In a recent Wall Street Journal, the former Department of Justice official responsible for helping the Bush administration authorize warrantless wiretapping for and against U.S. citizens broke his self-imposed omerta to offer a rhetorical defense of his pet policy. I say “rhetorical” rather than “ethical,” “legal,” or “logical” only because Yoo’s argument relies largely on a cursory sampling of verbiage on executive power, from Locke to FDR by way of Alexander Hamilton. As an attorney, it is of course understandable that Yoo’s standard of proof should be dependent on what might be thought of as precedent, and as a student of English literatures and language, I should be pleased to see what is normally referred to as “close reading” penetrating even the highest levels of government. And yet there’s something marginally unsettling about Yoo’s piecemeal justification, which, it goes without saying, concludes that “we should be skeptical of those who insist that we radically change the way this country has always made war.”
For anyone who missed it, the key word in that quotation is “always,” and to shore up his claim, Yoo embarks upon his aforementioned tour of pre-revolutionary British philosophers. The bulk of his claim, however, is wedded to a lengthy and uncited quotation from Alexander Hamilton’s Federalist No. 23, which, as Yoo holds, has it that:
“The power to protect the nation, said Alexander Hamilton in the Federalist, ‘ought to exist without limitation,’ because ‘it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them…’”
So much for my renewed confidence in close reading. Anyone familiar with academic citation will note Yoo’s curious reluctance to quote the first half of Hamilton’s statement directly. That’s because Hamilton isn’t espousing “the power to protect the nation.” As it was actually written in 1787, No. 23 actually reads, verbatim: “The authorities essential to the care of the common defence are these–to raise armies–to build and equip fleets–to prescribe rules for the government of both–to direct their operations–to provide for their support. These powers ought to exist without limitation” [emphasis obviously mine]. Hamilton’s original claim is that a nation’s common defense rests on the ability of an executive to coordinate military action; our first Secretary of the Treasury is arguing for the very necessity of a commander-in-chief, not advocating the primacy of an omnipotent executive (let’s remember that the Federalist Papers were designed to persuade the populace that a federal government wouldn’t just prove a backwards step towards unilateral monarchy). Yoo’s intrinsic claim, that unchecked surveillance of a civilian population is somehow covered by the imperative “to provide for [the] support [of armies and fleets]” is illogical. It would actually (and mind-bogglingly) prove easier to argue that the best interests of America’s armies would be served by allowing federal troops to be quartered in private homes…and yet this supposed mandate is one obviously invalidated by the Third Amendment.
Part of Yoo’s difficulty is that his argument is marginally bi-polar, with a myopic concern for precedent and history tempered by an incompatible conviction that contrary claims are invalid precisely because they are antiquated. In discussing FISA, Yoo holds that “President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind.” To wit, then, a law passed in 1973 ought to be ignored because it fails to account for present day circumstances, and yet our domestic policy ought to be dictated by a two hundred and twenty year old pamphlet that addresses a different issue altogether.
Yoo’s oversight, his apparent unwillingness to actually read Hamilton in toto, seems almost dispiriting for its comprehensive ability to compromise the entire practice of quotation itself. We, as responsible members of society, as academics, as lawyers, as whomever, rely upon quotation under the assumption that a man’s spoken or written testimony actually reflects something about the material world, or about the instance that its speaker happens to inhabit. John Yoo deploys the Hamilton quotation only because it is immediately useful: “Here’s one of our founding father’s kinda, sorta, indirectly advocating something that I’m partially responsible for!” But wasn’t Alexander Hamilton the same man who gave us the National Bank, a federal credit system so violently opposed by Andrew Jackson (likely the most comparably populist president to George W. Bush) that he devoted his presidency to attempting to kill it? If this were a conversation about the economy and not homeland security, quoting Hamilton would be anathema to Yoo and his ilk. If this were a discussion about government oversight of economic activities, then we’d be more likely to see Aaron Burr emerge the hero of Yoo’s story. Secretary Hamilton is only invoked here when the penumbras and emanations stemming from his words can be distorted to the most expedient end.
But then again, maybe that isn’t so unusual. After all, John Yoo and Co. are the same folks who are willing to air their grievances in the Wall Street Journal and yet absolutely refuse to have a sworn statement taken by Congress. If we can pick and choose our forums, why not our quotations?
Lowered Case 