Yoo and Liu--A Tale Of Two Lawyers

The University of California at Berkeley, Boalt Hall School of Law currently has two professors who are on the minds of those who are not even lawyers. One is a nominee for a position on the US Ninth Circuit Court of Appeals bench. The other is not. The president announced that he wants an Asian-American on the court. The president has chosen the wrong one.

Barack Obama has nominated Goodwin Liu, a radical, outspoken and very public opponent of constitutional restraint for the spot on the appeals court. He should have appointed John Yoo. But Obama being Obama, he nominated the radical Liu while sicking his attorney general on constitutional scholar and former Bush administration adviser Yoo. I did a post on John Yoo back in July. Although some of the information is now dated (much has happened in the Obama version of law, including Eric Holder's retreat from his attacks on Yoo), you can still familiarize yourself with him here: Yoo Who?.

The more recent post I did on Liu expressed my view of the nominee (A Perfect Nominee). I also discussed the possible future of the Supreme Court in light of the retirement of Justice John Paul Stevens (What's In Store). In an edition of The Wall Street Journal this week, Yoo discussed national security after Stevens leaves, and why the appointment of someone to the Supreme Court with views similar to those of Stevens are a threat. I'm sure that Yoo would agree that someone like Liu would be a danger, but even someone as "moderate" as Stevens would continue the current confused and over-analytical court decisions that leave American soldiers and security operatives exposed overseas.

Professor Yoo points out as a young naval intelligence officer, Justice Stevens was part of a team that heard the Japanese radio transmission which led our pilots to shoot down the plane carrying the mastermind of Pearl Harbor, Admiral Isoroku Yamamoto. In 2006, Stevens told the Fordham Law Review that he regretted that "there wasn't a lot of deliberation before before deciding to go along with the plan--they had no humanitarian concerns at all of the kind that troubled me." Shooting down the plane carrying a high enemy military officer during a time of war without due deliberation bothered Stevens. Nearly 3,000 Americans were killed at Pearl Harbor, and nearly 3,000 were killed in New York City on September 11, 2001. Are you beginning to see the parallel? And the danger of jurists such as Stevens? If they can't see the clear need to kill enemy combatants, what are they going to do with terrorists nine or ten years after the fact if and when they come to trial?

Stevens expanded on his idea of killing Yamamoto. "The targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic." Does Stevens think that a soldier in the field, taking aim at an enemy combatant, is planning on killing some abstract "statistic," or that the soldier doesn't have the killing of an individual in mind? Is an enemy combatant on his belly preparing to kill an American soldier any different from a command officer flying to the scene of the next battle he will command? Or for that matter, from the high command officer flying back to his headquarters to plan the next massacre of Americans?

That kind of illogical, unclear, morally-confused and dangerous thinking clouded all of Stevens's decisions about the death penalty, but at least there is a clear delineation between an execution after trial and conviction and the killing of enemy leaders during wartime. But Stevens and his ilk can't even see that clear distinction. Yoo asks: "If Stevens thinks killing Yamamoto raised 'humanitarian concerns [that should have required lengthy deliberations],' can you imagine his view of US Predator drones raining missiles down on the heads of al Qaeda leaders in Afghanistan, Pakistan and Yemen?"

That kind of agonizing deliberation is what costs American lives and loses wars. If our current military can put three Navy SEALs on trial for not treating a terrorist murderer with the proper white gloves, imagine what a Stevens-type Supreme Court could do to soldiers who figured out where bin Laden was hiding, broke in on his planning party, and killed him. Or what that court might consider doing to a president who ordered a drone in to take bin Laden out, particularly if bin Laden were located in an area not deeply within the war zone.

Any nominee of Obama's to replace Stevens is likely to share Stevens's views, or worse. As it is, "Stevens waged a five-year campaign to upend long-held understandings of the Constitution in wartime--as part of a slim 5-4 majority of the Supreme Court" Professor Yoo points out. In 2004, Stevens wanted to free Yaser Hamdi, a Saudi Arabian born in Louisiana who had been captured with an AK-47 fighting with the Taliban in Afghanistan. Stevens failed to get his majority in that case, but later that year put together a 5-4 majority in Rasul v Bush to allow al Qaeda detainees at Guantanamo Bay to seek release in American civil courts.

That latter decision led to the 2006 decision in Hamdan v Rumsfeld which blocked military tribunals from trying al Qaeda terrorists for war crimes. The technicality that the decision rested on was that Congress hadn't specifically authorized such military tribunals, which was corrected by Congress enacting the Military Commissions Act. But even though the military tribunals were blocked in that case only, the decision established the far broader, and never before granted, right to seek habeas corpus by foreign combatants, captured on a battlefield.

In other words, terrorists caught in war zones and detained at Guantanamo now have the right to challenge the legal basis for their detention as any American common criminal in jail has the right to challenge the basis of his arrest and subsequent detention. This is part of the Obama/Stevens thinking that war should be conducted in the same manner as civilian law enforcement, with the same rules and constitutional restraints. Given all the actions of the Obama-Holder Justice Department, there is little reason to believe that Obama will nominate a candidate to the Supreme Court vacancy who is any less "concerned" about terrorist civil liberties.

Professor Yoo points out that prior to the Stevens majorities, "The court deferred to the president and Congress on detention because 'trials would hamper the war effort and bring aid and comfort to the enemy.' Civilian judicial proceedings would create a 'conflict between judicial and military opinion.' Interfere with military operations by recalling personnel to testify, and 'diminish the prestige of a field commander' called to account in his own civil courts, and 'divert his efforts and attention from the military offensive abroad to the legal defensive at home.'"

Those predictions in earlier Supreme Court decisions over a period of nearly two hundred years have proven to be prophetic. The Christmas panty-bomber, Umar Farouk Abdulmutallab, was read his civilian Miranda rights almost immediately after being taken into custody. Attorney General Holder claims that his office did not order that, but it's really not relevant, since the detaining authorities have been so constrained that they believed granting those civilian constitutional rights was required of them, rightly or wrongly. Holder also made the decision that the very architect of the 9-11 mass murder should be tried in a civilian court located within walking distance of the ruins of the World Trade Center. Though massive protests from common citizens and public officials caused Holder to back off on the New York trial of Khalid Sheikh Mohammed, as recently as last week's Senate hearings, Holder has still refused to commit to taking the case out of the hands of civilians and putting it back in the hands of the military where it belongs.

Professor Yoo sums up the danger: "For his presidency to succeed, Mr. Obama must prevail in no less than three wars. He must withdraw American forces from a stable Iraq, defeat a resurgent Taliban in Afghanistan, and crush al Qaeda's remaining elements. Realizing this, the Obama administration has hewed to many of the same legal positions held by the Bush administration. Specifically, it continues to defend the president's constitutional right to detain terrorists without trial, to use military commissions to try them, and to use Predators to target them abroad."

"But if President Obama appoints someone to the Supreme Court who thinks like Justice Stevens, he will be fooling no one. He cannot keep his promise to the American people to fight al Qaeda with all of the tools at the presidency's disposal if he appoints a justice who will continue to obstruct and second-guess the decisions of our military and intelligence officials."

I would point out that by hamstringing our interrogators with narrow rules and "humanitarian concerns," the Obama administration has already taken a major step in hampering our war efforts. But as far as Professor Yoo's overall conclusions go, that's a mere quibble. It only means there is probably one less issue for the Supreme Court to mess with in the event that a Stevens clone, or worse, is appointed to the high court.

Yoo also says: "To satisfy his base, President Obama will have to nominate a justice who is pro-choice, favors racial preferences and likes broad government regulation of the economy. But he also has the flexibility to choose a justice who believes in a return to a restrained judicial role in war and national security. Senate Republicans should support the president's nominee if he does." As much as I admire the good professor, I find that to be rather naive.

The chances of finding a pro-abortion, race-skewing, socialist-statist nominee who also supports the traditional presidential war powers are about as good as locating the leader of Communists for Capitalism. At best, we can hope for a moderate-liberal appointee who will not have the credentials or the smarts to convince four other justices to go along with the judicial usurpation of the powers of the Congress, the president, and the people. As for the loathsome Goodwin Liu, this is a simple reminder that an appointment to the Court of Appeals is one of the best paths to future appointment to the Supreme Court.