John Yoo's Blinkered Vision

John Yoo's legal claims have always seemed pretty outrageous to me, if only because the world of constitutional law he constructed seemed so foreign to my concept of the most basic purposes of the Constitution. Compare Yoo's concepts of unchecked and unfettered executive authority to the clear balance of powers described in the Constitution. Compare the almost giddy flaunting of international agreements to the clear authority given to contractual obligations in Article VI of the Constitution. And Yoo's dismissal of the Geneva Conventions transgressed not just formal treaty obligations, but the most basic human decency and morality that separates the good from the evil.

But Yoo's quote from an article entitled The Court Enters the War, Loudly, about the possible effects of the Hamdan vs. Rumsfeld decision, seems to be both the most egregious thing I've ever read from this veritable font of egregiousness and the key to the major malfunction in Yoo's head:

"What the court is doing is attempting to suppress creative thinking," said Professor Yoo... "The court has just declared that it's going to be very intrusive in the war on terror. They're saying, 'We're going to treat this more like the way we supervise the criminal justice system.' "

Suppress creative thinking? First, let's be clear on the purpose of the legal counsel to the President of the United States. It is not to be creative. Instead, it's to make sure that the policies pursued by the administration conform to the limits imposed by legislative law, case law, and the Constitution. In fact, what the court was doing—and for the sake of the U.S. Constitution and the rule of law in this nation, we have to hope that they were doing it and not just attempting to do it—was declaring that Yoo's "creative thinking" was actually rubbish, legal gyrations "rebutted by ordinary principles of statutory construction," in the words of the decision. In fact, the majority opinion stated that Congress clearly didn't intend to offer the administration carte blanche legal authority to do any damned thing they decided:

Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation.

It's important to remember that people are often forced to think creatively precisely because of limits imposed by the milieu in which they are operating. A creative thinker can come up with many good ideas for ways to make money. This is an acceptable result of creative thinking, while this is not. John Yoo's "creative thinking" amounted to simply ignoring the strictures imposed by custom, law, and basic human morality. That's not creative, that's simply cheating.

Yoo's "creative thinking" has now been exposed for the failure that it is in every facet, as sloppy legal thinking, as un-American policy, as a shameful shortcut around American legal procedure that has brought us fatefully close to an American dictatorship and treated the founding document of our Republic as so much inconvenient claptrap to be circumvented and avoided. Yoo's name, legacy, and body of thought is stained with failure and rejection by the supreme legal body in this land. Here's hoping they stay there and no one ever asks Mr. Yoo to be creative again.

From Article VI of the U.S. Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land