John Yoo stepped back in the debate over presidential power recently with this opinion column which appeared first in the Los Angeles Times.
But read it and tell if me if I’m not right to think that he has taken the opportunity not to engage this debate he’s helped spawn but to duck it.
Yoo, you’ll remember, was the author of several key Justice Department memos from Bush’s first term that, taken together, claim that the president’s war powers give him a virtually untrammeled power to act as he believes in the best interests of the security of the nation, even if in doing so he breaks the laws of the country itself.
Yet in Yoo’s column he doesn’t even explore the complicated issue of how and where Congress might constrain the president’s war-making power, particularly in areas that are not clearly or traditionally in the military realm. Instead, he chooses to attack a claim no one is making — that the president cannot use the military until the Congress makes a formal declaration of war.
This is an argument that has no significant following in political or legal-constitutional circles. Simply stated, no one believes anything like that. It’s just phony. And he builds from this phony argument to a lengthier straw man version of that which the president’s critics make against him.
As in this passage …
Liberal intellectuals believe that Bush’s exercise of his commander-in-chief power has exceeded his constitutional authority and led to a quagmire in Iraq. If only Congress had undertaken the solemn process of declaring war, they have argued, faulty intelligence would have been smoked out, the debate would have produced consensus, and the American people would have been firmly committed to the ordeal ahead.
This is no more than a nonsense proceduralism version of the debate we’re now having in this country.
Who has said that a declaration of war against Iraq would have made any difference to anything? No one says that. No one says anything like that.
With respect to war powers, the debate we’re having is not about where they begin, as Yoo disingenuously suggests, but where they end.
With faulty intelligence and national consensus, the disputes are not procedural but substantive — whether the president and his chief aides were simply dishonest with the public and the Congress in presenting information about Iraq, its war fighting potential and its ambitions, whether they gamed the country into war to create a fait accompli that would make the debate moot. These aren’t issues of proceduralism and box-checking but tough substance — whether President Bush betrayed his oath and whether he can be held accountable.
Yoo’s diversionary OpEd suggests he’s not eager to confront either of these questions. You’d think he’d use the moment to show his stuff; but Yoo doesn’t.
Late Update: TPM Reader BF says Yoo was likely responding to this article in the Atlantic by Les Gelb and TPMCafe’s Anne-Marie Slaughter. Seems likely he was. But I stick with my critique. If Yoo is willing to talk now he should talk about what’s at issue. Courage is a good quality for those who talk a lot about war.
