On November 7th, the United States Supreme Court announced, over strenuous objections by the Bush administration, that it will review the legality of the administration's planned military commissions for accused terrorists, setting up what could be one of the most significant rulings on presidential war powers since the end of World War II.
Later this term, the Court will hear the case of Osama bin Laden's former driver, Salim Ahmed Hamdan, which deals with the legality of military commissions to try Guantanamo Bay detainees. Last term, the Justices threw out the administration's claim that the United States could hold enemy combatants indefinitely without access to the courts. At the crux of many of the war power cases is the assertion that the courts lack authority to even consider cases restricting presidential war powers.
The constitutional roles of the president, Congress, and the courts in deciding to initiate and wage wars and in managing our foreign affairs is the subject of a new book written by Professor John Yoo. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 was the subject of a recent radio interview hosted by CFIF Senior Vice President & Corporate Counsel Renee Giachino.
What follows are excerpts from the interview that aired on "Your Turn - Meeting Nonsense with Common Sense," on WEBY 1330AM, Northwest Florida's Talk Radio.
GIACHINO: It is my pleasure to welcome back to the program John Yoo. John has joined us before and has always been a wonderful guest and it is great to have him back again.
John is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He clerked with Judge Laurence Silberman and then Supreme Court Justice Clarence Thomas. He spent time on Capitol Hill, working with Republican Senator Orrin Hatch of Utah. He also served in the Justice Department in 2001-03. He is the author of a brand new book called The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11.
It is a very timely book and for him to be coming on the program. You might even think that I set this up with the U.S. Supreme Court. As many of you may know, the Supreme Court agreed Monday to review a constitutional challenge to the Bush administration's military trials for foreign terror suspects. This obviously steps up the high stakes case of President Bush's war time powers.
That is what we are going to be talking about for the next half hour while we talk about this book, The Powers of War and Peace.
John, thank you for joining us.
YOO: Thanks for having me on again.
GIACHINO: John, first, I want to congratulate you on an incredibly thorough analysis of the foreign affairs powers of the president and Congress. I know there are other books - and you write in great length about some of them, that have covered this subject. But yours is from an entirely different perspective. I know it must have taken you an incredibly long time to research and write this book. What was your motivation?
YOO: Well I think part of it was that there was this consensus out there about the war power and it just didn't seem to fly when we compared it to the practice of the country over the last 200 years. Most people think in the academy that Congress has to issue a declaration of war basically every time the United States uses force abroad. If you look at American history that is certainly not what has happened - we only declared war five times over history and we certainly have been involved in any number of wars. Some people measure it at 100 times.
So the thing that really drove me to start was looking at this question as to why would it be that the Constitution and what our elected leaders have been doing could be so different? Is it really the case that our presidents and Congresses have been violating the Constitution for 200 years? I had to think that that was probably not true so I had to investigate it further and see what the story really was.
GIACHINO: Some people may know you as a professor at the University of California in Berkeley. And a lot of people have the impression of a professor as someone who lives in an ivory tower and is not in touch with reality - but your experience goes far beyond that.
I want to set this up for the listeners because I think that it increases the credibility that you have for writing this powerful book called The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. What I'd like to do, if you can indulge me for a minute, is I would like to read to the listeners an excerpt from a press release that I received that identifies the critical role that you played in the Administration's decision-making process immediately following 9-11.
As I mentioned when I introduced John, he served in the Justice Department from 2001 to 2003, during that very precarious time for our country. The press release says that, "Noted legal scholar John Yoo has been the architect of the administration's defense of its actions; in Newsweek Michael Isikoff wrote: 'Just two weeks after the September 11 attacks, a secret memo to White House counsel Alberto Gonzales' office concluded that President Bush had the power to deploy military force "preemptively" against any terrorist groups or countries that supported them . . . . The memo, written by Yoo, argues that there are effectively "no limits" on the president's authority to wage war - a sweeping assertion of executive power that some constitutional scholars say goes considerably beyond any that had previously been articulated by the department.'"
John, in many ways I think this book, The Powers of War and Peace, is the complete answer to the questions raised in those memos. Would you agree?
YOO: Yes, I think it is. I think we can have arguments about what the best policies are to fight terrorism but it is hard to really discuss those knowledgeably unless you have a sense of what the Constitution's framework is before you even get to those issues.
So I do think that our country was attacked on 9/11 by a foreign enemy and that the Constitution triggers the power of the president to protect the country from that happening again. Which may mean that he may need to order attacks abroad to preempt terrorists from carrying out another September 11th, for example.
GIACHINO: In the book and probably throughout this interview, a term is going to come up that some of the listeners may not be familiar with and so I want to go ahead and ask you to explain it to the listeners. What is meant by pro-Congress scholars?
YOO: Well that is someone who thinks - and this is what I meant when I said the view of most of academia and universities, that because of the power to declare war in the Constitution given to Congress, Congress has the primary control over war. And it is the Congress that decides when the United States can use force abroad against another country.
And my view is that the Constitution is more flexible than that. I think that the Constitution gives the president a lot of discretion if Congress supports him. But also, Congress has a lot of ways to stop the president from carrying out wars that they disagree with.
GIACHINO: I have heard you referred to - that is when I "googled" you before this interview, which I like to do very often on my guests. That sounds like such a nasty thing - to say "I googled" somebody. Anyway, I did google you before this interview to read the most current news about you or articles by you.
I read that you were referred to as a sovereigntist. I don't know if I said that right. What is meant by that?
YOO: I think that is something the Wall Street Journal called me. They wrote a story about me a few weeks ago and I guess the way to describe what they meant is that there is a group of people who think that the United States as a sovereign nation has to be able to look out for its own interests and that it is up to the United States to decide what kinds of international law and international organizations it should agree to or not.
So a good example would be the International Criminal Court which is this new international war crimes court that was signed on by a number of nations in the world. The United States, under President Clinton, initially signed it. But under President Bush we pulled out.
I think that is a perfectly fine thing for the United States to do because we are a sovereign country and we can decide what treaties and laws we can subject ourselves to or not. There are other people who criticize that and say that the United States should participate and has to participate in all of these new kinds of international organizations - subject itself to all kinds of these new kinds of international law.
But I think that the United States as a sovereign country has the choice to make. It does not have to do it. It is up to the United States whether or not it wants to do it.
GIACHINO: Okay, I now understand it. I still cannot pronounce it, but I understand what the term means.
In your new book, The Powers of War and Peace, you state that "[r]ather than disappearing from the world, the threat of war may well be increasing." When you use the phrase war, are you using it as we generally understand the term, or are we talking about an increase in a different kind of war, like the war on terror, where there are no boundaries?
YOO: I think that is a really good question. I am using the term war perhaps more broadly than what we are accustomed to. We used to think of the term war during the Cold War and by the end of the Cold War and the last 10 years before 9/11 as being a conflict between nations. It would be going to war against say the Soviet Union or even Kosovo where we went to war with Serbia - fundamentally wars between nation states.
It's hard to remember then but back at the end of the Cold War, people thought that war was going to disappear even well-known conservatives were writing books saying that capitalism and democracy had won worldwide. I think unfortunately what happened was that 9/11 demonstrated to everyone that we weren't entering this peaceful new world but that in fact there were other threats. Not just terrorist organizations like Al-Qaeda, which was the primary threat, but also rogue states and people who proliferate nuclear and biological and chemical weapons that could be used against us. And so unfortunately this is the world and we have to use force abroad at times to stop those threats from materializing against the country. Because of that I thought the threat of war was not going to necessarily go down to zero after the end of the Cold War. In fact, it may in fact be increasing.
GIACHINO: The definition of war is changing. Technology is changing many things in our society. I mean we are ever evolving. And many have written and debated the application of the Constitution to modern life and issues. In your book, The Powers of War and Peace, you propose that "we understand our Constitution's allocation of the foreign affairs power to permit a flexible decisionmaking system that can respond to such sweeping changes in the international system and in America's national security posture." Is that what is meant by the Constitution being a "living, breathing document"?
YOO: Well I think it is really interesting. You really see this today in terms of whether the Supreme Court should think or use a foreign law. So if you remember just this last year the Supreme Court said the states could not execute juveniles above age 16 but under age 18 for first degree murder. And it looked at what the Europeans are doing and what international law said.
And a few years before that, the Supreme Court said that Texas could not prohibit sodomy between homosexuals and also cited and looked at foreign law and foreign decisions.
There are some people who think that the growing, living Constitution ought to take into account what other countries are doing and should rely on foreign law. My view actually is that the Constitution is still fixed and places fairly strict procedures on how the government should act. And that even when it is confronting the world, which is changing rapidly, it still has to go through those steps and procedures to make laws or to make decisions by the president and so on before it does things like incorporate international law or before we join international organizations. And that it is designed to do that so that it is the most democratic process possible - so that we know what our government is doing and that when our government decides to sign some new treaty or wants to look at foreign sources of policy it is our elected members who do it and we can see them doing it and we can hold them accountable for it.
GIACHINO: Well then help me understand in the second chapter of the book where you address the Eighteenth-Century Anglo-American Constitution and Foreign Affairs. In that chapter, you write about how the constitutional and political history of Great Britain has been a part of our shared history and obviously influenced our founding fathers in the writing of the new Constitution.
I agree with you that it is perhaps not appropriate for the U.S. Supreme Court today to look to foreign laws and cases in deciding our case law here in the United States. But I think a lot of people say - and even this chapter in your book identifies, we have done it since inception, why should it be different now?
YOO: I think that when we talk about what the Constitution originally wanted, that the people who wrote it and ratified it and what they really wanted and what they thought they were doing, then I think it is appropriate to look at the British Constitution and our shared history because they were all former British citizens and a lot of them were former British lawyers and they constantly were using phrases and terms from their British understanding of constitutional law. So that is one way that we try to recapture what the understanding of the Constitution is or was.
I think that where it becomes more problematic is when we start asking what do people in Britain or Europe think our Constitution means now. I think the Constitution is a document that the American people ratified and wrote and each succeeding generation of Americans continues to keep alive. But it is still the Constitution for our country, not the constitution for other countries, just as we would not tell people in Britain how to interpret their constitution.
So I do think it is important for the understanding of the original Constitution but I don't know how it is justified or legitimate to look at that information when we talk about the Constitution today.
GIACHINO: We are talking with John Yoo. He is the author of a new book. It is called The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. This is really a history book and it is a wonderful read. I encourage all of the listeners to buy the book and read it. It is available, I am sure, on amazon.com. It was published by The University of Chicago Press and there is a lot of information in there.
It is a history book, but it is history in the making today as well. In the beginning of the segment I mentioned that the Supreme Court is going to be looking at this exact issue this term. The Justices will decide whether President Bush overstepped his authority with plans for a military trial for Osama bin Laden's military driver. We will be visiting this issue with our United States Supreme Court when they look at the Bush administration's policy regarding military trials for foreign subjects. So if that is an issue that you are interested in, I strongly encourage you to pick up this book, The Powers of War and Peace, by John Yoo. It will help set the framework perhaps for what it is that our Supreme Court will decide later in the term.
Now I would like to welcome the caller to "Your Turn." Go ahead.
CALLER: Thank you. I have a question for John and it goes back a little bit more in history and pre-dates 9/11 just a little bit. It is a question that I have asked many others and I am still searching for the answer. Does he have any idea who wrote or when or what the first presidential executive order was?
YOO: Oh, the very first one ever on any subject?
CALLER: Yes, the very first one on any subject - the very first presidential executive order.
YOO: Just a short history of it - we didn't used to think of them as executive orders until after Lincoln. And I think that just as a matter of history, there is a fellow named James Richardson who is a historian and presidential scholar at the end of the 19th Century who pulled all of this together into a set of volumes. So I think he was the first one to go back and sort of catalog them all.
The first one that I know of would be the Neutrality Proclamation by General Washington where he - this is actually in the book itself, what happened was that the Napoleonic Wars broke out in Europe and the United States had to decide whether or not we were going to come to France's aid. We had a treaty from the Revolutionary Period that said that we had a mutual defense treaty with France and President Washington, after very contentious debate in the cabinet between Jefferson and Hamilton, he decided that the United States would remain neutral in the war. So he issued the Neutrality Proclamation that said the United States will not aid either Britain or France in the wars in Europe. And I think that is really what was the first executive order. Although they did not call them that then because they did not call them executive order number one. They did not classify them that way.
CALLER: Would you consider - and I know that Washington and I just became aware of this in the last few weeks because another listener was so gracious to share some presidential papers literature and books with me, but I find a lot of the early writings were entitled special messages. Some of them were just notes to the House and Senate or a combination thereof. But in some of them, Washington did make declarations, so as to say that this is what I am going to do. Would those be considered executive orders?
YOO: Special messages to Congress or State of the Union or similar addresses were communications from the president to Congress. Executive Orders are things that have their own legal weight - they are legal directives and have to be justified either under some power given to him by Congress or the president's own constitutional power. That's why I think the Neutrality Proclamation is probably the first one.
CALLER: So a special message to Congress or to the House specifically saying this is what I am going to do, is just advising them of that, is not the same as an executive order?
YOO: Right. But then if you track down and find out exactly how he did it, so if he said to Congress that I am going to declare neutrality, that would not be the executive order itself, it would be the order that issues under Washington's own hand to the citizens and to the country declaring neutrality.
CALLER: Thank you very much for the information, I appreciate it.
YOO: You're welcome.
GIACHINO: I told you there was a lot of information in this book, The Powers of War and Peace. It even talks about the Neutrality Proclamation - perhaps the first presidential executive order.
A general theme throughout the book is the manner in which the legislature can use its funding power to influence military affairs. We all know that it takes, months and sometimes years for Congress to pass a new law. If funding is the role that the legislature plays in war powers, do you think that the checks and balance system is thrown off slightly because of the snail's pace in which legislation moves?
YOO: I think not in modern wars. Look at Iraq or Afghanistan, for example, the most recent big wars. Those are both cases where the president could not have even fought the war unless Congress had given him the money before the war started. So this is the interesting thing about the funding war today. If Congress wants to stop Iraq or Afghanistan, all they would have to do is nothing. All they would have to do is sit by. Because under modern war it is just too expensive, all the cruise missiles and fuel and equipment, cost too much money for the president to be able to just wage on his own.
The thing that has sort of changed things around has been the existence of a huge standing army and military which we never had until after World War II. And so Congress has created a very large military that is designed in part to be used for offensive military operations and I think part of it is that Congress does not want to take responsibility when the president uses it.
GIACHINO: The book is called The Powers of War and Peace. It is written by John Yoo. It talks about the Constitution and foreign affairs after 9/11. Some of the chapters "War Powers for a New World" and "International Politics as Law?". I promise you, if you read this book it will make you better versed to understand what is happening right now in our U.S. Supreme Court as well as what is happening with our military leaders as they make decisions in foreign affairs.
John Yoo, thank you very much for joining us and I wish you much success with this book.
YOO: Thank you very much for having me. I really enjoyed it.
November 17, 2005