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Stanford Public Law and Legal Theory Working Paper Series John Yoo’s War Powers: The Law Review and the World Janet Cooper Alexander Stanford Law School Research Paper No. 2024138 Stanford Public Law and Legal Theory Working Paper Series Stanford Law School Crown Quadrangle Stanford, California 94305 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=2024138 Electronic copy available at: http://ssrn.com/abstract=2024138 John Yoo’s War Powers: The Law Review and the World Janet Cooper Alexander John Yoo’s 1996 The Continuation of Politics by Other Means: The Original Understanding of War Powers is surely among the most consequential articles ever to appear in the California Law Review. Five years after its publication, Yoo became the “principal architect of the Bush Administration’s response to 9/11.” His expansive theory of presidential primacy became the legal basis for the most controversial of President Bush’s policies, including the use of torture (or “enhanced interrogation”), indefinite detention without charge, warrantless wiretapping within the United States, and the claim that neither constitutional protections nor other provisions of domestic and international law constrain treatment of suspected terrorists. Yet the methodology and conclusions of War Powers have been subjected to comprehensive and devastating criticism, addressing issues ranging from selective use of evidence to fundamentally misunderstanding the Framers’ rejection of monarchical prerogatives in constructing the executive power. Yoo’s theory is based on a presumption that the Framers’ design was to replicate the British government’s allocation of powers between Parliament and the King. To reach the conclusion that the president has primacy in war, subject only to Congress’s spending and impeachment power, Yoo ignores the many war powers expressly granted to Congress in Article I and disregards or dismisses the remarkably unanimous statements of prominent Founders disclaiming the British model. After reviewing the criticisms of Yoo’s theory, this Essay reflects on how a flawed and eccentric historical theory came to underpin the government’s conduct of war and foreign policy. Finally, this Essay examines the implications of this saga for law review publishing, as well as for the participation of legal academics in government and the formation of national policy. Electronic copy available at: http://ssrn.com/abstract=2024138 Alexander.27.punched.doc (Do Not Delete) 2/16/12 10:30 AM John Yoo’s War Powers: The Law Review and the World Janet Cooper Alexander* John Yoo’s 1996 The Continuation of Politics by Other Means: The Original Understanding of War Powers is surely among the most consequential articles ever to appear in the California Law Review. Five years after its publication, Yoo became the “principal architect of the Bush Administration’s response to 9/11.” His expansive theory of presidential primacy became the legal basis for the most controversial of President Bush’s policies, including the use of torture (or “enhanced interrogation”), indefinite detention without charge, warrantless wiretapping within the United States, and the claim that neither constitutional protections nor other provisions of domestic and international law constrain treatment of suspected terrorists. Yet the methodology and conclusions of War Powers have been subjected to comprehensive and devastating criticism, addressing issues ranging from selective use of evidence to fundamentally misunderstanding the Framers’ rejection of monarchical prerogatives in constructing the executive power. Yoo’s theory is based on a presumption that the Framers’ design was to replicate the British government’s allocation of powers between Parliament and the King. To reach the conclusion that the president has primacy in war, subject only to Congress’s spending and impeachment power, Yoo ignores the many war powers expressly granted to Congress in Article I and disregards or dismisses the remarkably unanimous statements of prominent Founders disclaiming the British model. After reviewing the criticisms of Yoo’s theory, this Essay reflects on how a flawed and eccentric historical theory came to underpin the government’s conduct of war and foreign policy. Finally, this Essay examines the implications of this saga for law review publishing, as Copyright © 2012 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Frederick I. Richman Professor of Law, Stanford Law School; Head Articles Editor, California Law Review 1977–78. I am profoundly grateful to those who have worked tirelessly, both in and out of government service, against torture and for justice and human rights. 101 Electronic copy available at: http://ssrn.com/abstract=2024138 Alexander.27.punched.doc (Do Not Delete) 2/16/12 10:30 AM 102 CALIFORNIA LAW REVIEW [Vol. XX:nnn well as for the participation of legal academics in government and the formation of national policy. Introduction......................................................................................................102 I. Yoo’s “Original Understanding”..................................................................108 II. Yoo’s War Powers ......................................................................................111 A. The Declare War Clause..................................................................111 B. Congress’s Other Article I Powers ..................................................116 C. The Vesting and Commander-in-Chief Clauses..............................117 D. The British Model ...........................................................................118 III. Law Reviews and Legal Scholarship.........................................................122 IV. The Long Arm of the Law Review: Theory Becomes National Policy ....126 Conclusion .......................................................................................................133 INTRODUCTION Surely one of the most consequential articles ever published in the California Law Review (CLR), as measured by its effects in the world, is John Yoo’s The Continuation of Politics by Other Means: The Original Understanding of War Powers.1 The article sets forth the copiously sourced2 thesis that the true historical meaning of the Constitution is that it “established a system which was designed to encourage presidential initiative in war.”3 As Yoo later wrote, the president holds “the plenary authority, as Commander in Chief and the sole organ of the Nation in foreign relations, to use military force abroad . .” and to make decisions about the amount, method, timing, and nature of the use of military force.4 In the article he asserts that Congress’s war powers are limited: “Congress could express its opposition to executive war decisions only by exercising its powers over funding and impeachment.”5 According to Yoo, the Declare War Clause does not grant Congress any power to initiate war, but only the “judicial power”6 to recognize whether “the nation was [already] in a legal state of war” for purposes of “domestic” law.7 Nor do Congress’s other war-related powers8 limit the president’s freedom of action in 1. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CALIF. L. REV. 167 (1996) [hereinafter Yoo, War Powers]. 2. The article runs 139 pages with 625 footnotes. 3. Yoo, War Powers, supra note 1, at 174. 4. Memorandum from John C. Yoo, Deputy Ass’t Att’y Gen., Office of Legal Counsel, to the Deputy Counsel to the President, The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) [hereinafter Military Operations Memo], available at http://www.usdoj.gov/olc/warpowers925.htm. 5. Yoo, War Powers, supra note 1, at 174, 197 n.158, 241. 6. Id. at 288. 7. Yoo, War Powers, supra note 1, at 301, 295. 8. Article I, Section 8 of the Constitution gives Congress power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;” to “grant Letters of Alexander.27.punched.doc (Do Not Delete) 2/16/12 10:30 AM 201x] THE LAW REVIEW AND THE WORLD 103 initiating and conducting war. In Yoo’s reading, because Congress is to have the “sole judicial power to decide whether the United States is at war”9 there is no role at all for the judicial branch in matters of war.10 War Powers has been called Professor Yoo’s “breakthrough” work11 and was instrumental in propelling him to an important job in the Bush administration’s Office of Legal Counsel (OLC).12 There he authored or ghostwrote memoranda that furnished the legal justification for the most significant policies and practices of the Bush administration’s “global war on terrorism.”13 OLC opinions are treated as legally binding within the executive branch,14 and because of Yoo’s perceived and claimed expertise in the law of national security and presidential powers, he was given a virtually free hand in crafting opinions on these subjects.15 These memoranda explicitly relied on War Powers, reiterating and further expanding the analysis first advanced in the Marque and Reprisal, and make Rules concerning Captures on Land and Water;” to “raise and support Armies;” to “provide and maintain a Navy;” to “make Rules for the Government and Regulation of the land and naval Forces;” to “provide for calling forth the Militia
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