09/18/2006 11:59 am ET Updated May 25, 2011

Yoo Must Be Kidding

In Sunday's lead opinion piece in The New York Times, (September 17, 2006), the young law professor and former Bush Justice Department lawyer, John Yoo, argues once again for enhanced executive power. Mr. Yoo repeats mantra-like the idea that somehow in the 1970s the Congress overreached and crippled the office of the presidency. "The changes of the 1970s" Yoo writes, "occurred largely" because there was "plenty of paranoia in the wake of Richard Nixon's use of national security agencies to spy on political opponents." Yoo argues that Congress overstepped its bounds when it enacted the War Powers Act, the Foreign Intelligence Surveillance Act, and other legislation designed to curb the executive's abuse of power. Mr. Yoo believes Congress should have done nothing to rein in the Nixon presidency.

But Richard Nixon did far more than just "use" the CIA, the FBI, and his "Plumbers" to "spy on political opponents." He "used" his executive powers to "secretly" rain 110,000 tons of bombs on Cambodia. The President kept Congress in the dark while he bombed a nation with which the United States was not at war. (Nixon had ordered the B-52 pilots to falsify their flight records to make it appear they were bombing Vietnam.) Nixon then tried to cover-up the Cambodia bombing by slapping illegal wiretaps on William Beecher and other journalists, as well as NSC officials such as Morton Halperin, aimed to stop "leaks," (hence the name "Plumbers").

In the name of "national security," Nixon ordered the CIA to block an FBI investigation of the burglary of the Democratic National Committee's headquarters the Plumbers had carried out. And Nixon's White House oversaw a vast domestic spying operation directed at ordinary Americans, which included illegal wiretaps, mail opening, infiltration of citizen groups, punitive investigations by the IRS, sabotage, and other crimes.

Nixon secretly ordered the CIA to make Chile's economy "scream," and then engineered a coup that took place on September 11, 1973, which overthrew the democratically elected government of President Salvador Allende and installed General Augusto Pinochet. Nixon did not tell Congress about his decision to overthrow Latin America's longest standing democracy in favor of a brutal dictator.

Mr. Yoo has no problem with any of these presidential actions, and claims that the Congressional reaction to them was inappropriate. In Yoo's view, the Congress should not have done anything when the American people learned of the Executive Branch's crimes. Overthrowing governments abroad and spying on Americans at home should be accepted as part of the prerogative of the president.

The presidency, Yoo writes, "unlike the Congress, is the only office elected by and accountable to the nation as a whole." But what if the president avoids accountability by keeping his abuses secret from the American people? Yoo claims the president is "accountable," yet he calls for the Congress to allow the president to be wholly unaccountable.

Yoo continues: "The president has better access to expertise from the unified executive branch -- including its top secret data -- than the more ad hoc information Congress develops through hearings and investigations." But what if the president chooses not to notify Congress of his actions as President George W. Bush did with the NSA warrantless wiretaps? Or what if the president uses "secret data" in such a way, like the Iraqi WMDs, to bring the nation to war under false pretenses?

In Yoo's universe anything a president does is justified by the undeclared "war on terror." And if the wartime argument will not suffice, he claims the president has inherent powers as Commander-in-Chief. "If the president does it, then it's not illegal," Nixon famously said. Yoo agrees. He defends Bush's spying on American citizens, his torture of detainees, his suspension of habeas corpus, his preemptive war, his secret prisons, etc. My question to Mr. Yoo is not what the president CAN do, but what, if anything, the president CANNOT do?