On executive power

In 'War by Other Means: An Insider's Account of the War on Terror,' John Yoo takes on most of the weighty constitutional issues raised by the "War on Terrorism," including the Patriot Act, assassination of terrorist leaders, the Geneva Conventions and military tribunals.

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John Yoo is not a typical law professor. He has the typical credentials � Ivy League degrees, law review, clerkships � but not the typical perspective. Indeed, Yoo is that rarest of breeds: a conservative who writes extensively about topics of interest to conservatives, chiefly war, and who leaves the Ivory Tower periodically to do conservative things, like working for the Bush Department of Justice. Indeed, it was at Justice, where Yoo worked from 2001 to 2003, that he helped formulate presidential legal positions that have made him an outcast among many of his academic colleagues. At Justice, Yoo opined that the powers of the presidency pursuant to Article II of the U.S. Constitution are very broad; that they are very, very broad with regard to military affairs; and that they are virtually unlimited during times of war. Such an opinion, supported by ample and familiar precedent, is not novel or particularly controversial. But the devil, as they say, is in the details, and some of the detailed questions that the Justice Department addressed in the aftermath of Sept. 11, 2001, are devilish indeed: Can the president authorize warrantless wiretaps? Can he detain “enemy combatants” indefinitely in military prisons in places like, say, Cuba? And most controversially: Can the president use coercive interrogation tactics that many consider to be torture? In general, Yoo answered these difficult questions in the affirmative, becoming, in the eyes of many, the presidential Decider’s most notorious constitutional Justifier. Yoo, now a professor at the University of California, Berkeley School of Law, has been justifying himself ever since. Indeed, since leaving the Justice Department he has spoken so often and penned so many op-ed pieces that he likens his efforts to Alexander Hamilton’s published defenses of the 1795 Jay Treaty, a hot subject (trust me) during our federal republic’s first decade. Now Yoo has published a comprehensive exposition of his controversial opinions in a book for the general reader, War by Other Means: An Insider’s Account of the War on Terror (Atlantic Monthly Press 2006). In this deceptively thin volume, Yoo takes on most of the weighty constitutional issues raised by the “War on Terrorism,” including those mentioned above and others, such as the USA Patriot Act, assassination of terrorist leaders, the Geneva Conventions and military tribunals. Yoo’s central question is definitional: Should the United States treat terrorism as “crime” or as “war”? The difference, Yoo correctly points out, is enormous. If terrorism is a crime, then our focus is primarily retrospective, and the appropriate response is to use law enforcement agencies to track down suspected terrorists; to comply with all the standard investigative rules, such as obtaining warrants; to capture (not kill) suspects; and to hold trials in civilian courts with the full range of constitutional protections. If, on the other hand, we are in a “war” against terrorists, the focus is on prevention and the gloves come off. The full force of the president’s Article II power is unleashed, and he can use the military, the CIA and any other executive agency to hunt down suspects with little, if any, concern for constitutional niceties like probable cause. Moreover, the president can simply kill those he believes to be terrorists, or, if he decides to take prisoners, he can detain them indefinitely and treat them harshly to obtain intelligence. The prevention approach Yoo makes several persuasive arguments. In particular, he points out the incompatibility of the “crime” approach � which focuses, primarily, on acts that have already occurred � with what is, or should be, the focus of U.S. anti-terrorism policy: prevention. Prevention, he appropriately emphasizes, is especially important given the increasing availability of weapons of mass destruction. On the other hand, Yoo’s “war” approach has several problems of its own. Most notably, Yoo’s insistence that the executive’s war-making power is exclusive � that neither the Congress nor federal courts can meddle in the president’s wartime actions � is troubling. It is especially troubling given the open-ended nature of the so-called “War on Terrorism.” Even though Yoo prefers the more limited term, “war with al Qaeda,” the war he describes remains open-ended, and so the expanded wartime presidential powers he advocates could well become permanent. Yoo doesn’t think so, but his reference to the Thirty Years’ War provides little reassurance. Perhaps the best solution � which Yoo does not support � is a comprehensive federal anti-terrorism statute that addresses all of these issues and is subject to judicial review. Such a statute could be focused on prevention and could authorize military action and special investigative techniques. It could, in short, treat terrorism very differently from other crimes, with the president’s Article II powers as its constitutional basis. Such a statute would better balance our safety with our civil liberties than would Yoo’s unilateral-executive approach. Indeed, although I share Yoo’s admiration for Hamilton, I must point out that our first treasury secretary had definite monarchist leanings. Moreover, according to James Madison � another fellow who knew something about the subject � the concentration of all governmental powers in the same hands is the very definition of tyranny. Stewart Harris is an associate professor of law at the Appalachian School of Law, where he teaches Civil Procedure and Constitutional Law.

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