John Yoo's Tortured Logic (Page 2)

To understand what Yoo is arguing for, we must first understand what he is arguing against. The leading students of presidential war powers, as he freely admits, agree that the Framers wanted to apportion the government's war powers between the legislature and the executive, vesting the power to initiate offensive war, along with other war powers, in Congress, while assigning to the President, as chief commanding officer of military and naval forces, only two powers: the power to conduct an authorized war and the power to repel surprise attacks.

This original allocation of war powers proved unstable for various reasons. The most decisive factors included the executive's superior capacity for secrecy, dispatch and information gathering, and America's increasing entanglement with the rest of the world. Equally important was the inescapable elasticity of the idea of national self-defense, capable of being stretched from repelling actual attacks on US territory to preventing anticipated attacks on American lives, property and allies around the world. The eventual routine maintenance of large peacetime standing armies was also critical, as were the uselessness of the Atlantic and Pacific oceans as moats against a nuclear first strike and the provincial focus, internal dissension and chronic shirking of Congress. For these and other reasons, the power to commence declared and undeclared wars, over the course of American history, has gradually shifted to the executive branch.

While Congress has debated, the President has acted. That is the nub of the development that the Framers neither intended nor foresaw. The President's role as supreme foreign policy-maker, including considerable executive discretion in the initiation of war, has become the American default mode at least since Truman. Since the Korean War, admittedly, Congress has formally authorized all major US conflicts, including the Vietnam War (the Gulf of Tonkin Resolution) and the two Iraq wars. But legislative complicity has generally proved more useful to the President than to Congress. By exaggerating and even fabricating lethal threats that Congress has limited capacity to double-check, the executive branch has been able to ensnare the national legislature into approving its military adventures abroad. Senators and Representatives who originally voted to approve a war on false pretenses have subsequently hesitated to criticize it, no matter how calamitous the outcome, because after-the-fact dissent embarrassingly reveals their own prior gullibility and lack of foresight.

Yoo, in any case, does not merely breathe new life into the most extreme claims of Nixon-era executive hawks. He also claims unique insight into "the mindset of the Framers," disowning the "conventional academic wisdom" according to which the emergence of unilateral executive powers involved a marked departure from original intent. The Framers' Constitution, as he oddly reconceives it, wholly endorses "the practice of unilateral presidential warmaking."

In the past, those who hoped to increase Congress's role in warmaking were the ones who invoked the intent of the Framers. Aiming to run the reel backward and reduce presidential war powers to the dimensions that the Founders intended, they sought, unsuccessfully, to transform a policy debate into a legacy dispute. With whimsical eccentricity, Yoo has devoted much of his short career to swapping places with these defenders of frayed tradition, claiming that original intent supports not Congressional but presidential prerogative, not only during wartime but also in the run-up to war.

The Framers charged the President with protecting the nation, he tells us, "even if that meant fighting with the legislature to enforce the desires of the people." True to their British heritage, Yoo also asserts, the Framers modeled the President's war powers on those of King George III. They therefore refused to grant Congress even a concurrent power to commence war. At its core, the Constitution embodies the Framers' intention to prohibit Congress from "encroaching" on the executive's power to initiate as well as conduct war.

To make his contrarian claim ring true, Yoo whites out contrary evidence and draws dubious conclusions on the basis of fragmentary and carefully selected facts. He disregards the main thrust of the historical record and misrepresents the parts he acknowledges. He ferrets out (and exaggerates the importance of) scattered shreds of evidence that, at first glance, seem to back up his predetermined narrative. This cherry-picking of the sources may explain why he fits so comfortably into an administration known for politicizing intelligence, smothering doubts, silencing critical voices and fixing the facts around the policy.

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