Rush to Judgement

In his review of Stephen Knott's Rush to Judgment: George W. Bush, the War on Terror, and His Critics, John Yoo, of course himself being the center of much of the controversy during the Bush Administration's War of Terror, agrees with Knott on the inconsistency of those who savaged Bush and said he was mangling the Constitution and are now silent during the Obama Administration's continuance or extension of many of the same policies.  Yoo argues that in order to get past the partisan fights of today, we must recognize the inherent power of the executive and role of the prerogative:

But strip away the partisanship and exaggerated rhetoric, and their mistake is their willing blindness to the deep well of executive authority that underlay the extraordinary measures taken in response to the September 11, 2001 terrorist attacks. The author of earlier works on Hamilton and on covert action, Knott makes plain what CRB readers know all too well: presidential power, in an emergency, engages the long debate over the place of the prerogative in the American Constitution. Presidents have exercised something like the prerogative—the ability to act in the silence of, or even contrary to, written law—throughout American history. Thomas Jefferson purchased Louisiana from Napoleon even while believing the Constitution required an amendment to legalize the acquisition of territory with the potential to become new states. After the firing on Fort Sumter, Lincoln raised an army and navy, withdrew money from the Treasury, and suspended habeas corpus without Congress's authorization. FDR extended aid to Great Britain in the face of the Neutrality Acts before U.S. entry into World War II.

This nicely sums up the problem with the critics:

Knott finds frustrating not only that academics give Bush little credit for protecting the homeland, but also that they remain openly and notoriously inconsistent in their criticism. Bush may have ordered the waterboarding of three al-Qaeda leaders, for which some presidential scholars believed the heavens would fall. Obama, by contrast, has used drones to kill hundreds of al-Qaeda leaders and sometimes innocent family members and bystanders—a greater deprivation of the human rights of many more people. Bush's academic critics raised nary a peep in protest. Scholars claimed that Guantanamo Bay amounted to some kind of legal black hole, rather than a prisoner-of-war camp over which military, not civilian, rules normally apply. Several of these critics have served in an administration that has kept Guantanamo open and continued a policy of detention without trial for enemy combatants. Even the dreaded signing statements, by which Bush allegedly circumvented the Constitution, have been resurrected by his successor. The faculty lounges, somehow, are not abuzz this time.