At the Justice Department between 2001 and 2003, Berkeley law professor John Yoo crafted a series of now notorious legal opinions. In them, he spelled out the fundamentals of a secret emergency Constitution under which the President’s inherent powers in the “war on terror” are essentially unlimited. In the wake of 9/11, Yoo argued, the United States was at war in a constitutional sense, and consequently Congress and the courts could no longer purport to second-guess or interfere with or even learn about the President’s national-security decisions, however momentous. Supposedly vital for fighting mass-casualty terrorism, Yoo’s presidential Constitution was never publicly discussed or debated. Instead, it began to leak out, one memo at a time, only after important policy choices had been made on the basis of its presumed authority. The memos claimed to provide legal grounds for a whole range of now hotly contested decisions concerning indefinite executive detention without access to counsel, harsh interrogation techniques, rendition to countries known for torture, the establishment of clandestine prisons for “ghost detainees,” the assassination of terrorist suspects by US hit squads worldwide and (we have learned) warrantless surveillance of telephone and e-mail communications between the United States and overseas.
Many and perhaps most constitutional scholars viewed these policies, to the extent that they knew about them, as legally dubious acts of executive-branch overreaching. But Yoo’s carte blanche constitutionalism suited the ambitions of Dick Cheney and the other architects of Bush’s gloves-off response to 9/11. Adherence to legal principles or procedural requirements, they believed, would have forced them to fight ruthless terrorists with one arm tied behind their backs. Legalistic niceties–such as the presumption of innocence and squeamishness about mistaken identity–only played into the hands of the enemy.
Addressing himself to impatient officials bridling at statutory and other restrictions, the 35-year-old government lawyer proved obliging. Laws that cramp the executive, including requirements of transparency and oversight associated with checks and balances, are unconstitutional infringements of the President’s authority, he made clear. The Commander in Chief can confidently dispense with rules that had previously governed the intelligence community. Indeed, he should be freed from all constraints that might conceivably cripple the US side in the battle against transnational terror. The President’s ultimate duty to protect and defend the nation, the memos collectively advised, gives him the right, if he so wishes, not only to ignore Congress and the courts but also deliberately to deceive them, and the public at large, for the sake of national security.
As a government lawyer, in other words, Yoo focused on the powers of the Commander in Chief during wartime, whether these powers derived from the Constitution or from Congress’s authorization of the use of military force against Al Qaeda, Afghanistan and later Iraq. What Cheney and company wanted was unbridled authority to do whatever they deemed necessary in the course of these wars. Yoo worked unstintingly to meet their needs.
As a fledgling scholar, by contrast, Yoo had a different obsession, stemming from older controversies over Vietnam and the 1973 War Powers Resolution. In his pre-9/11 academic writings, he was less interested in the President’s powers during wartime (the subject of his subsequent memos) than in the President’s authority, on his own initiative, to set the country on the path to war. Echoing various cold war hawks, the young law professor insisted on the power of the President to deploy offensive force on his own authority and, more radical still, in the face of Congressional opposition.
"swipe left below to view more authors"Swipe →
You Made Your Bed, My Kevin. Now Toss and Turn in It.
You Made Your Bed, My Kevin. Now Toss and Turn in It.
Why the Mainstream Media Loved Trump’s Fake Pro-Workers Rally
Why the Mainstream Media Loved Trump’s Fake Pro-Workers Rally
This Might Be the Most Cringeworthy “Impeachment” Inquiry in US History
This Might Be the Most Cringeworthy “Impeachment” Inquiry in US History
Supreme Court Preview: This Term, It Can Always Get Worse
Supreme Court Preview: This Term, It Can Always Get Worse
Elaborated before 9/11, Yoo’s grandiose view of the President’s warmaking power was in no way novel. Bold claims of executive authority to use military force unilaterally can be traced back at least to FDR and Truman. In 1966, for example, President Johnson’s State Department issued a famous memo alleging considerable historical precedent to justify the President’s independent war powers in the absence of Congressional approval. The memo contends that “since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior Congressional authorization, starting with the ‘undeclared war’ with France (1798-1800).” To such historically debatable accounts of unchecked presidential discretion in military affairs, Yoo adds little. And his thinking seems to have been shaped even more definitively by Nixon’s lawyers, especially by their defense of the President’s plenary power to launch covert military operations despite explicit statutory prohibitions. On all basic points, Yoo cleaves to such precedents, essentially dusting off and re-presenting the most radical positions of Nixon-era advocates of executive power.
What makes Yoo original, therefore, is not the radicalism of his belief in presidential authority. His claims to originality rest entirely on the assertions he makes about the intellectual origins of that authority. He developed his unusual stance in a series of law journal articles, composed before Bush came to power and now expanded into a book, The Powers of War and Peace. Although he was already associated in the 1990s with important conservative figures like Orrin Hatch and Clarence Thomas, Yoo could only have dreamed that his idiosyncratic historical argument would soon be invoked to justify a bold new presidential grab for power.
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.
But why would an aspiring legal scholar labor for years to develop and defend a historical thesis that is manifestly untrue? What is the point and what the payoff? That is the principal mystery of this singular book. Characteristic of The Powers of War and Peace is the anemic relation between the evidence adduced and the inferences drawn. The footnotes and citations teem with ambiguity and complexity, while the summary statements snap dogmatic simplicities. For instance, in a section devoted to the powers of war and peace in various state Constitutions, between independence and the ratification of the Constitution, Yoo uses selective citation to convey the impression that state executives not only possessed substantial foreign-policy powers but were also, when commanding the state militias, freed from any obligation to act according to laws passed by state legislatures. That his case is wobbly on both counts is the least that might be said. But what makes his misleading account additionally baffling is that he cites without comment the very provisions in several state Constitutions that deny the executive branch any power to act except “under the laws” passed by the legislative branch.
In a stray footnote, to take another example, Yoo reproduces Madison’s assertion that “executive powers ex vi termini, do not include the Rights of war & peace.” And other Framers, too, classified the powers of war and peace as “legislative.” But Yoo is convinced that the powers of war and peace must necessarily be classified as “executive.” Faced with statements to the contrary, he buries or ignores them. The nimbleness with which, on several occasions, he simply inverts the manifest significance of historical texts that contradict his preset beliefs can only be called athletic.
Yoo’s fictionalizing of the founding period is best exemplified by his lengthy discussion of the August 17, 1787, debate at the Constitutional Convention in Philadelphia. The surviving notes of this debate are admittedly garbled, cryptic and open to interpretation. But two things come through with ringing clarity. First, the word “declare,” as the Framers used it, had a loose and fluctuating meaning. Second, most participants in the discussion agreed on the importance of limiting the President’s war powers by granting important war powers to Congress. This consensus stemmed from a conviction that war is the nurse of executive aggrandizement and that the President, whose powers balloon unnaturally in wartime, has a dangerous incentive to contrive and publicize bogus pretexts for war.
Yoo is no doubt right to emphasize the idea, central to The Federalist Papers, that “exigency justified the expansion of government authority in war and peace.” But when Hamilton and Madison referred to “government authority,” they were thinking of the authority of the executive and legislative branches together, not of the executive alone. Because the ruses, stratagems and timing of the enemy cannot be known in advance, it would be folly to tie down the nation’s defensive power to a set of rigid rules. But this does not mean that the Framers wished to make war powers an executive monopoly. In The Federalist, No. 30, for instance, Hamilton asserted that no constitutional limits can be placed on the power to tax, precisely because future necessities admit not of calculation. But this broad constitutional grant of emergency power to the government, made with an eye to providing for the common defense, in no way swells executive power vis-à-vis the legislature or implies any curtailment of Congress’s exclusive power of the purse.
Determined to “prove” a thesis that is shaky at best, Yoo cannot bring himself to write straightforwardly. Some of the book’s cloudiest passages are devoted to the counterintuitive claim that, for the Framers, “the President’s authority under the Constitution did not differ in important measure from that of the king.” He has to make this case against plentiful counterevidence, including Hamilton’s lengthy analysis in The Federalist, No. 69, of the “total dissimilitude” of the American President and the British king. Equally frustrating for the careful reader is Yoo’s repeated claim that Madison inherited from Montesquieu “a pure separation of powers scheme, one in which each governmental function was classified as either legislative, executive, or judicial, and then allocated to that branch.” In fact, in The Federalist, No. 47, Madison went to great lengths to repudiate the pure separation of powers scheme, arguing that Montesquieu had defended a system in which the legislative, executive and judicial departments “are by no means totally separate and distinct from each other.”
Yoo repeatedly asserts that the Framers gave Congress only two checks on the executive’s foreign-policy powers: namely, the power to impeach and the power to cut off supplies. This is prima facie implausible, given the impressive arsenal of foreign-policy powers assigned to Congress by the Constitution, including the powers to define violations of the law of nations, to issue letters of marque and reprisal, to make rules concerning captures on land and water, to raise and support an army and navy, to make rules for their governance and to regulate international commerce–not to mention the Senate’s powers to accept or reject ambassadorial appointments and to approve or reject treaties, and, of course, Congress’s power to declare war.
Yoo’s assertion that the power to defund an ongoing military campaign “can easily forestall hostilities” is also unconvincing. In practice, it has turned out, power over supplies is worth little, since sitting legislators are highly unlikely, for political reasons, to pull the plug on American troops already engaged in combat on executive authority. To the extent that it makes sense, moreover, Yoo’s claim is largely antiquarian. In the founding era, when standing armies were still viewed with deep suspicion, Congress could forestall executive adventurism by denying the President the funds necessary to fight a war. Today, when large peacetime standing armies have become routine, the funding power cannot possibly have the checking force that the Framers intended it to have.
It hardly follows, in any case, that by reserving to Congress one method for blocking unilateral executive warmaking, the Framers intended to withhold from Congress all other means. Indeed, the Framers’ fear of executive adventurism–reflected in their emphasis on the power to appropriate money for the common defense–also led them to grant Congress the lion’s share of powers pertaining to war, with the notable exception of the executive command function. Congress could deny funding, but it could also refuse to raise an army or navy, deny the President the right to employ privateers, deny privateers the right to earn prize money and even decline to call forth the militia. Congress could also refuse to declare war–its most direct method of achieving the aim that its other powers would allow it to accomplish only indirectly. Yoo characteristically fails to ask why the Framers vested in Congress so many powers over war. Nor does he pay any attention to the political theory that underlies their constitutional thinking on this point. His “originalism,” or pretended fidelity to the intent of the Framers and the ratifying conventions, is highly selective. He pores over the documentary evidence, it sometimes seems, only to discover tiny technical loopholes that appear to subvert the Framers’ fundamental design.
For presidentialists, obviously, the most embarrassing passage in the Constitution is the one that unequivocally vests in Congress the power to declare war. Yoo’s bold but futile attempt to explain away this provision makes up the heart of his book. His first ploy is belittlement. He contends, against the evidence, that “declare” had a narrow technical meaning at the time and that the power to declare war, having nothing to do with the power to commence war, was therefore a paltry power merely to “recognize an existing state of hostilities” and to clarify legal relations among belligerents and between belligerents and neutrals.
That even prolonged and serious wars took place without formal declarations was no secret at the time of the founding. And the Framers knew that an attack from abroad, with or without a declaration of war by the aggressor, could thrust the United States into a state of hostilities. It would therefore have been absurd for them to imply that the United States could never find itself in a state of hostilities unless Congress had previously declared war. And of course they neither said nor thought any such thing.
Eager to encourage foreign trade but wary of foreign entanglements, the Framers wanted to make it difficult for the government to initiate war. But they made sure not to abolish or overly restrict the power to repel surprise attacks. This latter power they implicitly placed in the federal executive but also, and more explicitly, in the state governments, on the assumption that foreign aggression might require a hair-trigger response before any consultation with Congress, perhaps out of session or sitting far away from the point of incursion, was possible. Eventually, the federal executive did something the state governments could not do: It expanded its originally limited constitutional permission to repel surprise attacks, without Congressional approval, into an “inherent power” to unleash military force in response to actual injuries or imagined threats to American interests, as the President unilaterally defines them, anywhere in the world. One result of this gradual magnification of presidential power has been the atrophy of the declare-war clause as a realistic check on executive warmaking.
But how does Yoo expunge the extensive textual evidence demonstrating beyond any doubt that the Framers and ratifiers wished to make offensive war difficult to initiate? He adopts a double strategy. When a statement is too flagrant to interpret away, he concedes the point and asserts that the view expressed in the offending passage is wholly unrepresentative. This is how he disposes of Madison’s perfectly clear notes, taken at the Convention, according to which James Wilson “did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c.” Faced with such unambiguous counterevidence, Yoo dismisses it as exceptional and atypical, classifying Wilson as “a dissenter from the prevailing Federalist view on war powers.” He concedes that “Wilson was a leading Federalist who relied on the Declare War Clause as a limitation on the war power” of the President. But “history will show,” he authoritatively instructs, that Wilson “was the only one.” In fact, as Yoo well knows, other Framers made identical or nearly identical claims. To deflect the plain meaning of their words, he suggests that they were trying to say something subtly different from what all previous constitutional historians have understood. Whenever the Framers discussed Congress’s power to inhibit the initiation of offensive war, Yoo claims, they did not have in mind generic war but only a specific subvariety, “total war.” This deft footwork allows Yoo to assert with spurious confidence that, apart from Wilson, the Framers agreed that Congress’s power to declare war in no way limits the President’s war powers.
But note the radical concession that, at this very point, Yoo inadvertently makes. He admits that the declare-war clause was not such a trifle, after all, since it “limited the executive’s ability to plunge the nation into a total war.” Congressional powers over war and peace are not limited to impeachment and appropriations, since “the executive branch cannot wage a total war without Congress’s declaration of war.” After feverishly insisting that the declare-war clause, as originally understood, gave Congress no authority whatsoever to restrict presidential warmaking, and that Congress participates in foreign affairs only via the appropriation and impeachment powers, Yoo suddenly pirouettes and admits that the declare-war clause did give Congress significant authority to limit the President’s war powers.
In an attempt to extricate himself from the transparent inconsistency in his argument, Yoo distinguishes sharply between war and “total war.” But this improvised escape craft is not seaworthy. His imaginative construct shipwrecks on the unambiguous constitutional provision that assigns to Congress, not to the President, the power to issue letters of marque and reprisal, which happens to be a power to engage in hostilities short of all-out war that might easily escalate into all-out war.
After devoting the first half of his book to the President’s power to launch wars on his own say-so, Yoo turns to his second fixation. This is his pet idea, shared by other conservative scholars, that treaties, even after being ratified by the Senate, are not the supreme law of the land. Here again, he projects current-day conservative policy preferences, including an exaggerated abhorrence of international agreements, back into the minds of the Framers. The authors and ratifiers of the Constitution, Yoo explains, agreed that “no treaty could have direct legislative effect without the participation of Congress.” And he again bolsters his case by twisting the plain sense of words. For example, he cites Madison’s claim that the House’s “approbation and co-operation may often be necessary in carrying treaties into full effect” to prove that “any significant treaty would require an implementing statute that must come from Congress” (my emphasis). Similarly, when one of the Framers states unambiguously that treaties “have the force of law,” Yoo tells us that this did not mean what naïve readers might think it did. The Framer simply wanted to establish that treaties possess the vanishingly weak, almost metaphorical, “force of law” characteristic of agreements “between sovereign nations under international law.”
It follows, then, that treaties, domestically, are legal nullities. But if this was common knowledge in the founding period, why did some anti-Federalists worry, as Yoo amply documents, that “the treaty-power, because of the Supremacy Clause, had become tantamount to the power to legislate.” The ratification-period debates about the treaty power–particularly the frequently expressed apprehension that the treaty power shared by the President and the Senate would not only undermine residual state power but would also marginalize the House’s lawmaking authority–would make no sense if everyone had agreed, as Yoo ardently claims they did, that treaties had zero domestic validity without additional legislation by Congress. Yoo writes that his deep skepticism about international agreements stems from his concern for Congress’s constitutional role. It is a curious claim, coming from someone who expresses scant concern that Congress’s constitutional role might be undermined by secretive presidential decision-making. Why in the world is the treaty power harder to reconcile with “the standards of democracy and accountability established by our constitutional system” than unilateral commander-in-chief powers?
Yoo’s mutually contradictory postures and beliefs are as striking as his exaggerations. At times he pretends to be the quintessential fair-and-balanced moderate. At other times, he poses as a paradigm-shattering revolutionary. Yoo’s understanding of the implications of 9/11 is similarly contradictory–and telling. On the one hand, the terrorist attacks changed everything. On the other hand, we need to adhere strictly to the original intent of our eighteenth-century Framers. But how can Yoo’s national-security paradigm be both venerably perennial and shatteringly new?
The liberal plan to involve multiple veto actors in the formulation of foreign policy and especially to share war powers between the executive and the legislature, he tells us, “might have been more appropriate at the end of the Cold War, when conventional warfare between nation-states remained the chief focus of concern and few threats seemed to challenge American national security.” But the liberal bias against the massive deployment of American troops overseas, an aftereffect of the Vietnam War, was made obsolete by 9/11. Our reflexive impulse today, at first glimmer of danger, must be toward all-out military attack on enemies far and wide, not toward peaceful diplomacy and negotiation. Since the emergence of the terrorist threat, “it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force.” And he summarizes his position as follows: “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” (my emphasis).
In such passages, Yoo’s justification for presidentialism seems to be wholly contextual, contingent and contemporary. But if that is true, why has he labored so tirelessly to argue that the Framers themselves intended presidentialism to be the basic system for conducting American foreign policy? Why has he argued, against a mountain of contrary evidence, that Madison, Hamilton and the others wished to make unilateral presidential warmaking “as easy as lying,” and that they were already and miraculously imbued with a post-9/11 mindset?
The “pestilential breath of faction,” warns The Federalist Papers, “may poison the foundations of justice.” John Yoo, as is well known, belongs to the Federalist Society, an association that Madison and Hamilton would perhaps have classified as a mischievous domestic faction. Its members are conservative Republican lawyers who claim to be committed to recovering the original understanding of the Constitution. In 2000 they watched their preferred candidate accede to the presidency. They were naturally eager to exploit this window of opportunity and were therefore driven by the logic of incumbency to argue for an expansion of executive authority. Because of their commitment to “originalism,” however, they were also compelled to cloak their momentary ambitions as pious adherence to the intent of the Framers. This is the immediate intellectual context in which to make sense of The Powers of War and Peace.
More substantively, the book’s unstable mixture of contextualism and originalism stems from Yoo’s decision to yoke two distinct rhetorical ploys for winning public support for presidential power: fearmongering and ancestor worship. By highlighting the unprecedented dangers of the present, he encourages people to entrust their own and their families’ lives to a savior-President. By claiming that the Framers themselves would have been perfectly happy with unchecked presidential power, he encourages people to believe in the deep fidelity of a constitutionally unleashed President to an ideal America that was always meant to be. Although it is not particularly coherent, this fusion has a certain emotional appeal.
Somewhat less exasperating, though equally perplexing, is the relation between Yoo’s exaltation of presidential power and his denigration of the treaty power. This is a strange coupling, for one thing, because the treaty power obviously increases executive authority, giving the President a hand in lawmaking that he would otherwise lack. In addition, Presidents of both parties have claimed that treaties, even in the absence of implementing legislation by Congress, provide sufficient authority to deploy US troops overseas. And like it or not, international organizations created by treaties are frequently used by executive officials, in virtually every democratic country, to do an end run around their national legislatures. Both Truman in the Korean War and Clinton in Kosovo claimed that US military action, without Congressional approval, had been authorized by the United Nations.
Needless to say, Yoo would denounce this search for authorization from foreign sources, believing that the President has the inherent authority to go to war whenever and wherever he wants. But his way of thinking, whatever else we may want to say about it, makes it impossible to understand the actual political dynamics by which the executive branch has gradually weakened Congress’s checking power, a process in which, as an empirical matter, the making, interpretation and implementation of treaties (not to mention the increasing importance of international organizations) have played an important role. Of course, Yoo has no interest in helping us understand how we have traveled from there to here. Constitutional change holds no mysteries for him because from his perspective America is blessed with an imperishable Constitution, and presidential powers today, even after 9/11, remain pretty much what they were meant to be more than two centuries ago.
Yoo’s legal theory, it should be said, is as dubious as his historical scholarship. For starters, he has a zero-sum conception of the government’s foreign-policy powers. He expresses bafflement at James Wilson, who both favored a strong executive and gave a major role in foreign affairs to Congress. Wilson’s support for Congressional war powers, Yoo says, “does not square perfectly with his broad thoughts in favor of a strong executive expressed during the ratification debates.” But the enigma dissolves if power-sharing can actually increase the capacity of the executive to achieve its aims. Executive power hinges upon the President’s capacity to mobilize support and voluntary cooperation for its projects. That such power might be increased by accepting Congressional oversight and input is self-evident, although apparently incomprehensible to Yoo.
Power-sharing can increase overall power in another way as well. Human beings do not always perform best when unwatched and uncorrected. Cheney has repeatedly argued that the Administration can get “unvarnished” advice only under conditions of the strictest confidentiality. And there is something to this argument. But it is equally obvious that secrecy has its own pathologies, including a tendency to perpetuate mistaken policies long after they could have been profitably corrected. Hence, an executive branch under serious scrutiny by a well-informed legislature with real power to push back will not necessarily perform more poorly than an executive branch sheltered from criticism and control.
If the executive is not compelled by Congress and the courts to give plausible reasons for its actions, it may soon have no plausible reasons for its actions. It will lash out violently in the “war on terror,” but its choices will feel distressingly arbitrary. It will not establish an intelligent list of priorities, keep its powder dry or allocate scarce resources in a prudent and effective manner. Administration spokesmen have repeatedly explained that since 9/11 the risks of inaction have become greater than the risks of action. And Yoo agrees: “The costs of inaction can be extremely high–the possibility of a direct attack on the United States and the deaths of thousands of civilians.” But the inadequacy of this reasoning should be obvious.
The leap from inaction to action cannot possibly, on its own, guarantee a reduction of risk. Precipitous action may well produce deep commitments from which it will prove impossible or immensely costly to extricate ourselves. In a world of scarce resources and opportunity costs, moreover, every decision to act is a decision not to act. To commit Arabic speakers to the Iraqi theater, for example, is to withdraw them from other tasks, such as the manhunt for Osama bin Laden. To act more forcefully in one arena is to act less forcefully in another. Such trade-offs are seldom desirable, but they are often inevitable.
By dismantling checks and balances, along the lines idealized and celebrated by Yoo, the Administration has certainly gained flexibility in the “war in terror.” It has gained the flexibility, in particular, to shoot first and aim afterward. It has acted on disinformation and crackpot theories and utopian expectations that could perhaps have been corrected or moderated if traditional decision-making protocols had been respected and key policy-makers had not silenced dissident voices and sequestered themselves in an echo chamber. Yoo sees no danger in allowing a poorly educated and sketchily briefed President, perhaps surrounded by yes men and fed picked-over intelligence, to define unilaterally the principal threats facing the country. He does not worry about irreversible decisions taken impetuously and without eliciting a second opinion. But if the misbegotten Iraq War proves anything, it is the foolhardiness of allowing an autistic clique that reads its own newspapers and watches its own TV shows to decide, without outsider input, where to expend American blood and treasure–that is, to decide which looming threats to stress and which to downplay or ignore.
Yoo begins with the premise that the Constitution gives the President virtually unchecked power over foreign affairs. This is an alarming thesis, for all the reasons addressed. But it becomes even more ominous in the post-9/11 context. In the “war on terror,” as Yoo is the first to admit, the foreign front and the home front have become harder to distinguish. Infiltrators and saboteurs are no longer minor and peripheral to the war effort. They are the main enemy, and the battlefield on which we meet them emphatically includes US soil. As a result, the President’s war powers, if grotesquely distended and freed from oversight as Yoo would like, threaten to overwhelm and submerge the Constitution, not just abroad but also domestically. Only if our rulers were infallibly clairvoyant would it be safe to gamble in this reckless way not merely with our personal liberties but also, and perhaps more important, with our country’s national security in an age of multiple, unfamiliar and–we have every reason to fear–still metastasizing threats.