What is John Yoo, Berkeley’s notorious professor of law, doing to our fragile democracy now? Best known for his 2002 “torture memos,” which legitimated the Bush administration’s torture of suspects, illegally held, in the aftermath of 9/11, the memos were widely condemned for their flawed Constitutional reasoning and profound violation of the Geneva Accords. Today, Yoo is advising the Trump Administration to impose policy by fiat, evading Congress and settled law.
Yoo will release a book next week, Defender in Chief, which argues that far from shredding the American Constitution, Trump is rightfully defending it from encroachments by Congress, the courts, and over-reaching bureaucrats.
Yoo also believes the American presidency obtained greater powers to rule by decree from the June 18th Supreme Court decision on DACA. Although Yoo criticized the DACA decision as wrongly argued, and “harming the Constitution, the Presidency and the Congress,” Trump is excited by Yoo’s view that the decision expanded presidential power to rule by decree. Yoo regards the DACA decision as giving the president power to go over or under the law and requiring successor presidents to live with the effects of such rogue conduct unless they follow complex administrative procedures to reverse the decrees.
Encouraging Trump to make use of this expanded power for his own ends, Yoo consulted with the White House last week on how it enables presidential decrees on healthcare, immigration and more. Trump now references Yoo’s argument as legal authorization for such decrees.
Yoo mentioned that he discussed “disorderly cities” in his White House conversations last week, and while he is on record as calling for thresholds of endangered public health and safety before sending in the troops, the President is also relying on Yoo’s reading of law to take American “democrat [sic] cities” by force. The first city to feel the wrath of federal storm troopers is Portland OR; now the Feds are in Kansas City, and Trump has identified “Chicago, Philadelphia, Detroit, New York, Oakland-all cities run by liberal democrats” as next on his list for deployment of federal forces.
As is now well known, Portland citizens exercising their First Amendment rights to assemble and protest have been tear-gassed and beaten by U.S. Border Patrol agents. Agents in unmarked vehicles have also seized demonstrators from the streets with no provocation or warrant, actions redolent of the CIA’s “extraordinary renditions” after 9/11.
Our democracy and its most vulnerable people are under multiple threats by this president. Even mainstream pundits are calling Trump’s unleashing of federal forces fascism, while governors and senators are calling it authoritarianism. Meanwhile, Yoo is again twisting Constitutional law to affirm extra-legal, repressive and anti-democratic power wielded by the American executive. Will his colleagues remain silent?
Wendy Brown and Richard Walker for the Board of the Berkeley Faculty Association.