John Yoo: How the Presidency Regained Its Balance
[John Yoo, a deputy assistant attorney general from 2001 to 2003, is a professor at the University of California at Berkeley School of Law and the author of “War by Other Means.”]
FIVE years after 9/11, President Bush has taken his counterterrorism case to the American people. That’s because he has had to. This summer, a plurality of the Supreme Court found, in Hamdan v. Rumsfeld, that Congress must explicitly approve military commissions to try suspected terrorists. So Mr. Bush has proposed legislation seeking to place the tribunals, and other aggressive antiterrorism measures, on a sounder footing.
But the president has broader goals than even fighting terrorism — he has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the “erosion of the powers and the ability of the president of the United States to do his job” and noted that “we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.”
Thus the administration has gone to war to pre-empt foreign threats. It has data-mined communications in the United States to root out terrorism. It has detained terrorists without formal charges, interrogating some harshly. And it has formed military tribunals modeled on those of past wars, as when we tried and executed a group of Nazi saboteurs found in the United States.
To his critics, Mr. Bush is a “King George” bent on an “imperial presidency.” But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive. Harry Truman sent troops to fight in Korea without Congressional authority. George H. W. Bush did not have the consent of Congress when he invaded Panama to apprehend Manuel Noriega. Nor did Bill Clinton when he initiated NATO’s air war over Kosovo.
The Bush administration’s decisions to terminate the 1972 antiballistic missile treaty and to withdraw from the International Criminal Court and the Kyoto accords on global warming rested on constitutional precedents going all the way back to Abraham Lincoln.
The administration has also been energetic on the domestic front. It has re-classified national security information made public in earlier administrations and declined, citing executive privilege, to disclose information to Congress or the courts about its energy policy task force. The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority. That is why Mr. Bush has issued hundreds of signing statements — more than any previous president — reserving his right not to enforce unconstitutional laws.
A reinvigorated presidency enrages President Bush’s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. But the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.
The changes of the 1970’s occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia in the wake of Richard Nixon’s use of national security agencies to spy on political opponents. Congress enacted the War Powers Resolution, which purports to cut off presidential uses of force abroad after 60 days. It passed the Budget and Impoundment Act to eliminate the modest presidential power to rein in wasteful spending. The Foreign Intelligence and Surveillance Act required the government to get a warrant from a special court to conduct wiretapping for national security reasons.
These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks....
Read entire article at NYT
FIVE years after 9/11, President Bush has taken his counterterrorism case to the American people. That’s because he has had to. This summer, a plurality of the Supreme Court found, in Hamdan v. Rumsfeld, that Congress must explicitly approve military commissions to try suspected terrorists. So Mr. Bush has proposed legislation seeking to place the tribunals, and other aggressive antiterrorism measures, on a sounder footing.
But the president has broader goals than even fighting terrorism — he has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the “erosion of the powers and the ability of the president of the United States to do his job” and noted that “we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.”
Thus the administration has gone to war to pre-empt foreign threats. It has data-mined communications in the United States to root out terrorism. It has detained terrorists without formal charges, interrogating some harshly. And it has formed military tribunals modeled on those of past wars, as when we tried and executed a group of Nazi saboteurs found in the United States.
To his critics, Mr. Bush is a “King George” bent on an “imperial presidency.” But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive. Harry Truman sent troops to fight in Korea without Congressional authority. George H. W. Bush did not have the consent of Congress when he invaded Panama to apprehend Manuel Noriega. Nor did Bill Clinton when he initiated NATO’s air war over Kosovo.
The Bush administration’s decisions to terminate the 1972 antiballistic missile treaty and to withdraw from the International Criminal Court and the Kyoto accords on global warming rested on constitutional precedents going all the way back to Abraham Lincoln.
The administration has also been energetic on the domestic front. It has re-classified national security information made public in earlier administrations and declined, citing executive privilege, to disclose information to Congress or the courts about its energy policy task force. The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority. That is why Mr. Bush has issued hundreds of signing statements — more than any previous president — reserving his right not to enforce unconstitutional laws.
A reinvigorated presidency enrages President Bush’s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. But the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.
The changes of the 1970’s occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia in the wake of Richard Nixon’s use of national security agencies to spy on political opponents. Congress enacted the War Powers Resolution, which purports to cut off presidential uses of force abroad after 60 days. It passed the Budget and Impoundment Act to eliminate the modest presidential power to rein in wasteful spending. The Foreign Intelligence and Surveillance Act required the government to get a warrant from a special court to conduct wiretapping for national security reasons.
These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks....