How to keep future John Yoos under control

By Bruce Ackerman
Tuesday, February 23, 2010

During the long years that the Justice Department was investigating Jay S. Bybee and John C. Yoo, it was tempting to view the torture memos as if they were momentary aberrations in the life of the modern presidency. But in clearing the Bush administration lawyers who authored the memos of all charges of unprofessional conduct, the department invites future John Yoos to rubber-stamp future presidential abuses at moments of (real or imagined) crisis.

The torture memos are an entirely predictable product of an institutional set-up that puts the meaning of national security law at the mercy of a politicized Office of Legal Counsel and a super-politicized legal staff in the White House. There is a compelling need to reform that structure.

Forty years ago, the Office of Legal Counsel was dominated by career lawyers. But by the time George W. Bush was elected, the office had only a handful of seasoned professionals, and all the leading positions were held by political appointees who, like Bybee and Yoo, were predisposed to support their president.

Given this political transformation, the exoneration of Bybee and Yoo creates a dangerous precedent. Consider the department's discussion of the torture memo's claim that the president, as commander in chief, can defy Congress's statutory prohibition on torture and order the military or CIA to engage in any and all forms of abuse. The department concedes that Bybee and Yoo presented an "incomplete and one-sided" argument in support of this remarkable legal conclusion and that the next head of the OLC, Jack Goldsmith, found that this claim had "no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law."

Nevertheless, the department found that Bybee and Yoo acted professionally in writing their defense of unchecked presidential power. In reaching this conclusion, it relied principally on two facts: first, that other political appointees in the Bush OLC also believed that presidential torture raised "complicated questions," and, second, that the White House was demanding a quick decision. Future Yoos will take notice and perhaps line up a few office mates to agree with extremist legal positions before issuing their memos during the next crisis.

Sometimes the OLC will resist presidential overreaching. But James Madison warned us that "enlightened statesmen will not always be at the helm." And it is not at all certain whether OLC lawyers may resist unreasonable claims down the line.

The Constitution requires the president to "take care that the laws be faithfully executed." He is not free to create a system in which his lawyers have powerful incentives to subordinate the law to short-term political imperatives. Since this is precisely the current situation, the president and Congress have a constitutional obligation to establish an institutional framework that will keep future John Yoos under control.

In coming weeks, Congress should do more than call Bybee and Yoo to testify. Lawmakers should work with President Obama to create an executive tribunal that will ensure the integrity of the rule of law. Members of the tribunal will operate as judges for the executive branch, not as lawyers for the sitting president. There will be nine judges on the panel, each serving staggered 12-year terms, giving the president the chance to nominate three judges during a four-year period. Nominees must gain Senate confirmation -- which will encourage the president to nominate candidates with reputations as fair-minded professionals, not legal ideologues.

Committees of the House or Senate would have the right to challenge presidential actions before the tribunal. And after hearing both sides of an argument, the nine-judge panel would lay down the law for the executive branch.

At a later point, a private party might also gain standing to challenge the same presidential action before the Supreme Court -- and if it decides to take the case, as the nation's highest arbiter, the court would be free to overrule the tribunal. But if history is any guide, the Supreme Court will intervene on national security matters only rarely. In the meantime, the executive tribunal will assure Americans that their freedoms are no longer at the tender mercies of the Yoos of the world.

The writer is a professor of law at Yale University.

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