Friday, January 14, 2005

John Yoo Rethinks War Powers

John Yoo, a law professor at the University of California at Berkeley, has become somewhat well known recently for his role in shaping the Bush Administration's legal approach to the war on terrorism, and in particular, the effect of treaties and statutes prohibiting torture on U.S. government policy in Guantanamo Bay and Afghanistan. But prior to his recent fifteen minutes of fame, Yoo was well-known in the legal academy for his view that the original understanding of the Constitution does not require the President to get a declaration of war or even any other form of congressional authorization before engaging in major military hostilities.

This week, he has posted an article that does not back away from his previous positions, but which does suggest a different approach. Given the transformation of warfare and the different nature of the war against terrorism, he argues against constitutionalizing war powers law into a rigid "Congress-must-authorize-first" rule. Rather, he suggests that the political process might work out the best approach. I don't know if I agree with his approach, but I do think he is asking the most important question facing lawyers and scholars who are interested in this subject: is the war on terrorism "different" in some way that calls for a different understanding of the law governing the use of military force? I don't think anyone who has a view on, say the status of enemy combatants, the applicability of the Geneva Conventions to alleged Al Qaeda suspects, and other legal questions can avoid taking a position on this question.


Blogger Michael Brenner said...

"I don't think anyone who has a view on, say the status of enemy combatants, the applicability of the Geneva Conventions to alleged Al Qaeda suspects, and other legal questions can avoid taking a position on this question."

Why? What does the status of enemy combatants have to do with the nature of the War on Terrorism? Whether this war is conventional war or not does not make a case for failing, for instance, to provide those at Guantanamo Bay with hearings to determine whether they are legal combatants are not. The question of whether Geneva is appropriate for this war need not be an all or nothing matter, as some in the Administration seem to treat it. One should be able to be agnostic on the nature of the WOT and still be able to say that regardless, much of Geneva is still applicable.

1/15/2005 12:03 AM  
Blogger Benjamin Davis said...

Here is an exercise.

1) Get out your warm copy of the August 1, 2002 (Bybee-Yoo memo). Highlight the definition of torture there.

2) Go to Blockbuster and rent the great 1960's Spaghetti Western - The Good, The Bad and The Ugly.

3) Go to scene selection. Click on Scene 32.

4) The scene begins with the Union Commandant injured in his bed ordering Sergeant Angel Eyes (Lee Van Cleef - the Bad) not to torture, cheat or murder the Confederate prisoners of war.

5) Later Angel Eyes has lunch with Tuco (Eli Wallach - the Ugly).

6) Watch what happens to Tuco during that lunch through to the end when Blondie (Clint Eastwood - the Good) comes in.

7) Note that - Tuco and Blondie are bandits that have stolen and are wearing Confederate army uniforms. Note that later in the movie they will volunteer for the Union army.

8) Compare what happens to Tuco with what is defined as the standard for torture of the Bybee-Yoo memo. Determine whether any aspect - even the use of music vis a vis the other confederate soldiers - would meet the test.

9) Compare with the two week old Rosen repudiation.

10) Repeat with the students in your Public International Law/Constitutional Law.

11) Ask if it makes a difference that people are in uniform or not.

Ben Davis

1/16/2005 2:27 PM  
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