Yoo and Jefferson

By David Swanson

As John Yoo’s visit to Mr. Jefferson’s university here in Charlottesville approaches, one is tempted to ask the same question people around here ask about everything: WWJD? What would Jefferson do?

Of course, it’s almost taboo among the most serious peace and justice advocates to cite positive precedents from Jefferson, because he was a slave owner. But Jefferson’s views on the structure of a government don’t actually become less admirable (or more) when we remember the horrors he inflicted on the people at Monticello.

On the other hand, protesting someone like John Yoo (a march and rally are planned) is almost verboten among the comfortable liberals in Charlottesville, because of a Jeffersonian view of free speech as absolutist as the ACLU’s defense of campaign bribery. “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it,” quoth Jefferson. Yet this admirable line of thought came from the same enlightenment that gave us this one: “Man will never be free until the last king is strangled with the entrails of the last priest.” In fact, the author of the Declaration of Independence, that lengthy list of crimes committed by King George, would not have approved of the College of William and Mary inviting the King to lecture on law. Jefferson and his fellow revolutionaries would have sought to kill or imprison such a lecturer. Translated into an age of nonviolence, they would have PROTESTED him.

John Yoo’s book “Crisis and Command” discusses Jefferson at length and devotes a chapter to his presidency. Yoo finds much to lament in Jefferson’s opposition to expanded presidential power, and much to praise in Jefferson’s expansions and abuses. I would reverse Yoo’s attitudes, praising what he laments and denouncing what he praises. But I don’t argue with his basic outline of the facts of the matter. I argue with the further expansions Yoo assisted in during his employment at the Justice Department, expansions that went far beyond those of Jefferson and did so in violation of a body of laws and treaties that did not exist in Jefferson’s day.

Jefferson thought a president should only veto a bill if he believed it to be unconstitutional. Today presidents routinely veto bills they simply disagree with. Or they alter bills with signing statements or with memos drafted by people like John Yoo. Or they simply violate the law. While Jefferson did not casually veto or alter laws with signing statements or memos, he did choose to simply not enforce laws based on his interpretation of their unconstitutionality. He claimed equal power with the Supreme Court in making such interpretation, something presidents since him — including Bush — have not tended to assert.

Jefferson favored the frequent use of impeachment, but not purely to protect the legislative branch, rather to advance the interests of a political party led by a president. Jefferson refused to comply with a court subpoena. He launched military operations without Congress, including covertly. In some cases he took unconstitutional actions while Congress was not in session, a situation that does actually provide him with an excuse that presidents don’t have today. In other cases, Jefferson simply acted outside the constitution, claiming to represent the will of the nation. The action Yoo seems to admire most for its brazen lawlessness is Jefferson’s purchase of Louisiana. But Yoo also seems to recognize the immense impact Jefferson had in developing a two-party system and the notion of a president possessing a national policy mandate.

Yet Jefferson was no Dick Cheney. Claiming to act, and plausibly acting, on behalf of majority opinion (or majority wealthy white male opinion) is — at least in retrospect — a dangerous precedent for an official who was supposed to execute the will of Congress. But the Bush-Cheney White House claimed the power to act without even a pretense of acting on behalf of the nation’s people. They were acting simply on behalf of Bush and Cheney. Jefferson worked to limit or avoid a standing military. He acquired territory by purchasing it. Yoo praises Jefferson for purchasing Louisiana because it was an act of presidential assertiveness. And Yoo blames President James Madison for allowing Congress to lead him into a disastrous invasion of Canada, because Madison was following Congress, just as the Constitution he’d played a central role in writing required him to do. What Yoo misses is that negotiations tend to work and wars tend to be catastrophes no matter who makes the decisions. In comparison with Bush and Cheney, Jefferson was an opponent of the greatest evil there is: war. The Congressional Research Service just released a list of hundreds of overt U.S. military actions. Most of them have been launched by presidents. Most of them have been murderous and criminal catastrophes.

Yoo wrote memos that were treated as secret laws by a president. His memos authorized aggressive war and torture, which have been banned by international treaty and domestic laws since Jefferson’s day. Jefferson honored treaties. Yoo does not. Jefferson made exceptions to his adherence to laws. Yoo proclaims presidential liberty to openly ignore all laws. Yoo has famously gone so far as to argue that a president can crush testicles, massacre villages, or nuke cities. Nuclear weapons and most other weapons of war did not, of course, exist when Jefferson went after pirates without congressional authorization. The level of destruction in war was as small then as the body of law restricting it. Yoo lives in an age of far more evil wars, yet allows no limits on presidential war making. A president could nuke city after city until none remained, according to John Yoo’s theories, which I find it very hard to imagine Jefferson accepting or even hypocritically acting upon.

When pressed, Yoo recognizes the power of Congress to stop a president through defunding or impeachment. But Yoo has never, to my knowledge, opposed Bush’s unconstitutional spending of funds for uses other than those for which they were appropriated. And crimes and abuses must be crimes and abuses even prior to an impeachment and conviction. The partisan system developed during Jefferson’s presidential election makes presidential impeachments very unlikely. In fact, they are only possible when the Congress is controlled by the other party and that other party has not become complicit in the president’s crimes or abuses. The same Justice Department that Yoo worked for argued that a president can violate a law until the Supreme Court says otherwise, even though the Supreme Court cannot possibly rule in a timely manner on every law passed by Congress, and even though the Supreme Court is also corrupted by the party system.

While Jefferson advanced the shift of power from Congress to the White House, not to mention that he owned slaves and held every power over them that the United States military holds over prisoners in Bagram, there is only one thing that it is clear to me Jefferson would have done upon learning that John Yoo had been invited to speak at the University of Virginia. Jefferson would have demanded the resignation of the university president.

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