Last week the Los Angeles Times published an exchange on John Yoo between John Eastman, the dean at Chapman University School of Law, and Lawrence Rosenthal, who is a professor at the law school. Professor Eastman's analysis was one of the best defenses I've read of Yoo tenure, and frankly, one of the only defenses of the torture memos I can recall reading in a mainstream newspaper other than the Wall Street Journal.
Here's a snippet from Eastman's analysis:
In my view, the legal positions Yoo advanced in the post-9/11 memos are supported -- some well supported; others at least arguable -- by constitutional text, historical understanding and legal precedent. In fact, many of those positions were shared by Clinton administration officials now serving in the Obama administration.And also:
For example, one memo argued that the Geneva Convention does not apply to unlawful combatants, such as members of Al Qaeda, who target civilian populations and otherwise violate the rules of war. That position was shared at the time by Eric H. Holder Jr., now the U.S. attorney general. In 2002, in a CNN interview, Holder stated: "It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war."
Another controversial legal position advanced in the memos was that provisions of the Bill of Rights did not apply beyond the shores of the United States, particularly to wartime conduct. For authority, the memo cited the case of Harbury vs. Deutch, in which a three-judge panel of the D.C. Circuit Court of Appeals held in 2000 that the 5th Amendment does not apply abroad to claims of torture by CIA-paid agents against foreign nationals.
At issue were allegations of torture that occurred over an 18-month period -- half of it during the first year of the Clinton administration and that, according to the complaint, included this: "They chained and bound him naked to a bed, beat and threatened him, and encased him in a fullbody cast to prevent escape."
The appeals court accepted the arguments made by Wilma Lewis, a U.S. attorney during the Clinton administration, that the 5th Amendment does not apply to claims of torture involving "an alien rebel commander leading an attempt violently to overthrow a foreign government," even when the torture was alleged to have been committed by paid agents of, and at the request or at least full knowledge of, the CIA. The opinion was written by Judge David S. Tatel, a Clinton appointee, and joined by Judge Harry T. Edwards, a Carter appointee, and Judge Douglas H. Ginsburg, a Reagan appointee.
After 9/11, the lawyers at the Justice Department faced unprecedented legal questions. They had been given the task of identifying the executive powers that could legally be brought to bear to prevent future attacks. That they were aggressive in their legal interpretations should come as no surprise, given the circumstances.Leftists never mention the Roosevelt administration's counter example. The regular meme on the left is that the Bush administration's "shredding" of the Consitution was unprecedented in American history. Such claims are fradulent, and the pushback against the Bush administration is just one element in the larger program of the secular collectivists to grab power in the name of the international proletariat (see, for example, The Daily Dish, Matthew Yglesias, Crooks and Liars, At-Largely, and AfterDowningStreet.org).
In the end, the president's options were more thoroughly vetted by lawyers than at any wartime era in our nation's history. There were no wholesale detentions based on race, such as occurred under President Roosevelt in World War II. No systematic suppression of antiwar speech, such as under President Wilson in World War I.