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The New Republic Online
Thursday, January 19th, 2006


 

The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11

by John Yoo

The 9/11 Constitution

A review by Cass R. Sunstein

After the attacks of September 11, constitutional law was bound to change. Serious threats to national security have always had large effects on the nation's understanding of its founding document. A major reason is that the president's lawyers tend to see the Constitution as a highly flexible instrument, permitting their client to do what he thinks must be done. Francis Biddle, attorney general under Franklin Delano Roosevelt, said that "the Constitution has never greatly bothered any wartime president." Courts often ratify the decisions of wartime presidents. Roosevelt himself placed Japanese-Americans on the West Coast in internment camps, and the Supreme Court upheld his decision.

We are starting to see the shape of a new vision of the Constitution. The legal stage was set on September 25, 2001, when the Department of Justice advised the White House that "the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks." In the key memorandum, the White House was told that if the president wants, military "force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon." Indeed, "the amount of military force to be used in response, or the method, timing, and nature of the response ... are for the President alone" to decide.

In 2002, the Department of Justice's Office of Legal Counsel indicated that as commander-in-chief of the Armed Forces, the president has the power to engage in coercive interrogation, even torture -- and that Congress lacks the power to limit that authority. The executive branch has argued that the president has the authority to seize and to detain "enemy combatants," including American citizens captured on American soil, and to hold them for extended periods without access to a lawyer, judicial review, or a hearing (to determine whether they are, in fact, enemy combatants). Most recently, Attorney General Alberto Gonzales has claimed that, whatever Congress says, the president has the "inherent" power to monitor telephone calls and e-mail messages between Americans and individuals in foreign countries. Perhaps most important, the executive branch believes that, as a matter of constitutional law, the president has the authority to make war without congressional approval -- though President Bush, to his credit, sought such approval for the wars in Afghanistan and Iraq.

The Supreme Court has rejected the Bush administration's claim of power to detain enemy combatants without hearings; we do not know how it will react to the rest of the administration's claims. But (and this point is often neglected) the legal views of the executive branch can be every bit as important as those of the Supreme Court. In the domain of foreign affairs, the central legal issues rarely come before the Court at all. The law is effectively settled within the executive branch, or by informal agreements between the president and Congress. In negotiating those agreements, the president has formidable advantages over the legislature. The executive branch's lawyers are talented, numerous, and exceptionally well organized. They can overwhelm Congress with their intensity and their expertise. Whether or not courts ultimately accept the legal positions of the Bush administration, most of those positions are now operating as the law.

It is important to emphasize that, as a technical matter, few if any of those positions are preposterous or unprecedented. Presidents always read the Constitution in a way that serves the presidency. In general, the Bush administration has built on the arguments of previous presidents, rather than re-writing the separation of powers from scratch. But taken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.

The most important theorist of the 9/11 Constitution is John Yoo, a law professor at the University of California at Berkeley. As a young professor in the 1990s, he argued for a strongly pro-executive view of the Constitution. On September 11, Yoo was serving as deputy assistant attorney general in the Office of Legal Counsel under President Bush. In that capacity, he produced a number of legal memoranda that laid much of the groundwork for the Bush administration's view of its legal authority. Having left the federal government, Yoo has now elaborated the theoretical foundations of his vision of the Constitution, one that grows out of his own writings in the 1990s, and that stresses, above all, the inherent power of the president. The major topics in his new book are treaties and war, though he explores several other issues. Generally, Yoo's positions are the positions of the Bush administration.

Yoo argues that the president has the power not only to interpret treaties but also to terminate them at his will. More dramatically, he contends that the president can make war on his own. Yoo is aware that the Constitution gives Congress the power to "declare" war, but in his view this provision does not mean that congressional permission is necessary in order for the president to begin a war. A declaration merely "recognizes a state of affairs -- clarifying the legal status of the nation's relationship with another country -- rather than authorizing the creation of that state of affairs." The president is perfectly entitled to wage war as he sees fit. If Congress disapproves, its only possible recourse involves its power over appropriations: it can deny the funds for war-making.

In defending these conclusions, Yoo marshals a number of arguments involving the views of early theorists of international law, the British background, the debates at the Constitutional Convention in 1787, and the text of the Constitution itself. Every one of these sources, he thinks, strongly supports the president's power to make war when he chooses. Consider the views of Hugo Grotius and Emmerich Vattel, legal thinkers whose work was well known to the Founders. According to Yoo, neither Grotius nor Vattel believed that a declaration of war was necessary to begin hostilities. For Grotius, a declaration served as a mere "courtesy to the enemy and a definition of the status of their relations under international law." In Vattel's view, the major objectives of a declaration are to instruct and to guide "a State's own subjects, and in order to fix the date from which certain rights belonging to them in virtue of war are to begin, and in order to settle certain effects which the voluntary Law of Nations attributes to formal war." For Grotius and Vattel, in Yoo's telling, there was no obligation to declare war before fighting.

Yoo attributes the same position to Blackstone, according to whose view of the British Constitution "the monarch had no need to declare war before beginning hostilities against another nation." Yoo places a heavy emphasis on the English background. In his view, "the Framers would have looked to recent British political theory as much as to intellectual thought on the separation of powers." In England, the king had the sole power not only to control the armed forces but also to commit the nation to war. While Parliament controlled appropriations, the king had the power of initiative. In England, a formal declaration was not essential to the commencement of hostilities. Yoo believes that the Americans essentially borrowed the British framework.

To support this belief, Yoo investigates the drafting of the relevant provisions of the Constitution. He is aware that early drafts of the Constitution granted Congress the power "to make War," but he believes that the debates brought the document in line with British practice. The crucial discussion took place on August 17, 1787. Charles Pinckney objected that the power to make war should be placed in the Senate rather than in Congress, on the ground that the full legislature would be too slow. Pierce Butler responded that the power should be placed with the president, "who will have all the requisite qualifications, and will not make war but when the Nation will support it." James Madison and Elbridge Gerry then moved to change the word "make" to the word "declare," thus "leaving to the Executive the power to repel sudden attacks."

The motion carried, but only after a somewhat confusing discussion. Roger Sherman contended that the amendment was unnecessary, on the ground that the previous language "stood very well" and would already enable the president "to repel and not to commence war." Oliver Ellsworth remarked that "there is a material difference between the cases of making war, and making peace. It should be more easy to get out of war, than into it." George Mason said he "was against giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate because not so constructed as to be entitled to it"; and then he supported the use of the word "declare."

Yoo believes that the "executive power" necessarily and by its nature includes the authority to make war, and he concludes that these founding debates "reflected an intention to prohibit Congress from encroaching on the executive power to conduct war." Probing the ratification debates after the convention, Yoo finds that the anti-Federalists, opponents of the Constitution, were fearful of the national government and the president. But he is unable to find much evidence on the particular question of whether the president may make war without congressional approval.

To support his conclusion, Yoo finally places primary emphasis on the Constitution's text. After all, Congress is authorized to "declare" war, not to make war, and the word "declare" is defined, in Samuel Johnson's dictionary, as "to clear, to free from obscurity" and "to make known, to tell evidently and openly." By contrast, Article I, Section 10 says that states may not "engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Note the use of the word "engage," rather than "declare" -- suggesting that the Framers meant to distinguish between the two terms. In any case, Yoo thinks that this provision shows that if the Framers wanted to say that the president has the authority only to respond to invasions, they knew how to do exactly that.

In Yoo's view, then, "the American way of war during the last decade has complied with the constitutional design." Congress did not declare war on Afghanistan in 2001 or on Iraq in 2003; it merely authorized the use of military force. In Kosovo, there was neither a declaration of war nor such an authorization. Yoo believes that this is entirely acceptable. If the president wants to act militarily, he need not ask Congress for permission. More generally, Yoo notes that the United States has been involved in more than two hundred armed conflicts in its history, and a declaration of war has preceded conflict on only five occasions (the War of 1812, the Mexican-American War, the Spanish-American War, World War I, World War II). Much of the time Congress has enacted an authorization for the use of military force, but without any declaration of war. In Yoo's account, the historical practice of presidential war-making without a declaration, and sometimes even without authorization, is fully consistent with the constitutional plan.

Yoo's most dramatic arguments involve war, but he also has a great deal to say about treaties. Here, too, he makes a plea for broad presidential authority, sometimes operating at Congress's expense. One of his central motivations seems to be a fear that treaties can threaten national flexibility and even sovereignty. He wants to take steps to ensure that the United States and its president are not unduly constrained by the will of other nations.

Yoo's most modest claim is that the president has the authority to interpret ambiguous treaties. The upshot is that in the face of doubt, a treaty will mean what the president says it means. Yoo's more ambitious argument is that the president has the authority to terminate a treaty on his own, without Senate approval. It follows that President Bush acted lawfully in December 2001 when he withdrew the United States from the Anti-Ballistic Missile Treaty without seeking Senate approval. As a technical matter, the legal question here is tricky. Under the Constitution, the president needs the approval of the Senate to make a treaty, and it might well seem to follow that he needs Senate approval to break a treaty. Yoo's response operates partly by analogy: under the Constitution, the president needs the Senate's consent to the appointment of high-level officials, but he is permitted to remove those officials in his unfettered discretion. Yoo thinks that the power to terminate treaties should be similarly understood.

In an equally important argument, Yoo contends that treaties should be presumed not to be "self-executing" -- that they do not amount to enforceable law within the United States unless Congress has said so by means of ordinary legislation. It follows that if the United States enters into a treaty, ordinary citizens cannot generally invoke it; as far as they are concerned, treaties operate as mere hopes or aspirations unless and until Congress has expressly legislated otherwise. As Yoo is aware, there is an obvious problem: the Constitution squarely makes treaties the "supreme law of the land," no less than ordinary law. It would seem to follow that treaties are fully enforceable. Still, the Supreme Court has long held that some treaties do not automatically become enforceable law. As the law now stands, the question depends on the Court's judgment about whether, in the particular case, the treaty was intended to be enforceable.

Yoo wishes to create a general presumption that treaties cannot be enforced. He contends that this presumption would help "contain the potential for unlimited lawmaking at a time when the line between domestic and international affairs is disappearing." With increasing international agreements, treaty-makers might end up being given "a legislative power with few limits." If treaties are presumed not to serve as ordinary law, the nation will be protected against that power.

II.
Yoo has offered an inventive and provocative set of arguments about fundamental questions, and he presents his arguments with unmistakable determination and all the skill of a good lawyer. And that is the problem. Much of this cheerfully one-sided book reads like a lawyer's brief, trying to justify a particular set of pre-determined conclusions. Counterarguments are rarely given in their strongest form. Sometimes they are not given at all. On some issues, Yoo writes as if every imaginable source fully supported his conclusion -- as if the analysis were ridiculously simple, and as if those who disagree with him were not merely wrong in their conclusion, but wrong on every detail.

With respect to treaties, Yoo's arguments are certainly plausible. He is probably right to say that the president has the authority to interpret ambiguous treaties; when international agreements leave genuine gaps and uncertainty, it is legitimate for the president to understand them as he sees fit. Yet the question of whether the president can terminate treaties on his own is much more complicated. It is true that the president can remove Cabinet heads at will even though he needs Senate approval to appoint them, but this conclusion follows from the Constitution's structure: there is exceedingly good reason to allow the president to fire people who are supposed to implement his own policies. There is much less good reason to say that the president may end international agreements without the consent of the Senate. Yoo's discussion, illuminating though it is, does not do justice to the difficulty of the question.

The same is true for Yoo's argument in favor of a presumption against the enforceability of treaties. At first glance, the text of the Constitution cuts hard against his position, because it does make treaties the law of the land. For most of our history, there has been no presumption that treaties are not self-executing. The Supreme Court's presumption-free approach, requiring an analysis of whether the particular treaty was intended to be self-executing, may well be better than Yoo's alternative. But reasonable people can differ on the question. Where Yoo runs into real difficulty is on the most important question of all, involving the president's power to make war on his own.

Before getting to the details, it is worth pausing over the implications of Yoo's argument. They are as follows. If the president wants to make war on North Korea or Iran, he is entitled to do exactly that. This is so whether or not he believes that the United States suffers from an imminent threat or indeed any threat at all. A purely humanitarian war, a political war, a war of aggression, an ideological war: apparently all are permissible. True, Congress can refuse to appropriate funds, but the power of initiative rests entirely with the president, giving the legislature the ability only to use its power of the purse to say: stop. That power is not meaningless -- Congress's control over federal money played a role in ending the Vietnam War -- but it is not likely to be exercised often. If the president has acted, a refusal to appropriate funds will mean the loss of a war on which the nation has already embarked. It is not an overstatement to say that Yoo's view would give most of the power over war and peace to the president alone.

And even this is only the tip of the iceberg. If the president believes that we are in a war, then we are in a war, because he believes it. As a result, he should enjoy greatly expanded authority to imprison and to interrogate those he believes to be associated with the enemy. President Bush has asserted the inherent power, as executive and commander-in-chief, to monitor phone calls and e-mail messages as part of foreign surveillance. Whether or not he is right (he may be -- the issue is still unresolved), there is little question that in the middle of a war the president has heightened powers of surveillance, not excluding communications that involve American citizens. And there is more. In the middle of a war, the government almost certainly has greater power to regulate speech, to search homes, and to dispense with the procedural safeguards that protect both property and liberty.

It is clear that a great deal would follow if it were agreed that the president can make war on his own. So is Yoo right to make such a claim? Amazingly, he says close to nothing about the mountainous counter-evidence. Let us consider only some of it.

James Madison wrote that the Constitution has, "with studied care, vested the question of war in the Legisl[ature]." Alexander Hamilton said that the legislature "can alone actually transfer the nation from a state of peace to a state of hostility." John Marshall declared that "the whole powers of war" are constitutionally "vested in Congress." Thomas Jefferson wrote that under the Constitution, "one effectual check to the Dog of war" was "transferring the power of letting him loose from the Executive to the Legislative body." In the Pennsylvania Ratifying Convention, James Wilson noted that under the Constitution, the decision whether to go to war "will not be in the power of a single man, or a single body of men." In South Carolina, Pierce Butler, an active participant in the original debates, explicitly said that the Constitution denied the power of "making war or peace" to the president, because it was "objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction."

Speaking of monarchs: Yoo emphasizes Blackstone and British practice, arguing that the United States closely followed the British model, in which the executive -- the king! -- was able to make war on his own. But not so fast. There is specific evidence that the British model was rejected. Just three years after ratification Wilson wrote, with unambiguous disapproval, that "in England, the king has the sole prerogative of making war." Wilson contrasted the United States, where the power "of making war and peace" is in the legislature. Early presidents spoke in similar terms. Facing attacks from Indian tribes along the western frontier, George Washington, whose views on presidential power over war deserve special respect, observed: "The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure." As president, both Thomas Jefferson and John Adams expressed similar views. In his influential Commentaries, written in 1826, James Kent wrote that "war cannot lawfully be commenced on the part of the United States, without an act of Congress."

With the exception only of James Wilson's, Yoo does not explore or even mention any of these statements -- a puzzling omission, or worse. While Blackstone and English practice do seem to be on Yoo's side, Blackstone was of course speaking for the distinctive traditions of the British monarchy, and the practices of his country are not a reliable guide to the legal norms of the United States. With respect to Grotius and Vattel, Yoo's reading similarly raises many questions. Grotius wrote that "to exercise Hostility" without a declaration "is not done like a Christian, nor allowable by the Law of Nations." Grotius and Vattel are usually taken to support, not to undermine, the view that a declaration is a legal prerequisite for an offensive war.

Some of Yoo's best arguments are textual, and here he deserves credit for raising legitimate doubts about the view that a declaration is a legal pre-condition for war. He is right to say that the Constitution does not state explicitly that Congress must authorize the use of force. He is right to wonder whether the power to "declare" war might leave the president free to "make" war. He is right to contrast the "declare war" provision with the provision forbidding the states to "engage in war." But Yoo's reading is not supported by the debate at the Constitutional Convention, which seems to reveal an effort to preserve the president's authority to "repel sudden attacks" while also making congressional approval a pre-condition for offensive war. Worse, Yoo's reading would require us to ignore far too many statements by prominent figures in the founding generation. There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong? Yoo has given undue emphasis to the pre-revolutionary understandings, British and otherwise, of the function of a declaration, and too little attention to the more specific judgments of the founding period.

To say that the president cannot make offensive wars on his own is not to deny the president a great deal of power to protect the nation. Under the constitutional settlement, the president can certainly repel a sudden attack even without congressional permission, and that category is not self-defining. It is more than plausible to say that the president can act if he anticipates an imminent or near-imminent attack not only on our territory, but also on Americans and American property stationed in other nations. Nor does the president need congressional authorization to engage in military action that falls short of "war." Weapons can be fired and operations ordered without embroiling the nation in war. The executive branch has long contended, and plausibly so, that the president can use the military for military purposes without triggering the need for congressional authorization of war. (At one point Yoo comes close to adopting this position, writing that the Constitutional Convention "made clear that the president could not unilaterally take the nation into a total war, but also suggested that he might be able to engage the nation in hostilities short of that." Unfortunately, Yoo does not define "total war," and his general conclusion is that the president can make war on his own.)

By practice and tradition, moreover, an authorization to use military force has come to operate as the equivalent of a formal declaration. Practice and tradition are highly relevant to constitutional interpretation, and it is now clear that if the president receives such an authorization, there is no legal problem. Hence Yoo is right to say that an actual declaration of war is not required. But Yoo has not shown that the Constitution grants the president power to make war as he wishes; and if it denies him that power, then he also needs congressional approval for the large number of acts, including detention and purely domestic surveillance, that are generally authorized by war.

Fortunately, President Bush did receive such approval for the Afghanistan and Iraq wars, and congressional approval triggers broad presidential power. Yet the reliance on legislative grants of authority places many more constraints on the president's power than does Yoo's claim of "inherent" authority to protect the country. If congressional approval is necessary, what matters is what Congress has approved, not what the president wants to do.

Yoo devotes a great deal of attention to the original understanding of the Constitution, but he says very little about a highly relevant fact of American history. On many occasions, federal courts have required explicit congressional support for presidential action, even when national security was at risk. A federal court said that Lincoln could not suspend habeas corpus, because only Congress could do so. Striking down the use of military tribunals to try citizens in Hawaii during World War II, the Supreme Court insisted that the national legislature would have to authorize such trials. Forbidding President Truman to seize the steel mills during the Korean War, the Supreme Court emphasized that no act of Congress authorized Truman to do what he did. Protecting free speech and the right to travel during the Cold War, the Court relied on the absence of legislative support, refusing to permit the president to act on his own.

These rulings have broad implications for Yoo's arguments, and for the war on terrorism in general. The Department of Justice has said that under the Constitution, the president may not only respond to the attacks of 9/11, he may also attack, even pre-emptively, any groups that in his view pose a "threat to the security of the United States and the lives of its people, whether at home or overseas." (Guess who wrote the memorandum.) But if our tradition is properly understood, this view gives the president a power that is not properly his: while he can repel sudden attacks, he cannot attack whenever he sees a "threat."

And consider the question of detention. The Bush administration has contended that under the Constitution, the president has the inherent power to detain enemy combatants, including American citizens -- and to do so indefinitely and without a hearing. But the Supreme Court took a much more cautious course, ruling that Congress's authorization to use military force in Afghanistan included the power to detain those who fought against us, with a hearing and not indefinitely but for the duration of the particular conflict in which they were captured.

And consider the question of whether the president may monitor e-mail and telephone calls by American citizens to and from other countries, and do so without seeking a warrant. The Bush administration is arguing that the president has "inherent" authority to engage in foreign surveillance. Its argument is not implausible, but the more sensible approach is to ask whether Congress has authorized such surveillance. To the extent that the executive has been monitoring conversations reasonably believed to involve Al Qaeda, there is a decent argument that Congress did in fact permit surveillance, simply by authorizing the use of force against those responsible for the attacks of 9/11. But if the president has gone beyond Al Qaeda and its allies, he is on weaker ground, because he lacks congressional authorization, and because Congress has specified a particular procedure, in the Foreign Intelligence Surveillance Act (FISA), to govern wiretapping. (I put to one side some of the complexities in the interpretation of FISA.)

And consider, finally, the question of torture. As far as American law is concerned, the president is probably allowed to torture enemy combatants, if they are not Americans, so long as Congress has authorized him to do so. (International law raises separate questions.) But while working at the Department of Justice, Yoo helped to write a memorandum suggesting the possibility that the president can torture people even if Congress has said that he cannot torture them. Such a claim takes the president's authority well beyond its reasonable limits. The president's power as commander-in-chief of the Armed Forces does not mean that he can engage in barbaric practices against the instructions of the national legislature.

Yoo's arguments for broad presidential power rely heavily on the Constitution's Framers, but in the end he may well be influenced also by pragmatic considerations. His book focuses on history, but the contemporary world is clearly on his mind. The world is certainly very different from what it was in the eighteenth century; and it is different from what it was on September 10, 2001. Yoo emphasizes the point, observing that "we are living through a time of remarkable change in the international system, characterized by globalization, the disappearance of the Soviet Union, the emergence of international regulation, the appearance of terrorism and rogue states, and the proliferation of technology." He is certainly correct to notice these changes. Constitutional law cannot safely ignore them. But with respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.


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