John Yoo and the Whiskey Rebellion

I was interested to see John Yoo citing my book The Whiskey Rebellion in his recent Crisis and CommandAuthor of the notorious Bush-administration “torture memo,” and now a law professor at Berkeley, Yoo is using his book to defend Bush’s ruthless efforts to expand executive-branch power. Seeking precedent in earlier expansions, under conditions of national threat that Yoo takes to be similar to those posed by Islamic terrorism, he looks specifically to Jefferson, Jackson, Lincoln, FDR, and, of course, Washington.

Which brings him to The Whiskey Rebellion.

Readers will recall (or possibly not…!) that in 1794, Washington personally led nearly 13,000 troops into western Pennsylvania to put down the populist secessionist uprising known, dismissively, as the Whiskey Rebellion. It was late summer, and Congress wasn’t in session, so Washington operated under a provision of the militia act — recently promoted by his adminstration, in contemplation of just such an event — that allowed him, under those conditions, to call out state militias on his own authority with no representative oversight. A huge federal force thus occupied western Pennsylvania; extracted forced loyalty oaths; made late-night, door-kicking mass arrests of hundreds of people, against whom the government knew it had no evidence; detained many innocent people indefinitely without charge, in deliberately awful conditions; and pressured those detainees to give false evidence against the administration’s political enemies.

It was our founding moment in establishing national sovereignty, and Yoo claims that Washington’s activities in response to the Whiskey Rebellion give founding-era precedent for later, controversial assertions of extreme executive force, like Bush’s.

Yoo is right.  Or, more accurately, Yoo’s reading of the first president’s behavior during the crisis in western Pennsylvania tracks closely with mine. What Yoo appears to find exciting, inspiring, and rectifying I find troubling and painful — but we’re not in disagreement about what the Washington adminstration was up to during the Whiskey Rebellion.

Yoo and I thus dissent from a prevailing liberal notion that aggressive overreaching by the Bush administration was a nearly unique violation of long traditions of executive-branch restraint, supposedly broken before only by dark, aberrant figures like Richard Nixon. The Whiskey Rebellion actually shows our great American Cincinnatus, republican titan, rightly called “the indispensible man,” launching the whole American venture by giving George W. Bush all kinds of historical precedent for acting illegally. It’s quite easy to argue that without Washington’s disregard for law in 1794, the new nation would have collapsed.

That nasty fact, which is what The Whiskey Rebellion is really about, runs counter to the view of another person out in the real world who has also cited my book: Gaillard T. Hunt, lawyer for the Guantanamo detainee Saifullah Paracha, a Pakistani businessman held under horrible circumstances in what is surely a gross injustice. Hunt cites me in support of one of the many briefs he filed in federal court on Paracha’s behalf (that particular brief is no longer to be found on the Web, strangely; Hunt and I had a somewhat testy interaction over it back in ’06 or ’07). As I remember it, one of Hunt’s pleas in that brief was for respecting the writ of habeas corpus, one of the oldest elements in our longstanding traditions of liberty and personal security, placing judicial controls over government imprisonment: charge a person with a crime, that is, and then try him for it, or turn him loose.

Hunt traced presidential regard for habeas corpus back through Lincoln (who did get the writ suspended, but did so the appropriate way, by asking Congress to do it) to Washington, who, Hunt argued, showed non-Bushlike restraint because he never even tried to suspend habeas corpus, even during suppression of the Whiskey Rebellion.

Lawyers may want to correct me, but it seems to me that to hold people indefinitely without charging them, as he did in 1794 and 1795, Washington should have suspended habeas corpus — that is, asked Congress to suspend it, as Lincoln did during a crisis far worse than either the Whiskey Rebellion or the Islamic terrorists’ attacks. Washington actually had a good argument for suspension. The Constitution is not always, shall we say, crystal clear, but there’s little question of what it means to say about habeas corpus, which may be suspended by Congress in case of invasion (not war, as Bush kept implying) or insurrection.

Washington was facing an insurrection. Yet he avoided making any contact with Congress, in order to do just what he wanted, on astonishingly shabby and cavalier legal advice of his treasury secretary Alexander Hamilton (who had his own urgent reasons for wanting the suppression to come off) and Hamilton’s equally cagey acolyte, the attorney general William Bradford. Seeking a shining precedent for executive restraint (or even mere compliance with the law) in Washington’s behavior during the Whiskey Rebellion is bootless.

Hunt’s cause is more admirable than any I’ve got. Still, in that brief, he made the kind of mushy historical argument that enables a Yoo to wave away regard for habeas corpus, and for other critical rights, as goo-goo-eyed liberal romanticism. In the first internal crisis we faced, the executive branch showed utter disregard not just for the Constitution but also for legal traditions going back farther than Magna Carta, on which parts of the Constitution are based. People like Yoo and Hamilton insist that sometimes a president’s gotta do what a president’s gotta do.

And liberals may have a harder time disagreeing with that than they let on. Programs they love depend, some have argued persuasively, on FDR’s own kind of executive overreaching in the New Deal. We applaud a take-charge presidential attitude when it gets us what we want by way of policy; when the other side goes too far, we scream “unconstitutional!” Congress never liked acting on its responsibilities (something else that became painfully clear to me when researching The Whiskey Rebellion). In fact, Congress fairly formally abdicated responsibility, in favor of the president, in 1933 , and never took it back, as this very interesting post-Watergate Senate committee report argues. But that’s often worked out well for liberals. Lyndon Johnson probably actively broke the law only when he was prosecuting the war in Vietnam — but he wasn’t exactly a shrinking violet about getting the Civil Rights Act passed, either.

Anyway, being cited in unexpected places, a new experience for me, is both fun and unsettling, as this post probably reveals. Hunt may of course be right and I wrong, but he shouldn’t cite my book to prove his point in court: my book, right or wrong, says he’s wrong. And Yoo hasn’t really read my book. He just gives it the usual fake endnote, reeking of a research assistant’s abuse of Google: “the standard scholarly source is Slaughter, and a journalistic treatment from Hogeland came out in ’06, etc., etc.” Gordon Wood, in notes to Empire of Liberty, also calls The Whiskey Rebellion “journalistic.” Gee, thanks.

They mean it’s not academic. It’s not, I’m happy to say. (I do my own research, for one thing.) Still, The Whiskey Rebellion corrects the record, using primary sources, in a number of key instances called out in my notes. It dissents from and concurs with other work on the Rebellion, again citing primary sources. So just because it’s a good story doesn’t mean it’s not history! Or so, anyway, I keep trying to insist …

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