DEUS EX MACHINA

DEUS EX MACHINA

deus ex ma*chi*na
literally “God From The Machine”
noun

1. In Greek and Roman drama, a god lowered by stage machinery to resolve a plot or extricate the protagonist from a difficult situation.

2. An unexpected, artificial, or improbable character, device, or event introduced suddenly in a work of fiction or drama to resolve a situation or untangle a plot.

3. A person or event that provides a sudden and unexpected solution to a difficulty.

In this case the difficult situtation is the impeachment of George Bush, and the improbable character is UC Berkeley Professor of Law John C. Yoo.

TO DEPOSE THE GOD, DECONSTRUCT THE MACHINE

Want to depose George Bush? Deconstruct the machine that is John C. Yoo, Professor of Law at UC Berkeley. To do that I suggest you use just two tools:

The US Constitution, and
Justice Jackson in Youngstown Steel.

Go to the landmark decision that curtails the over-expansive powers of the Executive. YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952); also known as YOUNGSTOWN STEELLandmark Cases: Youngstown

FROM JUSTICE JACKSON’S DECISION:

“Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. [343 U.S. 579, 647] “Inherent” powers, “implied” powers, “incidental” powers, “plenary” powers, “war” powers and “emergency” powers are used, often interchangeably and without fixed or ascertainable meanings.

The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test. 16 [343 U.S. 579, 648]

The Unitary, Plenary Executive

Plenary: adjective meaning: full, complete, unlimited

The unitary executive notion can be found in the torture memo, written by John Yoo. “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas,” the memo said. Prohibitions on torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority. . . . Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” The same would go for “federal officials acting pursuant to the president’s constitutional authority.”

JOHN YOO ON WAR POWERS

“Declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime.”
John Yoo, interview University of Chicago; book review

“I believe that the War Powers Resolution–which places a sixty-day time limit on the deployment of troops into combat situations abroad–is irrelevant.”
John Yoo, interview University of Chicago; book review

“I do not think that the president is constitutionally required to get legislative authorization for launching military hostilities…”
John Yoo, interview University of Chicago; book review

“I make the case that the Constitution permits the president and/or Congress to violate international law when it engages in war.”
John Yoo, interview University of Chicago; book review

The Geneva Conventions say what George Bush says they say:

“I argue that the president has the sole authority to interpret the Geneva Conventions on behalf of the United States, rather than the courts or Congress…”
John Yoo, interview University of Chicago; book review; Dec. 2005

And looking to the future:

“The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than war disappearing from the world, the threat of war may well be increasing.”
John Yoo, interview University of Chicago; book review; Dec 2005

Interview with John C. YooUniversity of Chicago; December, 2005

The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11

THE PRESIDENTS ON WAR POWERS:

A confused George Bush once said, “I am mindful not only of preserving executive powers for myself, but for my predecessors as well.” Here is a sampler of what those predecessors had to say about war powers:

“The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until they shall have deliberated upon the subject, and authorized such a measure. ” — George Washington

“Congress must be called upon to take [reprisal on a nation]; the right of reprisal being expressly lodged with them by the Constitution, and not with the Executive”. — Thomas Jefferson

“Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events . . . is a solemn question which the Constitution wisely confides to the legislative department of the Government” — James Madison

“Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems in necessary for such purpose, and you allow him to make war at pleasure.” — Abraham Lincoln

“By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done . . .” — Grover Cleveland

“The remedy for this state of things can only be supplied by Congress, since the Constitution has confided to that body alone the power to make war.” — James Buchanan

“The issue [of war with Spain] is now with the Congress. . . . Prepared to execute every obligation imposed upon me by the Constitution and the law, I await your action” — William McKinley

“The assumption by the press that I contemplate intervention in Mexico soil to protect American lives is of course gratuitous, because I seriously doubt whether I have such authority under any circumstances, and if I had I would not exercise it without congressional approval” — Howard Taft

“To send troops [to Russia], would be to create a state of War, into which the United States could not enter without a formal declaration, by Congress, so I could not send a man, even if I wanted to, which I do not.” — Woodrow Wilson

“I know that you will understand that these statements carry with them no implication of military commitments. Only the Congress can make such commitments.” — Franklin Delano Roosevelt

“There is going to be no involvement of America in war unless it is a result of the constitutional process that is placed upon Congress to declare it. Now, let’s have that clear” — Dwight D. Eisenhower

The quotes above were culled from an appendix to War Powers of the President and Congress, by W. Taylor Reveley III. Finally, here is what Richard Nixon had to say, in a David Frost interview taped in 1977:

“When the President does it, that means it is not illegal” — Richard Nixon, The David Frost Interview, 1977

Before 1950, no President or member of Congress believed that the executive branch could wage war without debate in Congress, when such debate was possible.

Researched by Tod Landis. Posted online at http://todlandis.com/presidents.html

THE PRESIDENT CANNOT BE PROSECUTED FOR BREAKING THE LAW

The Yoo/Bybee Torture Memo:

The memo defines torture so narrowly that only activities resulting in “death, organ failure or the permanent impairment of a significant body function” qualify. It also claims, absurdly, that Americans can defend themselves if criminally prosecuted for torture by relying on the criminal law defenses of necessity and/or self-defense, based on the horror of the 9/11 terrorist attacks.

Finally, the memo asserts that the criminal law prohibiting torture “may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers.”

In short, the memo advises that when acting as commander-in-chief, the president can go beyond the law. (John Dean; The Torture Memo By Judge Jay S Bybee That Haunted Alberto Gonzales’s Confirmation Hearings)

The Yoo/Delahunty Memo

Memorandum from John Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, to William J. Haynes II, General Counsel, Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees 10-11 (Jan. 9, 2002) [hereinafter Yoo/Delahunty Memo]

(disclaiming the applicability of the War Crimes Act to conduct authorized by the President by reference to the President’s “plenary authority” as Commander in Chief); U.S. Dep’t of Defense, Working Group Report on Detainee Interrogation in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Concerns 24 (2003) [hereinafter Working Group Report on Detainee Interrogation]

“In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.”); id. (asserting that the President has “complete discretion in exercising the Commander-in-Chief power” and that “[a]ny effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President”).“
Yoo/Delahunty to Haynes

THE PRESIDENT CANNOT BE PROSECUTED:

Although we do not have the names of who wrote this Working Group Memo from March, 2002, it has John Yoo’s name written all over it.

“In 2002, the Justice Department’s Office of Legal Counsel took the lead in arguing for a broad view of presidential authority in the war on terrorism. The same office contributed to the Pentagon’s “working group” memo.

“The office was led by two conservative law professors, Jay S. Bybee and John C. Yoo. They wrote the key memos declaring the Geneva Convention did not apply to accused terrorists, the Taliban or other detainees who were held at the U.S. naval base at Guantanamo Bay, Cuba.” Truthout; Leaked Torture Memo: Full Text)

Memorandum for General James T. Hill from Defense Secretary Rumsfeld, Re: Coercive interrogation techniques that can be used with approval of the Defense Secretary (Apr. 2003);

Working Group Report On Detainee Interrogations in the Global War on Terrorism; Assessment of Legal, Historical, Policy, and Operational Considerations; 6 March 2003 LEAKED TORTURE MEMO: FULL TEXT

The 85-page classified report, prepared for Secretary of Defense Rumsfeld, reviews the “legal, historical, police and operational considerations” regarding interrogations of detainees in the war on terrorism. The report provides recommendations to the Secretary of Defense on which interrogation techniques should be approved. It also outlines U.S. laws and international treaties concerning torture and discusses how national security concerns or legal technicalities could overcome such restrictions. The report states that, as commander-in-chief, President Bush is not bound by domestic or international laws prohibiting torture and that government agents who might have used torture under his direction can not be prosecuted by the Justice Department.

[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

It says that the President and his Commander in Chief powers, is exempt from laws in the United States that prohibit torture, is exempt from the torture convention which the United States ratified and as Commander in Chief, he can basically take whatever action he wants to defend the United States.”

“The Department of Justice has concluded that customary international law cannot bind the Executive Branch under the Constitution, because it is not a federal law. In particular, the Department of Justice has opined that “under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners would constitute a “controlling” Executive act that would immediately and completely override any customary international law.” LEAKED TORTURE MEMO: FULL TEXT

THE PRESIDENT CANNOT BE PROSECUTED

“In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas.”LEAKED TORTURE MEMO: FULL TEXT

CONGRESS CANNOT CURTAIL THE UNITARY POWERS OF THE PRESIDENT DURING TIME OF WAR

“In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. § 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief.”

“A construction of Section 2340A that applied the provision to regulate the President’s authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions.”

Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” LEAKED TORTURE MEMO: FULL TEXT

DECONSTRUCTING JOHN C. YOO

Caution: There is an old adage about “Whom the Gods destroy, first they will drive mad.” Don’t wreck yourself on the following, and don’t go mad. Don’t fall under the Medusa spell of John C. Yoo.