bicycle shop owner and the pharmacist, but they were illegal enemy combatants we kinda sorta thought, and besides they were reprisal killings and besides, I had a “good faith” belief that what I was doing was legal – after all, it was just following orders.

      I guess you have to wonder if 20 or 40 years from now, the 30 and 40 yo Bush/Obama torturers will be using his case as precedent. After all, I’m sure our DOJ is itching to file an amicus for these guys, explaining how “good faith” reliance that your nation’s leader was droolingly ok with your torture regime and the murders accompanying it makes for a great defense.

      • Peterr says:

        Yeah, but aren’t those all foreign cases? Surely any rulings from those courts in other countries wouldn’t be cited by any self-respecting member of the Federalist Society.

  19. Leen says:

    “rather than hanging Merryman went on to become the State Treasurer for Maryland in 1870”

    How many folks do we have that have operated above or below the law that would fit into this category? Having not been held accountable for crimes that they committed in one administration and then went onto serve in another. Elliot Abrams comes to mind, know there are many many more –

  20. orionATL says:

    The congress’ right to prevent
    The federal courts from considering an issue

    As well as the executive/congressional (?) right to determine the size of
    The supreme courts (six was the
    Original number, I believe)

    Strikes me as rather like it’s “right” to limit the first amendment,

    The congress can set
    Some limitations that are regarded as reasonable
    By a wide range of society’s subgroups (yelling “fire”…)

    But the congress cannot grossly imhibit the exercise of first
    Ammendment rights without being charged BY SOCIETY of evidcerstinh
    That critical.

    So with executive or congressional challenges to the federal courts.

    At some point a deliberate effort to diminish one of the three branches, say the judiciary, is vulnerable
    To widespread societal opposition.

    The “problem” the federal bench has IMO is the are risk and. Onclict averse.

    • orionATL says:


      “…But the congress cannot grossly inhibit the exercise of first
      Amendment rights without being charged BY SOCIETY of evidcerstinh
      That critical…”

      should read

      “…But the congress cannot grossly inhibit the exercise of first
      amendment rights without being charged by society without eviscerating
      that critical ammendment…”

      “…The “problem” the federal bench has IMO is the are risk and. Onclict averse…”

      should read:

      “The “problem” the federal bench has IMO is they are risk and conflict averse.”

      to add to the above:

      the central issue for me is :

      why have the federal courts been so patient, so tolerant, of the bush administration’s (and now the obama administration’s) legal sophistry?

      why have they not ruled YEARS earlier on what is monumental legal sophistry regarding habeas, military commissions, speedy trial, rights of u.s. citizens, torture as an internationally recognized crime (including by the u.s.)?

      what we have in this country is a federal judiciary whose members each behave as political and intellectual dwarfs when the need is for an atlas or a prometheus.

      • kindGSL says:

        why have the federal courts been so patient, so tolerant, of the bush administration’s (and now the obama administration’s) legal sophistry?

        They are corrupted by lying about the drug war and covering up for rape. Just a guess.

  21. Becca says:

    Excellent analysis, Mary — well done.

    A particular detail I’ve noted is that Yoo seems to base his quasi-legal arguments on the notion that in wartime, the President’s powers are without limit.

    He seems to forget something (as Mr. Yoo forgets a great many things): The United States Congress has not issued a formal declaration of war since 1941. Despite all the rhetoric to the contrary, legally speaking the U.S. has not granted wartime powers to the President since WW2.

    • ackack says:

      “The United States Congress has not issued a formal declaration of war since 1941.”

      Thank you for this point. It seems the whole of the US population is unaware of the fact that we are NOT “at war”. Due most likely to the predominant use of war terminology by the MSM and our ‘leaders’ in Washington.

      I, for one, am sick and tired of hearing the rhetoric of our ‘wartime’ obligations from all sides.

    • kindGSL says:

      Yoo seems to base his quasi-legal arguments on the notion that in wartime, the President’s powers are without limit.

      He was so adamant about that point that I wondered if he had actually been tortured. It seemed like a Stockholm syndrome response to me. Honestly, I was shocked when the press failed to take notice of it.

  22. Mary says:

    @52 – I guess there’ll be some domestic precedent too.
    Moses Obama to Pharoh Courts: Let my people lawyer go


    The Obama administration has asked an appeals court to dismiss a lawsuit accusing former Bush administration attorney John Yoo of authorizing the torture of a terrorism suspect, saying federal law does not allow damage claims against lawyers who advise the president on national security issues.

    The Justice Department’s filing Thursday said Padilla is asking the courts to determine the legality of Yoo’s advice, Bush’s decision to detain Padilla, the conditions of his confinement and the methods of his interrogation – all “matters of war and national security” that are beyond judicial authority.

    It’s so nice to see them defending Yoo with his own argument – the courts and law are irrelevant – step aside.

  23. orionATL says:

    My apologies for the typed gibberish in the above

    I have poor control over the “editing”page with the itouch I’m using.

  24. Leen says:

    Thanks so much for the law history lesson Mary

    Does this still apply or will this be part of the decision?

    “On appeal, the Supreme Court ruled that war does not, while courts are open and operating, suspend the Constitution and the protections of the Bill of Rights (including the Fourth Amendment) still attach (and unlike habeas, even Congress cannot suspend such rights). The court then held that a man who was–while allegedly a spy and combatant–never a member of a military force, could not constitutionally be tried by a military commission while the civilian courts were open and operating.”


    Bush and team sure rolled over the constitution
    “And given Yoo’s simple conclusion – that when your President disagrees with the Supreme Court, there’s no reason to pay attention to case law – you may have abandoned that effort by now.’

    ‘However, as with the Habeas Act of 1863, there was an act, the Habeas Act of 1867, which gave courts the ability to review, among other things, the military detentions.’
    Congress sure abandoned the nation by not holding Bush and Cheney accountable.
    “Congress began impeachment proceedings against President Johnson.’


    I thought Addington was part of rewriting the torture laws. Will not forget John Deans answer to the question who would be first on your impeachment wish list? His answer “Addington”
    “Whatever the outcome of the OPR investigation, the courts are ultimately going to decide for themselves, with respect to Mr. Yoo and his former colleagues at least, whether the judiciary–and law in general–are indeed “irrelevant” to lawyers who work for the President.’

  25. Leen says:

    ot listening to some of our Reps ripping up global warming findings on C-span. Some of them sound like they live in the dark ages. Science who needs it

  26. JasonLeopold says:

    Mary, this is a spectacular post! Thank you for taking the time to write this up.

    On a side note, and keep in mind this is coming from a spokeswoman who isn’t about to admit anything, I spoke to Tracy Schmaler over at DOJ and she told me the OPR report “isn’t delayed” and “the review process” is almost complete.”

    But I spoke to some people who were aware of what was going on in terms of the process of the report and these folks (two of who work for senators) and they said that they report was in fact delayed and that is because Yoo, through Miguel Estrada, issued more responses to the final version of the report and the responses are now being incorporated into the report.

    I then called Estrada and he said he’s bound by a confidentiality agreement and couldn’t comment.

    Now, I don’t know if any of these claims are true but I just wanted to share what was said for what it’s worth.

      • JasonLeopold says:

        I know! And she said it without even laughing or with any hint of a chuckle. I pressed her but she wouldn’t budge, which isn’t a surprise. Just wanted you guys to know what DOJ’s “official” line is even though it’s a giant pile of BS and adds nothing to the conversation.

  27. powwow says:

    Just came across this post, and have to say, before even beginning to read: What a treat!

    Thank you so much, Mary, for putting in the effort, and Emptywheel, for inviting her.

    [Looking forward to Mary’s hosting of the upcoming The Guantanamo Lawyers: Inside a Prison Outside the Law 12/19 Book Salon too.]

  28. bobschacht says:

    Speaking of the Federal Judiciary–

    Court rebuffs Gitmo prisoner review

    WASHINGTON, Dec. 7 (UPI) — The U.S. Supreme Court Monday refused to take charge of the case of a Guantanamo prisoner still held after apparently being cleared for release.

    Without comment, the justices refused a request by Abdul Hamid al-Ghizzawi that they issue an original habeas writ — take original jurisdiction — in his case and force a federal judge to rule on his ongoing confinement, despite his apparent status, SCOTUSBLOG.com reported….

    What does this mean? I thought that the Supremes had already ruled that these prisoners had a right to Habeas proceedings. WTF???

    Bob in AZ

  29. pdaly says:

    Thanks for the great post, Mary. Always great to hear your take on things.
    I couldn’t have written what you did, but I followed it well. You lead us nonlawyers beyond the general thought that Yoo is full of it to the particulars with such clarity.

    My ongoing concern: how do I condense it for my less than fully informed friends and family? Has anyone else here experienced the frustration of trying to communicate these things to nonreaders of emptywheel’s blog? Many have no idea what I’m talking about most of the time, because they haven’t heard “that” on the news. That’s when I realize we nonlawyers here have a more advanced understanding of the particulars than we realize. Thanks for the education everyone.

  30. MrWhy says:

    I often find Mary’s legal commentary tortuous, likely because I’m not the sharpest pencil in the box. This posting, and Mary’s subsequent comments, are clear and direct. Well done.

  31. skdadl says:

    I’m very late getting through all the comments, but I wanted to join in the chorus of thanks to Mary and EW and all the commenters. I’m just a li’l ole lady sitting up on the north shore of Lake Ontario, and my C19 Merkin history is a bit patchy, but I can actually follow all of this, and share the general outrage — at Yoo, and at Obama for defending Yoo and maintaining and extending his logic.

    How did we lose Nuremberg? That question circles around in my head all the time.

  32. MrWhy says:

    Turns out Rumi had a comment on this topic:

    Great lions can find peace in a cage.
    But we should only do that
    as a last
    So those bars I see that restrain your wings,
    I guess you won’t mind
    if I pry them

Comments are closed.