Yoo on Foreign Policy and War

John Yoo has become famous for writing memos, while he worked in the White House, that "told Bush what he wanted to hear": namely, that there was no law with which he had to comply when it came to torture or eavesdropping on Americans.

Yoo probably deserves to be considered more for his book (which I haven't read), The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. Yoo apparently argues that extra-legal powers for the President in foreign policy and war were intended by the Framers, hence they are consistent with the "original intent" that is supposed to be so beloved of conservatives. More importantly, he argues that such powers are necessary and desirable, especially in a post-9/11 world.

From a review in the New York Review of Books by David Cole (link via Josh Marshall):

The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views�they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced. During the last two centuries, of course, executive power has greatly expanded in practice; and the attitude of many US leaders toward international law has grown increasingly disrespectful as the relative strength of the US compared to other nations has increased. But these developments are difficult to square with the doctrine of "original intent," which, at least as expressed by Justice Antonin Scalia and other extreme conservatives, largely disregards the development of the law for the past two centuries.

One issue is whether provisions actually in the Constitution, including the fact that only Congress can "declare war," mean that the President is required to defer to Congress except in the most extreme situations.

All the evidence Yoo cites...can be read more convincingly to corroborate the view he seeks to challenge�namely, that the Constitution gave the president only the power, as commander in chief, to carry out defensive wars when the country came under attack, and to direct operations in wars that Congress authorized.

Of course, some of what Bush did in the period immediately after 9/11 could be considered self-defence in the face of an attack. Kevin Drum has said he would have favoured all the wiretapping we have been told of, with no warrants, at least for several months. But for years during which there is no sign of any further attack on Americans on U.S. soil? The war in Iraq?

[blockquote]Yoo's further suggestion that the [declaration of war] clause recognizes a distinction between "total wars," which must be declared, and lesser wars, which need not be, has no historical basis. Despite his ostensible commitment to originalism, Yoo cites no evidence whatever to suggest that any such distinction existed for the founding generation. Nor does he ever explain what the distinction might mean today. And the fact that the text grants Congress both the power to "declare War" and to issue "Letters of Marque and Reprisal" strongly suggests an intent that Congress decide on all forms of military conflict other than repelling attacks. Once these explanations evaporate, all that is left for Yoo's theory of the war clause is that it gives Congress the power to provide a "courtesy to the enemy"�hardly a persuasive refutation of the clear language of the framers quoted above.[/blockquote]

I gather Yoo's introduction of "total wars" is intended to wrap up World War II, the Cold War, and the War on Terror, all together. Unfortunately for this argument, however, it can realistically be said the entire U.S. economy was mobilized for the Cold War. Some of the mobilization obviously remains in place. But has anyone been asked to sacrifice for the War on Terror, other than the actual troops? Have there been any further attacks since September 2001? Have any suspects been announced for their activities on U.S. soil, other than Larry, Moe, and Curly?

Yoo's evidence does not undermine the conclusion that the framers intended Congress to take responsibility for the decision to send the nation into war. But in some sense, arguments against his theory are academic. Modern practice is closer to Yoo's view than to the framers' vision. Beginning with the Korean War, presidents have routinely involved the nation in military conflicts without waiting for Congress to authorize their initiatives. Yoo notes that while the nation has been involved in approximately 125 military conflicts, Congress has declared war only five times. Were the framers lacking in practical judgment when they gave Congress this power?

Yoo claims that since September 11, it is all the more essential that the nation be able to act swiftly and without hesitation, even preemptively, to protect itself. We can't afford to wait around for Congress to figure out what it wants to do. The "war on terror" does not permit democratic deliberation, at least not in advance. And, as Yoo repeatedly insists, Congress remains free to cut off funds for any military action that it does not like.

But there is as good reason today as there was when the Constitution was drafted to give Congress the power to authorize military activities. As the framers accurately predicted, presidents have proven much more eager than Congress to involve the nation in wars. It is easier for one person to make up his mind than for a majority of two houses of Congress to agree on a war policy.

Presidents also tend to benefit from war more than members of Congress, by increasing their short-term popularity, by acquiring broader powers over both the civilian economy and the armed forces, and, sometimes, by the historical recognition later accorded them. Moreover, as the Vietnam War illustrated, even when a war becomes extremely unpopular, it is not easy to cut off funds for the troops.

That last point brings us, once again, to the Congressional system. All that military spending is benefitting specific districts and states that have representation in Washington. Much easier to ratchet the spending up, than ratchet it down. A relatively small group, determined to achieve something like a specific wasteful spending project, can prevail over a larger group which is somewhat less committed to the other side.

Presidents are glory-seekers, and so they shouldn't be left to make so many decisions about war and foreign policy with no real checks on their actions? Otherwise you're back to George III again?

I don't know about Yoo, but many of the neo-cons probably think the U.S. has tended to be too isolationist in general, and if decisions were left to Congress, there would still be a lot of isolationism today. Probably most of those who want more war also want more glory, for themselves, their friends, and their country; but they are likely to offer the noble rationale: "We've got people who need to be liberated."

As Cole says, there has been a debate between every Congress and every President for decades about who has what powers. It is accepted in practice that the President can send and deploy troops almost anywhere, on very short notice. He has the advantages of speed and secrecy, and these might be lost if Congress was granted a veto. Even individuals who express the pro-Congress view when they are not in the White House will probably adopt the pro-President view once in.

On treaties: Yoo apparently argues that treaties do not become the law of the land simply on being ratified by the Senate; rather, a further act of Congress is required to implement a treaty. Again, contemporary practice, but not "original intent," is mostly, though not entirely, on Yoo's side.

In the modern era, Congress often specifies when ratifying a treaty that it should not be enforceable in court until further legislation is enacted. And even without such directives, courts sometimes find treaties not to be judicially enforceable; the US Court of Appeals for the D.C. Circuit did so recently in rejecting a Guant�namo detainee's claim that his pending trial in a military tribunal violated the Geneva Conventions.

Yoo would go further, insisting on a presumption against judicial enforcement unless Congress clearly specifies otherwise. On this view, treaties lack the force of law, and become mere political promises, having about as much force as campaign rhetoric. And he further claims that the president has unilateral authority to interpret, reinterpret, and terminate treaties, effectively rendering presidents above the law when it comes to treaties.

[snip]

[blockquote]If anything, Yoo's historical evidence is even thinner with respect to the treaty power and the Supremacy Clause than it is with respect to the clause on declaring war. As Jack Rakove, one of the foremost historians of the federal period, has concluded, the framers "were virtually of one mind when it came to giving treaties the status of law."[12] As other historians have pointed out, one of the principal incentives for convening the Constitutional Convention was the embarrassing refusal of state governments to enforce treaties. The Supremacy Clause solved that problem in as direct a way as possible�by making treaties the "Law of the Land," enforceable in courts and binding on government and citizenry alike. That treaties were not thought to need further implementing is underscored by the framers' unanimous decision to omit treaty enforcement from Congress's enumerated powers, "as being superfluous since treaties were to be 'laws.'"[13] Yoo's account turns that conclusion on its head; his reading would render superfluous the Supremacy Clause's assertion that treaties are laws. If treaties had domestic force only when implemented by a subsequent statute, as Yoo maintains, then the statute itself would have the status of the "Law of the Land," not the treaty.[/blockquote]

This all makes it seem as though Yoo's book is tendentious and disingenuous, and perhaps saves him from the charge of being simply a Bushie hack. Cass Sunstein is praising him--perhaps because Sunstein admits that he doesn't want to be bound by "original intent," and it seems clear, even if he doesn't admit it, that Yoo doesn't want to be, either.

The main question, as Cole makes clear, is what is the best approach for today. Cole says that not only is there an obvious danger is giving ambitious presidents their head, but in specific cases where Congress has not been sufficiently involved, quagmires have resulted. Cole includes Iraq as an example. Of course, while Congress did not exactly declare war on Iraq, they did authorize military action "if necessary" in October 2002, and then voted for massive funding in October 2003. "Were Congress to be eliminated from the initial decision-making process, as Yoo would prefer, the result would almost certainly be even more wars, and more quagmires such as the one in Iraq."

Obviously this will continue to be debated for years, and we probably need a clear definition of "quagmire." But: has the cost of the Iraq war far exceeded any benefit to the national security of the U.S.? Still not clear, I think.

In his closing paragraphs Cole is more concerned about torture, where Yoo really surpassed himself in his advice to Bush. I guess the point is: if the U.S. become known as torturers, even if they really are liberators, they will have more trouble being seen as liberators.

Tue Dec 27, 2005 10:07 am MST by robertll | Email Article |

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Yoo on Foreign Policy and War