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.

The Powers of War and Peace

THE UNIVERSITY OF CHICAGO PRESS

Contents

Chapter One

The end of the millennium neither brought a halt to history nor ushered in millennial peace. Terrorism, genocide, major human rights violations, and the proliferation of weapons of mass destruction (WMD) are among the urgent new threats that have arisen over the past ten years. The United States has become militarily assertive, using force in Kuwait and the Persian Gulf, Somalia, Haiti, Bosnia, Serbia-and in Afghanistan and Iraq, where even "regime change" has been imposed.

Apart from the making of war, the United States has also actively re-aligned its international commitments. Once the cornerstone of international arms control, the Anti-Ballistic Missile (ABM) Treaty has been terminated. The U.S. signature, proffered by the Clinton administration, was recently withdrawn from the Statute of Rome that established the International Criminal Court, as well as from the Kyoto Accords on global warming. In 1999, the Senate rejected the Comprehensive Test Ban Treaty-the first rejection of a treaty by the Senate since the failed Treaty of Versailles in 1919. America has also avoided multilateralism by staying out of new entangling alliances, such as our 1997 refusal to join the convention banning the use of anti-personnel land mines, and by giving other countries notice that we will not participate in a new protocol to regulate biological weapons and small arms.

Complaints that we have gone completely unilateral in our approach to international affairs, however, are not quite true. The United States has formed ad hoc coalitions of allies for its most significant conflicts. It has worked with its North American Treaty Organization (NATO) allies in Kosovo, and with a broad international alliance to remove the Taliban militia in Afghanistan; a smaller "coalition of the willing" has fought alongside U.S. forces in Iraq. The United States has invoked the Non-Proliferation Treaty and asked the International Atomic Energy Agency to address Iran's and North Korea's suspected development of nuclear weapons. In 2002, we ratified international conventions to suppress terrorist bombings and terrorist financing, instruments that created uniform international criminal standards and obligations for cooperation with other nations. In matters of trade, moreover, the United States entered into the World Trade Organization (WTO) in 1993 and led the current Doha round of negotiations to expand free trade in agriculture, intellectual property, and services. It also negotiated bilateral free trade agreements with Chile, Singapore, and Jordan.

In short, we are living through a time of remarkable change in the international system, characterized by globalization, the disappearance of the Soviet Union, the emergence of international regulation, the appearance of terrorism and rogue states, and the proliferation of technology. This has placed new focus, interest, and energy in the area of American law that directly touches on these developments-namely, foreign relations law. Indeed, many of these developments in America's relationship with the world have been questioned not just on policy grounds, but on claims that they are inconsistent with the U.S. Constitution. Leading constitutional scholars, for example, have contended that several recent wars with other nations were illegal under the Constitution, under international law, or both. John Hart Ely asserts that the post-World War II era has witnessed nothing less than "the disappearance of the separation of powers, the system of checks and balances, as it applies to decisions to go to war." Thomas Franck, perhaps the leading American scholar of international law, has also accused presidents of waging unconstitutional wars. Congress has shirked its constitutional responsibilities, he says, and the courts' refusal to intervene carries a "powerful whiff of hypocrisy." Members of Congress have attempted to stop recent wars in Kosovo and Iraq, and when their legislative efforts have failed have even gone to federal court claiming that the wars were unconstitutional.

War is not the only bone of contention. Legal questions dog the heels of American activity in foreign affairs, including President George W. Bush's decision to terminate the ABM Treaty and President Clinton's decision, with Congress's approval, to join the WTO. Lawsuits seeking to overturn the judgment of the executive branch and/or Congress were filed against both. Two of our leading constitutional scholars, Laurence Tribe and Bruce Ackerman, sparred in a sharp debate before the Senate Committee on Foreign Relations over the constitutionality of the American entry into the North American Free Trade Agreement (NAFTA) and the WTO. The ongoing war on terrorism, spurred by the September 11, 2001 attacks on the World Trade Center and the Pentagon, has raised further questions. In January 2002, for example, President Bush interpreted the Geneva Conventions as not applying to members of the al Qaeda terrorist network, a decision that some claim exceeds the president's power to interpret treaties.

The questions raised by these events, however, are not new ones but in fact have been unresolved since the birth of the Republic. Struggle between executives and legislatures over the means of making war had been a persistent feature of British history leading up to the framing of the Constitution. Indeed, one can understand the break between Great Britain and the colonies as a dispute over whether the colonies could exercise a check over military affairs through its control over funding. Presidents and Congress have long since quarreled over the authority to initiate military hostilities, and several have argued in the past that only a congressional declaration of war may begin military conflict. Yet, as shown by the 1798 Quasi-War with France (no declaration of war) and the War of 1812 with Great Britain (declaration of war), the federal government from its very beginnings has used different constitutional methods for going to war.

President, Senate, and Congress similarly have never settled on the nature of treaties within our domestic constitutional system. A requirement that Congress implement treaties, rather than allowing the executive branch as composed by the president and the Senate for the purpose of making treaties, has been heatedly debated ever since the United States entered its first treaty under the Constitution-the 1796 Jay Treaty with Great Britain. Chief Justice John Marshall found in 1829 that some types of treaties could not take legal effect within the United States without the approval of Congress. Ever since, treaties at times have been thought to take direct effect in American domestic law, even though they are made by the president and two-thirds of the Senate, without the participation of the House of Representatives. At other times, however, courts have considered treaties to only represent obligations between nations under international law, and have refused to give them effect in suits brought by individuals. Can the President and Senate, acting alone, create obligations that have a direct effect on domestic affairs without requiring the consent of the full Congress? If they cannot, what is the point of the Treaty Clause and that part of the Supremacy Clause that makes treaties the "supreme law of the land"? And what are we to make of treaties, typically human rights agreements, to which the president and Senate attach declarations specifically denying that the treaties have any legal effect?

A related long-standing question concerns the relationship between treaties and statutes. The Constitution appears to contain only one method, the Treaty Clause, for making international agreements, which creates a supermajority process requiring approval by two-thirds of the Senate. Yet, at least since the late nineteenth century, the nation has regularly entered into international agreements without going through the treaty process, and since World War II, the use of statutes to make international agreements has far outpaced the use of the Treaty Clause. The United States entered into two of its most significant international agreements, the NAFTA and WTO agreements, through this process rather than making a treaty. At the same time, however, statutes have not simply replaced treaties. Treaties still remain in use in other areas, such as reaching arms control pacts and making political or military alliances, where they are virtually exclusive. Perhaps statutes are necessary to implement the domestic aspects of our international agreements, as when Congress enacts a criminal law that fulfills an obligation established by treaty to punish certain conduct. Statutes have also been used in the past to supercede the obligations created by international agreements or have been used to terminate treaties. But it is unclear whether statutes can simply replace treaties as a form of making international agreements. The question of the self-executing nature of treaties and that of congressional-executive agreements are really different aspects of the same problematic relationship between treaties and statutes.

A third area of recurring controversy is the president's authority to interpret treaties. While the president has a limited authority to interpret domestic statutes, particularly those that delegate rulemaking authority to administrative agencies, we are accustomed to thinking that the predominant role in defining the meaning of a law rests with the other branches. Congress gives meaning to a statute both by the words it chooses to use and the legislative history it creates in committee reports and floor debates. The federal courts interpret law in the context of deciding cases or controversies that arise within their jurisdiction over the meaning of a federal regulation, statute, or constitutional provision. With regard to treaties, however, presidents have exercised in practice much greater sway over interpretation, with often significant results. President Bush's interpretation of the Geneva Conventions, for example, determined whether al Qaeda and Taliban fighters would receive prisoner of war status, while President Clinton's reading of the ABM Treaty governed the U.S. research and development into a national missile defense.

Again, however, this was not a new issue, but one that has its origins in the earliest years of the Republic. The very first international agreement signed by the independent colonies was the 1778 Treaty of Alliance with France, without which the new nation would likely not have prevailed in the war with Great Britain. When revolutionary France declared war on Great Britain and Holland in February 1793, the Washington administration had to decide whether the treaty's mutual defense clause required it to come to France's aid. After heated debate between Treasury Secretary Alexander Hamilton and Secretary of State Thomas Jefferson, Washington issued the Neutrality Proclamation, which interpreted the treaty as not requiring American entry into the Napoleonic Wars. Washington's interpretation, and its implications for U.S.-French relations, sparked vigorous resistance from Jefferson and Madison and contributed to the beginning of partisan politics in the United States by encouraging the formation of the Democratic Party. Our constitutional system has yet to settle the question of the allocation of power over the interpretation of treaties, now more than two hundred years old.

This book seeks to answer these long-running questions by carefully examining the text, structure, and ratification history of the Constitution. For the past fifteen years, American foreign relations law has been dominated by a paradigm developed in three books: Louis Henkin's 1975 Foreign Affairs and the U.S. Constitution (updated in 1996), Harold Koh's 1990 National Security Constitution, and Michael Glennon's 1990 Constitutional Diplomacy. Their approach argues in favor of national power against any role for the states in foreign affairs and maintains that the Constitution requires the equal participation of Congress and the federal judiciary in national security decisionmaking. They draw support primarily from precedent, particularly the 1952 Steel Seizure Case, in which the Supreme Court blocked President Truman's order to take over striking steel mills during the Korean War. In particular, they draw on the three-part framework set forth by Justice Robert Jackson's concurrence in that case, which argued that: (i) In cases where the president acted pursuant to congressional authorization, "his authority is at its maximum." (ii) When the president acts in the absence of any authorization in an area concurrently regulated by Congress, "there is a zone of twilight" where the outcome is uncertain. In the zone of twilight, where there is no explicit congressional authorization, the "actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." (iii) When the president acts contrary to congressional wishes, "his power is at its lowest ebb." Jackson's Youngstown concurrence hinged the legality of presidential power on explicit congressional authorization.

Following this approach, authors such as Henkin, Koh, and Glennon generally criticize unilateral presidential actions in foreign affairs that do not meet with legislative approval. They disapprove, for example, of executive branch warmaking that does not at least receive legislative authorization if not a declaration of war. They believe that Congress should grant approval of presidential actions such as interpreting or terminating treaties, but they also counsel deference when the executive and legislative branches agree, such as with the congressional-executive agreement. These authors generally reject the idea that judges should stay out of foreign affairs, and instead believe that issues involving war and peace are no more difficult than other constitutional questions addressed by the Supreme Court. Other important works, such as John Hart Ely's 1993 War and Responsibility and Thomas Franck's 1992 Political Questions/Judicial Answers agree on the basic framework: that the Constitution requires that the president and Congress share authority in foreign affairs and that the federal courts adjudicate disputes between the branches to enforce that principle. Importantly, they share the assumption that the Constitution establishes defined processes for the regulation of foreign relations that makes them capable of judicial enforcement, much as the Constitution does for domestic affairs.

No prominent monographs in foreign relations law have appeared since the publication of these foundational works. In the intervening period, dramatic changes have swept the international system. While the end of the Cold War produced a decline in superpower tensions and the possibility of nuclear war, new threats emerged, including destabilizing humanitarian disasters, rogue nations, the proliferation of WMD, and now international terrorism. At the same time, new opportunities for international cooperation presented themselves, perhaps most notably the expansion of free trade via NAFTA and the WTO and the renewed relevance of international human rights. It should come as no surprise that this same period witnessed profound change in the field of foreign relations law. A new generation of scholars, including Curtis Bradley, Jack Goldsmith, Sai Prakash, and Michael Ramsey, among others, has questioned the dominant intellectual paradigm established earlier. Sometimes labeled "revisionists," they generally seek to subject foreign relations questions to the same methodological approaches and arguments that apply in other areas of constitutional law, are reluctant to provide special constitutional treatment to foreign affairs, and are more amicable to analysis based in constitutional text, structure, and original understanding. They have been engaged by yet another group of young scholars, including Sarah Cleveland, Martin Flaherty, David Golove, Peter Spiro, William Treanor, and Carlos Vzquez, among others, who have defended, modified, and refined the arguments of the earlier generation of foreign affairs scholars.

(Continues...)

Excerpted from The Powers of War and Peaceby JOHN YOO Copyright © 2005 by The University of Chicago. Excerpted by permission.
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