Vol. 16 No.1 (January 2006), pp.102-105

 

THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, by John C. Yoo.  Chicago: University of Chicago Press, 2005.  378pp. Cloth $29.00. ISBN: 0-226-96031-5.

 

Reviewed by David Schultz, Graduate School of Management, Hamline University.  Email: Dschultz [at] hamline.edu

 

To read THE POWERS OF WAR AND PEACE is to read the ideological latticework upon which the Bush Administration’s grasp for presidential power is constructed.  As Deputy Assistant Attorney General in the Office of Legal Council, it was John Yoo’s September 25, 2001, Memorandum that articulated the legal arguments supporting the Bush Administration’s claims that it had inherent authority to use force against terrorists in Afghanistan.  The arguments in this Memorandum, however, had even broader influence as it was the first of four legal opinions drafted to defend presidential power.

 

In addition to the September 25, 2001, Yoo Memorandum describing presidential war making powers, there is also a January 22, 2002, Office of Legal Council Memorandum addressing the treatment of al Qaeda and Taliban detainees, an August 1, 2002, Office of Legal Council discussion reviewing the classification and treatment of al-Qaeda held outside the United States, and a January 19, 2006, Department of Justice Memorandum supporting Bush’s decision to order the warrantless wiretapping of telephone conversations by the National Security Agency.  All four Memoranda rely upon a similar logic as first articulated by Yoo in the September 25, 2001, opinion.  It is this Memorandum that forms the precis of THE POWERS OF WAR AND PEACE.

 

The Yoo Memorandum argues that the president has extensive inherent authority to use force against terrorists.   To substantiate this claim, Yoo relies upon the structure of the Constitution, judicial and executive construction of the Constitution, recent practice and tradition, and finally congressional enactments authorizing use of force.  First, in terms of the structure of the Constitution, Yoo draws heavily upon the Founders’ constitutional intent, especially as glossed by Alexander Hamilton in the Federalist Papers.

 

For Yoo, the text of the Constitution, vests “full control” of military powers in the President to direct military operations, even absent congressional declarations of war.  The basis for this claim rests upon a specific view of the presidency, again attributed to Hamilton, which asserts that the constitutional text creates a unified executive power or presidency. It is this unified conception of the presidency, along with the conveyance of executive power in the president, and an historical viewing of war powers and foreign policy activity as an executive function, that gives this office the exclusive power that it has in national security and defense issues. [*103]

 

Second, judicial and executive construction also endorses a strong view of presidential power in national security issues.  In terms of executive construction, Part II of the Yoo Memorandum outlines numerous occasions where Attorney General or Justice Department opinions have supported presidential supremacy, if not exclusivity, in this policy area.  For example, Yoo cites opinions of Attorneys General William Barr, Frank Murphy, and Thomas Gregory as arguing the president had inherent constitutional authority to commit troops overseas, or to take military action without congressional approval.

 

Third, historical practice and tradition also support presidential exclusivity in national security matters.  Yoo cites what he claims are at least 125 times in American history where troops have been committed overseas by the president without congressional approval.  Finally, Yoo points both to the War Powers Resolution and a September 18, 2001, congressional resolution authorizing the president “to use all necessary and appropriate force” against terrorists as giving Bush extensive power to maintain national security.  Invoking Justice Jackson’s famous concurrence in YOUNGSTOWN SHEET & TUBE CO. that presidential power in foreign affairs is at its maximum when given legislative support by Congress,  these two acts of Congress clearly endorse the notion that the president has broad if not exclusive and unlimited power to act in foreign affairs and national security matters.

 

How do the arguments of THE POWERS OF WAR AND PEACE compare to those of the Memorandum? There are subtle differences, even if they reach the same overall conclusions about presidential power.  First, Yoo remains consistent in arguing that the Constitution, history, and practice all endorse preeminence of presidential power in foreign affairs and national security issues, leaving Congress only the powers of the purse and de-authorizing the military if it wishes to check the executive branch.  The book is also clearer in stating that the judiciary should have no role in foreign affairs, viewing such issues as political questions.  However, some of the arguments endorsing presidential power are expounded upon and changed.

 

For one, while the Memorandum stressed the intent of the framers in exclusively conveying foreign policy power upon the president, the book shifts the argument.  It looks not to what the original intent of the framers was but to the original understanding of ratifiers and those who read the Constitution.  Specifically, in the first four chapters, Yoo draws heavily upon Blackstone and British experiences and writings to support the claim that the ratifiers of the Constitution—including the members of the various state legislators as well as the Federalists and Anti-Federalists—all understood that foreign policy authority was exclusively [*104] an executive function.  He also argues that when war making and foreign policy power shifted to Congress under the Article of Confederation, this was not a diversion of these functions to the legislative branch because this body was essentially an executive body.  In addition, Yoo relies upon colonial and post-independence state constitutions to support his contention that foreign affairs are exclusively executive.

 

What we are left with under the Constitution of 1787 is a document that was understood as vesting plenary power in the president to act in foreign affairs and which did not make his ability to wage war contingent upon formal declarations of Congress.  It is also a Constitution, for Yoo, that does not establish a fixed process for foreign policy decision making, but leaves it open to the “contemporary demands of the international system at the time and the relative position of the different branches” ( p.8).  Given the somewhat open texture here, this sets the stage for Yoo to argue that the war on terrorism is a new type of conflict that demands more rapid response than in the past.  In terms of what this means for the presidency, it includes vesting in him sole authority to make, interpret, and suspend treaties, including the Convention Against Torture and the Geneva Convention Relative to the Treatment of Prisoners of War, and to deploy troops.

 

How does one assess this book?  There is no question that it offers a wooden theory of the presidency that emphasizes a strict separation of powers model of government.  It is a model that even criticizes New Deal jurisprudence for improperly encroaching upon presidential power.  The book concludes that the War Powers Act is unconstitutional for the same reason.  But more troubling are several of Yoo’s assumptions.  For one, in numerous places Yoo draws questionable conclusions based upon silence.  For example, he asserts: “If we think of the allocation of war powers among the British and colonial governments as the background on which state constitutions were drawn, state silence suggests an acceptance of the British approach” (p.62).  Inferring from silence is always a precarious move, and too much of the reasoning of the book does that. 

 

Another problem is the effort to freeze and unfreeze the meaning of the Constitutional text at the same time.  Yoo moves from questionable discussions of how Hamilton viewed the Constitution to how ratifiers viewed it, to then arguing that he will not rely as much on subsequent case law (which does not consistently support him) to show how foreign policy power must be vested in plenary fashion in the president while decision making remains open to contemporary demands.  Is the Constitution fixed or open, and if open, why does it seem to consistently favor the presidency over Congress?  Finally, no thought is given either to how American conceptions of constitutionalism differed from British views by 1787, or how the Constitution of 1787 and it augmentation of power was rebalanced by the subsequent adoption of the Bill of Rights in 1791 and future amendments.

 

Overall, THE POWERS OF WAR AND PEACE is a provocative, flawed, but politically important book.  One should expect to see its arguments offered in future Bush Administration litigation, where one hopes that the courts will [*105] question the shaky assumptions that are propping a dubious grab for power.

 

CASE REFERENCE:

YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 US 937 (1952).

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© Copyright 2006 by the author, David Schultz.