The New York Review of Books

Few lawyers have had more influence on President Bush’s legal policies in the “war on terror” than John Yoo. This is a remarkable feat, because Yoo was not a cabinet official, not a White House lawyer, and not even a senior officer within the Justice Department. He was merely a mid-level attorney in the Justice Department’s Office of Legal Counsel with little supervisory authority and no power to enforce laws. Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same—the president can do whatever the president wants.

Yoo’s most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime—even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the “Commander-in-Chief,” no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.

Yoo is now back in private life, having returned to the law faculty at the University of California at Berkeley. Unlike some other former members of the administration, he seems to have few if any second thoughts about what he did, and has continued to aggressively defend his views. His book The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 shows why Yoo was so influential in the Bush administration. It presents exactly the arguments that the president would have wanted to hear. Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. Indeed, ratified treaties, Yoo believes, cannot be enforced by courts unless Congress enacts additional legislation to implement them. According to this view, Congress’s foreign affairs authority is largely limited to enacting domestic legislation and appropriating money. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law—constitutional or international.

Yoo is by no means the first to advance such positions. Many conservatives favor a strong executive, especially when it comes to foreign affairs, and they are generally skeptical about international law. What Yoo offers that is new is an attempt to reconcile these modern-day conservative preferences with an influential conservative theory of constitutional interpretation: the “originalist” approach, which claims that the Constitution must be interpreted according to the specific understandings held by the framers, the ratifiers, and the public when the Constitution and its amendments were drafted.¹

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. Yoo’s task is to reconcile the contemporary uses of American power with his belief in original intent. His views prevailed under the Bush administration, and therefore should be examined not only for their cogency and historical accuracy, but for their consequences for US policy in the “war on terror.”

1.

War

On its face, the Constitution divides power over foreign affairs. It gives Congress substantial responsibility, especially with respect to war. Congress has the power to raise and regulate the military; to declare war and issue “Letters of Marque and Reprisal,” which authorize lesser forms of conflict; to define offenses against the law of nations; and to regulate international commerce. The Senate must confirm all treaties and all appointments of ambassadors. The president is named as the “Commander-in-Chief,” and appoints ambassadors and makes treaties subject to the Senate’s consent. In addition, the words “executive power” have, since the beginning of the republic, been regarded as giving the president an implicit authority to represent the nation in foreign affairs.

These divisions of responsibility were conceived for widely recognized historical and philosophical reasons. The Constitution was drafted following the Revolutionary War, in which the colonies rebelled against the abuses of the British monarchy, the prototypical example of an unaccountable executive. The new nation so distrusted executive power that the first attempt to form a federal government, the Articles of Confederation, created only a multi-member Continental Congress, which was in turn dependent on the states for virtually all significant functions, including imposing taxes, regulating citizens’ behavior, raising an army, and going to war. That experiment failed, so the Constitution’s drafters gave Congress more power, and revived the concept of a branch of government headed by a single executive. But they insisted on substantial limits on the power of the new executive branch, and accordingly assigned to Congress strong powers that had traditionally been viewed as belonging to the executive—including the power to declare war.

Many of the framers passionately defended the decision to deny the president the power to involve the nation in war. When Pierce Butler, a member of the Constitutional Convention, proposed giving the president the power to make war, his proposal was roundly rejected. George Mason said the president was “not to be trusted” with the power of war, and that it should be left with Congress as a way of “clogging rather than facilitating war.”² James Wilson, another member, argued that giving Congress the authority to declare war “will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”³ Even Alexander Hamilton, one of the founders most in favor of strong executive power, said that “the Legislature alone can interrupt [the blessings of peace] by placing the nation in a state of war.”⁴ As John Hart Ely, former dean of Stanford Law School, has commented, while the original intention of the Founders on many matters is often “obscure to the point of inscrutability,” when it comes to war powers “it isn’t.”⁵

In the face of this evidence, Yoo boldly asserts that a deeper historical inquiry reveals a very different original intention—namely, to endow the president with power over foreign affairs virtually identical to that of the king of England, including the power to initiate wars without congressional authorization. He argues that the power to “declare War” given to Congress was not meant to include the power to begin or authorize a war, but simply the power to state officially that a war was on—a statement that would be “a courtesy to the enemy” and would authorize the executive to exercise various domestic wartime powers. At most, Yoo contends, the clause giving Congress power to “declare War” was meant to require congressional approval for “total war,” a term Yoo never defines, but it left to the president the unilateral decision to engage in all lesser hostilities. He quotes dictionaries from the founding period that defined “declare” as “to pronounce” or “to proclaim,” not “to commence.” He points out that the Constitution did not give Congress the power to “engage in” or to “levy” war, terms used in other constitutional provisions referring to war.⁶ And he notes that unlike some state constitutions of the time, the federal constitution did not require the president to consult Congress before going to war.

All the evidence Yoo cites, however, 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. British precedent is of limited utility here, since the framers consciously departed from so much of it. Dictionary definitions of “declare” also offer little guidance, since Yoo ignores that there is a world of difference between someone’s “declaring” his or her love for wine or Mozart and a sovereign’s declaring war. “Declare War” was in fact a legal term of art, and there is evidence that it was used at the time to mean both the commencement of hostilities and a statement officially recognizing that war was ongoing.⁷ The use of the word “declare” rather than “levy” or “engage in” simply reflects the division of authority under which the president actually levies—or carries on—the war once it is begun. Indeed, the framers famously substituted “declare” for “make” in enumerating Congress’s war powers for just this reason.⁸ And the framers had no reason to require the president to consult with Congress before going to war since it was Congress’s decision, not the president’s.

Most troubling for Yoo’s thesis, his account renders the power to “declare War” a meaningless formality. At the time of the Constitution’s drafting, a formal “declaration of war” was not necessary for the exercise of war powers under either domestic or international law, so Yoo’s hypothesis that the declaration served that purpose fails.

Yoo’s further suggestion that the 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.

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?