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John Yoo: Anti-Terrorism and The Dangers of Balancing

The recent NY Times article indicating that VP Cheney considered using the military to arrest terrorism suspects in NY caught my attention. Cheney used a 2001 legal memo written by John Yoo. I spent the day with and interviewed John Yoo when he spoke at the Clinton School in 2006.

I liked him. He was warm, funny, and engaging. I don’t think my interview was particularly hard hitting but it does give a pretty good idea of how John Yoo thinks. For Yoo, the President has almost complete power to protect the country. Thus, once military action is authorized, a president has almost carte blanche to carry it out. Congress can only cut off funds if it does not like what the president is doing.

But I am now recalling something more pedestrian: when pressed, Professor Yoo would resort to a sophisticated version of the answer, “It all depends.” Several times, he responded by saying that we must balance the benefits more from aggressive Presidential actions against the possible harm to our civil liberties. And, inevitably, the harm from the terrorists was far worse than the impact on our liberties.

Yoo exposes the limits and dangers of utiliarian reasoning. It sounds great to say that we should balance the good and the bad effects of our actions but the real power is with who sets the scale. If the President can ignore the 4th Amendment and Federal Law to deploy troops inside the country on his say-so, then we don’t really have a rule of law.

None of us can know what it was like to be where John Yoo was in the aftermath of 9/11. The pressures must have been enormous and the uncertainties severe. But that is why we have the rule of law: it acts as a mechanism to force our thinking along certain paths when we might be led astray by our innate cognitive and emotional tendencies. The problem is not that Yoo wanted to create a dictator – he did not. The problem is that his expectation that the President would self-limit his power or that Congress would pull the plug with troops in the field is unrealistic.

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