- The Washington Times - Monday, October 24, 2005

THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11

By John Yoo

University of Chicago, $29, 366 pages

John Yoo is not John Roberts and probably not Harriet Miers. Bold, controversial and more than willing to speak about the scope of presidential power, John Yoo is the kind of target Senate Democrats long for.

Currently a law professor at University of California, Berkeley (a focus of protest by the students) and a visiting scholar at AEI, Mr. Yoo has made quite a reputation for himself, gaining his notoriety from 2001 to 2003, when he served in the Justice Department. There, he was an architect of the infamous Bybee memo, which argued that the Geneva Conventions do not apply to Al Qaeda operatives.

Now comes his first book, “The Powers of War and Peace,” which, while not intended as a defense of that policy or the scandals that followed, presents a convincing and judicious case for the need in a post-September 11 era to re-evaluate what the Constitution says about foreign affairs.

Mr. Yoo’s book covers a broad range of foreign policy areas like international law, treaties and multilateralism and addresses each with clarity and scholarly care. But at its heart, “The Powers of War and Peace” is a scathing criticism of those whom he argues have neglected their constitutional responsibility. Not one to avoid conflict, Mr. Yoo points a finger directly at Congress. He contends that in a system where “each branch could use its own constitutional powers to develop foreign policy,” Congress has essentially abdicated its role to the president.

Congressmen might shake their fists about the “illegal” policies of the administration, but “ecent wars show only that Congress has refused to exercise the ample powers at its disposal, not that there has been a breakdown in the constitutional structure.” The subtext of this argument is Mr. Yoo’s own justification for his willingness to offer such radical legal advice to the White House — a subtle statement that while ostensibly about theory, the book has just as much to say about practice.

Apart from being a government insider, Mr. Yoo is also renowned for his extensive knowledge of the founding of the United States and the writing of the Constitution. In his book he puts this knowledge to considerable use in confronting current policy issues, including the war on terror. Returning to the controversy over the Geneva Conventions and whether they apply to terrorists, he argues that, as the Framers saw it, Congress’ power to “declare” war is more of a legal power than a military one. In writing the Constitution, the word “declare” was specifically chosen to denote “the legal status of the nation’s relationship with another country” and thus because al Qaeda isn’t a country nor follows the standard practices of war, terrorists receive no protection under the conventions.

This interpretation of Congress’ declarative power also means that while the president as commander-in-chief has full authority to unilaterally initiate hostilities, it rests with Congress to use its fiscal powers to either support or cease any action. And though many would consider defunding a war to be political suicide, Mr. Yoo insists that “We should not, however, mistake a failure of political will for a violation of the Constitution.” If Congress is truly dead set against the war in Iraq or the policies at Guantanamo Bay, then it should stop funding them or at least use the power of the purse to alter their direction. Though a seemingly simple solution, Mr. Yoo’s advice avoids why exactly such a decision would be politically prohibitive given the nature of contemporary American politics, raising suspicions that the problems are actually more complex than presented.

It would almost seem as if Mr. Yoo is torn between two personalities: valiant protector of the Founders’ principles and cunning practitioner of Machiavellian realpolitik. Despite the apparent contradiction, the message of “The Powers of War and Peace” is that when it comes to foreign policy, these identities are one and the same.

Given the overwhelmingly complex nature of foreign affairs, the Founders constructed a system where each branch would use its own powers in pursuit of its own interests that would eventually result in a comprehensive policy. That said, while his observations are undoubtedly astute, caution is always well advised when approaching someone who brings attention to potential weaknesses while also having a history of exploiting them.

Controversy is no stranger to Mr. Yoo, and “The Powers of War and Peace” will likely do little to diminish the protests at Berkeley. But it is also a valuable contribution to the tradition of works about the Constitution and foreign affairs. Like “The Prince,” it uses insider knowledge to boldly state political truths that others dare not utter.

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