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JANUARY 10, 2010

The Power to Protect

Bush showed a deference to Congress that FDR would have judged dangerously naïve.

Scholarly and soft-spoken, former Justice Department lawyer [and Berkeley law prof] John Yoo makes an unlikely villain. But a villain he is to many, especially to the critics of George W. Bush's war-on-terror policies. Though Mr. Yoo's role was an advising one, he is considered— because of memorandums he wrote in the wake of 9/11—the principal legal architect of Mr. Bush's efforts to thwart another terrorist attack, including the authorization of warrantless wiretaps, the decision to put illegal combatants in the Guantanamo detention center, and the use of enhanced interrogation techniques such as waterboarding. It was Mr. Yoo, the critics say, who trashed the Constitution in his zeal to defeat Islamic terrorism.

Not so fast, Mr. Yoo replies. "Crisis and Command" is a carefully argued historical survey of the evolution of presidential power, particularly the power to make war. The book reveals how the Bush war on terror, far from overstepping constitutional bounds, was rooted in a tradition that reaches back to George Washington himself. Mr. Yoo does not set out to vindicate himself personally, but it is hard not to read his analysis without feeling that much of the anti-Bush rhetoric of recent years—not to mention its anti-Yoo variety—has been grounded in ignorance as much as outrage.

By creating the position of president, Mr. Yoo reminds us, the Constitutional Convention of 1787 faced a dilemma. Should it make the nation's chief executive the servant of Congress, empowered merely to execute the laws that Congress passes? Or should the president be a power unto himself, with the leeway to protect the republic as he sees fit—including the power to make war? In the end, as Mr. Yoo explains, the second choice won out. The delegates, drafting what would become the Constitution, amended the original wording about Congress's power from "make war" to "declare war" (Article I, Section 8), so that presidents would reserve the authority "to repel a sudden attack," in James Madison's words, or to make other decisions intended to protect the country.

George Washington, to quell the Whiskey Rebellion in 1794, invoked martial law and called out the state militias without waiting for Congress. He believed—rightly, in Mr. Yoo's view—that his independent war-making powers were entirely consistent with the Constitution. John Adams and James Madison, by contrast, decided to split their authority with Congress when it came to war and foreign policy. The results were not stellar—as Madison must have realized after signing a congressional declaration of war against Britain in 1812, a war that he did not want but felt powerless to resist, and then watched British troops burn the White House to the ground.


Crisis and Command

By John Yoo
(Kaplan, 524 pages, $29.95)

Madison's successors rarely made the same mistake. In 1861, Abraham Lincoln decided on his own to mobilize for war against a seceding South even though many in Congress saw no such need. Secession was a crisis in which the nation itself was at stake, Lincoln believed. He suspended habeas corpus, arrested and hanged rebel spies, tried by military commission those accused of hindering the war effort, and promulgated the Emancipation Proclamation—all without congressional consultation. He laid claim to such extraordinary powers in his role not only as commander in chief but as chief executive, sworn to defend and protect a constitution whose entire reason for being was to preserve the American nation—even if that required temporarily overriding one or two separate articles.

Franklin Roosevelt took similar steps to defeat the Axis. As a wartime president he authorized wiretaps of antiwar opponents, used military commissions to hang captured spies, authorized the bombing of German and Japanese cities, and set the conditions under which surrender would be accepted. Neither Congress nor the Supreme Court saw fit to meddle with his far-reaching use of executive power.

So why did the Bush way of war, so measured when compared with that of other White House occupants, draw such bitter criticism? Mr. Bush sought congressional approval ahead of every step he took in his war on terror, including the wars in Afghanistan and Iraq—a show of deference to Capitol Hill that Lincoln and FDR would have considered dangerously naïve. He established the facility at Guantanamo to detain several hundred suspected foreign terrorists and used enhanced interrogation on fewer than a dozen. Lincoln locked up some 12,000 American citizens during the Civil War. FDR interned more than 110,000 Japanese-Americans without judicial process, based solely on suspicion—a gross violation of civil liberties that Congress applauded.

What changed was not Mr. Bush's use of presidential power but the nature and goals of those who opposed it. In the past, of course, members of Congress and critics of war have acted to block presidential war-making powers—e.g., in Vietnam in the 1960s and 1970s and in Central America in the 1980s. But these were conflicts in faraway lands. After 9/11, the president's most ideological political opponents campaigned to constrain the commander in chief's ability to defend American citizens from the threat of attack on American soil. The wars in Afghanistan and Iraq, after all—and the interrogation and surveillance policies that Mr. Bush put into place—were a response to what Mr. Bush and his advisers perceived to be an act of war, perpetrated by a network of belligerents who disregarded the laws of war and had no recognizable moral standards. The American people agreed, and so did Congress. The only recourse for critics was to use the courts to halt what they claimed was an end run around the Constitution.

Today the Obama administration may be starting to grasp that it can't protect America on the war critics' terms. The lessons of November's Fort Hood shootings—and of the Christmas airplane bomber's thwarted efforts—will be learned all the more quickly if they are accompanied by a close reading of "Crisis and Command."

Mr. Herman's latest book, "Gandhi and Churchill," was a Pulitzer Prize finalist in 2009.