…reasoning from the conclusion.

Indeed. Just as he was specifically selected to do by Cheney and Addington.

Yoo rejects any argument the Government and Regulation clause can limit the president’s ability to determine the treatment of military prisoners only by reasoning from the conclusion. See p. 13, fn. 13. He admits that the Supreme Court in Ex Parte Quirin “identified and reserved” the issue of whether Congress could use this power to regulate military commissions–the Court there held that Congress had authorized the military commissions in issue. But his office, knowing better than the Court, has determined that Congress could not. If Congress could regulate military commissions, then the President would not have plenary power. But the president must have plenary power, so logically the Congress cannot regulate military commissions, or for that matter detainee abuse.

Even worse is the failure to discuss Congress’s power to define offenses against the laws of nations. The courts have found in this clause Congress’s authority to declare the law of war, including the law on detaining prisoners. But, when the president has extra-constitutional power, Congress’s constitutionally enumerated power is irrelevant.

Thus, earlier in this current armed conflict against the al Qaeda terrorist network, we concluded that “[t]he power of the President is at its zenith under the Constitution when-the President is directing military operations of the anned forces.” Flanigan Memorandum at 3.

Compare that with this description of Youngstown Sheet and Steel:

Jackson’s concurring opinion has garnered much attention from constitutional scholars and is the most frequently cited opinion in Youngstown Sheet & Tube. Jackson articulated an overarching theory of federal executive power in the United States. According to Jackson, there are three tiers of presidential authority. When a president acts in conjunction with Congress, Jackson wrote, executive power is at its zenith because the president may rely on his own authority plus that of the legislative branch.

Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress has never attempted to restrict or interfere with the President’s authority on this score. ld.

The id. refers to an earlier memo on the right of the president to transfer prisoners to foreign nations.

http://www.slate.com/features/…..Memos.html

He figures Chertoff was involved in this process.

It’s just not often that the lawyers get to write a memo that allows them th luxury of violating the laws and breaking the rules and not having to worry about any reprucussions because they so own the system. Even that happens in a sense (we all know places where not only do you need local counsel, you need the one right guy as your local counsel) but I still find what has been done by the DOJ shocking – despite being mostly a cynic, I get shocked by it all, over and over.

A cross-post irt EOH’s post @ 49 would be a great idea. We need framing for this twisted reality we are in…

As Glenn’s book climbs th NYT’s bestseller’s list, it’s too bad an insert with “framing” on U-E and war crimes could not be put into the book as a bookmark…

Like Christy’s idea of t-shirts with a bold “Youngstown” on it…

bmaz, nice to recognize again wysiwyg was one of Flip’s aphorisms.