- Stephen Holmes
The Nation -
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.
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.