Hard to Give John Yoo the Benefit of the Doubt

[MJ]

September4th2013
Hard to Give John Yoo the Benefit of the Doubt
Tom Woods

Law professor John Yoo is known in particular for his tenure as Deputy Assistant U.S. Attorney General under George W. Bush, during which time he claimed to find constitutional justification for pretty much everything the Bush Administration wanted to do, domestically or overseas, to prosecute the War on Terror. Kevin Gutzman and I answered Yoo pretty decisively, if I may say so, in our book Who Killed the Constitution?

I can be fairly tough on my intellectual opponents, but I rarely accuse them of outright lying. In Yoo’s case we have to come close. Professor Gutzman, who is an expert on colonial, revolutionary, and early republican Virginia, once told Professor Yoo about documentary evidence he had come across in his research on Virginia that showed Yoo’s views on presidential war powers under the Constitution were incorrect. Yoo expressed interest in seeing it, and Gutzman obliged. And Yoo simply continued on as before.

I’m not going to go through all of Yoo’s arguments in this most recent article, since I’ve already done so in that book and on my special page on war powers, to which I direct the interested reader.

You can guess where Yoo stands on the president’s power to bomb Syria without congressional authorization. In a recent article at the FOX News site, he trots out all the usual arguments (my own personal favorite, that presidents have initiated force on their own “more than 100 times,” makes its predictable appearance), most of which are answered at the link above, and the rest in our book.

But I was struck by this particular distortion. He quotes Alexander Hamilton in support of the idea that the colonists did not in fact repudiate the example of King George III, and did grant their president the power to initiate non-defensive military action without congressional approval. (And non-defensive is precisely the issue here: no one in his right mind thinks the bombing of Syria involves saving Americans from an imminent danger.)

Here’s Yoo:

As Alexander Hamilton wrote in Federalist 74, “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”

Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy, and dispatch.”  In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in the definition of good government. . . It is essential to the protection of the community against foreign attacks.”

Note that Yoo has changed the subject. Now he’s talking about “conducting war.” No one disputes that the commander-in-chief power gives the president constitutional authority to conduct war, once Congress has declared it!

And here’s what he leaves out from Hamilton, who absolutely does repudiate the example of George III, contrary to Yoo. Hamilton writes in Federalist #69 that the president’s power

would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the Legislature. [Emphasis added.]

Can anyone come up with an explanation for how someone could leave out this passage when discussing Hamilton’s views on presidential war powers ­ that is to say, an explanation that doesn’t involve deception?

http://www.tomwoods.com/blog/john-yoo-again/

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