Saturday, July 25, 2009

Does John Yoo Believe In Any Laws?

another WTF article from the new york times today. it appears that our favorite lawyer, john yoo, did not feel that the posse comitatus act prohibited the president from using the US military in a domestic law enforcement action. really? well, i ain't no fancy big-city lawyer, and i don't teach law at berkeley, and i certainly don't write op-eds for newspapers (BTW, i am still not reading the inquirer), but the language of the posse comitatus act seems pretty clear, no (from wikipedia)?

The text of the relevant legislation is as follows:

18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Also notable is the following provision within Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):

10 U.S.C. § 375. Restriction on direct participation by military personnel

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

like i said, i am not the 21st century's greatest legal mind (that title belongs to jefferson beauregard sessions, III) but i don't think this language could be any clearer. you need direct authorization by congress, not some blanket coverage that yoo feels was granted to the president in the legislation passed after 9/11, in order to deploy the armed services domestically. this is one of the rare instances where cooler heads, led by bush, prevailed. can you imagine that? this issue was so clear-cut that even bush knew it wasn't right. god help us all.

another interesting tidbit from the wikipedia article. apparently as part of the FY2007 defense authorization act, language was inserted to change the posse comitatus act as follows "The President may employ the armed forces... to... restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.[3]"

this language is so broadly written that it almost gives the president carte blanche to use the military in whatever capacity he wants domestically, all without congressional oversight. fortunately, this passage was repealed in 2008.

john yoo should be disbarred, and in my mind, imprisoned for his failure to protect and defend the constitution of the united state and his general disregard for the rule of law.

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