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...
I have been reading The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo, and my reactions to it are strong and complex enough that I've decided to critique it here on on Vox Libertas. This page is the first in a planned series. I have not finished reading the book yet, and so the course of this series is not planned out, but so far, I see three major classes of difficulty with the book. They are:
Yoo, himself, points out that his views are in sharp contrast with the prevailing views on the Constitution:
This book proposes a constitutional theory of the foreign affairs powers that differs, at times sharply, from the conventional academic wisdom but that describes more accurately the actual practice of the three branches of government.
p. viii
Others have also noticed this difference, but have a different explanation. See, for instance, Andrew Napolitano's book, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. Where Judge Napolitano sees the government breaking the law and violating the Constitution, and warns that we are becoming a government of men, and not laws, Yoo urges us to revise our understanding of the Constitution in light of what may appear to be unlawful practice. This difference is crucial and perhaps critical, and so Yoo's revisionist reasoning should be examined closely.
Yoo recounts some of the last two or three decades of political theory in the area of treaties and war powers, and contrasts the historical context in which they were written with what he sees as our current circumstance.
At the time such leading scholarly works as those mentioned above were written, the nature of war continued to be thought of as occurring solely between nation-states. The Persian Gulf War had just witnessed an American-led coalition's defeat of Iraq's grab for Kuwait—a traditional war over territory fought by the regular armed forces of nation-states. Nation-states were presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort.
p. ix
Thus, he claims, the theories of the day were based on this view of current events.
The disappearance of the threat of a war that could directly harm American national security allowed policymakers and intellectuals the luxury to envision a future in which they could reduce the overall level of armed conflict.
p. ix
Please notice that while this is possible, it should be remembered that Yoo himself is proposing that current practice should serve as a basis for political theory, and that his predecessors in general did not claim to work this way.
In his preface Yoo presents a view of recent history that will be familiar to anyone who has heard the Bush administration and their neo-con theoreticians defend their policies and actions:
The World after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduced the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than disappearing from the world, the threat of war may well be increasing. Threats now come from at least three primary sources: the easy availability of the knowledge and technology to create weapons of mass destruction (WMD); the emergence of rogue nations; and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization.
pp. ix-x
At the heart of this passage is the argument that three new developments provide us with justification for extreme actions and a change of course. Specifically, he cites:
Weapons of Mass Destruction in the hands of dangerous radicals are the reason given for the invasion of Iraq, for isolating the "Axis of Evil", and for finding ourselves on the brink of adding a third war to our collection in the Middle East. I go regularly to pray at the grave site of other soldiers sent on a similar mission more than two centuries ago. You see, Concord, Massachusetts is the next town over and at the Old North Bridge there is a memorial to the British soldiers who died there in the Battle of Concord. It starts,
They came 3000 miles and died to keep the past upon its throne.
Before 2001, I'd only been there a couple of times, but since going there in remembrance of the modern Minute Men who died on Flight 93, I return regularly, so the story of the Battle of Concord may well be more familiar to me than to many of you, my readers. Let me recap.
The British had heard that the colonial militia had canons, long arms, shot and gunpowder stored in Concord, and between 700 and 800 troops were sent out under the command of Lt. Col. Francis Smith to retrieve these weapons to prevent them from being used by radical insurgents who objected to the occupation of nearby Boston by British troops. By the time they arrived in Concord there were few weapons to be found, but they burned a few gun carriages on the common near the meeting house. The militiamen gathered nearby saw the smoke and charged the British troops that were stationed near the North Bridge. They outnumbered the British more than 4-to-1, and the Red Coats took their first fatalities, the aforementioned soldiers whose memorial is there today.
The British withdrew, and were joined by a slightly smaller force, and though they now numbered about 1300, the militias grew even faster and the British routed and retreated to Boston. The militias gathering around the city turned into the Siege of Boston, which turned into the American War of Independence, which was the first of a number of secessionist wars that resulted in the collapse of the British Empire, the first power upon whom the sun never set.
The point of recounting that bit of history is that fear of dangerous weapons of war, and mass destruction is not new. Ah, but you say, cannons and gunpowder are not weapons of mass destruction of the calibre that we face today. That is true, but they were serious enough to threaten the largest cities of the day and cause sufficient destruction to threaten a city or a nation's economy.
And they were not the only WMDs. Think of the smallpox-infected blankets used in the Siege of Fort Pitt. Think of the terror of mustard gas in The Great War—WWI. Recall, if you will, that when we speak of Saddam using WMDs, mustard gas was what he used on the Kurds and the Iranians. The same WMD used by the Germans on Canadians 90 years ago.
Every era has its terror weapons, in the light of which all that came before always seem like child's play. Familiarity breeds contempt. New technology is scary.
The Emergence of Rogue Nations is no more a new thing than WMDs, or the dangers of new technology and knowledge. Take, for instance the so-called "Barbary States", home of the Turkish Corsairs or "Barbary Pirates", the area the Islamic world calls the Maghreb. From the Western perspective, this area has long been ruled by strongmen and pirates since the days of the Crusades, much of the time under the aegis of the Ottoman Empire, financed by tribute, ransom, slavery and plunder.
(Note that all of the European powers also commissioned privateers, and that the early economy of the United States was closely tied to slavery, and that the people of North Africa and the Middle East, like my celtic ancestors are a tribal people, basing their power structures on familial ties rather than territory and lines on maps.)
To the extent that the term "rogue nation" means anything it means outlaw nations that don't obey what we recognize as the civilized international law. Besides the Barbary States of the Maghreb which the US has fought since it gained its independence from England (see the "Shores of Tripoli" reference in the marine hymn), our early history with the French and "their" indians (not to be confused with "our indians" who harassed the French, and the demonized "wild indians" of the American West), is full of nations that fit that definition. And just as the indians learned to scalp their enemies from Europeans, it was after all, the US that helped build the Afghani Mujahideen up to fight the Russians.
No, the United States has dealt with deadly enemies whose culture was way outside of our notion of civilized international relationships since before the country was founded. Which brings us to the terrorist threat.
International Terrorism isn't a new development in the world, nor unfamiliar to Americans.
I've already mentioned the "French and Indian War", but conflict between the French and British colonies, was much longer lived than that one war. Both sides harassed the other through their surrogate allied native tribes. As mentioned above, one of the things the European powers taught their Indian clients was the taking of scalps to as proof for the awarding of bounties. Beyond scalping, fire and kidnapping were frequent tactics in the guerilla and terrorist struggle along the colonial boundaries.
As the conflict turned from British vs French to colonist/Americans vs Indians, the intentional depletion of game animals, disease infected blankets and the distribution of addictive drugs in the form of alcohol were added to the repertoire of terrorist tactics. Make no mistake about it, early American history involved terrorism and state-sponsored terrorism. Biological weapons and a drug trade in the hands of terrorists were all known, and practiced by the British, French, Native Americans and the United States.
Although Yoo doesn't explicitly mention "Ethnic Cleansing" among his list of modern ailments, it is worth considering that the New World knew it not only in the treatment of Native Americans, but also in the form of the expulsion of the Acadians from Nova Scotia to, among other places, New Orleans, where we know them as the "cajuns". And speaking of New Orleans, there was also piracy and privateering familiar to the denizens of New Orleans and those along the Anglo/Spanish frontiers.
Returning to terrorism, and moving on to the 19th century there was the wave of revolutions that swept through Europe in the 1840s. In America, we had Bloody Kansas leading up to the Civil War, and during it, the guerilla warfare of Quantrell and Bloody Bill Anderson, and Sherman's march to the sea, all of which could legitimately be described as terrorism, at least by those on the receiving end. Anarchist terrorism grew through the last decades of the 19th century and into the 20th, where, it was the spark that ignited World War I, with the assassination of Archduke Franz Ferdinand of Austria.
It makes great propaganda to talk about how "the whole world changed" after 9/11, but it does not accurately reflect history or the American experience. We may have had a few illusions dispelled, but WMDs, rogue nations, international and state-sponsored terrorism are all familiar, or should be, to Americans with any historical perspective.
This historical weakness, unfortunately, strikes to the very heart of Yoo's book because one of its main thrusts is to use history as a basis for his constitutional theory. For his theory to be sound, the understanding of history upon which it based must be sound.
Yoo's claims that everything has changed after 9/11 are, however, not historically sound, and that he makes them in the introduction to what is presented as a scholarly reconsideration of fundamental Constitutional issues, raises the question of where they come from. Some of the possibilities are:
Any of these weaken the book. The later ones carry more blame, and given that he contributes substantially to the Bush Administration's theoretical basis for strengthening the centralized authority of the Presidency, give us good reason to be wary.
In the historical chapters that follow, Yoo appears to be cherry picking his history, to be seeking out those pieces that suit his theory, so perhaps that's what is happening here. Perhaps he is just blinded by his assumptions, biases and loyalty to the President.
Several of Yoo's claims make assumptions that he does little to prove,
These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system....
If, however, the nature and level of threats are increasing and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war.
p. x, (emphasis mine.)
I have already provided numerous counter examples to his claimed new types of threats are emerging or increasing. The new claim that he interjects in these passages that military force is the most effective response to these threats, is also unsubstantiated, and should be questioned. It is, for instance, that US military forces has been entirely effective in Iraq.
As ever, don't believe me. Study history yourself. Check out The Powers of War and Peace from the library. If the book is too long for you, sample the memoranda he wrote as part of the Bush Administration. There are examples available at the DoJ and FindLaw. An interview with Yoo at the University of Chicago, includes both comments and quoted passages. The Harvard Law Review includes it in a broad review of 4 books. The Founders Constitution is an excellent collections of historical documents related to the Constitution.
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To Be Continued...