Constitutional law professor John Yoo is out promoting his new book and its stout defense of the need for a strong president in times of national emergencies. But the demonstrators in orange jump suits outside his recent appearance in Washington, D.C., were a reminder that Yoo’s thesis has an inevitable subtext: his authorship of the later-repudiated Justice Department memo claiming a presidential power to commit torture.
Yoo makes no mention in Crisis and Command of either of the two infamous torture memos that he drafted in 2002 and 2003 as deputy director of the Justice Department’s Office of Legal Counsel under President George W. Bush. Having returned to the University of California-Berkeley law school, Yoo makes his case for a strong presidency by citing assertive chief executives viewed favorably by history: chiefly, Washington, Jackson, Lincoln, and FDR. And he contrasts them with failed presidents, such as James Madison and James Buchanan, who took a less expansive view of their powers.
Despite all the indicia of respectable scholarship, the book is to some extent an academic sleight of hand. For one thing, Yoo neglects to tell readers of his belief that the president enjoys unbounded power as commander in chief over the detention and interrogation of enemy combatants even to the point of violating domestic law and international treaties against torture.
Even in the covered material, however, Yoo glosses over the critical distinction between the use of presidential power in institutional conflicts with Congress or the states and the misuse of presidential power against individuals. It is one thing to commend Franklin Roosevelt for skirting neutrality statutes to lead the nation into a just and necessary war. It is another to defend Roosevelt for the internment of Japanese Americans or the summary convictions and executions of German saboteurs.
Yoo begins with the first president, George Washington, and his assertion of a critical foreign affairs power vis-à-vis Congress in 1793 in issuing a proclamation of neutrality in the war between Britain and France. Two of the framers, Alexander Hamilton and Madison, debated whether Washington had overstepped his powers. As Yoo says, Hamilton’s view defending Washington’s action has prevailed.
History similarly judges Andrew Jackson to have been right in two important tests of presidential power when he was in the White House. Jackson stared down a Senate censure over his decision to withdraw government funds from the corruption-plagued National Bank. And he stood up against John Calhoun and others who claimed for the states a power of “nullification” over federal laws that they disapproved.
Turning to the Civil War, Yoo says that both Buchanan and Abraham Lincoln believed that Southern states had no power to secede from the Union. Lincoln succeeded where Buchanan failed, Yoo says, because he thought unlike Buchanan that the president could use force against the secessionists. Then, during the war, Lincoln stretched his powers as commander in chief to issue the Emancipation Proclamation, even though Congress had a different approach on freeing the slaves.
History judges Lincoln right on both counts, but it gives no agreed verdict on Lincoln’s suspension of the writ of habeas corpus ratified by Congress only after the fact and his detention of thousands of suspected saboteurs, spies and Confederate sympathizers. Whether justified or not, it should be noted that Lincoln countermanded some of the harsher decisions by military tribunals. And the war was won not by jailing secessionists in the North but by besting the Confederate Army on the battlefields in the South.
Franklin Roosevelt’s actions in the run-up to World War II demonstrated a resolve similar to Lincoln’s to use presidential power to confront a threat to national security. As commander in chief, FDR helped forge the alliance that defeated Germany and Japan. But history gives him no credit for the decision to send 120,000 Japanese Americans to concentration camps. And it is jarring to hear Yoo cite with approval the Supreme Court’s discredited decision, Korematsu v. United States, upholding Roosevelt’s action.
The Supreme Court brought no credit to itself either in upholding FDR’s use of truncated procedures against the German saboteurs captured in June 1942 in New York and Florida, who were convicted within two months and put to death even before the justices had time to issue a formal opinion on their appeals.
Yoo says the Bush presidency must await history’s verdict, but for his part reaffirms his support for all of the post-9/11 policies as consistent with the historical precedents of Washington, Lincoln and FDR. Again, though, Yoo makes no distinction between the use of force to confront and defeat the nation’s enemies on the battlefield and the use of ad hoc procedures against captured “enemy combatants” that skirt constitutional rights and international law.
Yoo himself is awaiting the verdict from an internal Justice Department investigation on whether he violated legal ethics in providing the advice that permitted the use of waterboarding and other “enhanced interrogation techniques” and that depicted the president in any event as above the law in ordering those policies. He defends those memos, rescinded by the Bush Justice Department itself, as his best judgment as a lawyer. Perhaps they were. But history provides no basis, even in Yoo’s telling, for believing that a strong president needs arbitrary powers, much less the right to use torture, to keep the country safe and secure.