John Yoo, the former Bush administration official whose view of executive power holds that the president has the power to order a child’s testicles to be crushed and an entire village slaughtered, thinks President Obama is breaking with tradition by overruling his advisers at the Justice and Defense Department and deciding he didn’t need permission from Congress to continue the military’s involvement in Libya.
Yoo’s argument is that Obama is constitutionally allowed to reach his own interpretations of federal law, but wrote that it was “unprecedented” for a president to disregard the views of senior Justice and Defense Department officials.
In short, Yoo is arguing that Obama would have been fine if he had just put someone in the Office of Legal Council post who would have given him the go-ahead — perhaps someone with wider views of executive power, like Yoo.
“Moreover, the process by which the president made his determination was more than irregular. The Justice Department was apparently instructed to submit its views ‘informally’ to the White House along with those of more pliant agencies, rather than prepare a legal position for the executive branch as a whole, as has been the regular practice in administrations of both parties for more than 40 years,” Yoo wrote.
“Obama’s results-driven process makes a mockery of the idea that the Justice Department is the agency in charge of interpreting and enforcing the law for the executive branch,” Yoo wrote.
Yoo’s anger with Obama overruling OLC — the Justice Department office that interprets the law on behalf of the executive branch — puts him in league with his ideological opponent, former Obama OLC nominee Dawn Johnsen. “Here, if what’s being reported is accurate, the White House counsel played the role of OLC, by soliciting the views of different agencies,” Johnsen told TPM in an interview.
In addition to disagreeing with the process Obama used to get his legal opinion, Yoo disagreed with the substance of the administration’s argument. Yoo writes:
Obama’s opinion that the U.S. is not involved in “hostilities” in Libya is not merely “aggressive.” It is utterly farcical—on a level with Bill Clinton’s legendary statement that “It depends upon what the meaning of the word ‘is’ is.”
Yoo said that Obama “has the right result, but for the wrong reasons,” writing that he “doesn’t need to contort the law beyond all recognition to wage war in Libya.” Obama could simply “claim that his authority stems from the Constitution’s grant of the commander-in-chief and chief executive powers,” Yoo said.
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