From The Washington Post
John Yoo deserves much credit for helping open up a secretive subject for public discussion, even when it has meant unpleasantness for himself. As the apparent author of many of the Bush administration's post-9/11 policies, including those that authorize the National Security Agency (NSA) to violate the wiretap statute and strip Geneva Convention protections from anyone suspected of affiliation with al Qaeda and the Taliban, Yoo lives in a firestorm. In the past few months alone, international lawyers have called for his criminal indictment, students have broken into his classroom at Berkeley (where the former deputy assistant attorney general now teaches law) to stage a mock detainee hearing, and lecture halls where he is scheduled to speak have been boycotted. Such political grandstanding is shameful behavior; in fact, Yoo should be commended for not hiding behind the standard Washington cliché of saying, "That's classified; I can't talk about it."
Of course, much of Yoo's work for the Justice Department is indeed still classified, most important his opinions on NSA spying and those justifying the legality of a military trial system at Guantanamo Bay. Nevertheless, Yoo's new book is marketed as a defense of the administration's post-9/11 conduct. Yet the book doesn't really accomplish that, or even attempt it. Rather, it is a sometimes careful, academic work about presidential powers in wartime.
In particular, the book argues that the Constitution gives the president a much larger role in foreign affairs and military operations than the other two branches of the federal government, that the president does not need a congressional declaration of war before placing troops on the ground and that treaties ratified by the Senate have no legal impact unless Congress explicitly passes laws saying that they do.
In advancing these claims, the book is burdened by its strange attempt to mix constitutional claims grounded in the Founders' intent in 1787 with the practicalities of living in an age of terrorism. Either one can take the position of such conservative icons as Robert Bork and Justice Antonin Scalia -- that the original intentions of the Constitution's authors bind us today and changes can only come through amendment -- or hold the view of more liberal figures such as Justice Stephen Breyer that practical, functional considerations create a living Constitution that adapts as times change. Both are perfectly plausible. What isn't credible is a theory that cherry-picks from the two to advance a particular thesis. And that's exactly what Yoo does at times.
Yoo is at his best in skewering the academics who believe that Congress must formally declare war before the president can engage in military operations. After all, hundreds of U.S. military operations have occurred without a declaration of war. Yoo's argument here, and the history he marshals, is contribution enough. There have been no declarations of war since World War II, yet a majority of academics today still adhere to the position that such a declaration is required before troops can be deployed.
Unfortunately, Yoo goes further, explaining that the president would not be made all powerful by such a broad reading of his war-making power because Congress could cut off funds or pass legislation to end the war. Yet it isn't remotely plausible that Congress's funding power can check the president. As Yoo's main academic opponent, former Stanford Law School dean John Hart Ely explains in his book War and Responsibility, "Once the president had committed 'our boys' to the battlefield, it would become emotionally and politically difficult to vote to cut off their 'support.' " If the legislative branch really did use its funding power in the way Yoo advertises, it would destroy his thesis, which is built on the speed, unity and decisiveness of the executive branch compared to Congress. It is jarring to watch a sober realist like Yoo ignore the obvious reality that Congress is incapable of defunding a war when troops are already engaged.
In the end, the most glaring failure of the book is its one-sided attack on the courts and Congress, with no real attention paid to the failures of the executive branch. The underlying message is that the executive doesn't need checks on its activities, but that the other branches consistently do. Yet presidents of both parties have made tremendous mistakes, and recent events have shown that claims of unchecked power can lead to massive abuse. Yoo even unwittingly refers to at least one recent miscalculation, in words that already date the book, by stating that Iraq was "potentially armed with weapons of mass destruction."
If scholars like Yoo want to exalt the executive, they will have to do a better job of figuring out ways to develop checks and balances inside the executive branch. Otherwise, faith in the executive is little more than a recipe for unaccountable and poor decisionmaking. This wasn't the way the Constitution was written; and I, for one, have more faith in our Founders than that.
Reviewed by Neal Katyal
Copyright 2006, The Washington Post. All Rights Reserved.
--This text refers to the
Hardcover
edition.
Review
"Can the president of the United States do whatever he likes in wartime without oversight from Congress or the courts? This year, the issue came to a head as the Bush administration struggled to maintain its aggressive approach to the detention and interrogation of suspected enemy combatants in the war on terrorism. But this was also the year that the administration''s claims about presidential supremacy received their most sustained intellectual defense [in] The Powers of War and Peace."--Jeffrey Rosen, The New York Times (Jeffrey Rosen New York Times 20051025)
"There is a refreshing elegance to Yoo''s theory. Forgoing hair-splitting doctrinal debates about congressional and executive claims to primacy in foreign affairs, Yoo tells the two branches to duke it out politically, deploying their allocated powers to reach a political equilibrium. By shifting the debate from the legal to the political arena, Yoo''s theory promotes frank discussion of the national interest and makes it harder for politicians to parade policy conflicts as constitutional crises. Most important, Yoo''s approach offers a way to renew our political system''s democratic vigor. . . . An impressive scholarly achievement, The Powers of War and Peace should be read by anyone with an interest in constitutional law and foreign policy."--David B. Rivkin Jr. & Carlos Ramos-Mrosovsky, National Review (David B. Rivkin Jr. & Carlos Ramos-Mrosovsky National Review )
"The book argues that the Constitution gives the president a much larger role in foreign affairs and military operations than the other two branches of the federal government, that the president does not need a congressional declaration of war before placing troops on the ground and that treaties ratified the Senate have no legal impact unless Congress explicitly passes laws saying that they do." (Neal Katyal Washington Post )
"A convincing and judicious case for the need in a post-September 11 era to re-evaluate what the Constitution says about foreign affairs. Mr. Yoo''s book covers a broad range of foreign policy areas like international law, treaties and multilateralism and addresses each with clarity and scholarly care. But at its heart, The Powers of War and Peace is a scathing criticism of those whom he argues have neglected their constitutional responsibility. . . . A valuable contribution to the tradition of works about the Constitution and foreign affairs. Like The Prince, it uses insider knowledge to boldly state political truths that others dare not utter."--Nicholas J. Xenakis, The Washington Times (Nicholas J. Xenakis Washington Times )
--This text refers to the
Hardcover
edition.
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by Louis Fisher
