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The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11

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This is an important book in order to understand the Constitution and the response to 9/11. The attacks on this book here are ridiculous. Even liberal critics of the Bush administration and Yoo think this is an important book. Cass Sunstein, a famous liberal law professor, wrote a review in the New Republic that said: "The most important theorist of the 9/11 Constitution is John Yoo." He says "Yoo has offered an inventive and provocative set of arguments about fundamental questions, and he presents his arguments with unmistakable determination and all the skill of a good lawyer."

Critics posted here sound like they have not read this book. There are negative reviews of the book and positive ones, like Rivkin's in the National Review. People should buy the book and read it and decide for themselves. It explains the history behind the legal controversies over foreign affairs that have been going on for years. Defenders and critics of the Bush administration would do well to learn this history and the legal arguments before they argue over today's policies.

EDITED 17 Oct 07 to add links to ten relevant books.

There is absolutely no question but that the author of this book is patriotic, educated (after the American fashion), and well-intentioned. Sadly, this does not mean that he has any common sense, any historical context, any strategic vision, nor any relevance to the future. Indeed, and I rarely write negative reviews (5 out of 1015+), this book is most useful for understanding the ignorance and arrogance of Presidential sycophants who place loyalty to a single man and office and party (or rather, ideological branch of the party) above their loyalty to the Constitution, the Republic, or the public interests they are supposed to be defending.

The book is best summarized by a quote from a White House staffer who is reported to have said, in talking to an expert on foreign affairs, "You must be one of those reality-based people. We are an empire, we make our own reality."

The problem with this arrogant and ignorant statement, which is manifested throughout this interesting book, is that a reality based on ideological fantasy and the security of hiding behind the Secret Service completely begs off on confronting the harsh realities of a world in which 5 billion pissed off poor people are inevitably going to sponsor 1 million armed terrorists who know how to create Improvised Explosive Devises (IED) and know how to deliver the "death of a thousand cuts" to US infrastructure (water and fuel pipelines, energy generators, shipping port cranes, key communications switching stations, key banks, etc.

The "sucking chest wound" in this book is that it does not recognize the role played by the (once) wise men of Congress, in two houses--one, the Senate, designed for long-term deliberation, the other, the House, designed for mid-term respect for the "wisdom of the crowds," both of which were created by the Founders to temper Presidential hubris, Presidential ambition, and Presidential mendacity.

The fact that our Congress today is grotesquely corrupt and dysfunctional does not in any way render the above point moot. As we saw in the rush to war on Iraq, which has now put us in a six-front-war that will last 100 years, the Executive is all too fragile and malleable and prone to short-term error with long-term consequences.

The author makes a case for Presidential power in this book that is isolated from historical, ideo-cultural, socio-economic, techno-demographic, and natural-geographic context. This is not a debate about how to get from here to 2008 "efficiently," but rather a debate about how to survive and prosper as a Nation over the next 200 to 500 years.

Were the author more intellectually-honest and reality-aware, he would understand that the future of American cannot be secured by a few guns against 5 billion at the "Bottom of the Pyramid," and he would understand that the end of cheap oil, the end of free water, the rise of pandemic disease, the looming catastrophes of poverty and environmental degradation are all context within which long-term strategies are essential, in which we must help create indigenous wealth that is scalable and self-generating.

Bottom line: this book represents the kind of narrow, ignorant, sycophantic view of the Presidency that has come to characterize the Cheney-Addington-Gonzalez view of Bush as a puppet and the people as stupid. If this book were to become "reality," not only would Congress and the people forfeit all their powers (of the purse, of the power to declare war, of the power to hold elections, of the power to live under the rule of law), but in becoming "reality," this book's premises would destroy the Republic.

Read this to understand the internal threat to our Republic. Well-intentioned individuals who have no clue how to serve the people, and are intent on serving their narrow constituency of a single President whose wealthy pals want to loot the Commonwealth with as few restrictions as possible until the party is over and they can move to Switzerland and leave us to deal with their multiple deficits.

I have three sons. This book has persuaded me that they must each receive a liberal arts education before going on to specialize in a craft, for in this book, I see all that is evil about narrowly-educated individuals who mean well but know little of the real world.

See also:
Vice: Dick Cheney and the Hijacking of the American Presidency
American Fascists: The Christian Right and the War On America
Running on Empty: How the Democratic and Republican Parties Are Bankrupting Our Future and What Americans Can Do About It
The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (Institutions of American Democracy)
Breach of Trust: How Washington Turns Outsiders Into Insiders
Crossing the Rubicon: The Decline of the American Empire at the End of the Age of Oil
The Road to 9/11: Wealth, Empire, and the Future of America
Wars of Blood and Faith: The Conflicts That Will Shape the 21st Century
Resource Wars: The New Landscape of Global Conflict With a New Introduction by the Author
The Search for Security: A U.S. Grand Strategy for the Twenty-First Century

Ever since 9/11, the Bush Administration has been harshly criticized for its War on Terrorism. Many of its critics have taken the position that its wars in Afghanistan and Iraq are unconstitutional. The War on Terrorism combined with the Bush Administration's decisions regarding both the ABM Treaty and the Kyoto accords have provoked strong allegations that the Constitution's framework for foreign policy has been dismantled.

The author of The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11, John Yoo, is a former lawyer in the Bush Justice Department. He argues that the Bush Administration's foreign policy has solid precedent in the actions of previous administrations.


Yoo points out that from the Undeclared Naval War With France in 1798 through Bill Clinton's war in Kosovo in 1999, American presidents have often prosecuted armed conflicts without formal declarations of war. He argues that the Constitution grants different powers over foreign policy to Congress, the courts and the presidency, requiring these institutions to negotiate what the country's foreign policy is. Yoo's argument is based on the original intent of the Founding Fathers supplemented with constitutional law and history.

For instance, Yoo argues that just because a war is undeclared does not mean that it is unconstitutional. He points out that Congress's power of the purse gives it an effective veto power over executive decisions to go to war. He also points out that the 1973 War Powers Resolution has been systematically violated and has been treated as being de facto unconstituitional almost since the day that it was passed. He also argues that Congressional resolutions for war are legally unnecessary and serve only a political purpose in demonstrating unity in foreign policy and war.

Yoo makes a number of arguments that are bound to provoke controversy. For instance, he argues that the Constitution allows the government to violate international law whenever it wants to. Yoo also holds the position that captured terrorists are not covered under the Geneva Convention since they are not combatants belonging to another country and by didnt of being terrorists did not obey the laws of war.

The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11 by John Yoo is an excellent work that is sure to ignite controversy and nationwide discussion/debate over these important subjects.

Law prof David Cole eviscerated this book in the NY Review of Books, 11/17/05 issue. Yoo's twisted "originalist" arguments for a super-executive in wartime are in direct contrast to the Founders' desire to prevent just such usurpation. They'd just escaped George III; they didn't want to repeat the experience.

Cole goes on to point out that "arguments against [Yoo's] theory are academic. Modern practice is closer to Yoo's view than to the framers' vision." Congress has increasingly abdicated its powers to the presidency.

So if you want to read a defense of the "imperial presidency" by someone who's demonstrated, in the Torture Memos, that he has no respect for America's ideals, this is the book for you.

Mr Yoo moves on from his earlier arguments that torture falls at a point slightly short of physical death, organ failure or loss of limb. Mr Yoo makes some interesting if devastating points with his new theories. The President's war powers, he argues, allow him to do, basically, whatever he wants. The President may, if he chooses, crush the genitals of children, maim, torture or kill civilians. In this respect one might remember that Bush ordered an air strike on the house occupied by the infant grandchildren of Saddam Hussein AFTER the end of the Iraq war and even though the house was surrounded by US troops. The President is limited, according to Mr Yoo, only by how he CHOOSES to interpret International Treaties and as he has the power to repudiate such treaties or ignore them entirely (as in the International Human Rights for the Child Treaty, the Geneva Convention or the Treaty of Vienna,) then, this means that presidential power is absolute EVEN if despotic criminal or tyrannical. Mr Yoo appears now to say that the President and his henchmen, cronies and agencies MAY indeed use indiscriminant torture. Mr Yoo however does not adequately explain how the President can thus overturn congressional treaty ratification. As what constitutes a 'time of war' is also up to the President and does not rely on any 'legal' declaration of war (which is a matter of international law to which the US is thus not subject,) then the US may have, effectively, a Despot Emperor for President. Does the 'War on Drugs' thus give the President the same wartime powers as he asserts for his 'War on Terror' - an undeclared war on no particular nation state? Is the US thus always in a state of war? This is interesting, not just semantically, as the District and Supreme Courts appear to agree with Mr Yoo's interpretation, blocking cases connected with this on grounds of national security whilst Congress does not appear to care. Perhaps Clinton should have used Mr Yoo's arguments in the Monical Lewinsky scandal and impeachment hearings. War powers might have thus allowed him to do whatever he wanted with his cigar and to lie about it in the national interest. The problem with Mr Yoo's argument is that Checks and Balances thus no longer appear to exist. Interestingly if one applies Mr Yoo's arguments to their logical end he becomes an eloquent advocate for terrorism or for the Holocaust where the ends justify the use of any means, however horrible. Of course, either this is pretty much nonsense and makes toilet paper of the Declaration of Independence, Magna Carta, democracy and human rights OR the truth is more terrifying and the US is now a Stalinist or Nazi state. I suspect Mr Yoo could be subject to arrest as a war criminal should he ever leave the United States and visit a civilised country???

Professor John Yoo, an accomplished constitutional scholar, has written a outstanding volume exploring the U.S. Constitution's allocation of powers in matters of war and international affairs. This overview of our Constitution's framework for understanding the roles and relations of the three branches of government in based upon clear reasoning and close attention to history and practice.

Yoo deftly analyzes the respective roles of the Executive and Legislative branches in making and declaring war, arguing that the Constitution provides for a great deal of flexibility and latitude in dealings with foreign nations. He aptly deals with the debate over whether international treaties are generally self-executing or require implementing legislation, making a persuasive argument for the latter position as most consistent with the text and structure of the Constitution. Yoo also provides a sensible and coherent constitutional approach to understanding and distinguishing between treaties and congressional-executive agreements. These topics and others are treated in a careful and methodical manner, as Yoo generally argues from the viewpoint that the Constitution should be read in light of the original understanding of its ratifiers. He (wisely) advocates a conceptual framework for understanding our Constitution's approach to foreign affairs that is relevant and resembles actual historical and contemporary practice. (This is something that many scholars and theorists fail to do.)

Throughout the book, Yoo demonstrates a mastery of both the constitutional case law in this interesting area and the legal scholarship that precedes his own work.

The book is written in a clear and lucid manner, providing repetition on important points while avoiding any sense of repetitiveness. It is accessible to both those who are familiar with constitutional history and constitutional law concerning the separation of powers as well as those with some historical and legal background in those areas.

This review can only scratch the surface in terms of the content of this work. Yoo's book is a first-rate intellectual achievement. And it will likely become a standard, authoritative reference for citizens and scholars (and especially originalists) in the years to come.

The 2 biggest mistakes made by government in my lifetime are Congress giving away war powers in 1965 and 2002. The constitution holds that declaring war is the responsibility of the Congress. If the Executive has grounds for war let him/her present them and Ccongress vote. Twice I have seen Congress abdicate this important power with disasterous results. This is just one of many examples why Yoo has no clue.

Professor Yoo makes many seemingly compelling arguments in favor of his contention that the President has virtually unfettered authority sanctioned by our constitution, but, as reasonable as his arguments may seem, what I find to be the underlying flaw is that he's arguing that unrestrained authority of the chief executive is somehow consistent with the principles of constitutional democracy and the rule of law upon which our system of government is based.

Frankly, this is a completly cognitively dissonant position; advocating an authoritarian right in the name of democracy just doesn't meet the test of reason. It's functionally identical to the argument that "We have to destroy the village to save it" made popular during the Vietnam War.

Benjamin Franklin famously said; "Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety". Clearly the good professor doesn't seem to grasp this essential concept as elucidated by one of our most respected and revered Founders.

Lawyer John Yoo worked with the Bush administration in the wake of 9/11 to provide legal justification for a variety of illegal and unconstitutional tactics to be used by the administration to fight terrorism. For example, Yoo claimed presidents have unilateral authority to initiate wars without Congressional approval. Clearly this violates the Constitution. This power was explicity given to Congress. And this book tries to justify a variety of acts of tyranny, large and small, by a president beset with a problem he couldn't cope with.

9/11 overwhelmed the Bush administration. But I do not fault President Bush too much -- realize that such an attack would overwhelm ANY president of either party. Generally, serious terrorism can easily knock over any democratically elected government like a tsunami, and the United States is no exception. Democracies under attack by serious terrorist conspiracies typically revert to an authoritarian structure to fight the attack, and government usually wins its war, but during these times citizens suffer. This happened in the Philippines under Marcos and in Chile under Pinochet. That the Bush administration resorted to extra-legal tactics to try to protect people is understandable but problematic because it undermines freedom and the rule of law. But I think partisans on the left are as clueless as those on the right about what to do.

How can we cope with mysterious thugs hiding in caves seeking weapons of mass destruction? For me, that's the underlying problem. Solve terrorism; and you'll solve the problem of illegal activity by government and make everybody safer. And this requires a non-partisan overhaul of the Constitution.

Thomas W. Sulcer
author of "The Second Constitution of the United States"
(free on web -- google title above + sulcer)