A War of Words: 'Declare' vs. 'Make' and Its Allies

Refining his view of the constitutional powers held by a
Refining his view of the constitutional powers held by a "unitary executive," or commander in chief, scholar and former Bush Justice Department official John Yoo diminishes Congress's war-declaring powers in the Constitution. (By Karen Ballard -- Los Angeles Times)
By Dana Milbank
Thursday, February 23, 2006

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."

Not everybody considers Bush's adherence to FISA as strictly optional. Last week, conservative commentator George Will took issue with the view that "because the president is commander in chief, he is the 'sole organ for the nation in foreign affairs.' That non sequitur is refuted by the Constitution's plain language," Will continued, saying the president cannot be selective in his duty to "take care that the laws be faithfully executed."

Yesterday, Professor Yoo sought to refute Will's "misunderstandings." It was the Supreme Court, Yoo said, that declared the president the "sole organ for the nation in foreign affairs." (Actually, the 1936 quotation Yoo cited referred to treaty negotiation, not spying or warmaking.) More to the point, Yoo, while granting that the president must faithfully execute the laws, added that this needn't apply "if Congress passes a law that is in conflict with the Constitution."

Yoo, a Korean American who immigrated as an infant, is not yet 40. With a pudgy face and a soft voice, he speaks in a measured manner that has a way of softening the extraordinary nature of many of his utterances.

He asserted that the Framers would not have given Congress warmaking powers because "the most vivid war that would have been in the memory of Framers would have been the Seven Years' War," in which hostilities predated a formal declaration of war. But that ignores the Revolutionary War, 13 years later, in which those same Framers rejected a monarchy.

One LaRouchie in the room heckled Yoo with a cry of "That was Hitler's argument!" But the others in the audience were kind to Yoo. Todd F. Graziano, a legal specialist at the conservative think tank, rose to ask if Yoo had not gone far enough in circumscribing Congress's authority.

"That is the question of a ringer," Yoo replied.

Another audience member, self-identified conservative Ed Powers, wondered whether Yoo's approach, even if legally correct, "tends to alienate the Congress and possibly the judiciary." Yoo called it "a really good question" but one he could not answer.

After the session, Powers answered his own question. "I don't really have any great objection to what Bush is doing," Powers said, but "there's no need for it" to be done without congressional oversight. Powers, evidently, spent too much time in civics class.

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