Louise prefers mysteries and fiction for her bedside reading. Right now, she is reading a novel by a Worcester, Mass author called *The Resurrectionist* By Jack O’Connell.
I—OLGS—have been dipping into non-fiction books on the Bush Presidency. I just finished a very thoughtful book by Jack L. Goldsmith, *The Terror Presidency.* Goldsmith served for less than a year as head of the Office of Legal Counsel (OLC) in the Justice Department, under Attorney General Ashcroft during the first Bush term between October 2003 and July 2004. He came to government service from the University of Chicago and is now on the faculty of the Harvard Law School. It was Goldsmith who took the formal and highly unusual step of rescinding the so-called “torture memos” written by former OLC deputy John Yoo. Some of Yoo’s work is posted on OLC’s website. Search under his surname and the opinions on presidential power that are not still classified appear.
Many commentators have decried Yoo’s inhumanity in the torture memos. There is an Internet petition to demand that the University of California School of Law revoke his tenured position on the faculty, an action not likely to happen given the dean’s defense of Yoo’s academic freedom. Until and unless Professor Yoo is indicted and convicted on the charge of committing a war crime through the writing of his memos, he will keep his faculty status at UC-Berkeley.
What grabbed my attention in Goldsmith’s account of the reasoning behind Yoo’s torture memos in 2001, 2002, and 2003 is that Yoo began with the proposition that the president of the United States has all the powers—the prerogative—of the monarch of the United Kingdom at the time of American independence, except for what the U.S. Constitution specifically denied him in 1787 in Article II. In other words, George # 43’s powers begin with the same powers of George III as the British king. According to Blackstone’s Commentaries on the Laws of England (Chapter 7):
UPON the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power u: and this right is given up not only by individuals, but even by the entire body of people, that are under the dominion of a sovereign.
Blackstone wrote that summary in 1765. The British monarchy may have been a constitutional one after 1689, but in matters of war and diplomacy, it was still rather absolutist at the time of the American Revolution. In the 21st century, John Yoo recognizes that the Congress has the power to declare war, but once it has done so, as he says it did in its September 18, 2001 “Authorization for Use of Military Force,” then Article II of the Constitution’s designation of the president as “commander in chief of the Army and Navy” gave President Bush the powers of King George III over the conduct of the war, including the power to ignore treaties, statutes, and court decisions in regard to the laws of war, and most notably, the power to torture.
Goldsmith’s book is an important one and I commend it to readers of “Domestic Tranquility.” His courageous action as head of OLC in 2003-2004 in cancelling Yoo’s opinions means that any legal justification for torture by U.S. personnel under the president’s war powers was also cancelled at that time. In his own way, Goldsmith is a modern-day Paul Revere/Revoire warning us about executive tyranny. Perhaps our news media can ask all three remaining candidates for president in 2008 if they would consider what Professor Yoo (and his bosses) did as a crime of war.
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