Posted by Craig J. Albert
Today's New York Times reprints a lengthy 2001 memo from John Yoo to Alberto Gonzales on the subject of the application of certain treaties and domestic laws to the conduct of the war in Afghanistan. We can discuss the content on another day, but I would like to point out an early gem. Yoo writes, on page 17, "Nonetheless, the President has the constitutional authority to determine that Afghanistan is a 'failed State,' so that the Conventions are currently inoperative as to that country." Hmmm, I think that needs some kind of citation to some kind of authority. Oh, wait, look, there's a footnote. Footnote: John Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, California Law Review 2001.
Hey, wait a second! Surely Yoo isn't citing himself as the only authority for this idea that the President can decide that another nation is in such bad shape that it wouldn't be able to carry out its treaty obligations, so as to allow us to ignore our obligations under that treaty. If I look at that well-researched, comprehensive law review article (written in the same year as the memo), then surely there will be a further and deeper analysis, right? No, no such luck. It's actually a book review (to show that Yoo has read a book), but there's no authority whatsoever for the cited proposition. So, it's Yoo on Yoo.