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What Bush Wants to Hear

A Consideration of John Yoo's The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11

| Tue Nov. 1, 2005 3:00 AM EST

Introduction by Tom Engelhardt

Here is the key passage in Senator John McCain's anti-torture amendment to the 2006 Defense Appropriations Bill (which the Bush administration has threatened to veto if it arrives so amended): "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."

Here are the August 2002 words of John Yoo, then-deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice (now a law professor at Berkeley and the author of a new book reviewed below) in his infamous "torture memo" to White House Counsel Alberto Gonzales. After hauling out many dictionaries, Yoo managed to redefine torture in the following pretzled fashion: "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Thus, did a junior member of the Bush administration open the legal way for waterboarding in the White House. This is the man who, only two weeks after September 11, wrote a memo to Gonzales' deputy entitled The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them, which is certainly in the running for the most sweeping claim of unfettered executive power in our nation's history and which laid the (il)legal groundwork for an Iraq war of choice to come. "In the exercise of his plenary power to use military force," Yoo insisted, "the President's decisions are for him alone and are unreviewable."

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Over four years later, lobbying for torture is no longer restricted to secret, high-level White House meetings, insider memos from Justice Department lawyers, or little privately scrawled notes from Donald Rumsfeld -- like the one on a November 27, 2002 memo on acceptable interrogation methods: "I stand for 8-10 hours a day. Why is standing [as a counter-resistance technique] limited to 4 hours?" Last week, on the torture side of the ledger, Vice President Cheney descended from the imperial heavens to lobby Senator McCain, a man who knows something about torture first-hand, to exempt the CIA (and possibly other secret agencies) from his amendment. According to the New York Times, here is the (tortured) wording of the exemption the Vice President was pushing:

"[The measure] shall not apply with respect to clandestine counterterrorism operations conducted abroad, with respect to terrorists who are not citizens of the United States, that are carried out by an element of the United States government other than the Department of Defense and are consistent with the Constitution and laws of the United States and treaties to which the United States is a party, if the president determines that such operations are vital to the protection of the United States or its citizens from terrorist attack."

"As for Mr. Cheney," the Washington Post editorial page commented astringently, "[h]e will be remembered as the vice president who campaigned for torture."

Last week, by the way, the ACLU released "an analysis of new and previously released autopsy and death reports of detainees held in U.S. facilities in Iraq and Afghanistan, many of whom died while being interrogated. The documents show that detainees were hooded, gagged, strangled, beaten with blunt objects, subjected to sleep deprivation and to hot and cold environmental conditions… The documents show that detainees died during or after interrogations by Navy Seals, Military Intelligence and ‘OGA' (Other Governmental Agency) -- a term, according to the ACLU, that is commonly used to refer to the CIA." Evidently, this is just everyday life in the world created by Dick Cheney and John Yoo.

As it happened, Cheney was going for the torture trifecta. The Monday after the indictment and resignation of I. Lewis Libby, he announced the appointment of a new vice-presidential chief of staff, his counsel David Addington, a man the Washington Post has identified as "a principal author of the White House memo justifying torture of terrorism suspects. He was a prime advocate of arguments supporting the holding of terrorism suspects without access to courts." These days, it seems, this is nothing short of a qualification for holding high office. After all, the three men who head our new Homeland Security State -- Alberto Gonzales, Michael Chertoff, and Donald Rumsfeld (Justice, Homeland Security, and Defense) -- were all intimately involved in creating and/or parsing pretzled definitions of torture meant to free our "commander-in-chief" to order more or less anything he wanted done to anyone at all out there in the imperium.

Now, the Vice President proudly joins this line-up with the lovely complaint (according to a number of publications) that McCain's amendment "would bind the president's hands in wartime." (Ouch! And how that would hurt!)

Despite his anodyne prose, John Yoo is a living link between an imperial presidency freed of all constraints -- or all that matter anyway -- and the plunge into barbarism that has made torture the binding issue of this administration. (It's the sort of connection that Caligula or Claudius would have grasped instantly.) David Cole, whose Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism takes up the denial of basic constitutional rights in the name of "wartime" expediency, considers Yoo's new book and the extreme theory of presidential power it proposes in an essay that is running in the November 17 issue of the New York Review of Books and appears here thanks to the kindness of that magazine's editors.

What Bush Wants to Hear

A Consideration of John Yoo's The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
By David Cole

Few lawyers have had more influence on President Bush's legal policies in the "war on terror" than John Yoo. This is a remarkable feat, because Yoo was not a cabinet official, not a White House lawyer, and not even a senior officer within the Justice Department. He was merely a mid-level attorney in the Justice Department's Office of Legal Counsel with little supervisory authority and no power to enforce laws. Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the U.S. response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same -- the president can do whatever the president wants.

Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime -- even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.

Yoo is now back in private life, having returned to the law faculty at the University of California at Berkeley. Unlike some other former members of the administration, he seems to have few if any second thoughts about what he did, and has continued to aggressively defend his views. His book The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 shows why Yoo was so influential in the Bush administration. It presents exactly the arguments that the president would have wanted to hear. Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. Indeed, ratified treaties, Yoo believes, cannot be enforced by courts unless Congress enacts additional legislation to implement them. According to this view, Congress's foreign affairs authority is largely limited to enacting domestic legislation and appropriating money. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law -- constitutional or international.

Yoo is by no means the first to advance such positions. Many conservatives favor a strong executive, especially when it comes to foreign affairs, and they are generally skeptical about international law. What Yoo offers that is new is an attempt to reconcile these modern-day conservative preferences with an influential conservative theory of constitutional interpretation: the "originalist" approach, which claims that the Constitution must be interpreted according to the specific understandings held by the framers, the ratifiers, and the public when the Constitution and its amendments were drafted.

The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views -- they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced. During the last two centuries, of course, executive power has greatly expanded in practice; and the attitude of many U.S. leaders toward international law has grown increasingly disrespectful as the relative strength of the U.S. compared to other nations has increased. But these developments are difficult to square with the doctrine of "original intent," which, at least as expressed by Justice Antonin Scalia and other extreme conservatives, largely disregards the development of the law for the past two centuries. Yoo's task is to reconcile the contemporary uses of American power with his belief in original intent. His views prevailed under the Bush administration, and therefore should be examined not only for their cogency and historical accuracy, but for their consequences for U.S. policy in the "war on terror."

War

On its face, the Constitution divides power over foreign affairs. It gives Congress substantial responsibility, especially with respect to war. Congress has the power to raise and regulate the military; to declare war and issue "Letters of Marque and Reprisal," which authorize lesser forms of conflict; to define offenses against the law of nations; and to regulate international commerce. The Senate must confirm all treaties and all appointments of ambassadors. The president is named as the "Commander-in-Chief," and appoints ambassadors and makes treaties subject to the Senate's consent. In addition, the words "executive power" have, since the beginning of the republic, been regarded as giving the president an implicit authority to represent the nation in foreign affairs.

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