John Yoo, formerly of the Justice Department, was profiled in The Wall Street Journal Sept. 12 as the author of opinions "justifying the...
“The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11”
by John Yoo
University of Chicago,
336 pp., $29
John Yoo, formerly of the Justice Department, was profiled in The Wall Street Journal Sept. 12 as the author of opinions “justifying the Bush administration’s aggressive approach to detaining and interrogating suspected terrorists.” Yoo, 38, is now a professor of law at Berkeley, where his support of Bush makes him “reviled on the political left.”
Now you can read his book, “The Powers of War and Peace.” There is nothing in it favoring torture — or assassination, which the Journal said Yoo is also in favor of. But in his book, this tough-minded Korean American does reach some blunt conclusions:
President Bush had the constitutional power to declare that the Geneva Conventions did not apply to fighters captured in Afghanistan. The president has the power to interpret treaties and, indeed, to cancel them. He also has the constitutional power, Yoo argues, to make war.
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An early draft of the Constitution gave Congress the power “to make war.” The Founders changed that wording to “declare” war, which, Yoo says, was understood at the time as “a legalistic function that defines relationships and status under international law.” America has made war many times but has declared war only five times.
Congress’ power over war, says Yoo, is the power to refuse to pay for it. That, he says, is “all the power it needs.”
One may dislike the implications of this position: Congress never uses this power that is “all it needs.” But Yoo’s argument is not glib or flimsy. The argument in this book is serious, precise and fine-grained. Yoo was once a clerk to Justice Clarence Thomas, the Supreme Court’s originalist, and it shows. Yoo pays close attention to how the Constitution was understood by the framers, ratifiers and the first president.
Yoo argues over the words used — declare war, make war, engage in war — and the words not used. He notes that the Treaty Clause is in Article II instead of Article I, and what that means; and that it is paired with the Appointments Clause, and what that means. All this is not for the casual reader; one feels, at the end of it, that there ought to be a coupon to clip to send off to the University of California for class credit.
The author explores three big topics. First is the war power. Second is the treaty power, and whether a treaty made by the president and confirmed by a two-thirds vote in the Senate is automatically enforceable inside the United States. In practice it is not, and Yoo argues that the practice is correct.
An example: the International Covenant on Civil and Political Rights, which since 1976 has prohibited death sentences for crimes committed by persons under 18. That covenant has long been ratified by the United States, but there has never been a right of Americans to bring a lawsuit under it.
His third topic is the congressional-executive agreement, which is what NAFTA and the WTO are. These look like treaties but are passed as ordinary laws, requiring a majority of both houses of Congress. Yoo argues that this method is valid for trade and a few other things but cannot be used on matters normally outside the power of Congress.
After laying out his position, Yoo compares what his view and the liberal internationalist view mean for America’s freedom to act independently. The Journal called Yoo a “sovereigntist,” which really means a nationalist.
Yoo does not want a view of the Constitution that would, for example, allow the power to make war to be turned over to the United Nations by a treaty. Under some interpretations of the treaty power, that is possible. Not under John Yoo’s.
Bruce Ramsey is a Seattle Times editorial writer.