BYU’s Federalist Society is to be commended for bringing Berkeley law professor John Yoo to campus to speak. Yoo was an attorney in the Bush justice department for three years and played a key role in drafting the administration’s response to a range of issues, including war powers, treaty obligations, and the treatment of prisoners. His is an influential voice, and he is currently promoting a book in which he grounds his argument for expansive presidential power in a close reading of the U.S. Constitution and the intent of the original framers.
Yet it would be a shame if John Yoo got to treat his BYU visit like a home game without serious scrutiny of his analysis. Legal experts and historians around the country have shredded his arguments and the thin evidence he provides for them. It would be nice if BYU students caught at least a flavor of these other arguments.
First, Yoo argues that the American founders intended to build on the British tradition that vests virtually all control over foreign policy in the executive. This strange claim is embraced by very few historians of the colonial period, most of whom demonstrate the opposite: that the founders were extremely wary of executive power and tended to build more walls around it than bridges for it.
Second, Yoo argues that when the Constitution vests in Congress the power to “declare” war, it meant this in a purely formal sense of notification, leaving the real decision on war to the President. To substantiate this claim, Yoo is obliged to bend the historical facts in ways that scholars of the period find nothing short of astonishing. For example, Yoo’s claim that the Constitution doesn’t require the president to consult Congress on going to war is, in the view of most scholars, explained by the idea that the founders had already reserved the decision on war to the Congress.
Third, where the Constitution has great (though not unlimited) respect for treaties, Yoo seems to have little. This view is perhaps not surprising, coming from the co-author of a memo that referred to the Geneva Convention as “quaint.” And here we have an important clue that Yoo isn’t really prepared to base his entire argument on the original intent of the framers. For if agreements can be dismissed as antiquated (“quaint”), then good agreements must be those that have somehow kept up with the times. Unfortunately, in trying to develop new methods to keep up with the times, Yoo has advocated policies of torture, rendition and assassination that have turned the stomachs of our friends. I can’t tell you how many strongly pro-American foreign friends have said to me that they stand with us in defending ourselves against al Qaeda but feel sick at what we have done in Abu Ghraib, Guantanamo and Bagrahm.
It is admirable – and no doubt lucrative for him – that Yoo defends his ideas publicly, including here in Provo. But should we buy those ideas? Unfortunately, the premise that a 30-something law professor discovered a whole range of things buried in the Constitution that everybody else had just missed all these years turned out to be, well, as unlikely as it sounds.
I think the future of conservatism is at issue in these debates. A long time ago, in a galaxy far, far away, conservatives used to talk about winning the war of ideas. But somewhere along the line, winning at the ballot box became more important to a certain brand of conservatives. They became radicals, and ideas became mere tools to help them do what they want. What mystifies me is why more conservatives don’t call them on it.
Since most people at BYU are conservative, here’s a simple test to see if you really want to buy what Yoo is selling: at some point, a Democrat is going to be back in the White House. If you accept this view of executive power and cheer as it is entrenched now in Washington, your choices down the road will be to try to wreck a new Democratic administration, hunker down for 8 years, or move to wherever conservatives go when they’re disgruntled. Wouldn’t it be better to just exercise some skepticism now?
Wade Jacoby
BYU Department of Political Science
