What Bush wants to
hear A consideration of John
Yoo's The Powers of War and Peace: The
Constitution and Foreign Affairs After
9/11 By David Cole
Few lawyers have
had more influence on President George W 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.
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".
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".
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."
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." 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".
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. 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. 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. 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?
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.
It is true, as Yoo observes, that,
since Harry Truman, presidents of both parties
have generally resisted the view that they need
congressional authorization to commit forces to
military conflict. But this attitude is in fact a
relatively recent development. While formal
declarations of war have been rare, Yoo fails to
note that presidents have generally sought
congressional authorization for military actions.
Until the Korean War, presidents either openly
acknowledged that congressional authorization was
necessary or offered rationales for why a
particular military initiative was an exception to
that rule. Thus, the view that Yoo promotes as
"original" has in fact been advanced only during
the last fifty years, and only by self-interested
executives.
This view is particularly
disputed by Congress, as can be seen in the 1973
War Powers Resolution, which sought to reaffirm
and restore Congress's constitutional role in
deciding on whether to go to war, and also in the
legislative debates that inevitably take place
when presidents talk of going to war. As the war
in Iraq has painfully underscored, the decision to
go to war, especially a war initiated by the
president without broad international support, can
have disastrous consequences; and extricating the
country from such a war can be extremely
difficult. 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. On this issue, the framers were persuasive,
and it is Yoo who has failed to understand both
the checks on executive power they imposed and the
reasons they did so.
Treaties Yoo's interpretation of the treaty power, like
his view of the war power, departs dramatically
from the text of the constitution and its
traditional understanding. The Constitution's
Supremacy Clause explicitly provides that "all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every
State shall be bound thereby".
On the
strength of that clause, and statements made about
treaties at the time of the framing, it has long
been accepted that treaties have the force of law
in the United States, create binding obligations,
and may be enforced by courts. Indeed, the Supreme
Court long ago stated that treaties are "to be
regarded ... as equivalent to an act of the
legislature".
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 DC Circuit did so recently in rejecting a
Guantanamo 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.
To
support these revisionist views, Yoo relies
heavily and repeatedly on a rigid dichotomy
between foreign affairs - which he sees, in the
British tradition, as the executive's domain - and
domestic matters - which he sees as the province
of the legislature. But as we have seen, the
constitution's framers explicitly rejected such a
rigid division, giving Congress and the Senate
substantial power over functions that the British
saw as executive in nature, including the power to
make war and treaties, and expressly assigning the
judiciary the responsibility to enforce treaties
as the "Law of the Land".
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".
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'."
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.
Yoo is
no more convincing with respect to presidential
interpretation of treaties. He maintains that
because foreign policy is an executive
prerogative, the executive must be able to
reinterpret and terminate treaties unilaterally.
But while the constitution plainly envisioned the
president as the principal negotiator of treaties,
it also gave clear responsibilities for treaties
to the other branches; all treaties must be
approved by two-thirds of the Senate, and once
ratified, treaties become "law" enforceable by the
courts. The president must certainly be able to
interpret treaties in order to "execute" the laws,
just as he must be able to interpret statutes for
that purpose. But there is no reason why his
interpretations of treaties should be any more
binding on courts or the legislature than his
interpretations of statutes.
The rule
of law Yoo's views on the war and treaty
powers share two features. First, they both depart
radically from the text of the constitution. He
would reduce the power to "declare war" to a mere
formality, a courtesy to the enemy; and he would
render entirely superfluous the Supremacy Clause's
provision that treaties are the "Law of the Land".
It is ironic that a president who
proclaims his faith in "strict construction" of
the constitution would have found Yoo's
interpretations so persuasive, for Yoo is anything
but a strict constructionist. One of the arguments
most often made in defense of "originalism" is
that interpretations emphasizing a "living" or
evolving constitution are too open-ended, and
accordingly they permit judges to stray too far
from the text. Yoo unwittingly demonstrates that
his brand of originalism is just as vulnerable to
that criticism as other approaches, if not more
so. He not only departs from the text, but
contradicts the principles that underlie it.
Second, and more significantly, all of
Yoo's departures from the text of the constitution
point in one direction - toward eliminating legal
checks on presidential power over foreign affairs.
He is candid about this, and defends his theory on
the ground that it preserves "flexibility" for the
executive in foreign affairs.
But the
specific "flexibility" he seeks to preserve is the
flexibility to involve the nation in war without
congressional approval, and to ignore and violate
international commitments with impunity. As Carlos
Vazquez, a professor of law at Georgetown, has
argued in response to Yoo, "Flexibility has its
benefits, but so does precommitment." The
constitution committed the nation to a legal
regime that would make it difficult to go to war
and that would provide reliable enforcement of
international obligations. Yoo would dispense with
both in the name of letting the president have his
way.
Even if Yoo is wrong about the
original understanding in 1787, is he wrong about
2005? As the subtitle of his book indicates, his
argument rests not just on revisionist history,
but also on arguments about what is practically
necessary in a 21st century world threatened by
terrorism and weapons of mass destruction. He
contends that these developments demand that the
president have the leeway to insulate his foreign
policy decisions both from the will of Congress
and from the demands of international law.
Here it is worth reviewing the positions
Yoo advocated while in the executive branch and
since, and their consequences in the "war on
terror". At every turn, Yoo has sought to exploit
the "flexibility" he finds in the constitution to
advocate an approach to the "war on terror" in
which legal limits are either interpreted away or
rejected outright. Just two weeks after the
September 11 attacks, Yoo sent an extensive memo
to Tim Flanigan, deputy White House counsel,
arguing that the president had unilateral
authority to use military force not only against
the terrorists responsible for the September 11
attacks but against terrorists anywhere on the
globe, with or without congressional
authorization.
Yoo followed that opinion
with a series of memos in January 2002
maintaining, against the strong objections of the
State Department, that the Geneva Conventions
should not be applied to any detainees captured in
the conflict in Afghanistan. Yoo argued that the
president could unilaterally suspend the
conventions; that al-Qaeda was not party to the
treaty; that Afghanistan was a "failed state" and
therefore the president could ignore the fact that
it had signed the conventions; and that the
Taliban had failed to adhere to the requirements
of the Geneva Conventions regarding the conduct of
war and therefore deserved no protection.
Nor, he argued, was the president bound by
customary international law, which insists on
humane treatment for all wartime detainees.
Relying on Yoo's reasoning, the Bush
administration claimed that it could capture and
detain any person who the president said was a
member or supporter of al-Qaeda or the Taliban,
and could categorically deny all detainees the
protections of the Geneva Conventions, including a
hearing to permit them to challenge their status
and restrictions on inhumane interrogation
practices.
Echoing Yoo, Alberto Gonzales,
then White House counsel, argued at the time that
one of the principal reasons for denying detainees
protection under the Geneva Conventions was to
"preserve flexibility" and make it easier to
"quickly obtain information from captured
terrorists and their sponsors." When CIA officials
reportedly raised concerns that the methods they
were using to interrogate high-level al-Qaeda
detainees - such as waterboarding - might subject
them to criminal liability, Yoo was again
consulted.
In response, he drafted the
August 1, 2002, torture memo, signed by his
superior, Jay Bybee, and delivered to Gonzales. In
that memo, Yoo "interpreted" the criminal and
international law bans on torture in as narrow and
legalistic a way as possible; his evident purpose
was to allow government officials to use as much
coercion as possible in interrogations.
Yoo wrote that threats of death are
permissible if they do not threaten "imminent
death", and that drugs designed to disrupt the
personality may be administered so long as they do
not "penetrate to the core of an individual's
ability to perceive the world around him". He said
that the law prohibiting torture did not prevent
interrogators from inflicting mental harm so long
as it was not "prolonged". Physical pain could be
inflicted so long as it was less severe than the
pain associated with "serious physical injury,
such as organ failure, impairment of bodily
function, or even death".
Even this
interpretation did not preserve enough executive
"flexibility" for Yoo. In a separate section of
the memo, he argued that if these loopholes were
not sufficient, the president was free to order
outright torture. Any law limiting the president's
authority to order torture during wartime, the
memo claimed, would "violate the constitution's
sole vesting of the commander-in-chief authority
in the president".
Since leaving the
Justice Department, Yoo has also defended the
practice of "extraordinary renditions", in which
the United States has kidnapped numerous
"suspects" in the "war on terror" and "rendered"
them to third countries with records of torturing
detainees. He has argued that the federal courts
have no right to review actions by the president
that are said to violate the War Powers Clause.
And he has defended the practice of targeted
assassinations, otherwise known as "summary
executions".
In short, the flexibility Yoo
advocates allows the administration to lock up
human beings indefinitely without charges or
hearings, to subject them to brutally coercive
interrogation tactics, to send them to other
countries with a record of doing worse, to
assassinate persons it describes as the enemy
without trial, and to keep the courts from
interfering with all such actions.
Has
such flexibility actually aided the US in dealing
with terrorism? In all likelihood, the policies
and attitudes Yoo has advanced have made the
country less secure. The abuses at Guantanamo and
Abu Ghraib have become international
embarrassments for the United States, and by many
accounts have helped to recruit young people to
join al-Qaeda. The US has squandered the sympathy
it had on September 12, 2001, and we now find
ourselves in a world perhaps more hostile than
ever before.
With respect to detainees,
thanks to Yoo, the US is now in an untenable bind:
on the one hand, it has become increasingly
unacceptable for the US to hold hundreds of
prisoners indefinitely without trying them; on the
other hand our coercive and inhumane interrogation
tactics have effectively granted many of the
prisoners immunity from trial. Because the
evidence we might use against them is tainted by
their mistreatment, trials would likely turn into
occasions for exposing the United States' brutal
interrogation tactics.
This predicament
was entirely avoidable. Had we given alleged
al-Qaeda detainees the fair hearings required by
the Geneva Conventions at the outset, and had we
conducted humane interrogations at Guantanamo, Abu
Ghraib, Camp Mercury and elsewhere, few would have
objected to the US holding some detainees for the
duration of the military conflict, and we could
have tried those responsible for war crimes. What
has been so objectionable to many in the US and
abroad is the government's refusal to accept even
the limited constraints of the laws of war.
The consequences of Yoo's vaunted
"flexibility" have been self-destructive for the
US - we have turned a world in which international
law was on our side into one in which we see it as
our enemy. The Pentagon's National Defense
Strategy, issued in March 2005, states: "Our
strength as a nation state will continue to be
challenged by those who employ a strategy of the
weak, using international for a, judicial
processes, and terrorism."
The proposition
that judicial processes - the very essence of the
rule of law - are to be dismissed as a strategy of
the weak, akin to terrorism, suggests the
continuing strength of Yoo's influence. When the
rule of law is seen simply as a device used by
terrorists, something has gone perilously wrong.
Michael Ignatieff has written that "it is the very
nature of a democracy that it not only does, but
should, fight with one hand tied behind its back.
It is also in the nature of democracy that it
prevails against its enemies precisely because it
does."
Yoo persuaded the Bush
administration to untie its hand and abandon the
constraints of the rule of law. Perhaps that is
why we are not prevailing.
David
Cole is a law professor at Georgetown and a
contributor to the New York Review of Books where
this piece has just appeared. He is the author
of Enemy Aliens: Double Standards and
Constitutional Freedoms in the War on Terrorism,
recently published in a revised paperback
edition.
(Copyright 2005 David Cole)
(Note: This piece originally contained
numerous footnotes, which can be found in the
November 17 issue of the New York Review of Books
or, next week, at that magazine's website where
the piece will be also posted.)
