John Yoo Used to Worry About Too Much Executive Power

He once excoriated President Clinton for violating the War Powers Resolution. He thinks President Obama broke it too -- but he's happy we fought in Libya anyway.

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In order to mark the death of Col. Qaddafi, John Yoo has congratulated President Obama on his decision to intervene in Libya. "He properly used the powers of his office to protect our national security and advance American foreign policy goals while Congress did little to nothing," Yoo wrote. "He should receive bipartisan support for a rare success in his foreign policy."

This is the clearest example we have of a troubling trend.

Dating back at least to the Nixon administration, Republicans and Democrats would always criticize presidents of the opposite party for abusing executive power, only to hypocritically bless the same behavior from presidents of their own party. It was unseemly, but at least ensured an always-present check on the power of the president. But the transition from George W. Bush to Barack Obama was different. Democrats savaged the Bush administration for its national security excesses. But Republicans, for once, aren't acting hypocritically in response: They're fine with Obama claiming the same executive authority, and they criticize him for not exercising it more. They even pretend that his policies are less forceful than they are just to tweak him.

Yoo is emblematic of this change in more ways than most people know. His critics mostly think of him as an apologist for waterboarding in the Bush administration, and as one of the most vociferous defenders of extreme executive power. As David Margolis wrote when he ruled that Yoo's legal scholarship was shoddy but didn't amount to misconduct, "I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client." How can you blame a guy for holding fast to principles?

What few realize is that Yoo wasn't always so enamored of the powers of the presidency. During the Clinton administration, he excoriated President Clinton for exercising too much executive power. We know this due to a talk he gave at the Cato Institute titled "The Imperial President Abroad: The Rule of Law in the Wake of Clinton." He said that "in order to achieve their foreign policy goals, the Clinton administration has ... undermined principles of democratic accountability that executive branches have agreed upon" going back to the Nixon years:

The Clinton administration has displayed a fundamental disrespect for the rule of law. Not in the sense that they don't make legal arguments to defend their positions, but the legal arguments are so outrageous, they're so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is...

I think one of the things that the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions. And I think the Clinton administration, as I'll discuss in a moment, has been wildly inconsistent. It has gone to the point of disavowing previous executive branch opinions, and when it does things that it finds so inconvenient legally that it overturns too much law, it just doesn't say anything at all, and goes ahead and does what it intends to do anyway.

Believe it or not, the example Yoo gave of Clinton's lawlessness was his decision to wage the war in Kosovo without getting congressional approval, a violation of the War Powers Resolution.

Said Yoo:

The administration has disavowed previous opinions, has contradicted itself and has undermined the checks and balances of our government. The primary example here is Kosovo but Kosovo is not the only example. Kosovo was only the latest in a long string of military interventions abroad. There was Bosnia, Sudan, Afghanistan, Haiti, Somalia. In fact, this administration has been one of the ones that most easily goes for the gun in its foreign affairs despite all of its efforts the claim to be interested in maintaining international stability and peace.

But Kosovo is a good example. Kosovo, as in all these other interventions, Congress never gave its approval for the intervention. Not only that, but Kosovo was the first time since the powers of the War Powers Resolution where the president actually violated the terms of the War Powers Resolution. Now previous presidents had never admitted that the War Powers Resolution was constitutional. But they had always kept within its terms. The War Powers Resolution, for example, requires that any deployment of force past 60 days abroad has to be approved by Congress. All the presidents have either gotten Congressional approval or had withdrawn the forces within 60 days.

In Libya, Obama kept U.S. troops engaged for more than 60 days, never got congressional permission to wage war, and was in clear violation of the War Powers Resolution, a law that he too deems binding. Moreover, Yoo knows this, because he wrote a scathing article some months back insisting that "his administration's flouting of the WPR displays Obama's fundamental hostility to the regular workings of the political process established by the Constitution and the traditions of American government ... he is clearly flouting the law--but claiming that he isn't. His performance here mirrors everything that has been wrong with his entire adventure in Libya."

But now that Qaddafi is dead, Yoo says that Obama "properly used the powers of his office to protect our national security and advance American foreign policy goals while Congress did little to nothing. He should receive bipartisan support for a rare success in his foreign policy." Remember, this is the same man who purports to believe that "one of the things that the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions."

Obama and Yoo share this distinction: Early in their careers, both made big shows about being shocked when their political adversaries pushed the bounds of executive power -- and given a taste of that power themselves, both decided that results are what matter, though they won't just say so. Instead they twist themselves in knots trying to fool us into believing that they've been unchanging in championing principled, legal behavior. If the trend continues, Harold Koh and Barack Obama, once they've left office, are as likely as not to defend future Republicans who wage war without approval. Strange as it is to say it, I miss the days of transparently opportunistic hypocrites pushing back against abuses of executive power. Nowadays, no one is pushing back.

Image credit: Reuters