Conservative legal scholar John Yoo, whose memos helped shape White House policy, says the framers gave the president all the war powers of a king
By Christopher Shea | October 23, 2005
IN JOHN YOO'S world, President Bush didn't need to ask Congress for permission to invade Iraq. And if the special forces captured a terrorist suspect who might know of an upcoming attack on the New York subway, Bush could order him placed on a torture rack-regardless of treaties the US has signed or whether Congress had passed laws banning torture.
Yoo is an academic-a Berkeley law professor-but these aren't exactly theoretical issues. The Supreme Court faces several cases concerning how much control the president has over military detainees. And last week, Secretary of State Condoleezza Rice told the Senate Foreign Relations Committee that the president has the right to attack Syria, without congressional approval, if he deems that a necessary move in the war on terror.
Nor is Yoo's experience in this area merely Ivory Tower: He clerked for Supreme Court Justice Clarence Thomas and from 2001 to 2003 served as a lawyer in the Justice Department's prestigious Office of Legal Counsel. Last year, Yoo found himself at the center of controversy when it was revealed that he had written a memo during his Justice Department stint arguing that physical interrogations had to cause damage on the order of major organ failure before they were considered torture under American law, and that anyway the commander in chief was exempt from such laws.
The memo got some seriously bad reviews. ''The stench of corruption permeates the page," wrote the Yale law professor Jack Balkin, on his blog. Now, in a new book, ''The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11" (Chicago), Yoo has produced a full blueprint for the kind of potent presidency he thinks is necessary to fight the Global War on Terror. Given his connections to the administration, Yoo's sketch of the presidency will no doubt be interpreted in some quarters as revealing how the Bush White House sees itself in its dreams.
When it comes to foreign policy and the president's role as commander in chief, ''Yoo concludes that for all intents and purposes we have an elected king," says Michael J. Glennon, a professor of international law at Tufts University's Fletcher School, reflecting a common view among left and centrist scholars.
Yet Yoo, for his part, says he's offering a fresh look at constitutional history that not only reflects the framers' ideas, but also better mirrors the reality of modern history than does mainstream international law. ''There are these areas-war powers, treaties-in which academics all say one thing, and then presidents, Congress, and the courts all do something that is opposite," he said in a recent interview. His book tries to explain why the people he describes as ''my friends in international law" get so many things wrong.
Yoo wants to revise our understanding of the Constitution in two areas: presidential war powers and the interpretation of treaties.
The Constitution gives Congress the exclusive power to ''declare war." But in the mid-to-late 20th century, with hands on nuclear buttons, many scholars argued that the president-out of exigency-had more freedom to act than a strict reading of the clause would suggest, and presidents tested the limits of their war powers in Korea, Cambodia, Panama, Grenada, and Kosovo, among other places. Yoo boldly argues that this 20th-century understanding of presidential power was exactly what the country's founders had in mind.
As Glennon's jibe about an ''elected king" hints, Yoo says the Constitution was more influenced by the 18th-century British system than scholars concede. Under the British system, the king ''has the sole prerogative of making war and peace," as the British legal scholar Blackstone wrote, yet Parliament exercised considerable control via the purse strings. ''The sword is in the hands of the British king, the purse in the hands of Parliament," James Madison said during the constitutional ratifying convention in Virginia. ''It is so in America, as far as any analogy can exist."
The 18th-century understanding of ''declaring war," Yoo continues, was different from ours. When Britain declared war on France in 1756, for example, in what became known as the Seven Years' War (or the French and Indian War), the two countries had been fighting in North America for two years already. The declaration, Yoo argues, was a diplomatic notification, not a military decision, telling English citizens, for example, that any communication with the French king was now illegal.
If the framers meant ''make war," but wrote ''declare war," they would be ''very clumsy draftsmen indeed," Yoo writes.
As Parliament did with the king, Congress today still controls the military through its budget: If it wanted to stop adventures in Panama, Grenada, or Kosovo, it has only to stop funding them.
Curtis Bradley, a professor of law at Duke, says Yoo has made a ''major contribution" in showing the founders may have thought congressional control of war had more to do with appropriations than explicit declarations or authorizing statutes. But he points out that George Washington did not have a standing army to order into battle. He needed congressional funding to take the first martial step. He's not sure the Yoo view can apply when presidents wield aircraft carriers and missiles.
Yoo returns again and again, with something like glee, to President Clinton's flouting of the War Powers Resolution, a 1973 statute (which Yoo deems unconstitutional) affirming the traditional view of shared war powers. Kosovo shows, Yoo says, that even human-rights activists share his view of presidential power, so long as they agree with the president's goals.
But as Lori Damrosch, a Columbia law professor sees it, the fact that President Bush sought congressional approval for the Iraq and Afghanistan wars, and that his father sought its blessing for the first Gulf War, shows that even they reject the Yoo position. ''We can look at 1991, and 2001, and 2003, and say, 'Finally the Constitution is working as it's supposed to,"' says Damrosch.
Nor, according to Jane Stromseth, a professor of law at Georgetown, does a reading of the founding documents support Yoo's position. ''The founders," she says, ''had a deep commitment to the idea that no one person should be able to take the country into war."
Yoo's other revisionist project-the more arcane question of who gets to enforce international treaties-bears directly on the issue of the military detainees at Guantanamo Bay. Here, too, his critics say his constitutional readings are just a little too clever for their own good.
The Constitution makes treaties-along with federal law-"the Supreme Law of the Land." Yet Yoo, exploring how early US treaties were actually managed, says that the founders' understanding was that in cases in which treaties affect domestic law, Congress has to pass legislation ''executing" them before courts can get involved.
''He has 200 years of Supreme Court precedent against him on that one," says Michael van Alstine, at the University of Maryland's law school.
Congress has not passed legislation clarifying how the Geneva Conventions should be enforced under US law. ''If these treaties are self-executing," Yoo says, ''it would draw the courts directly into the management of the Guantanamo facilities."
Of course, human-rights advocates would say a little judicial management at Guantanamo might not be a bad idea. ''There is nothing that says the courts have to sit on the sideline and abide by the executive's judgment," says the Fletcher School's Glennon.
To the contrary, says Yoo, that's exactly what the Constitution says the courts must do: bench themselves. And the Supreme Court-divided on this question-will soon decide whether it agrees.
Christopher Shea writes the Critical Faculties column for Ideas. E-mail
[email protected].
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