How historical periods are defined depends on the purposes of the definer. Geologists look to rock structure, demarking eras such as the Cretaceous, Jurassic, Triassic, Mesozoic and Paleozoic. Economists look to the primary source of wealth: the Iron Age, the Bronze Age, the Industrial Age and now the Information Age. Chroniclers of foreign affairs look to catastrophes: While their business is war and peace, their timelines are chiefly defined by wars. Consider how we talk and write about the 20th century: World War I, the interwar period, World War II, the Cold War. After the Cold War came the post-Cold War period, until 9/11, which marked the beginning of the War on Terror. The military is currently planning for “The Long War” against terrorism—and, if there is such a long war, it is a good bet that decades hence historians and political analysts will still be defining time in the cadences of war.
But why not focus instead on naming periods of peace? John Lewis Gaddis has written about “the long peace”, describing how United States and the Soviet Union managed to get through over four decades of the Cold War without fighting one another directly. Yet proclaiming peace has not caught on, notwithstanding occasional references to Pax Americana, Pax Britannia and Pax Romana. The reason is not hard to find: Telling citizens that they live in wartime is good for boosting defense budgets. It is also good for expanding presidential power. “War makes the state”, wrote celebrated sociologist Charles Tilly, “and the state makes war.”
Such ruminations make a worthy backdrop for reading and assessing John Yoo’s provocative book, Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. Yoo writes to rectify an awkward legal contradiction for political conservatives. Ardent advocates of originalism—a school of Constitutional interpretation that prizes the intent of the Framers and literal readings of the text of our founding document—have heretofore found themselves arguing against the seemingly clear Constitutional text granting Congress the power to declare war. And they must explain away contemporaneous accounts in the Federalist Papers making clear that the Framers wanted to give the Executive authority to make war, but only once Congress had decided to go to war in the first place. As Thomas Jefferson put it, “We have . . . given . . . one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.” In foreign affairs debates, therefore, liberal constitutionalists like Louis Henkin and Harold Koh have been able to claim the originalist high ground, while conservatives have instead made sweeping claims about how the evolving nature of war and new threats to American national security require that the Constitution be interpreted in light of two centuries of practice—the very argument anathema to them in, say, constitutional debates over abortion or the death penalty.
No longer. Yoo offers an originalist understanding of a vast Executive foreign affairs power, checked not by the Constitution itself but only by Congress’ ability to push back. The Framers, according to Yoo, designed “a flexible system for making foreign policy in which the political branches could opt to cooperate or compete.” In this system, the roles of Congress and the courts are narrowly confined to the specific powers granted them in Articles I and III, respectively. Article II, on the other hand, which defines the Executive’s powers, “effectively grants to the president any unenumerated foreign affairs powers not given elsewhere to the other branches.”
The Powers of War and Peace offers the theoretical grounding for this expansive view of Executive power based on evidence from practice in early U.S. history, the intent of the Framers, and the text and structure of the Constitution. The book reads as a long footnote to a Supreme Court brief upholding the Bush Administration’s controversial claims to lawfully detain U.S. citizens as enemy combatants or disregard treaties that have become inconvenient. With Yoo in hand, the Bush Administration need not argue to the courts that it must push out the boundaries of our Constitution in this national emergency. Giving such enormous power to the president in foreign affairs was what the Framers intended in the first place: Congress could fend for itself, Yoo writes, “[s]imply by refusing to do anything, by not affirmatively acting to vote funds or to enact legislation. . . . [T]he appropriations power and the power to raise the military gives Congress a suf- ficient check on presidential warmaking.”
The key point, of course, is that the Framers wrote in a time of no standing armies, no established political parties and relatively little difficulty in demarcating the line between foreign and domestic affairs. Without standing armies, the Congressional power of the purse was necessary to put soldiers in the field, a very real check on executive war-mongering. But with 1.4 million men and women on active duty in the military today and another 860,000 in the reserves, the Executive branch tends to shoot first and ask Congress to fund later, when our young men and women in uniform are already on the front lines. The political calculus, as any modern president well knows, overwhelmingly favors lining up behind the troops once they are in the field—a decision, according to Yoo, that is entirely up to the president.
Without entrenched partisan politics, it was possible to imagine members of Congress serving as a genuine voice of the people in opposition to the Executive. But with the most partisan system the nation has seen in a century, the President’s party votes with him, and it is the opposition alone that must face accusations of starving the troops in the field.
Without shrinking oceans, instant communications and a global economy it was at least possible to limit even a broad Executive foreign affairs power to distinctively and definably “foreign” affairs. But in an age of terrorism practiced by non-state groups both within the territory of the United States and without, by aliens and citizens alike, through a complex system of financing and support that travels through a tangled trail of domestic and foreign transactions, what a president can do abroad—wiretapping, for instance—he can also presume to do at home.
Yoo’s history is, to say the least, highly selective. Despite his central claim that the Framers clearly intended a unified executive, Yoo’s historical chapter about the writing of the Constitution opens with an admission of the Framers’ “silence” about the separation of powers in foreign affairs. Manfully, Yoo tries to explain away messy historical facts—such as the Constitutional Convention’s rejection of amendments that would have added to the Constitution explicit language setting out Yoo’s own unconventional understanding of the treaty and war powers. (Though these amendments failed, Yoo take pains to note that at least some of the Framers agreed with him.)
But by filling pages with every shred of evidence from the Founding period that might support a unified executive in foreign affairs, Yoo misses the real story. The Framers’ animating purpose in abandoning the loose Articles of Confederation for our Constitution was not to resurrect the British monarchy’s tradition of a dominant executive. Rather, the Framers were far more concerned about creating a strong central government to harmonize the dissonant foreign policies of the states, which had left the infant United States vulnerable in the 18th-century world of marauding mercantilist great powers. To the extent that the Framers sought what Alexander Hamilton called “energy in the executive”, as Stanford’s Pulitzer Prize-winning historian Jack Rakove writes in “Making Foreign Policy: The View from 1787”, the constitutional provisions “that laid the strongest foundation for a major executive role in foreign policy are more safely explained as a cautious reaction against the defects of
exclusive senatorial control of foreign relations than as a bold attempt to convert the noble office of a republican presidency into a vigorous national leader in world affairs.”
In light of George Washington’s difficulties with a war run by committee during the Revolution, the Framers explicitly chose not to give Congress the power to “make war”, that is, to actually conduct it. But they equally explicitly gave Congress the power to “declare war”, that is, to start it. Indeed, at the Constitutional Convention, when Pierce Butler of South Carolina formally proposed giving the president the power on his own to start war, Elbridge Gerry of Massachusetts said he “never expected to hear in a republic a motion to empower the executive to declare war.” The Constitutional Convention quickly rejected Butler’s motion.
Moreover, the practice of early presidents confirms this understanding. In 1801, facing depredations by the Barbary pirates, President Jefferson took certain defensive actions but went before the Congress to explain himself. He told the Congress that anything beyond defensive action was for them to authorize. Four years later, during a dispute with Spain, Jefferson put the matter as plainly as possible: “Congress alone is constitutionally vested with the power of changing our situation from peace to war.”
By contrast, Yoo’s version of the Constitution is both disingenuous and dangerous. Take the striking inconsistency between Yoo’s understanding of “flexibility” in the Constitution’s treatment of the War Powers and Treaty powers. Yoo argues that “[t]he Constitution did not intend to institute a fixed, legalistic process” in foreign affairs, and goes to great lengths to explain why Articles I and II do not actually restrict the president’s war powers in the way historians and legal scholars have long understood. But flexibility for Yoo does not extend to the treaty power, even though treaties are clearly instruments of foreign affairs. Instead, Yoo insists that treaties must not only satisfy the requirements of Article II, but that they also be subject to additional rigid legal requirements to have the force of law. Yoo infers such “fixed, legalistic process” for implementing treaties in the United States even though no specific language in the Constitution sets out such requirements. This conveniently allows the president to dispose of a host of inconvenient treaties that might restrain his power if their terms had the force of domestic law. And despite Yoo’s own history describing the Framers’ concern with the states ignoring treaties, he even questions how much the Federal government today can require the states to follow U.S. treaty obligations. Such conclusions leave the reader wondering how much of this book is pure Constitutional interpretation, and how much a manual for the Bush Administration’s vision of American unilateralism.
Given Yoo’s recent service in an intensely ideological administration, his partisanship here is hardly surprising and easy to spot. Yoo’s most sweeping—and most dangerous—claim is hidden as a legal technicality. “Article II”, he writes, “effectively grants to the president any unenumerated foreign affairs powers not given elsewhere to the other branches.” In other words, whatever is not explicitly granted (“enumerated”) to Congress or the courts belongs to the Executive. All that is necessary is to identify a particular power as a “foreign affairs power.”
The danger of this view is that the president can claim any new threat to American national security—and those appear all the time—as one he alone is empowered to address. Take the war on terror. The Bush Administration has claimed that the president has the power to declare any American citizen an “enemy combatant”, to keep such combatants in jail indefinitely without bringing criminal charges, and to try them through a separate court system without the core protections of the Bill of Rights. Even judges in President Bush’s conservative camp are unwilling to trust a president that much. In 2003 the Supreme Court—in an opinion joined by Antonin Scalia—rejected Bush’s claim that the president’s war powers meant that enemy combatants could not challenge their detention in court. And this past December, a conservative appellate judge once on Bush’s Supreme Court short-list (Michael Luttig of the Fourth Circuit) wrote a biting opinion holding that the Bush Administration could not move a U.S. citizen in and out of the protections of the criminal justice system simply by invoking the shibboleth of terrorism and national security.
Yoo’s position not only threatens our civil liberties; it is equally dangerous to our national security. He is right about the profound changes America faces in the world and the resulting need for a flexi- ble framework governing foreign affairs powers—a push and pull between the Executive and Congress, with periodic intervention by the courts. But rather than expanding Executive power while pretend- ing that Congress can cut funding to stop U.S. troops already deployed on foreign soil, the solution is to draw clear Constitutional boundaries around the Executive’s power, enforceable by the courts if nec- essary, and to find ways to force, commit or lure Congress to do the job it is supposed to do.
Leslie Gelb and I recently suggested (“Declare War”, The Atlantic Monthly, November 2005) one approach to this: a new law that would restore the Framers’ intent by restoring the declaration of war, and requiring Congress actually to declare war in advance of any commitment of troops that promises sustained combat. The president would be required to present Congress with critical information about war aims and plans; and Congress would in turn hold hearings to scrutinize for itself the intelligence justifying the recourse to war, the costs of fighting, and the administration’s plans for the war’s aftermath. A full floor debate and vote would follow. The lack of a Congressional declaration would automatically deny funds to that military operation. In Jefferson’s words, “Congress must be called on to take it, the right of reprisal being expressly lodged with them by the Constitution, and not with the Executive.” Congress must be called on, or must pre-commit itself, to take the same responsibility with respect to how we treat enemy prisoners and fight other critical fronts in the War on Terror.
Congressional participation in foreign affairs, however, is not an end in itself. The Framers’ genius was to recognize the practical benefits of American democracy in conducting foreign affairs. In a world of shadowy and immeasurable threats, the real danger of getting war powers wrong is not simply the abuse of power by any one branch of government, but also the use of power without sufficient information, deliberation and imagination to succeed. As any global business recognizes, success today requires managing change and risk under conditions of uncertainty. So too with government. In this effort, many minds are better than one—to sift through and assess the quality of our information, to question and improve our strategies, and to brainstorm and troubleshoot so that tactics too narrowly conceived will not lead us astray.
The intelligence failures that enabled the attacks on September 11 and the rush to war in Iraq (leaving aside the accuracy of the limited intelligence presented to Congress) underscore the danger of leaving critical questions of war solely in the hands of the Executive. Congress’ job is not simply to fund or not to fund. It is to question, to probe, to deliberate and to decide, together with the President, on behalf of the people whose sons and daughters will be sent to war and whose tax dollars will be spent. That is the originalist understanding of the Constitution, and the ensuing centuries have only strengthened the case for this interpretation of its text.