An interview with
author of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11
Question: Your book, The Powers of War and Peace, is an examination of what the Constitution says about the authority that the president and the Congress have to wage wars and enter into international treaties. One thing the Constitution clearly says is that Congress has the power to declare war. But we haven't declared a war since 1941. Why doesn't this country declare war anymore?
John Yoo: The United States has often engaged in military hostilities without any declaration of war. In the first few years of the nation, for example, the United States went to one major war without a declaration (with France in 1798), and to another with a declaration (Great Britain in 1812). Since World War II, the practice has been to go to war without a declaration. None of the major wars in this period—Korea, Vietnam, Grenada, Panama, the Persian Gulf War, Kosovo, Afghanistan, and Iraq-have witnessed a declaration.
Why not? Declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime. They can play a role, under international law, in defining the nation's legal status vis-à-vis an enemy, but this purpose has faded with the rise of wars of self-defense or those under international approval (where no declaration would be needed). War declarations do not play an important role in the domestic process of deciding on war. Instead, Congress has at its disposal many other powers to balance presidential power in warmaking. Congress has complete control over the raising, funding, and size of the military. It can block a president's warmaking simply by refusing to allocate funds for a conflict. Declarations of war have disappeared in part because the president and Congress interact along many other dimensions when war is involved.
Question: Doesn't a declaration of war allow certain suspensions of civil liberties? If there is no declaration of war is there any constitutional foundation for any suspension of the rights of citizens? Or in general, absent a declaration of war, are there any limitations on the executive branch's prosecution of the war?
Yoo: One important area where a declaration of war remains significant is domestic civil liberties. The Supreme Court has held as constitutional certain deprivations of liberties in wartime only because a declaration of war has been issued; in fact, one of the rights in the Bill of Rights can only be suspended during wartime. The declaration of war plays an important role in limiting the power of the federal government as it affects citizens, but it does not perform that function with regard to the executive branch. Congress has a number of other methods for controlling and influencing executive prosecution of a war.
Question: In discussing the roles of the president and of Congress in declaring war, you devote several chapters to discussion of the history surrounding the writing of Article 1, Section 8, Clause 11, which gives Congress the power to declare war. What is illuminating about that history?
Yoo: Many scholars have argued that the declare war clause is the root of Congress's control over war; they argue that military hostilities cannot begin without Congress's ex ante authorization. But the history of the clause gives no indication that this was its original purpose. Many critics of the Constitution claimed that it vested too much power in the executive over the military; not a single defender of the Constitution responded that the declare war clause would give Congress any power to prevent this. Rather, James Madison in the Virginia ratifying convention argued that it would be Congress's power of the purse that would control the executive sword.
Question: In 1973 Congress passed the War Powers Resolution, which was supposed to limit the power of the president of the United States to wage war without the approval of the Congress. Is the WPR constitutional? Is it relevant?
Yoo: I believe that the War Powers Resolution—which places a sixty-day time limit on the deployment of troops into combat situations abroad—is irrelevant. Presidents have consistently claimed it to be unconstitutional. President Bush in the first Gulf War and President Clinton in Kosovo clearly violated its terms. No court has ever enforced it, and Congress has never cut off funds or successfully opposed a conflict because of the War Powers Resolution. The three branches almost seem to agree that the WPR is either unconstitutional or irrelevant. In my view, Congress cannot limit presidential use of the military in hostilities simply by declaring a clock to have stopped ticking, but must take some other action under its own authority, such as cutting off funds for a conflict.
Question: Presidents have often sought a legislative stamp of approval for engaging in wars—for instance, the current war with Iraq and the 1991 Gulf War. Do you think the reasons for that are entirely political, or is their a legal reason for seeking that approval?
Yoo: I do not think that the president is constitutionally required to get legislative authorization for launching military hostilities, and presidents from Truman through Clinton have not done so. But I think that there are complicated political reasons why presidents have gone to Congress recently for support. The wars in Iraq and Afghanistan were approved by Congress, and President Bush sought that support while at the same time claiming he had the constitutional power to launch the wars anyway. Presidents seek such support for two reasons: first, to send a signal to the enemy that the United States is serious about its intentions to go to war, and second, to maintain political unity by getting members of Congress on the record before the war starts, so that they cannot claim after the war that they did not agree with it.
Question: What about the role of international law in war? Is it against our Constitution for this country to engage in wars—or certain ways of waging war—that may violate international law?
Yoo: I make the case that the Constitution permits the president and/or Congress to violate international law when it engages in war. They may place the United States in violation of its international law obligations, but that does not constrain their discretion under domestic law. The formal reason for this is that the Constitution does not recognize international law as being a form of federal law—federal law is limited to the Constitution, treaties, and statutes. Treaties are the only exception, although the United States can choose to terminate a treaty, and it then has no force as domestic law.
As a matter of practice, the United States has violated international law in engaging in war in the past. In the case of U.S. covert action against Nicaragua in the 1980s, the International Court of Justice even found that the United States had violated international law. Nonetheless, the United States continued its efforts, and the courts never held that President Reagan had violated the Constitution.
Kosovo is another good example. The United States did not receive permission from the U.N. Security Council, nor could it (or did it) claim self-defense in using force against Serbia, which are the only two grounds for using force recognized under the U.N. Charter. Nonetheless, President Clinton had full constitutional authority to launch the air war in Kosovo, and no court attempted to stop him—in fact, the U.S. Court of Appeals for the D.C. Circuit heard a case brought by congressman Tom Campbell and refused to decide whether the war was unconstitutional.
Question: When you were at the Justice Department you authored a number of memoranda that have since become controversial, for instance, a 2002 memo which argued that the Geneva Conventions did not place constraints on how al Qaeda and Taliban detainees were treated at the Guantanamo facility. As a signatory to the Geneva Conventions, why is the U.S. not obligated to treat those combatants according to the treaty?
Yoo: This is a complicated question. In the book, I argue that the president has the sole authority to interpret the Geneva Conventions on behalf of the United States, rather than the courts or Congress, because treaty interpretation is a key feature of the conduct of foreign affairs. Our conflict with the al Qaeda terrorist organization is not governed by the Geneva Conventions at all. The Geneva Conventions govern the laws of war but extend rights only to its signatories. Al Qaeda is not a nation and has never signed the Geneva Conventions, and they violate the laws of war at every turn. Afghanistan, however, is a party to the Geneva Conventions. While the Taliban fighters had an initial claim to protection under the Conventions, they lost POW status by failing to obey the standards of conduct for legal combatants: standards that include wearing uniforms, having a responsible command structure, and obeying the laws of war. But the Geneva Conventions themselves apply to the conflict in Afghanistan.
Question: What has had a greater effect on how we enter into war and conclude a peace: September 11 or globalization? What will have a greater effect in the long run?
Yoo: Both will have a significant effect on the making of war and peace. At the end of the cold war, war was still thought of as occurring solely between nation-states. The 1991 Persian Gulf War was a traditional war over territory fought by the regular armed forces of nation-states. Nation-states are usually presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort. Warfare, if it were to come, would take predictable forms with clearly identified armed forces seeking to take control over territory and civilian populations.
In 1993, the military strength and economic size of the United States had begun to so outdistance its nearest competitors that American thinkers may well have assumed that there were no significant military threats on the horizon. The Soviet Union's dissolution seemed to render hypothetical what had been the most compelling case against a requirement of ex ante congressional approval for military hostilities: the need for swift presidential action to respond to a Soviet nuclear first strike. The disappearance of the threat of a war that could directly harm American national security allowed policymakers and intellectuals the luxury to envision a future in which they could reduce the overall level of international armed conflict. In such an environment, a constitutional model that required the approval of multiple institutions before the United States could use force may have made some sense.
The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than war disappearing from the world, the threat of war may well be increasing. Threats now come from at least three primary sources: the easy availability of the knowledge and technology to create weapons of mass destruction (WMD), the emergence of rogue nations, and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization. Because of these developments, the optimal level of war for the United States may no longer be zero, but may actually be dramatically higher than before.
The emergence of direct threats to the United States that are more difficult to detect and prevent may demand that the United States undertake preemptive military action to prevent these threats from coming to fruition. The costs of inaction, for example, by allowing the vetoes of multiple decision-makers to block warmaking, could entail much higher costs than scholars in the 1990s envisioned. At the time of the cold war, the costs to American national security of refraining from the use of force in places like Haiti, Somalia, or Kosovo would have appeared negligible. The September 11, 2001, terrorist attacks, however, demonstrate that the costs of inaction in a world of terrorist organizations, rogue nations, and more easily available WMD are extremely high—the possibility of a direct attack on the United States and the deaths of thousands of civilians.
These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system. The international system allowed the United States to choose a warmaking system that placed a premium on consensus, time for deliberation, and the approval of multiple institutions. If, however, the nature and the level of threats are increasing, the magnitude of expected harm has risen dramatically, and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war. Given the threats posed by WMD proliferation, rogue nations, and international terrorism, we should not, at the very least, adopt a warmaking process that contains a built-in presumption against using force abroad. Earlier scholarly approaches assumed that in the absence of government action peace would generally be the default state. September 11 demonstrated that this assumption has become unrealistic in light of the new threats to American national security. These developments in the international system may demand that the United States have the ability to use force earlier and more quickly than in the past.