Dana Milbank: John Yoo says it's a myth that Congress declares wars
For generations, civics students have learned that the Constitution gives Congress the power to declare war. Yesterday, the man who built the legal underpinnings of the Bush administration's terrorism strategy revised the curriculum.
John Yoo, the former Justice Department official whose writings justified the administration's treatment of military prisoners and the National Security Agency eavesdropping program, announced that Congress's warmaking powers are just a figment of the "popular imagination."
"Almost all the prominent scholars who believe that Congress should play a prominent role in foreign policy look to the 'declare war' clause as the source of Congress's power," Yoo said, 10 minutes into his talk at the Heritage Foundation. "They appeal to a very common-sense reading of the declare-war clause," he continued, and "I think in the popular imagination, declaring war does seem to equate with making war or starting war."
That is, indeed, the prevailing view. But it is not Yoo's. "I don't think if you look at the constitutional text carefully that it carries that expansive reach," he asserted. "Note that the declare-war clause uses the word 'declare.' It doesn't use the word 'begin,' 'make,' 'authorize,' 'wage' or 'commence' war."
Thus did Yoo reduce Congress's warmaking authority to a ceremonial role, much like its authority to declare a national Boy Scout recognition month.
It was vintage Yoo. As a lawyer advising the White House after Sept. 11, 2001, he was the source of endless controversy. The administration view that the Geneva Conventions did not apply to terrorism detainees? It was up to Yoo. The claim that it's not torture unless it causes "physical injury such as death or organ failure"? Yoo again.
Now Yoo has returned to his academic post at the University of California at Berkeley. But top administration officials continue to cite the theories he and his colleagues developed, and his theory of an all-powerful "unitary executive" -- a notion criticized by many fellow scholars as authoritarian and monarchal -- has gained currency in, among other places, Vice President Cheney's office.
Yoo has not mellowed in his view that presidential powers are near absolute in wartime. Twice yesterday, he said the president has a "choice" about whether to follow the 1978 Foreign Intelligence Surveillance Act -- the law that, critics say, President Bush evaded by allowing warrantless wiretaps. FISA "says, 'Look, you have a choice,' " Yoo said. "If you work through FISA, then you can use the fruits of those searches in criminal prosecution." By contrast, if a president "doesn't follow FISA and still collects the information, it's doubtful it will be admitted. That's a choice presidents have to make."...
Read entire article at Wa Po
John Yoo, the former Justice Department official whose writings justified the administration's treatment of military prisoners and the National Security Agency eavesdropping program, announced that Congress's warmaking powers are just a figment of the "popular imagination."
"Almost all the prominent scholars who believe that Congress should play a prominent role in foreign policy look to the 'declare war' clause as the source of Congress's power," Yoo said, 10 minutes into his talk at the Heritage Foundation. "They appeal to a very common-sense reading of the declare-war clause," he continued, and "I think in the popular imagination, declaring war does seem to equate with making war or starting war."
That is, indeed, the prevailing view. But it is not Yoo's. "I don't think if you look at the constitutional text carefully that it carries that expansive reach," he asserted. "Note that the declare-war clause uses the word 'declare.' It doesn't use the word 'begin,' 'make,' 'authorize,' 'wage' or 'commence' war."
Thus did Yoo reduce Congress's warmaking authority to a ceremonial role, much like its authority to declare a national Boy Scout recognition month.
It was vintage Yoo. As a lawyer advising the White House after Sept. 11, 2001, he was the source of endless controversy. The administration view that the Geneva Conventions did not apply to terrorism detainees? It was up to Yoo. The claim that it's not torture unless it causes "physical injury such as death or organ failure"? Yoo again.
Now Yoo has returned to his academic post at the University of California at Berkeley. But top administration officials continue to cite the theories he and his colleagues developed, and his theory of an all-powerful "unitary executive" -- a notion criticized by many fellow scholars as authoritarian and monarchal -- has gained currency in, among other places, Vice President Cheney's office.
Yoo has not mellowed in his view that presidential powers are near absolute in wartime. Twice yesterday, he said the president has a "choice" about whether to follow the 1978 Foreign Intelligence Surveillance Act -- the law that, critics say, President Bush evaded by allowing warrantless wiretaps. FISA "says, 'Look, you have a choice,' " Yoo said. "If you work through FISA, then you can use the fruits of those searches in criminal prosecution." By contrast, if a president "doesn't follow FISA and still collects the information, it's doubtful it will be admitted. That's a choice presidents have to make."...