September 19, 2006
John Yoo, a deputy assistant US attorney general from 2001 to 2003, has an op. ed. in The New York Times entitled How the Presidency Regained Its Balance.The argument is this:
Five years after 9/11, President Bush has taken his counterterrorism case to the American people. That's because he has had to. This summer, a plurality of the Supreme Court found, in Hamdan v. Rumsfeld, that Congress must explicitly approve military commissions to try suspected terrorists. So Mr. Bush has proposed legislation seeking to place the tribunals, and other aggressive antiterrorism measures, on a sounder footing. But the president has broader goals than even fighting terrorism---he has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the "erosion of the powers and the ability of the president of the United States to do his job" and noted that "we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years." Thus Yoo's op.ed. is a defense of the shift power to the executive. The justification? War shifts power to the branch most responsible for its waging: the executive. The President justifies his authority on the basis of crisis, or as Professor Yoo once put it, on the need for "creative solutions" to the threats we face.
So the imperial presidency is justified in terms of the state of exception. Fore Yoo this is not a power grab---it's simply restoring power of the executive that was unwisely diminished in the past 30 years. That takes us back to the time of Nixon and presidential overreach in the context of the Vietnam war.
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