October 23, 2005


War counsel: Conservative legal scholar John Yoo, whose memos helped shape White House policy, says the framers gave the president all the war powers of a king (Christopher Shea, October 23, 2005, Boston Globe)

IN JOHN YOO'S world, President Bush didn't need to ask Congress for permission to invade Iraq. And if the special forces captured a terrorist suspect who might know of an upcoming attack on the New York subway, Bush could order him placed on a torture rack-regardless of treaties the US has signed or whether Congress had passed laws banning torture.

Yoo is an academic-a Berkeley law professor-but these aren't exactly theoretical issues. The Supreme Court faces several cases concerning how much control the president has over military detainees. And last week, Secretary of State Condoleezza Rice told the Senate Foreign Relations Committee that the president has the right to attack Syria, without congressional approval, if he deems that a necessary move in the war on terror.

Nor is Yoo's experience in this area merely Ivory Tower: He clerked for Supreme Court Justice Clarence Thomas and from 2001 to 2003 served as a lawyer in the Justice Department's prestigious Office of Legal Counsel. Last year, Yoo found himself at the center of controversy when it was revealed that he had written a memo during his Justice Department stint arguing that physical interrogations had to cause damage on the order of major organ failure before they were considered torture under American law, and that anyway the commander in chief was exempt from such laws.

The memo got some seriously bad reviews. ''The stench of corruption permeates the page," wrote the Yale law professor Jack Balkin, on his blog. Now, in a new book, ''The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11" (Chicago), Yoo has produced a full blueprint for the kind of potent presidency he thinks is necessary to fight the Global War on Terror. Given his connections to the administration, Yoo's sketch of the presidency will no doubt be interpreted in some quarters as revealing how the Bush White House sees itself in its dreams.

When it comes to foreign policy and the president's role as commander in chief, ''Yoo concludes that for all intents and purposes we have an elected king," says Michael J. Glennon, a professor of international law at Tufts University's Fletcher School, reflecting a common view among left and centrist scholars.

Yet Yoo, for his part, says he's offering a fresh look at constitutional history that not only reflects the framers' ideas, but also better mirrors the reality of modern history than does mainstream international law. ''There are these areas-war powers, treaties-in which academics all say one thing, and then presidents, Congress, and the courts all do something that is opposite," he said in a recent interview. His book tries to explain why the people he describes as ''my friends in international law" get so many things wrong.

Yoo wants to revise our understanding of the Constitution in two areas: presidential war powers and the interpretation of treaties.

Mr. Yoo is a likely and worthy eventual Supreme Court nominee, but only inside the Beltway would a guy who worked for the Justice Department Counsel be considered more qualified than the actual White House Counsel.

Posted by Orrin Judd at October 23, 2005 9:43 AM

I like how this article starts off.

"...or Bush could have eaten babies and beaten kitty cats with abandon..."

Posted by: RC at October 23, 2005 10:10 AM