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Torture memo author attacks Kagan for admiring Israeli judge ‘advancing democracy’

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Former Justice Department attorney John Yoo, the author of controversial memos which attempted to justify torture during the Bush administration, is attacking Supreme Court nominee Elena Kagan because of her admiration for an Israeli judge who believes in “advancing democracy.”

“Robert Bork’s criticism of Elena Kagan—for her admiration of Chief Justice Aharon Barak of the Israeli Supreme Court—is well-founded,” Yoo writes in a short blog at his American Enterprise Institute.

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At Capital J, a nonpartisan news website for diaspora Jews, Ami Eden writes,

Robert Bork has taken center stage in the brewing fight over the Supreme Court nomination of Elena Kagan. Ronald Reagan’s failed court nominee is making hey over the fact that as Harvard Law School dean Kagan once introduced former Israeli Chief Justice Aharon Barak as “my judicial hero.” (She proceeded to say he “is the judge who has best advanced democracy, human rights, the rule of law, and justice.”)

On a conference call this week, Bork told reporters, “It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do. That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I’ve said before, Barak might be the least competent judge on the planet.”

According to JTA’s Eden, Barak is “exactly the kind of judge that drives the Borks of the world crazy.”

Yoo complains, “Barak is the poster child for judicial activism. Barak has brazenly pushed the power of the Court to the point where it reviews the use of lethal force to target terrorist leaders, hears cases brought by human rights groups against the Israeli intelligence agencies and their detention and interrogation policies, and even directs the Israeli government where the wall along the Palestinian territory should run.”

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Perhaps not surprisingly, Yoo’s next line is a bit vague and tough to interpret: “All of this without anything like an American-style written Constitution!”

It’s unclear if Yoo is attacking the US Constitution for allowing too much leeway or being too Democratic; or claiming that Barak bases his decisions on a constitution that Israel doesn’t recognize; or perhaps suggesting that no comparable checks and balances system exists for the judge to make such moves; or that there is no way to overturn them.

Regardless, it’s a curious thing for a former Justice Department official who has been accused of circumventing the US Constitution to write.

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Yoo adds, “And Barak is not shy about what he is doing—he has openly said that he believes his job is not interpreting Israeli law, but doing ‘justice’ and advancing democracy, despite his lack of any constitutional warrant.”


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