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.

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Daniel Luban

Daniel Luban is a postdoctoral associate at Yale University. He holds a PhD in politics from the University of Chicago and was formerly a correspondent in the Washington bureau of Inter Press Service.



  1. @Sean: I’ve read that Greenwald piece before, and while it certainly is a damning critique of many of Steyn’s fellow travelers, I don’t think it’s exactly on point when it comes to Steyn himself.

    Glenn’s certainly right that much of the “Mark Steyn Right” conveniently forgets about free speech for Muslims and those on the left, but there’s a big difference between Steyn and his followers here. Unlike, say Jonah Goldberg, Steyn regularly reminds his readers that free speech has to be extended to one’s ideological opponents as well as one’s friends, and doesn’t try to weasel out of this by claiming that his opponents are inciting violence. So, while I agree with Glenn’s basic point that many conservatives cynically use free speech as a tool to advance an agenda, I don’t think Steyn’s guilty of that. Perhaps it’s because he began as a satirist, but I think he genuinely wants everyone to speak openly, so that he can then mock those he disagrees with.

    Anyway, I can see why you might be disappointed in Steyn’s record on free speech during the Bush years (there sure was a lot of mockable material that Steyn ignored there), but in this case, I’d take him seriously.

  2. @Nitpicker: True, but why is that relevant? Can’t I support the idea of a right to free speech, but not support the idea of a right to bear arms?

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