“Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case?” CitizenLink quotes Yoo writing on the matter. “Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).”

CitizenLink identifies Yoo only as “a law professor at the University of California at Berkley, who is well known in legal circles for advocating executive power.”

Yoo is perhaps one of the most controversial figures in U.S. legal history. His torture memos were eventually disavowed by the Bush justice department. The Office of Legal Counsel where Yoo worked repudiated them as unsound and dangerous. After a five year inquiry, the department’s Office of Professional Responsibility reported that Yoo had “committed intentional professional misconduct when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques…” During the inquiry, Yoo told investigators the “president… had the constitutional power to order a village to be ‘massacred.’” Three years ago, Spanish Judge Baltasar Garzón Real launched an investigation of Yoo for war crimes.

By contrast, the Obama appointments this week can be seen in context less as any kind of historic overstep and more as just another strategic move in a Capitol Hill chess game.

The appointments come after three years of deep congressional dysfunction and after the president in recent months vowed to act where he can to use executive orders to bypass congressional obstructionism.

“We’re not going to wait for Congress… Where they won’t act, I will, through a series of executive orders… We’re going to look every day to see what we can do without Congress,” he told a crowd in October gathered on the downtown Denver Auraria Campus.

The argument against the appointments is that the Senate was not in fact in recess when Obama made them. The White House says the Senate was “in session” in name only, opening up for do-nothing 30 second meetings in order mainly to keep the president from appointing Cordray to head the two-year-old leaderless Consumer Financial Protection Bureau (CPFB), which was created by Congress over the objection of bank lobbyists to protect credit card holders, for example, from gouging interest rates and fees.

Republican senators have for months blocked confirmation of Cordray, who is a Republican and a former attorney general of Ohio. The senators say they do not object to Cordray but only to how the CPFB is organized. Its financing, for example, comes from the Federal Reserve, which means Congress can’t influence the agency by controlling its budget. Yet, in two years, none of the senators have introduced legislation to rework the CPFB, leading most observers to conclude that, on one hand, the Republicans, acting on behalf of the banks, don’t want the bureau to ever functionally exert its regulatory mission and, on the other, don’t want to go on record with that stand in an election year where the commitment of lawmakers to represent the interests of their constituents instead of the interests of corporations is being seriously called into question.

Jon Stewart on Thursday laid out the controversy in typical succinct and damning fashion:

“I think of myself as being West Berlin during the Cold War, a shining beacon of capitalism and democracy surrounded by a sea of Marxism,” Yoo observes, sipping iced tea in the faculty club lounge, a wan smile registering the discomfort of colleagues walking by en route to the bar.

He sees his neighbors as the human figures of “a natural history museum of the 1960s,” the Telegraph Avenue tableau of a graying, long-haired, pot-smoking counterculture stuck in the ideology’s half-century-old heyday.

“It’s like looking at the panoramic displays of troglodytes sitting around the campfire with their clubs. Here, it’s tie-dye and marijuana. It’s just like the 1960s, with the Vietnam War still to protest.”

Troglodytes!

John C. Yoo, the former Justice official whose memorandums on torture and presidential power were used to justify some of the most controversial policies of the Bush administration, said he had not seen the material from Ms. Cheney’s group. But Professor Yoo, who now teaches at the University of California, Berkeley, and is active in the Federalist Society, said the debate about lawyers who once represented detainees at the American prison in Guantánamo Bay serving in the Justice Department was overheated.

“What’s the big whoop?” he asked. “The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.” He said, “He can and should put people into office who share his views.” Once the American people know who the policy makers are, he said, “they can decide whether they agree with him or not.”

Chances are, when Liz Cheney thinks she needs a civics lesson, Yoo would be the guy she’d call… Dave, how many conservative lawyers have come out against the slander of Justice Department lawyers who represented Guantanamo detainees now?

The twelfth [interrogation] technique–which Mitchell and Jessen wanted approved but which Yoo excluded because of the rush to approve waterboarding–is mock burial.

There must have been significant discussion about the decision to exclude mock burial from the Bybee Two memo, because the reference to its exclusion in the report itself (PDF page 60 in the Final Report) includes a page and a half of redactions following the discussion of leaving it out.

We learned last year that the mysterious eleventh technique was prolonged diapering, thanks to the disclosure of the 2004 CIA inspector-general’s report into interrogation and detention. Wheeler’s discovery completes the list of what these two torture enthusiasts advocated.

Recall that it came out last year that in a classified August 2002 memoranda, Yoo and Bybee approved such tortures to captured al-Qaeda detainee Abu Zubaydah as placing insects inside a “confinement box” along with the detainee, who was to be led to believe the insects were poisonous. They concluded such a move wouldn’t be torture. Here’s a snippet of how they reached such a conclusion. They use the bizarre nickname “Boo-Boo” for Abu Zubaydah:

On June 30 [2002], Yoo asked [NAME REDACTED] by email, “[D]o we know if Boo-boo is allergic to certain insects?” [NAME REDACTED] replied, “No idea, but I’ll check with [NAME REDACTED]” Although there is no record of a reply by [NAME REDACTED] the final version of the classified Bybee memo included the following, “Further, you have informed us that you are not aware that Zubaydah has any allergies to insects.”

These were grown men sworn to uphold the law.

Both Yoo, now a Berkeley law professor, and Bybee, a federal judge, object to several findings listed in the report.

Update, 7:48 a.m., Feb. 20: My apologies for a hasty initial misread. Justice Department ethics officials found that Yoo and Bybee were professionally negligent, but OPR itself — while still treating their work harshly — found their misconduct didn’t rise to that standard.

An individual who voluntarily “enter[s], or serv[es] in, the armed forces of a foreign state” (13) may be expatriated, “if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer.” 8 U.S.C. § 1481(a)(3). Nonetheless, no person may be expatriated unless he acts “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). That said, although the performance of an expatriating act cannot be used as “the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen,” such conduct “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Terrazas, 444 U.S. at 261 (quotations omitted).

Voluntary service in a foreign armed force that is engaged in hostilities against the United States has frequently been viewed as a particularly strong manifestation of an intention to abandon citizenship. As Attorney General Clark once opined, “it is highly persuasive evidence, to say the least, of an intent to abandon United States citizenship if one enlists voluntarily in the armed forces of a foreign government engaged in hostilities against the United States.” 42 Op. Att’y Gen. at 401. See also 22 C.F.R. § 50.40(a) (although “intent to retain U.S. citizenship will be presumed” when an individual “naturalize[s] in a foreign country” or “take[s] a routine oath of allegiance,” no such presumption is provided “[i]n other loss of nationality cases”).

So a couple of things here. First, al-Qaeda isn’t the agent of any state, so it’s unclear whether al-Qaeda would fall into this framework. Second, even if it does, al-Awlaki is not necessarily a member of al-Qaeda. Third, at the time Yoo wrote this memo, the Bush administration had three American citizens in its custody that it contended were agents of either al-Qaeda or the Taliban: Yaser Hamdi, Jose Padilla and John Walker Lindh. (Hamdi later claimed to renounce his citizenship.) And it did not claim any of them implicitly renounced their citizenship. While I think Yoo’s 2002 memo is technically still operative, it hasn’t been a guide to either the Bush or Obama administration’s behavior. I’m referencing it just to show that the citizenship-and-counterterrorism question has been around for years now.

Yoo’s being pretty disingenuous here. The August 1, 2002 OLC memo on torture isn’t about perishable circumstances shortly after 9/11. It’s about the scope of executive power — and exclusive, inherent executive power. Yoo tells Stewart that Congress or the courts could rein in a rogue president on his conduct of a war. Yet his consistent view, as expressed in the memo, is that there’s pretty much nothing Congress can do during wartime short of cutting off funding, a politically extreme step.

Maybe people should give Yoo credit for picking his speaking venues.

Former Department of Justice official and torture memo author John Yoo will be on The Daily Show with Jon Stewart on Monday to promote his new book, according to the show’s website.

Yoo is not a nincompoop like Jim Cramer. He knows what he’s getting into. Stewart is going to have to go hard. May I make a suggestion?

Max Boot writes in his blurb for the book that it’s “not the work of some wild-eyed zealot,” but the book is clearly another of Yoo’s attempts to defend his more extreme legal theories, including those that have been roundly criticized by prominent Republicans who served in the Bush administration. Many of those theories — such as the executive’s right to authorize torture and to detain terror suspects indefinitely — are responsible for some of the worst conundrums that President Obama finds himself in today.

Whether cast as Hamiltonian or Machiavellian, Yoo’s point is that “great” presidents have always interpreted their powers broadly in times of crisis, and pesky critics at the time always denounced them for breaking the law. To illustrate this, Yoo rolls out the usual examples — Abraham Lincoln suspending habeas corpus during the Civil War, and Franklin Delano Roosevelt interning the Japanese during World War II.

Although careful not to call George W. Bush a “great” or even “above-average” president, Yoo argues that Bush’s decisions to suspend habeas corpus, use “coercive interrogation methods” (Yoo never uses the word torture) and indefinitely detain without charge “al Qaeda terrorists” (actually, terror suspects) were all simply par for the course — the actions any decent president would take under the circumstances. In Yoo’s view, this is not presidential lawbreaking, even if the president’s actions do violate existing laws. Rather, Yoo argues, the Constitution accommodates such lawbreaking — what Yoo calls “the need to respond to extraordinary events through the President’s executive power” — which apparently is limitless.

This is how, at the Office of Legal Counsel, Yoo managed to advise the president that he could ignore the legal bans on torture and even the Bill of Rights on U.S. soil. It’s too soon to know if that was wrong, Yoo says, since we’re still confronting the terrorist threat. “Only when we have the benefit of distance will we know whether Bush’s aggressive use of executive authority was too much, too little, or just right,” he writes, so complaints about torture and warrantless wiretapping are little more than Monday-morning quarterbacking.

It’s worth remembering that Yoo, now a law professor at University of California – Berkeley, is the subject of a still-unreleased ethics investigation as well as a pending lawsuit, both of which address charges that he not only misconstrued the law but was actively involved in breaking it. His aggressive defense of limitless executive authority sounds even shadier when read in that light.

But Yoo is at his most disingenuous when he criticizes President Obama. In his afterword, Yoo writes that under Obama’s executive orders, the CIA now must conduct interrogations according to the rules of the Army Field Manual — which “amounts to requiring — on penalty of prosecution — that CIA interrogators be polite.”

In fact, the Army Field Manual allows for prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners, as the Center for Constitutional Rights and others have noted. These can be used in combination, and can cause, as former Bush appointees and a congressional investigation have found, long-lasting psychological and physical harm.

Nonetheless, doing away with “the Bush system” means “we will get little timely information from captured al Qaeda terrorists,” Yoo asserts, especially if Obama allows them trials in federal court.

Yoo’s book was released too soon for his own good. Within just the last two weeks we’ve learned that an al-Qaeda terror suspect who tries to blow up a plane can be captured, arrested, charged in federal court and promptly provide information about others planning similar attacks on U.S. targets.

If Yoo’s views weren’t already thoroughly discredited, that last section of his book does the job — which just goes to show that Professor Yoo really should have stayed in academia. Yoo may have good stories to tell about the theories of executive power at work under Madison, Truman and Roosevelt, but when he applies theory to practice he fails miserably. Unfortunately, that’s not just a problem for his publisher. The entire nation is suffering for it now.

Casting himself as a lowly functionary in the administration with less access to the president than an intern, Yoo — now a Berkeley professor who frequently faces protests from students who say he’s responsible for the Bush administration’s torture policies — says he was just following orders.

Of those torture papers, he says: “I had to write them. It was my job. As a lawyer, I had a client. The client needed a legal question answered.”

His parents, he tells Solomon when she asks about his childhood, were both psychiatrists. Not that he’s in denial or anything.