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

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Editorial Reviews

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.

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 )

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Product Details

• Hardcover: 378 pages
• Publisher: University Of Chicago Press (October 3, 2005)
• Language: English
• ISBN-10: 0226960315
• ISBN-13: 978-0226960319
• Product Dimensions: 9.1 x 6.3 x 1.3 inches
• Shipping Weight: 1.4 pounds (View shipping rates and policies)
• Average Customer Review: 2.7 out of 5 stars  See all reviews (19 customer reviews)
• Amazon.com Sales Rank: #939,360 in Books (See Bestsellers in Books)

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17 of 25 people found the following review helpful:

1.0 out of 5 stars Terrifying Justice Department Double Think, October 6, 2006

By	M. Wilson "Scull Dugger" (London) - See all my reviews (REAL NAME)

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???

54 of 83 people found the following review helpful:

3.0 out of 5 stars Useful in Understanding the Arrogance and Ignorance of Presidential Sychophants, January 8, 2006

By	Robert D. Steele (Oakton, VA United States) - See all my reviews (TOP 50 REVIEWER)

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

2 of 4 people found the following review helpful:

1.0 out of 5 stars Justification for tyranny but a solution for terrorism is needed, December 12, 2008

By	Thomas W. Sulcer (Summit, NJ USA) - See all my reviews (REAL NAME)

This review is from: The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Paperback)

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.

How is terrorism prevented?

Check out my book: "Common Sense II: How to Prevent the Three Types of Terrorism". It's on Amazon & Kindle. It's a terrorism prevention strategy which is non-partisan, rational, tough, non-religious, non-technical, brief, written by a citizen for citizens. It prevents terrorism, even smuggled nuclear bombs. But it isn't easy. One expert found it "bracing". Parts are controversial. If America followed my strategy, government wouldn't have to commit tyranny to fight terrorism, and presidents wouldn't have to summon second rate lawyers to justify illegal activity.

Examine America: the political process is broken. Washington is corrupt. Congress is gridlocked by pointless partisan squabbling. There's a dangerous concentration of power in the executive branch in one person -- the president -- and the system of checks and balances has come undone. The federal system is out of whack -- ideally state governments should regulate their own economies, but Washington has usurped this power through numerous rulings, often encouraged by the Supreme Court. And this body of unelected justices has, in many respects, assumed a quasi-legislative role never intended by the Constitution's Framers, because it can strike down any law it deems unconstitutional. Washington is like a giant crashed computer, unresponsive to keystrokes, unable to cope with serious issues such as Social Security underfunding, the specter of terrorism, financial meltdowns, global warming, corruption, lobbying running rampant, and so on.

Americans should read "The American Lie" by Benjamin Ginsberg; "The Politically Incorrect Guide to the Constitution" by Kevin R. C. Gutzman; my book; "Up To Our Eyeballs" by several authors; "Our Undemocratic Constitution" by Sanford Levinson; "How America Got It Right" by Bevin Alexander (a tough critique of American foreign policy despite the positive sounding title). These are non-partisan looks at a nation in deep denial. What's needed is serious, structural reform.

I think the problems are so dangerous that a Second Constitutional Convention is required to fix them. So I have summoned this body, using my authority as a private citizen, to convene in Independence Hall, Philadelphia, beginning July 4th, 2009, to craft a new document based on the existing one but which: (1) prevents crime, tyranny, and foreign terrorism (2) restores citizenship as an active relationship between individual and government with specific responsibilities and privileges (3) restores the federal structure where state governments have the most authority to regulate their respective economies (4) fixes the architecture of government to permit intelligent and long-range foreign policy (5) identifies movement in public (to thwart terrorism) while preserving privacy (6) de-politicizes the Supreme Court (7) limits factionalism (8) restores checks and balances between the branches of government.

I challenge readers to read my book or the others mentioned and ignore John Yoo's.