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Published on April 4th, 2011 | by Daniel Luban7
John Yoo’s Chickens Come Home to Roost
The denizens of National Review’s Corner are very, very upset about a recent suggestion by Senator Lindsey Graham (R-SC) that the First Amendment should be limited at home in accordance with the security demands of America’s various foreign wars. Graham was responding to the public burning of a Koran by Florida pastor Terry Jones, which prompted riots in Afghanistan that have so far killed a total of 24 people; in response, Graham argued that “free speech is a great idea, but we’re in a war.” For Mark Steyn, Andy McCarthy, and Andrew Stuttaford, this is proof on the ongoing collapse of confidence in the West. “In the absence of cultural confidence at home,” Steyn writes, “we are sending the message that the bedrock principles of free, pluralist societies will bend and crumble in a vain race to keep up with the ever touchier sensitivities of the perpetually aggrieved.”
As it happens, I agree with the Corner-ites’ opposition to Graham’s proposal, if not their hysteria about the ongoing Islamization of the West. But it’s worth looking a little more closely at the logic of Graham’s proposal. Graham and his close ally John McCain have frequently tried to cast themselves as a “vital center” on issues of torture and civil liberties, but in fact they have proved themselves to be reliably right-wing on these issues; in particular, Graham has been a vocal opponent of civilian trials for terror suspects and of accountability for Bush-era officials involved in the torture of detainees. His belief that the First Amendment might have to be sacrificed in the name of the war on terror is not some out-of-character lapse of cultural confidence; rather, it’s of a piece with his generally stated view that fighting terror should take precedence over civil liberties at home.
Steyn and McCarthy profess to be shocked — shocked! — that the Bill of Rights might be abridged for American citizens as a result of what’s going on “over there.” But in fact, Graham’s proposal is rather mild compared to the views of, say, John Yoo, who suggested in a notorious October 2001 memo [PDF] that the President during wartime can override the Fourth Amendment — and by implication, the entirety of the Bill of Rights — at will, provided he deems it necessary for the war effort. (Graham at least seemed to be proposing that the First Amendment should be restricted through legislation rather than presidential fiat.) Of course, Yoo’s analysis has since been repudiated by the Justice Department, and he was later reprimanded by an internal Justice Department report investigating his conduct during the Bush years. But since leaving the Bush administration he’s been welcomed with open arms by the American right — not least, National Review, which has brought him on board as a contributor along with Steyn, McCarthy, and Stuttaford. If Steyn and McCarthy, at least, have expressed any misgivings about Yoo’s analysis, I haven’t seen them. (Stuttaford is more reliably libertarian.)
Like much of the American right, Steyn and McCarthy seem to have no objection to rescinding the constitutional rights of American citizens provided it only happens to “them” (brown people with funny names) and not to “us” (nice, patriotic white people). They might want to consider, however, whether this is really a tenable line — or whether, as Graham’s proposal suggests, the slope is more slippery than they would allow.