John Yoo vs. Garry Wills: The Debate over Presidential Authority

One of the most heated debates in recent years has been over the expansion of presidential authority -- to interpret laws as he or she thinks best, to make and prosecute wars, to establish rules for treatment of foreign terrorists in custody. Commonwealth Club members recently got a close-up look at this debate when two well-known constitutional experts visited the Club, separately, within two weeks of each other.

John Yoo, a law professor at UC Berkeley, came to discuss the evolution of presidential authority and to respond to audience questions about his controversial role in formulating policies toward the use of torture during the Bush administration. Then, historian and journalist Garry Wills visited to talk about how presidential authority has expanded over the years, beyond the intent of the writers of the Constitution. Asked about Yoo's theories, Wills gave a withering response.

Watch the two programs in high-definition video from the Commonwealth Club's YouTube channel, and post your responses below.

John Yoo:


Garry Wills:

The Fight over the Bush Administrations' Terror Policies

With the high-stakes speeches this morning from President Barack Obama and former Vice President Dick Cheney (see above and below), the United States is beginning to get what Obama has long said he wanted to avoid: rehashing the past. Today, Cheney's speech tried to defend the actions taken during his time in office, saying they protected Americans from further attack, and Obama gave a blistering attack on those actions, noting that traditionally Americans closed down torture chambers around the world.


Both views will likely be analyzed and spun ad nauseum in the next couple weeks. But it's really just a continuation of a long-running battle, super-charged by critics from the Right who believe the Obama administration has weakened our anti-terror protections and critics from the Left who believe Obama has backtracked on pledges to end inhumane practices.

Some of those latter people recently met with President Obama to talk about his plans for tribunals for alleged terrorists and other actions that have alarmed human rights groups, Newsweek's Michael Isikoff reports. Anthony Romero, head of the American Civil Liberties Union, left the meeting feeling impressed with the president's command of the issues but disappointed in his policy decisions. Romero has been a vocal proponent of prosecuting leading figures in the Bush administration over torture allegations, as he argued in his recent Commonwealth Club discussion.

Another participant in the meeting, Vincent Warren (photo at right), executive director of the Center for Constitutional Rights, is reported by RebelReports as having commented, "I came out of the meeting deeply disappointed in the direction that the administration is taking ... I don’t see meaningful differences between these detention policies and those erected by President Bush."

Whether that comment will cheer conservative critics of Obama is unclear, but people on all sides of this issue can hear more from Warren when he speaks at The Commonwealth Club tonight. The title of his speech couldn't be more clear: "Neutralizing the Bush Legacy."

Torture Touches Everybody

Torture allegations may be a defining accusation of the Bush administration by history's standard, but that does not mean it cannot plague Democrats, too, as U.S. House Speaker Nancy Pelosi is finding out and as the president is working to avoid. For a nation starting to come to terms with "enhanced interrogation techniques" and possible new photos of prisoner humiliation and mistreatment and the whole issue of torture and who's responsible, this is a time where some people are asking, At what point does the new government's cautious approach and the American people's earlier disinterest make it complicit in allowing torture to have occurred in the first place?

Just this week, Michael Kinsley wrote an opinion piece in the Washington Post charging Americans with collusion in the awful deeds: "If you're going to punish people for condoning torture, you'd better include the American citizenry itself." Salon's Gary Kamiya similarly wrote, "How would these people react to an investigation of those Bush officials who planned and authorized the very deeds that they themselves supported?"

It may seem a tenuous argument at best to charge 56 million voters with complicity when they did not choose to re-elect George W. Bush in 2004 based solely on whether or not he approved waterboarding. But it might help to note that these facts were known before Americans went to the polls. Jacob Weisberg, in an article for Newsweek, lays out what we knew earlier than 2004. Various media outlets had already published reports of illegal extradition of suspected terrorists to CIA "black sites" in foreign countries, and knowledge of the excessive waterboarding of Khalid Sheikh Mohammed along with photos from Abu Ghraib were widely written scandals.

Weisberg also does a fine job of recreating the atmosphere of fear fed by the Bush administration's warnings about the consequences of insufficient vigilence during those years. New York Times conservative columnist David Brooks remarked about it today and believes Pelosi should own up to participating in that atmosphere of uncertainty: "Why can’t she just tell the obvious truth? She was influenced by the climate of the time. In retrospect, she wishes she had raised her voice in protest." In an appearance at the Commonwealth Club of California last month, Pelosi did not mention the already simmering issues of torture.

After President Barack Obama choose this week to withhold the release of new photos of detainee abuse of terrorist suspects (taken as early as 2004), this issue looms as an issue for which Obama has taken ownership. In so doing, he raised the ire of the ACLU. The president's rationale of protecting the troops and avoiding to inflame the anger of the Muslim world is similar to the policy of the previous administration.

Today, Pelosi publicly charged the CIA and the Bush administration for misleading her about waterboarding, attempting to deflect Republican claims this week that she knew about the situation. "To the contrary ... we were told explicitly that waterboarding was not being used," CBS quotes her as telling reporters today in reference to a 2002 briefing she had with CIA officials.

Since another terrorist attack on U.S. soil has not materialized, this is a political issue of high energy but it's difficult to discern in terms of real impact. But a lot of Americans are concerned about who knew what when, what the real story is about the United States' involvement in torture, its effectiveness or ineffectiveness, and the consequences for U.S. soldiers, America's moral standing, and the rest of the world.

ACLU chief Anthony Romero makes no mystery of where he stands, as he told The Commonwealth Club April 30th. The video is below:


By Steven Tavares

Bush Truth Commission on the Horizon?

Will we see a replay of the 1970s-era Church Commission? What would that do for our political landscape?

Sen. Sheldon Whitehouse (D-RI) told Salon that some type of truth commission seeking to highlight Bush administration actions torture and other war crimes is imminent. According to the story, Whitehouse responded in effusive terms to a question of whether the public knows much about the past eight years. Here's how the reporter described his response: "His eyes grew large and he nodded slowly. 'Stay on this,' he said. 'This is going to be big.'"

In the current edition of Time, Sen. Patrick Leahy (D-VT), who chairs the Senate Judiciary Committee of which Whitehouse is a part, called for a truth commission modeled in part by the Church Commission of the early 1970s, which uncovered illegal surveillance methods by the CIA and FBI. In light of a divided electorate, Leahy believes Americans need to know the truth, saying, "Rather than vengeance, we need an impartial pursuit of what actually happened and a shared understanding of the failures of the recent past."

Sen. Frank Church, whose commission ultimately led to the creation of the Foreign Intelligence Surveillance Act (FISA), spoke in similar terms during a speech at The Commonwealth Club in 1975:

[Intelligence agencies] must function in the most delicate of all realms: mandated to maintain security without impairing freedom. if they engage in wrong-doing, it is not a casual matter that can be safely swept under the rug....

If we fail to restore a proper regard for the common good within the framework of the law, then creeping anarchy will gradually replace the rule of law altogether. In its wake will surely come the repressive measures that frightened people will then find preferable. There can be no successful preservation of liberty outside the law.

Since 2006, when the Democrats gained a majority in Congress, many liberals have criticized Speaker of the House Nancy Pelosi for failing to push for congressional hearings of alleged indiscretion or for impeachment of President Bush. Last week, Pelosi told Rolling Stone she believes senior Bush administration officials could be prosecuted: "The American people deserve answers."

But today Pelosi sounded less enamored with Leahy's proposal, because of the possible inclusion of immunity. In an interview today with Rachel Maddow of MSNBC, the speaker said, "What I have some concern about, though, is it has immunity. And I think that some of the issues involved here, like the services part, politicizing of the Justice Department, and the rest, they have criminal ramifications, and I don't think we should be giving them immunity."

Regardless of the political merry-go-round, it appears that some sort of hearings into the misdeeds of the Bush administration are squarely on the radar of Democrats.