14 Jan 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.