The author of The Powers of War and Peace , John Yoo’s argument is sound to some extent, but mainly infers too much power to the presidency. It may be impossible to definitely state that the said Professor Yoo is right or wrong as he argues a combination of political science and law. Both disciplines differ exponentially, based on perspective. For example, two qualified judges often hear the same arguments at the Supreme Court but arrive at different conclusions. Similarly, in politics, two experts with different ideologies such as a liberal and a conservative can arrive at different conclusions about the same subject. The instant op-ed evaluates individual statements indicated by Professor Yoo, and then proceed to test their veracity, inter alia using available case law and commentary on the addressed subjects. It is evident that the Professor takes a conservative leaning that imputes more powers on the presidency, than the constitution as interpreted by case law allows for, hence this article is mainly critical of his arguments and conclusions .
Professor Yoo argues that it is no longer necessary to have a declaration for the federal government to prosecute a war. He proceeds to indicate that declarations of war play a role internationally, but not domestically. As held in Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 (1952) , the US president’s power over private property has exponential limitations. In the said case, two private companies successfully defended their right to private property against the presidency. Further, the military may also not be able to enforce law and order over American civilians as held in Ex parte Milligan, 71 U.S. 2 . In the instant case, the Supreme Court rules that private citizens cannot be subjected to military court-martials. Therefore, in case of a war on home soil, the military may collide with local citizens. If a citizen moved to the courts for fundamental rights, it would be hard for the government to mount a defense without a formal declaration of war.
Delegate your assignment to our experts and they will do the rest.
Professor Yoo correctly admits that the government would be hard-pressed to respond to a fundamental rights suit without a formal declaration of war. The fact that the Supreme Court would decline to waive a right because there is no formal declaration of war means that war without a formal declaration is wrong. From a practical perspective, America usually goes to war with the assumption that it will either win or in the very least, the efforts will not directly affect its home soil. That these assumptions have so far been accurate, do not mean that they are essentially right. The government should formally declare war before engaging an international enemy.
Regarding the power of Congress to declare war, Professor Yoo makes a practical as opposed to a legal argument. In practice, the armed forces of the USA will obey what the commander in chief says, without question. However, de jure , the provisions of Article 1, Section 8, Clause 11, show that only Congress can declare war. As held in the Prize Cases , 67 U.S. (2 Black) 635 (1863), a military action ordered by the president is legal. The Prize cases involved a legal challenge of a presidential order for the blockade of Southern ports during the advent of the Civil War. The Supreme Court found in favor of the president commanding military activities as part of his powers as Commander in Chief. However, military action does not mean a declaration of war, as only Congress can declare war.
In spite of the argument above about the declaration of war, Professor Yoo is accurate in his opinion about the War Powers Resolution of 1973. The constitution gave Congress the power to declare war but not to prosecute a war. Indeed, the ability to pursue war, as outlined in the Prize Cases (supra), lies with the president. As outlined by the Supreme Court in the case, the orders of the president to the military are legal per se, unless proven otherwise. As the professor argues, Congress usurped the powers of the president. It was not available for Congress to place upon itself the ability to control issues such as the movement of forces. Congress can also not determine when the war effort itself should begin. Any attempt by Congress to control the actual war effort based on military activity is ultra vires of its constitutional mandate.
Professor Yoo also doubles down on his argument that presidents can declare war by arguing that seeking a declaration of wars from Congress are political moves. However, he admits that Congress formally declared war against both Iraq and Afghanistan. The main reason why the USA declared war officially is that it is a constitutional requirement not as part of political machinations, as the professor suggests. Prof’s other references, such as the Korean War and the Kosovo conflict, were military interventions, not wars where the USA attacked another nation per se. In both examples, US armed forces intervened in internal strife within the respective countries or regions.
Further, Professor Yoo makes a disturbing argument that when engaging in international conflict, the USA becomes a law unto itself. In making the argument, the professor uses incidences, where the US government has escaped constitutional sanction for breaching international law. In a case such as Hamdan v. Rumsfeld , 548 U.S. 557 (2006) the Supreme Court applied international law against the US government. In this case, the Supreme Court applied the Uniform Code of Military Justice and the Geneva Convention to rule the actions of the US government against non-American citizens as illegal. The findings of this care directly contradict an argument that international laws do not apply to the US military. Conversely, the US government has relied on international law when arguing cases before the Supreme Court leading to favorable findings, such as in Ex parte Quirin , 317 U.S. 1 (1942). In the instant case, the US government relied on the Hague Convention alongside the international law of war to successfully petition for the right to try Nazi saboteurs in military courts. If the US government relies on international laws to seek orders from the Supreme Court, then these international laws should guide its actions.
Conversely, the Professor makes one accurate and one inaccurate contention about international law during conflicts. On the one hand, he argues that only the president, not Congress or the courts should interpret the Geneva Convention concerning a specific conflict. Any argument against the interpretation of the law by courts would be wrong. On the other hand, the professor also contends that in the war on terror, the Geneva Convention may not apply to terror outfits such as Al Qaeda as they are not formal armed forces. This argument is accurate in general and specifically in its claim that Al Qaeda fighters are not solders as defined by international law.
Finally, Professor Yoo correctly argues that globalization and the September 11, 2001 terror attack affect how the USA goes into war equally. Indeed, it would be accurate to say that the two issues intertwine. The so-called 911 attacks, to some extent, resulted from globalization. A globalized and nationless enemy, Al Qaeda , attacked the USA. Before 911, there was an assurance that no nation can have the nerve to attack the USA due to repercussions involved. However, globalization created an enemy that did not fear retaliation as it did not have a nation. In some cases, terrorists operate cells within the countries they intend to attack, which cells may include citizens of the target country. The fear that a nationless enemy can create extreme devastation inside the USA has resulted in eagerness to respond to threats through military intervention. Globalization and terrorism are a fused national security threat.
References
Ex parte Milligan, 71 U.S. 2,
Ex parte Quirin, 317 U.S. 1 (1942)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006 )
Prize Cases, 67 U.S. (2 Black) 635 (1863)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
