John Yoo Review, part II

Yoo: War-time powers NOT in effect

In part 1 of my review of John Yoo's book, The Powers of War and Peace, I criticized him for his flawed understanding of history, and of how things today differ from from the last century or two. In this article, my focus is more his reasoning and analysis of history. I think that the inescapable conclusion of this review is that even if we accept his premises and his reasoning we find that he provides arguments that directly contradict the doctrines and actions of the Bush administration.

In a day when a professor of government at Harvard University can write a serious piece in the Wall Street Journal arguing that the country needs and the US Constitution allows for "one-man rule" in preference to the Rule of Law, I believe it is particularly important to carefully read, analyze, and where necessary rebut writers like John Yoo and Harvey Mansfield who are providing the theoretical basis for the turn towards authoritarian rule.

In part 1, I suggested that Yoo's misrepresentation of history had several possible causes. Among them, one of the most likely was that he was serving a political agenda. In chapter's 2-5, we some evidence for that agenda—Yoo focuses very strongly on showing that the fact that the Legislature has the power to declare war does not mean that the President requires their permission to initiate military actions or hostilities, and that likewise making, breaking and interpreting treaties is an executive function. By so focusing on these points, however, he ignores several implications of his reasoning that weaken the justification for a strong unified executive that is free of legislative interference.

The first example of this appeared in the introduction. There, while considering the implications of Article II of the Constitution granting the Senate the power to ratify treaties, he wrote:

the Senate's participation in treatymaking and appointments reflects an effort to dilute the unitary nature of the executive branch, rather than to transform these function into legislative powers. When the Constitution, for example, grants the executive a power that is legislative in nature, such as the veto power, it does so in Article II. Participation of the Senate in treatymaking does not transform treaties into legislative acts, just as its role in appointments does not make the appointment of officers legislative in nature.

Because the distinction between executive and legislative powers is critical to his argument that the President enjoys the power to engage the nation in military conflicts and to negotiate treaties without the Congress's permission, he must draw sharp distinction between the unenumerated executive power that is vested in him from the power of the legislature. Thus, he views the Senate as acting, in this case, in a role analogous to the privy council in Britain or the Governor's Council in Massachusetts and the like. But in so doing he must ascribe to the founders the desire to dilute the "unitary executive" of which we hear so much.

Either the Senate is exercising legislative oversight in the making of treaties and appointments or the Senate is in these instances acting with executive power. In either case the notion of the President as the sole supervisor of a unitary executive is weakened. In the choice that Yoo has made in his analysis, we see the President's executive power tempered by the oversight and approval of a part of the federal executive that he does not supervise. Thus, when he argues in signing statements that the executive branch need not follow the laws as passed by the legislature, and does so as the sole supervisor of the executive branch, he does so in direct contradiction to Yoo's analysis.

If we make the other choice, that the Senate is part of the legislative branch and any powers granted to it are legislative in nature regardless of which Article they appear in, then we have clear instances where the President is subject to direct legislative oversight and approval, and when the President argues in his signing statements that the executive need not follow the dictates of the legislature in order to preserve the separation of powers, again we have counter examples. No matter which choice we take in this dilemma, Yoo has supplied us with a counter-argument for the independent and unitary executive that the neo-cons wish to claim.

Moving to the chapters that I had explicitly targeted with this part of my review, we come to another major contradiction of administration and neo-conservative theory, this time in the area of the declaration of war. A large portion of Yoo's book focuses on countering the arguments of "pro-congress" scholars who assert that it is illegal or unconstitutional for the President to engage in warfare without Congress's formal declaration of war. To do so, he argues that at the time of the writing of the Constitution it was clearly understood that a declaration of war neither initiated nor authorized military action. He writes in the section on British law at the time of the revolution:

First, it [the declaration of war] notified the enemy that a state of war existed between them. If a nation warned its enemy of future hostilities, its later actions would receive the protection of international law. A declaration announced that hostile actions by its soldiers were taken under national aegis, and thus did not constitute piracy or robbery.
p. 33
Second, declarations played a domestic legal role by informing citizens of an alteration in their legal rights and status.
p. 34
Thus, a declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did the declaration of war serve as a vehicle for domestically authorizing war.
p. 34

In the section on the colonial constitutions, he explains even more explicitly:

The declaration of war's main purpose lay not in authorizing military operations, but in triggering the governor's exercise of his domestic powers, such as the authorization to impose martial law.
p. 61

If we follow Yoo's reasoning, we may find that we must concede that the President does not need a declaration of war in order to commit the nation to armed conflict, but we must also find that without a declaration of war, the powers that the President has been claiming as Commander in Chief to authorize warrant-less wire taps, hold "enemy combatants" indefinitely, and so forth, are not permitted to him. Every time the President tells us "we are at war, and extraordinary measures are necessary", he is exceeding his authority, unless there is a declaration of war, according to Yoo's own analysis.

This line of reasoning finds it full conclusion in the following passage in the section where he analyzes the Constitution itself, which somehow the administration and the neo-cons don't seem to ever cite:

Textually, a declaration of war places the nation in a state of total war, which triggers enhanced powers on the part of the federal government
p. 151
A paragraph later, he expands on the type of enhanced powers that require a declaration of war.
Congress has recognized the distinction between declared total wars and nondeclared hostilities by providing the executive branch with expanded domestic powers—such as seizing foreign property, conducting warrantless surveillance, arresting enemy aliens, and taking control of transportation systems, to name a few—only when war is declared.
p. 151, (emphasis mine.)

Most remarkably, a few pages later, Yoo distinguishes the declaration of war from the "Authorization of the Use of Military Force" (AUMF) and other similar Congressional acts, when he writes:

With both Iraq and Afghanistan, a supporter of the Declare War Clause theory of war powers may well have felt the Constitution satisfied because of the two statutes authorizing hostilities—even though these scholars have never explained why authorizing statutes satisfy the requirement for a declaration of war.
p. 157

This is in very stark contrast with Yoo's own argument that "because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." By his very definitions, this authority only applies in a declared war.


And so, we find that the very theories that John Yoo uses to argue for the strengthening the powers of the President, contain within them very powerful arguments against the way that the the Bush administration has exercised his supposed authority. Yoo, himself argues that the founding fathers wish to dilute the unitary nature of the executive by granting executive powers to the Senate, acting as an independent executive council, approving appointments and treaties.

More significantly, Yoo writes explicitly that the use of extraordinary war-time powers, such as warrantless surveillance require a declaration of war, and that the authorization of of military action in Afghanistan and Iraq does not qualify as a declaration of war.

If one of President Bush's own theoreticians and Justice Department appointments, a man credited with providing the foundation for doctrine of the unitary executive and the view of the President as wielding unenumerated executive powers, tells us that the founding fathers wish to dilute the unitary executive and that warrantless wire-tapping requires a declaration of war, how can we avoid drawing the conclusion Bush has exceeded his authority, violated the law, and violated the Constitution?

As ever, don't believe me. Investigte for yourself. Read the Constitution. Borrow Yoo's book from the library. (I find it hard to recommend buying it.) Peruse The Founders Constitution, an excellent collections of historical documents related to the Constitution. Read the "John Yoo says surveillance illegal" in the Daily Kos, for another conflict between his reasoning and administration practice.

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To Be Continued...