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news & opinion with no titillating non-news from the major non-news channels.


I am: progressive, not a wild-eyed Progressive; liberal, but shun liberals and Liberals; conservative, but some Conservatives worry me; absolutely NOT a libertarian. I am: an idealist, but no utopian; a pragmatist, but no Machiavellian. I am a realist who dreams.


I welcome all opinions.

Sunday, October 23, 2005

Who in the world is John Yoo?:
   Yoo's new book and flak from the Boston Globe

John Yoo, a professor of law at the University of California at Berkeley, has a new book, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11.

I am not really familiar with some of Yoo's ideas, who came under fire for a "torture" memo he wrote while at The Office of Legal Counsel advising the President and the Department of Justice, but a scathing attack by Christopher Shea of the Globe has inspired me to give the book a fair hearing. I would welcome any enlightening comments on Yoo from the legal beagles in the audience.

Shea takes the upcoming book as an opportunity to ridicule Yoo's credibility, while abandoning his own journalistic integrity. Shea does a good job of providing Yoo's point of view, but dismisses it with ad hominem attacks of Yoo's alleged Hamiltonesqe tendencies (all emphasis is mine).

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.


Yoo returns again and again, with something like glee, to President Clinton's flouting of the War Powers Resolution,

Shea's representation of Yoo's views on presidential war powers is mostly fair,

As Glennon's jibe about an ''elected king" hints, Yoo says the Constitution was more influenced by the 18th-century British system than scholars concede. Under the British system, the king ''has the sole prerogative of making war and peace," as the British legal scholar Blackstone wrote, yet Parliament exercised considerable control via the purse strings. ''The sword is in the hands of the British king, the purse in the hands of Parliament," James Madison said during the constitutional ratifying convention in Virginia. ''It is so in America, as far as any analogy can exist."

The 18th-century understanding of ''declaring war," Yoo continues, was different from ours. When Britain declared war on France in 1756, for example, in what became known as the Seven Years' War (or the French and Indian War), the two countries had been fighting in North America for two years already. The declaration, Yoo argues, was a diplomatic notification, not a military decision, telling English citizens, for example, that any communication with the French king was now illegal.

If the framers meant ''make war," but wrote ''declare war," they would be ''very clumsy draftsmen indeed," Yoo writes.

Yet, the only counter to that argument is taken from Curtis Bradley, a professor of law at Duke, who,

points out that George Washington did not have a standing army to order into battle. He needed congressional funding to take the first martial step. He's not sure the Yoo view can apply when presidents wield aircraft carriers and missiles.

I'm not sure I understand that as an effective counter to Yoo's war powers argument. How did current presidents get the authority to wield carriers and missiles already in place? Did Bush pass a tax bill that gave him the authority to build and maintain a standing army? I don't know my Latin, but I am sure there is a phrase that explains that little bit of logical fallacy...

Apples and oranges come to mind, but then, that would only validate, nay, justify, Yoo's efforts to define Constitutional intent when extrapolated to standing armies.

Shea's critique is replete with name-dropping, but without providing an accurate and logical analysis, or justification for his own attacks.

I'm smelling a not-so-hidden agenda here.


Anonymous MBMc said...

Yoo's position on the respective War Powers of the Executive and Legislative branches is very difficult to refute. His founding fathers research is excellent.

Yoo's primary argument is that the prime Congressional check on a wayward President is the power of the purse, and NOT the Decaration of War power.

What drives the Left crazy about Yoo's analysis of the War Powers is not the dubious nature of his claims, but rather the great solidity of his claims. They attack him because they fail to adequately refute his arguments.

I am not familiar enough with the torture memo to address the merits of Yoo's argument there.

10/25/2005 5:15 PM  
Anonymous MBMc said...

Nearly all War Powers scholars will concede that a President has the power to use the military "defensively" without Congressional approval. However, when many try to draw a line there, based upon a semantic distinction, they struggle to provide decisive historical and textual evidence as to what constitutes "defensive". To think that the founders, who understood so well the need to balance power against power and interest against interest within the government, would base such an important power allocation upon a semantic distinction is silly.

Moreover, considering Jefferson's actions against the Barbary Pirates, such a dsitinction has not been in practice since the beginning of the Republic.

The US Military has been involved in well over 100 engagements abroad -- by some counts in the 130s, by others, well more than that. Only five wars have been declared by Congress: 1812, Mexican-Am, Spanish-Am, WWI, WWII.

10/25/2005 5:25 PM  

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