reality-based educator

The News Hour's favorite constitutional law expert is John Yoo. He is a former lawyer in the Office of Legal Counsel at the Bush Department of Justice, the deviser of legal rationalizations for the Bush administration's illegal surveillance and torture programs, and a current professor at Berkley University. Here's how he's described in a Newsweek article on Gonzogate:

The Justice Department has a relatively obscure department known as the Office of Legal Counsel. Typically staffed by brilliant young lawyers, the OLC opines on the legality and constitutionality of administration policies. One of the stars of OLC was a cocky young lawyer named John Yoo. After 9/11, Yoo began writing opinions giving the administration exceptional latitude to fight terrorism. Yoo's memos were used to justify both the secret eavesdropping program, which for the first time allowed the government to listen in on American citizens without obtaining a court warrant, and aggressive interrogation methods, like water boarding.

While easygoing and congenial on the surface, Yoo was a fierce bureaucratic infighter with a penchant for circumventing his superiors. Though all the top officials at Justice were conservative Republicans, Yoo seemed to regard them as political dolts. "He had this calm, unruffled, almost 'devil may care' attitude when he talked about issues that were extraordinarily sensitive," recalled a former Justice Department official. "He would sort of come flying by your office and say things like, 'We've done a little analysis, it's no big deal'." Only later, the official said, would he discover that Yoo had sent the White House an opinion authorizing some sweeping new—and constitutionally dubious—program.

Yoo was increasingly seen as a rogue operator inside the Justice Department. Officials were suspicious of his ties to David Addington, counsel to Vice President Cheney. The vice president's office took a hard-line view that the executive branch should not be trammeled in the war on terror by legislators and bureaucrats. Yoo was "out of control," recalled a former Ashcroft aide. Almost without exception, this conflict stayed behind closed doors. (Yoo declined to respond on the record, but he has told others that Ashcroft was fully briefed by him and approved his memos, and that his critics are now engaged in creative "Monday-morning quarterbacking."

The article goes on to say that when there was a vacancy to head the Office of Legal Counsel, Abu Gonzales wanted Yoo to fill the slot but former A.G. Ashcroft opposed the move because of Yoo's "renegade" status. Ashcroft prevailed and Yoo was not chosen to head the OLC.

After the Yoo showdown, Ashcroft aides began taking a closer look at Yoo's "carte blanche memos" written to justify surveillance and torture and became convinced they were not legally supportable (these Ashcroft aides, btw, were all card-carrying conservatives - one of them had clerked for Justice Clarence Thomas):

"This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line."

Interestingly enough, former Gonzales aide Monica Goodling used the exact same phrase ("crossed the line") when she testified before the Congress last week and admitted she had hired career DOJ employees on the basis of their right politics. But the Newsweek article makes clear that these instances of "line-crossing" seemed to have been okayed at the highest levels of the administration. Take Abu Gonzales' and Andy Card's midnight visit to Ashcroft's hospital bedroom to get a very ill and delirious Ashcroft to sigh off on the warrantless wiretapping program:

Bush's role has remained shadowy throughout the controversy over the eavesdropping program. But there are strong suggestions that he was an active presence. On the night after Ashcroft's operation, as Ashcroft lay groggy in his bed, his wife, Janet, took a phone call. It was Andy Card, asking if he could come over with Gonzales to speak to the attorney general. Mrs. Ashcroft said no, her husband was too sick for visitors. The phone rang again, and this time Mrs. Ashcroft acquiesced to a visit from the White House officials. Who was the second caller, one with enough power to persuade Mrs. Ashcroft to relent? The former Ashcroft aide who described this scene would not say, but senior DOJ officials had little doubt who it was—the president. (The White House would not comment on the president's role.) Ashcroft's chief of staff, David Ayres, then called Comey, Ashcroft's deputy, to warn him that the White House duo was on the way. With an FBI escort, Comey raced to the hospital to try to stop them, but Ashcroft himself was strong enough to turn down his White House visitors' request.

After Gonzales' and Card's trip to Ashcroft's hospital room, the entire braintrust of the DOJ as well as FBI director Mueller were going to resign over the warrentless wiretapping program until Bush reluctantly agreed with deputy A.G. Comey and Mueller to "bring the eavesdropping program back inside the boundaries of the law." A former senior DOJ official told Newsweek "This was a showdown...Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were."

So did Bush. Newsweek says he knew he couldn't afford to lose his FBI Director nor could he afford to lose the rest of the Justice Department leadership over a matter of principle in an election year. That was the only reason why he relented on the program.

Gonzogate continues to smoulder on low-burn and the White House continues to try and obstruct the investigations into both the Prosecutor Purge scandal and the midnight ride of Alberto Gonzales (as Keith Olbermann calls it.) Nonetheless, we are slowly learning that somebody at a pretty high level of the administration had to sign off on the "rogue operators" like Yoo and all the "crossing of the lines" that was happening around the surveillance and torture programs. Circumstantial evidence suggests that someone was at least as high as Karl Rove and more than likely the preznut himself.

I have never thought pushing this preznut's impeachment was a good idea either politically for Democrats or constitutionally for the country. But given the rottenness at the core of this administration, given the absolute disregard Bush, Cheney, Rove et al. have for the rule of law, given the relish with which they have circumvented the constitution, consolidated power for themselves and irrevocably harmed the reputation and the status of the United States abroad, I am starting to rethink my position.

Indeed, if it is found that the true "rogue operator" behind all the legal and constitutional line-crossing is Barbara's little boy, then I think we may have no choice but to pursue a course of impeachment.

We'll see. We're not there yet. We may not get there either, as this White House is quite adept at stonewalling (even as their adept at little else.) But it seems to me that's where we're heading.