Mr. Yoo served from 2001-03 in George W. Bush’s Office of Legal Counsel, where he wrote the memos authorizing the use of torture on 9/11 detainees. Yoo is a law professor at the University of California, Berkeley, Torquemada Fellow in Information Studies at the American Enterprise Institute, and author, most recently, of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.
Perhaps no aspect of George W. Bush’s presidency has been more controversial than his expansive use of executive power, an assertiveness that has earned him much condemnation. But have our greatest presidents faced grave national challenges by deferring to Congress at every turn? Have they abrogated all power necessary to surmount various crises, even at the risk of conflict with the judicial and legislative branches?
Far from writing an apologia for the policies of the Bush administration in which I served, I have made a scrupulous study of history to demonstrate the benefits of a strong executive branch. An ideologically broad-based poll of the American Enterprise Institute’s staff, trustees, and washroom attendants generated a ranked list of the most highly regarded presidents. Not surprisingly, the executives we tend to consider greatest have not hesitated to declare war, acquire territory, or render suspected terrorists (or individuals with similar-sounding names) to Egyptian enhanced-interrogation chambers, all with the unsung help of heroic attorneys. A few examples will suffice to illustrate this point:
Though Monroe is best remembered for his eponymous doctrine, his presidency (1817-1825) was also marked by the legal controversy attendant to his impulse purchase of Bermuda from the King of France at the amazing low rate of $19.99. Monroe pounced on the deal without proper congressional authorization, earning him a denunciatory pamphlet written in limerick form by Chief Justice John Marshall, as was the custom at the time.
A constitutional crisis was averted only when it emerged that the King of France was in fact one Slats Banacek, a confidence man who had gained access to the White House through a liaison with a scullery maid and infiltrated First Lady Elizabeth Monroe’s regular bridge game. In a further legal wrinkle, Banacek had already sold the mid-Atlantic island to Talleyrand, Mary Wollstonecraft, and John C. Calhoun, resulting in decades of litigation.
But the precedent set by Monroe’s farsighted act continues to reverberate through American history.
The presidency of Benjamin Harrison (1889-93) furnishes further proof, if more were needed, that a candidate can lose the popular vote yet still turn out to be a great national leader. Harrison is best remembered today for his campaign to root out the grave national security threat of the Mugwumps, dissident Republicans who had crossed party lines to stump for Grover Cleveland in 1884, treachery the likes of which the nation had not seen since Benedict Arnold.
Harrison ordered that suspected Mugwumps be subjected to enhanced interrogation techniques that were cutting-edge at the time, including tarring, feathering, and marathon readings of the complete works of Harriet Beecher Stowe. (Not for nothing does 24’s Jack Bauer have a tattoo of Benjamin Harrison on his buttocks.) Though revisionist historians have creatively argued that the threat was overstated, the “Mugwump Bump” went on to become one of the most popular dance crazes of that most cheerful of decades, the gay old 1890s.
Warren G. Harding
Today, Warren Gamaliel Harding (1921-23) is justly celebrated for his probity, deregulatory zeal, and daring taste in spats. But Harding was also almost single-handedly responsible for foiling a terrorist plot hatched by revanchist followers of Kaiser Wilhelm. With the enhanced interrogation of numerous German-Americans, including the president’s mother-in-law, the nascent FBI was able to uncover a plot to rename liberty cabbage “sauerkraut.”
This was not uncontroversial, and when a young Felix Frankfurter threatened to take action against the round-up, Harding moved swiftly to have Frankfurter and his law clerks placed in isolation buns and slathered with brown mustard.
Some liberal historians have claimed that Harding went too far, but few deny today that this towering statesman’s decisive actions saved his country from reliving the agony of the Teapot Dome Scandal. For this reason, Harding tops the AEI poll as our greatest 20th-century president.
There is a wealth of famous examples of effective unilateral action from other presidencies. Martin Van Buren’s inconclusive duel with the Queen of Spain. Millard Fillmore’s off-code installation of a bathtub in the White House. Richard Nixon’s carpet-bombing of Cambodia. Bill Clinton’s midnight appropriation of the White House silverware at the end of his second term.
It is to be wondered how these presidents could have achieved any of this had they succumbed to the crippling decentralization of Congress.
In sum, our greatest chief executives have all vigorously exercised the powers of their office to the benefit of the nationestablishing the independence of the executive branch, purchasing Louisiana, winning the Civil War, waterboarding individuals whom mid-price Uzbek bounty hunters have assured us were terroristsbut always under a strict rule of law framework.
As for Barack Obama, he may have learned the lessons of history. In the course of his campaign, he condemned his predecessor’s use of enhanced-interrogation procedures and vowed to close the facilities at Guantanamo. Now in office, however, many of his national security policies and his takeover of GM indicate that he too favors expansive presidential powers.
But does Obama truly have what it takes to be an effective chief executive in such parlous times as ours?
Unless he shows that he can discipline the legislative branch, perhaps by waterboarding John Boehner on national television or by forcing recalcitrant members of his own party like Ben Nelson to wear women’s undergarments in stress positions, it is clear that America’s prestige will erode badly, emboldening terrorists and causing allies to question our commitment to freedom, democracy, and the rule of law.
This column was coauthored by Chase Madar, a lawyer in New York.
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