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Volume 100 | Issue 2 Article 2
John Yoo's War Powers: The Law Review and the
Janet Cooper Alexander
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Janet Cooper Alexander, John Yoo's War Powers: The Law Review and the World, 100 Cal. L. Rev. 331 (2012).
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John Yooâ™s War Powers: The Law
Review and the World
Janet Cooper Alexander *
John Yooâ™s 1996 The Continuation of Politics by Other Means:
The Original Understanding of War Powers is surely among the most
consequential articles ever to appear in the California Law Review.
Five years after its publication, Yoo became the principal theorist of
the Bush administration's War on Terrorism policies. His expansive
theory of presidential primacy became the legal basis for the most
controversial of President Bushâ™s policies, including the use of
torture (or âœenhanced interrogationâ), indefinite detention without
charge, warrantless wiretapping within the United States, and the
claim that neither constitutional protections nor other provisions of
domestic and international law constrain treatment of suspected
Yet the methodology and conclusions of War Powers have been
subjected to comprehensive and devastating criticism, addressing
issues ranging from selective use of evidence to fundamentally
misunderstanding the Framersâ™ rejection of monarchical preroga-
tives in constructing the executive power. Yooâ™s theory is based on a
presumption that the Framersâ™ design was to replicate the British
governmentâ™s allocation of powers between Parliament and the King.
To reach the conclusion that the President has primacy in war,
subject only to Congressâ™s spending and impeachment power, Yoo
ignores the many war powers expressly granted to Congress in
Article I and disregards or dismisses the remarkably unanimous
statements of prominent Founders disclaiming the British model.
After reviewing the criticisms of Yooâ™s theory, this Essay reflects
on how a flawed and eccentric historical theory came to underpin the
governmentâ™s conduct of war and foreign policy. Finally, this Essay
Copyright Â© 2012 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of
* Frederick I. Richman Professor of Law, Stanford Law School; Head Articles Editor,
California Law Review, 1977â"78. I am profoundly grateful to those who have worked tirelessly, both
in and out of government service, against torture and for justice and human rights.
332 CALIFORNIA LAW REVIEW [Vol. 100:331
examines the implications of this saga for law review publishing, as
well as for the participation of legal academics in government and
the formation of national policy.
I. Yooâ™s âœOriginal Understandingâ ................................................................. 338
II. Yooâ™s War Powers ..................................................................................... 341
A. The Declare War Clause................................................................. 341
1. Argument from the Text .......................................................... 341
2. Argument from the Convention Debates ................................. 343
3. Argument from Presidential Practice....................................... 346
B. Congressâ™s Other Article I Powers ................................................. 347
C. The Vesting and Commander-in-Chief Clauses ............................. 347
D. The British Model........................................................................... 349
III. Law Reviews and Legal Scholarship ........................................................ 352
IV. The Long Arm of the Law Review: Theory Becomes National Policy.... 356
Conclusion ...................................................................................................... 363
Surely one of the most consequential articles ever published in the
California Law Review (CLR), as measured by its effects in the world, is John
Yooâ™s The Continuation of Politics by Other Means: The Original
Understanding of War Powers. 1 The article sets forth the copiously sourced 2
thesis that the true historical meaning of the Constitution is that it âœestablished
a system which was designed to encourage presidential initiative in war.â 3 As
Yoo later wrote, the President holds âœthe plenary authority, as Commander in
Chief and the sole organ of the Nation in foreign relations, to use military force
abroadâ and to make decisions about the amount, method, timing, and nature of
the use of military force. 4 In the article he asserts that Congressâ™s war powers
are limited: âœCongress could express its opposition to executive war decisions
only by exercising its powers over funding and impeachment.â 5 According to
Yoo, the Declare War Clause does not grant Congress any power to initiate
war, but only the âœjudicial powerâ 6 to recognize whether âœthe nation was
1. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of
War Powers, 84 CALIF. L. REV. 167 (1996) [hereinafter Yoo, War Powers].
2. The article runs 139 pages with 625 footnotes.
3. Yoo, War Powers, supra note 1, at 174.
4. Memorandum from John C. Yoo, Deputy Assâ™t Attâ™y Gen., Office of Legal Counsel, to the
Deputy Counsel to the President, The Presidentâ™s Constitutional Authority to Conduct Military
Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) [hereinafter Military
Operations Memo], available at http://www.usdoj.gov/olc/warpowers925 htm.
5. Yoo, War Powers, supra note 1, at 174, 197 n.158, 241.
6. Id. at 288.
2012] THE LAW REVIEW AND THE WORLD 333
[already] in a legal state of warâ for purposes of âœdomesticâ law. 7 Nor do
Congressâ™s other war-related powers 8 limit the Presidentâ™s freedom of action in
initiating and conducting war. In Yooâ™s reading, because Congress is to have
the âœsole judicial power to decide whether the United States is at warâ 9 there is
no role at all for the judicial branch in matters of war. 10
War Powers has been called Professor Yooâ™s âœbreakthroughâ work 11 and
was instrumental in propelling him to an important job in the Bush
administrationâ™s Office of Legal Counsel (OLC). 12 There he authored or
ghostwrote memoranda that furnished the legal justification for the most
significant policies and practices of the Bush administrationâ™s âœglobal war on
terrorism.â 13 OLC opinions are treated as legally binding within the executive
branch, 14 and because of Yooâ™s perceived and claimed expertise in the law of
national security and presidential powers, he was given a virtually free hand in
crafting opinions on these subjects. 15 These memoranda explicitly relied on
7. Yoo, War Powers, supra note 1, at 301, 295.
8. Article I, Section 8 of the Constitution gives Congress power to âœdefine and punish Piracies
and Felonies committed on the high Seas, and Offenses against the Law of Nations;â to âœgrant Letters
of Marque and Reprisal, and make Rules concerning Captures on Land and Water;â to âœraise and
support Armies;â to âœprovide and maintain a Navy;â to âœmake Rules for the Government and
Regulation of the land and naval Forces;â to âœprovide for calling forth the Militia to execute the Laws
of the Union, suppress Insurrections and repel Invasions;â and to âœprovide for organizing, arming, and
disciplining, the Militia.â U.S. CONST. art. I, Â§ 8.
While War Powers does not explicitly go so far, Yooâ™s later elaboration of his understanding of
executive power explicitly states that legislative attempts to limit the Presidentâ™s military decision
making would be unconstitutional. See infra note 19 and accompanying text.
9. Yoo, War Powers, supra note 1, at 288.
10. Id. at 295.
11. Louis Fisher, John Yoo and the Republic, 41 PRESIDENTIAL STUD. Q. 177 (2011) (âœWith
this publication, Yoo attracted attention as a major scholar on the war power and national security
12. Yoo served as deputy assistant attorney general in the Office of Legal Counsel from 2001
to 2003. Id. at 178.
13. See JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON
TERROR passim (2006); Tim Golden, A Junior Aide Had a Big Role in Terror Policy, N.Y. TIMES,
Dec. 23, 2005, at A1.
14. See Memorandum from David J. Barron, Acting Assâ™t Attâ™y Gen., Office of Legal Counsel,
to Attorneys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions 1 (July 16,
2010), available at http://www.justice.gov/olc/pdf/olc-legal-advice-opinions.pdf (âœOLCâ™s core
function . . . is to provide controlling advice to Executive Branch officials on questions of law that are
centrally important to the functioning of the Federal Government.â); Memorandum from Steven G.
Bradbury, Principal Deputy Assâ™t Attâ™y Gen., Office of Legal Counsel, to Attorneys of the Office, Re:
Best Practices for OLC Opinions 1 (May 16, 2005), available at http://www.justice.gov/olc/best-
practices-memo.pdf (âœOLC opinions are controlling on questions of law within the Executive
Branchâ); Dawn E. Johnson, Faithfully Executing the Laws: Internal Legal Constraints on Executive
Power, 54 UCLA L. REV. 1559, 1577 (2007) (same); Trevor W. Morrison, Stare Decisis in the Office
of Legal Counsel, 110 COLUM. L. REV. 1448, 1464 (2010) (same); Randolph D. Moss, Executive
Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV.
1303 (2000) (same).
15. Yoo is acknowledged to have been âœdirectly responsible for the contents ofâ the 2003 Yoo
Memo, the Torture Memo, the Classified Bybee Memo, the July 13 Letter, and the Yoo Letter. See
OFFICE OF PROFâ™L RESPONSIBILITY, DEPâ™T OF JUSTICE, INVESTIGATION INTO THE OFFICE OF LEGAL
334 CALIFORNIA LAW REVIEW [Vol. 100:331
War Powers, reiterating and further expanding the analysis first advanced in the
article. Even though Yoo conceded in War Powers that his theories were
contrary to the overwhelming consensus of historians and legal academics, 16
they furnished the sole legal justification for many of the most extreme and
controversial policies of the Bush administration.
Yooâ™s OLC opinions advanced a vision of executive power that was
breathtakingly unprecedented in its scope, including the claims that:
â¢ the President has âœcomplete authority over the conduct of warâ; 17
and âœindependent and plenary authority over the use of military
â¢ any statute attempting to regulate or âœinterfere withâ the
Presidentâ™s use of military force would be unconstitutional, 19 and
no law âœcan place any limits on the Presidentâ™s determinations as
to any terrorist threat, the amount of military force to be used in
response, or the method, timing, and nature of the responseâ; 20
â¢ the right of habeas corpus does not apply to detainees held at
Guantanamo Naval Base or other locations outside the United
â¢ the Detention Act, 18 U.S.C. Â§ 4001(a), which prohibits the
detention of American citizens unless pursuant to an Act of
Congress, âœdoes not, and constitutionally could not, interfereâ with
the Presidentâ™s authority to detain U.S. citizens as enemy
COUNSELâ™S MEMORANDA CONCERNING ISSUES RELATED TO THE CENTRAL INTELLIGENCE
AGENCYâ™S USE OF âœENHANCED INTERROGATION TECHNIQUESâ ON SUSPECTED TERRORISTS 251â"52
(July 29, 2009) [hereinafter OPR FINAL REPORT], available at http://judiciary house.gov/hearings/pdf/
16. See Yoo, War Powers, supra note 1, at 295.
17. Memorandum from Jay S. Bybee, Assâ™t Attâ™y Gen., Office of Legal Counsel, Dep't of
Justice, to Alberto R. Gonzales, Counsel to the President, Standards of Conduct in Interrogation Under
18 U S.C. Â§Â§ 2340â"2340A, at 34 (Aug. 1, 2002) [hereinafter Torture Memo], available at
memo has been commonly referred to as âœthe Torture Memoâ or âœthe Bybee Memo.â
18. âœCongressâ™s power to declare war does not constrain the Presidentâ™s independent and
plenary authority over the use of military force.â Military Operations Memo, supra note 4.
19. Torture Memo, supra note 17, at 31; Memorandum from John C. Yoo, Deputy Assâ™t Attâ™y
Gen., to William J. Haynes, II, Gen. Counsel for the Depâ™t of Defense, Re: Military Interrogation of
Alien Unlawful Combatants Held Outside the United States 13 (Mar. 14, 2003) [hereinafter Yoo
Memo], available at http://www fas.org/irp/agency/doj/olc-interrogation.pdf. This far-reaching mem-
orandum was dated the day after Bybeeâ™s appointment to the Ninth Circuit was confirmed.
20. Military Operations Memo, supra note 4 (âœThese decisions, under our Constitution, are for
the President alone to make.â).
21. Memorandum from Patrick F. Philbin, Deputy Assâ™t Attâ™y Gen. and John C. Yoo, Deputy
Assâ™t Attâ™y Gen., to William J. Haynes, II, Gen. Counsel, Depâ™t of Defense, Re: Possible Habeas
Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (Dec. 28, 2001), available at
http://www.torturingdemocracy.org/documents/20011228.pdf (stating that federal district court could
not exercise habeas jurisdiction over alien held at Guantanamo).
22. Memorandum from John C. Yoo to David J. Bryant, Assâ™t Attâ™y Gen., Re: Applicability of
2012] THE LAW REVIEW AND THE WORLD 335
â¢ the redefinition of âœtorture,â limiting it to acts causing pain
âœequivalent to the pain that would be associated with serious
physical injury so severe that death, organ failure, or permanent
damage resulting in a loss of significant bodily function will likely
â¢ specific acts such as waterboarding, âœwalling,â 24 confinement with
insects, sleep deprivation for up to eleven days, and stress
positions, as well as combinations of these methods, do not
constitute torture and would not violate the Torture Act; 25
â¢ conduct that does not fall within Yooâ™s radical redefinition of
torture does not violate the War Crimes Act, 26 the Torture Act, 27
the Convention Against Torture, or the Geneva Conventions,28
and the International Criminal Court lacks jurisdiction over such
â¢ the Geneva Conventions do not apply to the Taliban 30 or al Qaeda
18 U.S.C. Â§ 4001(a) to Military Detention of United States Citizens 1 (June 27, 2002), available at
http://www.justice.gov/opa/documents/memodetentionuscitizens06272002.pdf. The memorandum
asserts that Â§ 4001(a), passed in connection with repeal of the Emergency Detention Act, which had
been used to intern thousands of Japanese-American citizens during World War II, applies
âœexclusively to the federal civilian prison system.â Id. at 7. See also Letter from John C. Yoo, Deputy
Assâ™t Attâ™y Gen., to William J. Haynes II, Gen. Counsel, Depâ™t of Defense 9 (Feb. 7, 2003), available
at http://www.aclu.org/files/assets/olc_aclu_ii_2_7_03_full_doc_w_cover_sheet.pdf (attaching white
paper titled Response to the Preliminary Report of the ABA Task Force on Treatment of Enemy
23. Yoo Memo, supra note 19, at 45; see also Letter from John C. Yoo, Deputy Assâ™t Attâ™y
Gen., Office of Legal Policy, Depâ™t of Justice, to Alberto R. Gonzales, Counsel to the President (Aug.
1, 2002) [hereinafter Yoo Letter], available at http://news findlaw.com/hdocs/docs/doj/
bybee80102ltr html; Torture Memo, supra note 17.
24. Memorandum from Jay Bybee, Assâ™t Attâ™y Gen., Office of Legal Counsel, Depâ™t of Justice,
to John Rizzo, Acting Gen. Counsel, Central Intelligence Agency, Interrogation of Al Qaeda Operative
2 (Aug. 1, 2002), available at http://s3.amazonaws.com/propublica/assets/missing_memos/
OLCfinalRedact_01-08-02.pdf (stating that in this technique the interrogator âœfirmly pushesâ the
individual into a âœflexible wall made of plywoodâ).
25. Id. at 1 (approving specific methods of interrogating Abu Zubaydah).
26. 18 U.S.C. Â§ 2441 (2006); Yoo Memo, supra note 19, at 32.
27. 18 U.S.C. Â§ 2340A (2006); Yoo Memo, supra note 19, at 34.
28. Yoo Letter, supra note 23.
30. Memorandum from Jay S. Bybee, Assâ™t Attâ™y Gen., Office of Legal Counsel, Depâ™t of
Justice, to Alberto R. Gonzales, Counsel to the President, Re: Status of Taliban Forces Under Article 4
of the Third Geneva Convention of 1959 (Feb. 7, 2002), available at http://www.gwu.edu/~nsarchiv/
NSAEBB/NSAEBB127/020207.pdf; Memorandum from John C. Yoo, Deputy Assâ™t Attâ™y Gen. and
Robert J. Delahunty, Special Counsel, to William J. Haynes, II, Gen. Counsel, Depâ™t of Defense, Re:
Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9, 2002) [hereinafter Yoo
Treaties and Laws Memo], available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/
31. Yoo Treaties and Laws Memo, supra note 30; Memorandum from Jay S. Bybee, Assâ™t
Attâ™y Gen., Office of Legal Counsel, Dep't of Justice, to Alberto R. Gonzales, Counsel to the
President, and William J. Haynes II, Gen. Counsel, Dep't of Defense, Application of Treaties and Laws
to al Qaeda and Taliban Detainees (Jan. 22, 2002), available at http://www.justice.gov/olc/docs/
336 CALIFORNIA LAW REVIEW [Vol. 100:331
â¢ the President has âœplenary constitutional authority, as Commander
in Chiefâ to transfer aliens held outside the United States to third
countries, a process known as âœextraordinary renditionâ; 32
â¢ the President possesses the authority to deploy the military
domestically to combat terrorist activities; 33
â¢ the President has the power to authorize warrantless national
security wiretapping without regard to statutory limitations; 34
â¢ âœthe Fourth Amendment does not apply to domestic military
operations designed to deter and prevent further terrorist
â¢ Miranda warnings are not required for interrogations of detainees
by military personnel; 36
â¢ the Fifth Amendment Due Process Clause and the Eighth
Amendment Cruel and Unusual Punishment Clause âœdo not apply
to alien enemy combatants held abroadâ; 37 and that
â¢ the right to counsel does not apply in military commissions. 38
Yoo has been called âœthe most important theorist of the 9/11
Constitution.â 39 His webpage at the Berkeley Electronic Press refers to him as
32. Memorandum from Jay S. Bybee, Office of Legal Counsel, to William J. Haynes, II, Gen.
Counsel, Depâ™t of Defense, Re: The Presidentâ™s Power as Commander in Chief to Transfer Captures
Terrorists to the Control and Custody of Foreign Nations 1, 6 (Mar. 13, 2002), available at
http://www fas.org/irp/agency/doj/olc/transfer.pdf (arguing that the President has âœplenary power to
dispose of the liberty of military detaineesâ).
33. Memorandum from John C. Yoo and Robert J. Delahunty to Alberto R. Gonzales, Counsel
to the President, and William J. Haynes II, Gen. Counsel, Depâ™t of Defense, Authority for Use of
Military Force to Combat Terrorist Activities Within the United States 6â"7 (Oct. 23, 2001) [hereinafter
Military Force within the United States Memo], available at http://www.justice.gov/olc/docs/
memomilitaryforcecombatus10232001.pdf (stating that the Presidentâ™s power over the use of military
force is âœplenaryâ and âœ[s]uch unenumerated power includes the authority to use military force,
whether at home or abroad, in response to a direct attack upon the United Statesâ).
34. Memorandum from John C. Yoo, Deputy Assâ™t Attâ™y Gen , to the Attâ™y Gen., (Nov. 2,
2001), available at https://webspace.utexas.edu/rmc2289/OLC 131.FINAL.PDF. This memorandum
opinion as released has been redacted within an inch of its life, but it is clear that it declares that if the
Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. ch. 36, were read to restrict the Presidentâ™s
ability to conduct electronic surveillance for national security purposes it would be unconstitutional;
that Congress may not âœrestrict the Presidentâ™s inherent constitutional powers, which allow him to
gather intelligence necessary to defend the nation from direct attackâ; and that âœintelligence gathering
in direct support of military operations does not trigger constitutional rights against illegal searches and
seizures.â Id. at 9, 17.
35. Military Force Within the United States Memo, supra note 33, at 25; id. at 27 (âœNor is it
necessary that the military forces on our soil be foreignâ).
36. Memorandum from Jay S. Bybee, Head of the Office of Legal Counsel, to William J.
Haynes II, Gen. Counsel, Depâ™t of Defense, Re: Potential Legal Constraints Applicable to
Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan (Feb. 26, 2002), available at
37. Yoo Memo, supra note 19, at 1.
39. Cass R. Sunstein, The 9/11 Constitution, NEW REPUBLIC, Jan. 16, 2006, at 21 (reviewing
2012] THE LAW REVIEW AND THE WORLD 337
âœthe key legal architect of the Bush administrationâ™s response to 9/11â and says
he had âœan almost unmatched impact on Americaâ™s fight against terrorism.â 40
Indeed, his role in providing the âœmost sustained intellectual defenseâ of the
Bush administrationâ™s policies was so significant that an article in the New York
Times Magazine was titled The Yoo Presidency. 41
In the humid environment of the Bush OLC, Yooâ™s theory of presidential
war powers flourished like Audrey. 42 In War Powers Yoo spoke of shared
powers, designed so that the President and Congress would check each other, 43
even though he concluded that those powers are distributed quite unequally. 44
By 2003 he was declaring:
[T]he decision to deploy military force in the defense of U.S. interests
is expressly placed under Presidential authority by the Vesting
Clause. . . . The Framers understood the Commander in Chief clause to
grant the President the fullest range of power recognized at the time of
the ratification as belonging to the military commander. . . . [A]ny
power traditionally understood as pertaining to the executiveâ"which
includes the conduct of warfare and the defense of the nationâ"unless
expressly assigned to Congress, is vested in the President. 45
Since leaving the administration, Professor Yoo has continued to press the
same arguments in favor of the Presidentâ™s plenary war powers in the academic
and popular press, including three books 46 and innumerable op-eds and
speeches. He recently proclaimed (inaccurately 47 ) that the capture and killing
JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER
40. Selected Works of John C. Yoo, BERKELEY ELECTRONIC PRESS, http://works.bepress.com/
johnyoo/23 (last visited Jan. 9, 2012).
41. Jeffrey Rosen, The Yoo Presidency, N.Y. TIMES MAG., Dec. 11, 2005, at 106; see also
Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1563 (2002) [hereinafter,
Textualism] (stating that Yoo provided âœthe most powerful modern indictment of the conventional
academic viewâ of Congressâ™s war powers).
42. See LITTLE SHOP OF HORRORS (The Filmgroup 1960); ALAN MENKEN & HOWARD
ASHMAN, LITTLE SHOP OF HORRORS (Broadway Musical 1982); LITTLE SHOP OF HORRORS (Warner
Bros. Pictures 1986). Audreyâ"technically, Audrey IIâ"was a man-eating monster plant in the play
43. Yoo, War Powers, supra note 1, at 303 (âœ[T]he Framers did not rest the sovereign power of
making war in one department, but divided it between the executive and legislature and gave each
branch the means to check the otherâ™s designs.â).
44. Yooâ™s confidence that Congressâ™s spending power is fully adequate to control the
Presidentâ™s authority to commence war seems unrealistic, to say the least. Yoo, however, professes to
believe that the perceived difficulty for Congress to deny funding for troops already committed is
simply a âœfailure of political will.â Yoo, War Powers, supra note 1, at 299.
45. Yoo Memo, supra note 19, at 4â"5.
46. JOHN C. YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11 (2005) [hereinafter YOO, POWERS OF WAR AND PEACE]; JOHN C. YOO, WAR BY
OTHER MEANS: AN INSIDERâ™S ACCOUNT OF THE WAR ON TERROR (2006); JOHN C. YOO, CRISIS AND
COMMAND: A HISTORY OF EXECUTIVE POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH
(2010) [hereinafter YOO, CRISIS AND COMMAND].
47. See, e.g., Scott Shane & Charlie Savage, Harsh Methods of Questioning Debated Again,
338 CALIFORNIA LAW REVIEW [Vol. 100:331
of Osama bin Laden should be credited to the âœtough interrogationâ and
warrantless electronic surveillance programs of âœPresident George W. Bush,
not his successor.â 48 One observer commented, âœJohn Yoo taking credit on
behalf of the Bush administration for Sundayâ™s strike against Osama bin Laden
is like Edward John Smith, the captain of the Titanic, taking credit for the
results of the 1998 Academy Awards.â 49
Most law review authors can only dream of having even a small fraction
of the impact on the world that John Yooâ™s articleâ"written when he was a
junior professor at Berkeley Lawâ"has had. And yet the substance of the article
has been subjected to comprehensive and devastating criticism. Fifteen years
after its publication, and on the centennial of the distinguished journal in which
it appeared, it is appropriate to look back on the influence the article has had
and the critiques it has prompted, and to ask whether there are lessons here for
legal scholars, legal journals, and the use of legal scholarship in policy making.
In the following pages, I summarize the thesis of War Powers and review
the major critiques of the article and, more broadly, Yooâ™s evolving theory of
presidential war powers. I then consider the implications of the article for the
scholarly responsibility of law reviews, the role of peer review in legal
scholarship, and the use of academic scholarship in forming government policy.
YOOâ™S âœORIGINAL UNDERSTANDINGâ
In Yooâ™s vision, the âœoriginal understandingâ is the true and unchanging
meaning of the Constitution. Though he begins War Powers by describing
original understanding as âœthe best starting pointâ for interpreting the
Constitution, he appears to regard it as the ending point as well. âœAs a written
document, the Constitutionâ™s meaning does not change from the meaning it
held for its drafters.â 50 Yoo also considers actual historical practice since the
N.Y. TIMES, May 3, 2011, at A1 (âœ[A] closer look at prisoner interrogations suggests that the harsh
techniques played a small role at most in identifying Bin Ladenâ™s trusted courier and exposing his
48. John Yoo, Op-Ed, From Guantanamo to Abbottabad, WALL ST. J., May 4, 2011,
http://online.wsj.com/article/SB10001424052748703834804576301032595527372 html (killing of bin
Laden âœvindicate[d]â the âœtough interrogationsâ of Khalid Sheikh Mohammad and Abu Faraj al-Libi;
âœPresident George W. Bush, not his successor, constructed the interrogation and warrantless
surveillance programs that produced this weekâ™s actionable intelligence.â); see also Dahlia Lithwick,
You Say Torture, I Say Coercive Interrogation, SLATE (Aug. 1, 2011, 6:04 PM), http://www.slate.
com/id/2300550 (quoting Yoo at the Aspen Security Forum, July 27, 2011: âœTake a look at how we
were able to kill al-Qaidaâ™s leader this year. How did we get the intelligence for finding Bin Ladenâ™s
couriers and ultimately Bin Laden? It was a combination of interrogation methods, sometimes tough or
harsh, you can call it torture. I donâ™t call it torture. You can repeat the word torture all the time, I can
repeat coercive interrogation all the time.â).
49. Andrew Cohen, The Unrepentant John Yoo: âœEnhanced Interrogationâ Got Us Bin Laden,
ATLANTIC, May 5, 2011, http://www.theatlantic.com/politics/archive/2011/05/the-unrepentant-john-
50. Yoo, War Powers, supra note 1, at 172.
2012] THE LAW REVIEW AND THE WORLD 339
founding to be relevant to constitutional interpretation, and War Powers
includes a lengthy discussion of presidential use of military force,
concentrating particularly on the post-World War II period. But this
postframing history does not primarily function as independent evidence of the
Constitutionâ™s meaning; rather, it shores up the original understanding
argument, where a reader might find the evidence thin or contradictory.
According to Yoo, it is the original understanding that forms the true meaning
of the Constitution. Historical practice âœconfirms our understanding of the
allocation of war powers,â but âœ[u]ltimately . . . it is the constitutional
framework that endures.â 51
For someone who places great weight on original meaning, Yoo is not
particularly rigorous about the meaning of âœmeaning.â He tells us that the
meaning of the Constitution does not change from âœthe meaning it held for its
drafters.â 52 In the same paragraph he says, âœWhen interpreting the text of the
Constitution, we should seek to determine the meaning of its terms as
understood by those who adopted its provisions.â 53 Two sentences further on
he refers to how âœAmericans of the late eighteenth century would have defined
terms in the Constitution,â 54 and on the same page he refers to âœthe Framersâ™
intent.â 55 Thus, in a short space Yoo seems to approve various versions of
original meaningâ"what the drafters were trying to accomplish, what members
of the Philadelphia Convention understood by the text, 56 what the delegates to
the ratifying conventions understood, 57 and how a hypothetical informed
American at the time would have understood the text. 58
Though this usage seems somewhat looser than one might expect from an
originalist, Yoo steadily contends that the Framers did have a âœshared
understandingâ 59 of how they had allocated the nationâ™s war powers, that the
text of the Constitution âœgovernsâ this allocation, that a determinate meaning of
the war powers clauses can be reliably ascertained, and that changed
circumstances cannot alter this meaning. Yoo thus aligns himself squarely
against those who contend that âœ[p]recisely because the Founding generation
51. Id. at 175.
52. Id. at 172 (emphasis added).
53. Id. (emphasis added).
54. Id. (emphasis added).
55. Id. (emphasis added).
56. This was the only time that âœthe Foundersâ assembled in a single room and agreed to adopt
a text they had created. See, e.g., CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES:
THE MEANING OF THE FOUNDERSâ™ CONSTITUTION (2005).
57. It was the ratifying conventions that exercised the sovereign power of âœWe the People,â
though it seems unlikely that the separate ratifying conventions, which did not even discuss every
provision of the Constitution, converged on a single meaning.
58. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE
LAW 38 (1997); Michael D. Ramsey, Toward a Rule of Law in Foreign Affairs, 106 COLUM. L. REV.
1450, 1451 (2006) [hereinafter Ramsey, Book Review] (reviewing YOO, POWERS OF WAR AND PEACE,
supra note 46).
59. Yoo, War Powers, supra note 1, at 173.
340 CALIFORNIA LAW REVIEW [Vol. 100:331
had resolved so little, rather than so much, in their new Constitution, it quickly
became apparent that many key constitutional issues in foreign affairs would
have to be worked out over time.â 60
Yoo takes an eclectic approach to the evidence he considers relevant to
determining the original understanding. He believes that the âœrecords of the
Constitutional Convention, the state ratifying conventions, and the public
debates waged in the pressâ are relevant âœnot for signs of legislative intent per
se, but for indications of how Americans of the late eighteenth century
understood the legal frameworkâ in which the Constitution was adopted. 61 He
finds this understanding less in the text and the Convention debates than in
âœ[t]he relationships between the executive and legislative branches in Great
Britain, the colonies, and the states during the Revolution and under the
Articles of Confederation.â 62 It was the British model, he argues, that created
the âœshared understandingâ underlying the Framersâ™ conception of the
executive power. 63 Yoo considers the ratification debates more relevant than
the records from the Constitutional Convention, but he acknowledges that the
discussion of war powers in the ratifying conventions was sparse and uneven,
and this fact is confirmed by its near invisibility in Pauline Maierâ™s
monumental history of the ratification. 64 Accordingly, Yoo turns primarily to
âœuntapped sourcesâ 65 such as the constitutions of the various states, with which
he presumes the drafters, ratifiers, and the general American public of the time
were familiar; the British system as he understands it to have evolved in the
seventeenth and eighteenth centuries; and the writings of legal and political
theorists such as Blackstone, Locke, Montesquieu, and Vattel. 66
Yoo concludes, startlingly, that âœthe war powers provisions of the
Constitution are best understood as an adoption, rather than a rejection, of the
traditional British approach to war powers.â 67 In other words, the Framers who
little more than a decade before had declared that âœthe history of the present
King of Great Britain is a history of repeated injuries and usurpationsâ and that
it was their âœduty, to throw off such governmentâ because it tended to âœan
60. Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U. CHI. L. REV.
377, 378 n.2 (2011) (quoting Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law,
67 LAW & CONTEMP. PROBS. 169, 171 (2004)).
61. Yoo, War Powers, supra note 1, at 173.
62. Id. at 197.
64. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787â"1788
(2010). âœWar powersâ are mentioned on only seven pages of the book, mostly inconsequentially, and
the discussions cited in the index of the executive power, the military power of the President, and the
Presidentâ™s powers have almost nothing to say about the Presidentâ™s war powers.
65. Yoo, War Powers, supra note 1, at 172.
66. See id. at 195â"217.
67. Id. at 242 (emphasis added).
2012] THE LAW REVIEW AND THE WORLD 341
absolute Tyrannyâ 68 decided to grant the very same powers to the President
that had led them to rebel against the King.
YOOâ™S WAR POWERS
Yoo contends in War Powers thatâ"âœ[c]ontrary to the arguments by
todayâ™s scholarsâ 69 â"the Constitution does not give Congress the primary
power over war and peace. According to Yoo, the Declare War Clause does not
grant Congress any power to initiate or authorize war. Rather, the change in
wording from âœmake warâ to âœdeclare warâ on August 17, 1787 was intended
to limit Congressâ™s power to âœdeclaring,â or announcing, that the actions
already taken by the President amounted to a legal state of war. Yoo argues that
this change allocated to the President all the power of âœconducting military
operations,â including the decision to commence and end war. Congress could
only affect such decisions through its appropriations and impeachment powers.
Yoo contends that the Founders intended to locate all executive power, as
it was then understood in Britain, in the Executive except for the powers
expressly allocated to the other branches. Thus when the Vesting Clause vests
âœthe executive powerâ in the President, that includes the full set of powers
exercised by the King. Similarly, the Commander-in-Chief Clause grants the
President all the powers that had âœtraditionallyâ (that is, in Britain and other
European countries) been given to a nationâ™s supreme military commander (that
is, the King). 70 Additionally, Yoo argues that because Article II vests âœthe
executive powerâ in the President, whereas Article I vests the legislative
powers âœherein grantedâ to Congress, the President has the entire war and
foreign affairs power of the nation except that which is specifically enumerated
and granted to Congress, whereas Congressâ™s powers are limited to those
A. The Declare War Clause
The centerpiece of Yooâ™s argument is that âœthe Declare War Clause does
not add to Congressâ™s store of war powers at the expense of the President.
Rather, the Clause gives Congress merely a judicial role in declaring that a state
of war exists between the United States and another nation . . . .â 71
1. Argument from the Text
Yooâ™s primary textual argument is based on the Conventionâ™s decision to
change âœmake Warâ to âœdeclare War.â The argument crucially depends on the
68. THE DECLARATION OF INDEPENDENCE (U.S. 1776).
69. Yoo, War Powers, supra note 1, at 295.
70. Id. at 252.
71. Id. at 295.
342 CALIFORNIA LAW REVIEW [Vol. 100:331
assumption that the power to âœdeclare warâ as used in the Constitution is
synonymous with the power to make a formal declaration of warâ"that is, that
the Clause grants only the power to issue a formal declaration. This assumption
ignores the overwhelming evidence of what the Framers said they were
doing, 72 as well as evidence of how the term âœdeclare warâ was understood at
the time. 73
Yoo correctly observes that at the end of the eighteenth century a formal
declaration of war was not a prerequisite to entering into war. Though he
recognizes that in the eighteenth century war could be initiated either by formal
declaration or through action, Yoo assumes that the Convention intended to
give Congress only the power to make a formal declaration. He constructs his
preferred meaning of âœdeclare warâ from eighteenth-century authorities
discussing formal declarations of war.
This reasoning is circularâ"it assumes the conclusion. As Michael
Ramsey (himself a âœtextual originalistâ) demonstrates, the phrase âœdeclare warâ
meant âœinitiating a state of war by a public act.â 74 War âœcan be declared either
by commencing hostilities as well as by formal announcementââ"âœby word or
action.â 75 Ramsey therefore concludes that Congress was to have both powers.
Yoo acknowledges that war could be initiated by word or action, but concludes
that the Clause refers to only one of these options. This reasoning ignores the
fact that both at Philadelphia and in the ratifying conventions delegates used the
words âœdeclareâ and âœmakeâ interchangeably, even after the change from
âœmake warâ to âœdeclare war.â 76
Yoo compounds the error by going on to deny that Congress has any
power to commence war at all, even through issuing a formal declaration. He
argues that the Declare War Clause gives Congress only a âœjudicial-likeâ 77
power to affix a legal label to the actions the President has already takenâ"
âœ[l]ike a declaratory judgment.â 78 The President, according to Yoo, has sole
control over the decision to go to war. Even the power to âœdeclare warâ does
not give Congress power to take the nation from peace to war. This conclusion
72. See Jane E. Stromseth, Understanding Constitutional War Powers Today: Why
Methodology Matters, 106 YALE L.J. 845 (1999) (reviewing LOUIS FISHER, PRESIDENTIAL WAR
POWER (1995)) (âœ[H]is account is at odds with the ample evidence that the Framers decided quite
deliberately to change the British system by transferring the power to initiate war (and not simply to
formally â˜declareâ™ it) from the executive to the legislative branch . . . .â).
73. See Ramsey, Book Review, supra note 58, at 1462â"64.
74. Ramsey, Textualism, supra note 41, at 1545.
75. Id. at 1546.
76. Stromseth, supra note 72, at 860 n.79. Reflecting this view of the term, Justice Story wrote
that âœ[t]he power of declaring war is . . . the highest sovereign prerogative . . . .â LOUIS FISHER,
PRESIDENTIAL WAR POWER 4 (2d ed. 2004).
77. Yoo, War Powers, supra note 1, at 300; see also id. at 242 (âœ[A] declaration of war
performed a primarily juridical function under eighteenth-century international law.â); id. at 248
(âœ[D]eclarationâ means âœa judgment of a current status of relations, not an authorization of war.â).
78. Id. at 242.
2012] THE LAW REVIEW AND THE WORLD 343
is contrary to the historical evidence that âœdeclare warâ was also used to mean
âœcommence hostilities,â that war could be âœdeclaredâ by word or action, and
that the Framers themselves understood and used the term in this fashion. It
also seems highly illogical. As Ramsey points out, it is puzzling that the
Framers would give Congress, the deliberative body, the power to announce
war and the President, âœnormally the communicative voice in government,â the
power to initiate it. 79 Thus the textual argument collapses.
2. Argument from the Convention Debates
James Madisonâ™s notes reflect that he and Elbridge Gerry introduced the
change from âœmakeâ to âœdeclare,â leaving âœto the Executive the power to repel
sudden attacks.â 80 That is, the President was to be authorized to take defensive
action if the nation were attacked. Yoo initially interprets Madisonâ™s statement
as âœat least expanding the executiveâ™s power to respond unilaterally to an
attack.â 81 He then muses that possibly Madison and Gerry âœdid not explain its
meaning to the assembled delegates,â or that âœ[p]erhaps the lateness of the
hourâ"the debate occurred at the equivalent of 5:00 p.m. on a Fridayâ"may
have fatigued the renowned note-taker himself.â 82 Let us be clear about what is
happening here. To stretch the historical record to fit his novel theory, Yoo
imagines events for which there is utterly no evidence and then suggests that
Madison may not have understood his own amendment.
To the contrary, from the records of the Convention âœit was clear that the
delegates were not referring to a declaration as a formality, but as an
authorizing act that no branch but Congress could make.â 83 Moreover, Yooâ™s
interpretation is at odds with Madisonâ™s consistent opposition to giving the
President the power to commence war. Madison believed that those who
âœconduct a war cannot in the nature of things, be proper or safe judges, whether
a war ought to be commenced, continued, or concluded,â 84 and that âœthe
constitution supposes, what the History of all Govts. demonstrates,â that the
executive is âœthe branch of power most interested in war, & most prone to itâ
and the Constitution âœaccordingly, with studied care, vested the question of war
in the Legisl.â 85
79. Ramsey, Book Review, supra note 58, at 1464 (âœSomething made the Framers think that the
power â˜[t]o declare Warâ™ was an important one to shift to Congress; the idea that it was because the
Framers thought Congress better suited to make official statements about military policy established
by the President seems unlikely in the extreme.â (alteration in original)).
80. See FISHER, PRESIDENTIAL WAR POWER, supra note 76, at 8â"10; Stephen M. Griffin,
Reconceiving the War Powers Debate 18 (Oct. 13, 2011) (Tulane Public Law Research Paper No. 11-
06), available at http://ssrn.com/abstract=1943652.
81. Yoo, War Powers, supra note 1, at 261.
82. Id. at 262. See generally id. at 261â"64 (discussing Convention debate on the change).
83. Griffin, supra note 80, at 19.
84. Stuart Streichler, Mad About Yoo, or Why Worry About the Next Unconstitutional War?, 24
J.L. & POL. 93, 98 (2008) (emphasis removed) (quoting James Madison, Helvidius No. 1 (1845)).
85. Id. at 98 (quoting Letter from James Madison to Thomas Jefferson (Apr. 2, 1797)).
344 CALIFORNIA LAW REVIEW [Vol. 100:331
Contrary to Yooâ™s claim that the Framers reposed extraordinary power in
the President because they âœwere not excessively worried by the prospect of
unilateral executive action,â 86 a host of Founders âœvigorously repudiated the
British war powers modelâ at the Convention because they âœwere deeply
concerned about unilateral executive commitments to war.â 87 Fisher quotes
James Wilson (who âœdid not consider the Prerogatives of the British Monarch
as a proper guide in defining the executive powersâ 88 ), Alexander Hamilton
(the Senate would have the âœsole power of declaring warâ 89 ), Edmond
Randolph, John Jay, John Rutledge, Charles Pinckney, Elbridge Gerry (who
declared that he âœnever expected to hear in a republic a motion to empower the
Executive alone to declare warâ 90 ), Roger Sherman (âœthe Executive shd. be
able to repel and not to commence warâ 91 ), and George Mason (who was for
âœclogging rather than facilitating warâ and against âœgiving the power of war to
the Executiveâ 92 ). John Jay made similar statements during the ratification
conventions (the King can declare war and raise armies, but the President
cannot because âœthese powers are vested in other handsâ 93 ). Yoo quotes many
of these statements, but either dismisses them as unrepresentative, interprets
them in accordance with his own views, or suggests possible meanings that
seem implausible. A particularly egregious example is the treatment of
Wilsonâ™s statement that he âœdid not consider the Prerogatives of the British
Monarch as a proper guide in defining the Executive powers. Some of these
prerogatives were of a Legislative nature. Among others that of war & peace
&c.â Yoo cites this statement for the proposition that the Framers understood
that âœvesting the President with all â˜executive powersâ™ would give him the
power over war and peace.â 94 This claim is diametrically opposed to Wilsonâ™s
statement, which could not be clearer in stating that the power âœof war &
peaceâ is âœof a Legislative nature.â
Perhaps because the debates at the Philadelphia Convention do not
support his views, Yoo relies more heavily on statements made at the ratifying
conventions. There was little discussion of war powers at the ratifying
86. Yoo, War Powers, supra note 1, at 174.
87. Fisher, John Yoo and the Republic, supra note 11, at 180; see also Ramsey, Book Review,
supra note 58, at 1460, 1466â"67; D.A. Jeremy Telman, A Truism That Isnâ™t True? The Tenth
Amendment and Executive War Power, 51 CATH. U. L. REV. 135, 182â"87 (2001) (pointing out the
88. FISHER, PRESIDENTIAL WAR POWER, supra note 76, at 5. Yoo quotes this statement for the
proposition that the Framers understood that âœvesting the President with all â˜executive powersâ™ would
give him the power over war and peace.â Yoo, War Powers, supra note 1, at 278. Yooâ™s claim is
diametrically opposed to Wilsonâ™s statement, which clearly says that the power âœof war & peaceâ is
âœof a Legislative nature.â Yoo, War Powers, supra note 1, at 286 n.547.
89. FISHER, PRESIDENTIAL WAR POWER, supra note 76, at 5.
90. Fisher, John Yoo and the Republic, supra note 11, at 185.
92. Id.; see also Griffin, supra note 80, at 18.
93. Fisher, John Yoo and the Republic, supra note 11, at 186.
94. Yoo, War Powers, supra note 1, at 278.
2012] THE LAW REVIEW AND THE WORLD 345
conventions, and the separate state conventions did not discuss the same topics.
Moreover, both Federalists and Anti-Federalists frequently misrepresented the
document during the ratification conventions in order to obtain votes.
Yoo can hardly ignore the statement of James Wilson at the Pennsylvania
ratifying convention that:
This system will not hurry us into war; it is calculated to guard against
it. It will not be in the power of a single man, or a single body of men,
to involve us in such distress; for the important power of declaring war
is vested in the legislature at large[.] 95
Though he acknowledges the statement, Yoo sweeps it aside, concluding that
Wilsonâ™s views were âœexceptional rather than typicalâ and that âœit is perhaps
safer just to count Wilson as a dissenter from the prevailing Federalist view on
war powers.â 96 As Louis Fisher points out, however, âœWilson was far from
being a dissenter. He was a leading exponent of the position that, other than
presidential actions to â˜repel sudden attacks,â™ the whole of the war power is
vested in Congress.â 97
Similarly, Yoo reads Alexander Hamilton, undoubtedly the most vigorous
advocate among the Framers for a strong executive, as being staunchly in favor
of a monarchical executive, while ignoring his statement that âœthe models of
Locke and Blackstone had no application to America,â 98 and that it was up to
Congress âœto make or declare war.â 99 Indeed, Hamilton later wrote that the
provided affirmatively, that, âœThe Congress shall have power to
declare warâ; the plain meaning of which is, that it is the peculiar and
exclusive province of Congress, when the nation is at peace, to change
that state into a state of war, . . . in other words, it belongs to Congress
only, to go to war. 100
Furthermore, Yooâ™s characterization of the power to declare war as a
âœjudicialâ power has no support in any of the statements of the Framers. 101 He
simply deduces it from his belief that the Clause refers only to the power to
issue a declaration of war.
In short, contrary to Yooâ™s tortured reading of the historical record, there
was never âœa serious debate over where to locate the power to authorize war.
95. Id. at 286 n.547; see also Streichler, supra note 84, at 99.
96. Yoo, War Powers, supra note 1, at 286â"87 n. 547.
97. Fisher, John Yoo and the Republic, supra note 11, at 180.
98. Id. at 184.
99. Id. at 185.
100. Streichler, supra note 84, at 100. Yooâ™s use of Hamilton in his Department of Justice
memos has been called an âœexercise in distortion.â Fisher, John Yoo and the Republic, supra note 11,
at 184 (quoting David Gray Adler).
101. Fisher, John Yoo and the Republic, supra note 11, at 179 (âœNo one at the Philadelphia
Convention or the ratifying conventions, or anyone writing in the Federalist Papers spoke of Congress
having a â˜judicialâ™ role when it declares war. It is a legislative role. To my knowledge, Yoo is the only
individual who makes this argument.â).
346 CALIFORNIA LAW REVIEW [Vol. 100:331
Rather, there was impressive harmony and agreement. No member of the
founding generation presented a serious argument that the executive should
have power to decide when war should be commenced.â 102
3. Argument from Presidential Practice
Yoo argues that the early presidents acted vigorously in employing
military force based on their understanding of the Presidentâ™s primacy in war.
He acknowledges that presidential actions after ratification cannot tell us what
the drafters thought, but asserts that those actions provide further evidence of
how the founding generation would have understood the text.
Fisher observes, however, that these same presidents also acknowledged
Congressâ™s primary role in war. For example, Washington wrote in 1793 that
âœ[t]he Constitution vests the power of declaring war with Congress; therefore
no offensive expedition of importance can be undertaken until after they have
deliberated upon the subject, and authorized such a measure.â 103 Jefferson said
in 1801, in connection with the Barbary pirates, that he was âœ[u]nauthorized by
the Constitution, without the sanction of Congress to go beyond the line of
defenseâ and in 1805, in connection with conflicts with Spain, that âœCongress
alone is constitutionally invested with the power of changing our condition
from peace to war.â 104 Moreover, many of the actions Yoo cites as examples of
unilateral presidential action actually had congressional authorization. 105
Indeed, âœ[a]t no point during the first forty years of activity under the
Constitution, did a President or any other important participant claim that
Presidents could exercise force independently of congressional control.â 106
Yooâ™s argument also ignores relevant Supreme Court decisions. Chief
Justice Marshall, a prominent ratifier, wrote for a unanimous Supreme Court
soon after the founding that âœ[t]he whole powers of war [are], by the
constitution of the United States, vested in congress . . .â and that âœit is the
exclusive province of congress to change a state of peace to a state of war.â 107
102. Griffin, supra note 80, at 15.
103. Fisher, John Yoo and the Republic, supra note 11, at 187 (quoting Washington); see also
Mortenson, supra note 60, at 427 (quoting Washington); Steichler, supra note 84, at 99 (quoting
Washington). Yoo does not refer to Washingtonâ™s statement at all in War Powers. He cites it in Crisis
and Command but asserts that Washington must have simply meant that funding would have to come
from Congress. YOO, CRISIS AND COMMAND, supra note 46, at 75.
104. Fisher, John Yoo and the Republic, supra note 11, at 185.
105. See Louis Fisher, Unchecked Presidential Wars, 148 U. PA. L. REV. 1637, 1652â"54,
106. Abraham D. Sofaer, The Power over War, 50 U. MIAMI L. REV. 33, 50â"51 (1995).
107. Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801); United States v. Smith, 27 F. Cas.
1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (âœDoes [the President] possess the power of making war?
That power is exclusively vested in congress . . . . [It is] the exclusive province of congress to change a
state of peace into a state of war.â). See Fisher, John Yoo and the Republic, supra note 11, at 181
(discussing these cases).
2012] THE LAW REVIEW AND THE WORLD 347
B. Congressâ™s Other Article I Powers
Yoo concedes that Congress does have a role in war. âœThe Framers
intended Congress to participate in war-making by controlling
appropriationsâ 108 and potentially by the use of the impeachment power. 109
Though Congress might use its appropriations and impeachment powers as
bargaining chips to put pressure on the President, however, it was to have no
other formal war powers.
Notably, the argument that Congressâ™s war powers are limited to
appropriations and impeachment almost completely ignores other express
congressional war powers. Yoo discounts the power to issue letters of marque
and reprisal (which authorize private capture of foreign ships or property and
retaliation for attacks) by classifying it also as a mere judicial function. 110 And
his argument simply ignores 111 Congressâ™s other war powers: to raise and
support armies; provide and maintain a navy; make rules for the government
and regulation of the land and naval forces; provide for calling out the militia to
suppress insurrections and repel invasions; provide for organizing, arming,
disciplining and governing the militia; make rules concerning captures on land
and water; and define and punish piracies and felonies committed on the high
seas, and offenses against the law of nations. 112 All of these powers represent
departures from British law and indicate that Congress was to have a central,
indeed a primary, role in matters of war.
C. The Vesting and Commander-in-Chief Clauses
Yoo conjures the Presidentâ™s âœplenaryâ and âœinherentâ power over
war-making from the Vesting Clause and the Commander-in-Chief Clause, 113
powers that, he modestly acknowledges, âœat first glance appear somewhat
paltry.â 114 The Vesting Clause provides that âœthe executive power shall be
vested in a President.â 115 As âœexecutive powerâ is not defined in the
Constitution, Yoo reconstructs its meaning by placing it âœin the legal context of
its day.â 116 He contends that the Framers transposed to the Constitution the
understanding of executive powers with which they were familiarâ"the
prerogatives held by the British Crown and exercised by the royal governors in
the colonies. And because Article II vests âœthe executive powerâ while Article I
108. Yoo, War Powers, supra note 1, at 295.
109. Id. at 174, 241.
110. Id. at 250â"51.
111. See id.
112. U.S. CONST. art. I, Â§ 8. One might also add the power to regulate foreign commerce and
Congressâ™s role in making treaties.
113. See Yoo Memo, supra note 19, at 4 (âœThe decision to deploy military force in the defense
of U.S. interests is expressly placed under Presidential authority by the Vesting Clause.â).
114. Yoo, War Powers, supra note 1, at 176.
115. U.S. CONST. art II, Â§ 1, cl. 1.
116. Yoo, War Powers, supra note 1, at 242.
348 CALIFORNIA LAW REVIEW [Vol. 100:331
vests the powers âœherein granted,â he concludes that although Congressâ™s
powers are limited to those enumerated, the Presidentâ™s powers are residual,
consisting of all powers traditionally recognized as executive that were not
specifically conveyed to the other branches. By the time of his service in the
government, Yoo had extended this argument to maintain that the Vesting
Clause conveyed all of the prerogatives appertaining to the British King,
excepting only those powers that were expressly given to Congress by Article I
(that is, the power to âœdeclareâ war, appropriate funds for military activities,
and impeach federal officers). 117
With respect to the Commander-in-Chief Clause, 118 Yoo contends that it
was intended not just to give the President control over the tactics and strategy
of military operations, but to convey all of the power over military affairs held
by the British King. 119 His analysis fails to consider the remainder of the
Commander-in-Chief Clause, which provides that the President is commander
in chief of the militia âœwhen called into the actual Service of the United
States.â 120 It is Congress that has the power to call the militia into service, just
as it is Congress that has the power to âœraise and supportâ the armies the
President is to command, to âœprovide and maintain a navy,â and to make rules
for the government and regulation of the land and naval forces. 121 Yooâ™s theory
places too much weight on the mere phrase âœcommander in chief,â particularly
in light of the express powers that are given to Congress. The real basis for
Yooâ™s conclusion is not textual analysis but his conviction that the Framers
meant to give the President the same military powers as the King.
In his OLC memos, Yoo pressed his unconventional views on the
Commander-in-Chief Clause and stated them even more forcefully:
It has long been the view of [OLC] that the Commander in Chief
Clause is a substantive grant of authority to the President [citing only
to a memo from William J. Rehnquist, then head of the OLC, on the
Vietnam War and Yooâ™s own September 25, 2001 memo 122 ]. This
authority includes all those powers not expressly delegated by the
Constitution to Congress that have traditionally been exercised by
commanders in chief of armed forces. 123
117. Memorandum from John C. Yoo to David J. Bryant, supra note 22, at 2. As discussed
above, Yooâ™s list of Congressâ™s powers inexplicably omits a great number of clauses in Article I,
118. U.S. CONST. art. II, Â§ 2, cl. 1.
119. Yoo, War Powers, supra note 1, at 252 (âœAmericans of the Framersâ™ generation would
have widely understood the commander-in-chief power as a continuation of the English and colonial
tradition in war powers.â).
121. U.S. CONST. art. I, Â§ 8.
122. Military Operations Memo, supra note 4.
123. Memorandum from John C. Yoo to David J. Bryant, supra note 22, at 2.
2012] THE LAW REVIEW AND THE WORLD 349
D. The British Model
The Constitution does not define âœthe executive power.â Rather than
looking to the many statements by the Framersâ"in the Convention debates, the
ratifying conventions, The Federalist, and other documentsâ"for evidence of
how they used the term and what powers they thought were appropriate to the
American Executive, Yoo asserts that âœthe war powers provisions of the
Constitution are best understood as an adoption, rather than a rejection, of the
traditional British approach to war powers.â 124 The argument for this claim is
replete with statements in the subjunctive, such as whatâ"he assures usâ"the
Framers âœwould have understoodâ 125 or âœwould have been familiarâ with.126
He concludes that the Vesting Clause grants the President all of the royal
prerogatives of the British King (which he interprets in a pro-Crown
manner), 127 except for the power to make a formal declaration of war and the
power to fund war.
Yoo claims that the Anti-Federalists, who argued against ratification
because they thought the Constitution was too monarchical, actually got it
right, and understood the Constitution better than its proponents. He asserts that
the Anti-Federalists âœcorrectly claimed that the Constitutionâ™s system did not
deviate all that much from the British Constitution as it existed in practiceâ and
that âœindeed, the Federalists appear to have ceded to the Antifederalists the
truth of their arguments.â 128 He explicitly agrees with the Anti-Federalist
characterizations of the Constitution. âœImplicit in the Antifederalist attack was
an understanding of the British Constitution consistent with the one offered in
this Article. . . . [T]he Antifederalists recognized that Congress would possess
the same check on the President that Parliament exercised against the Kingâ"
the power of the purse.â 129
It is hard to take seriously an interpretive method that embraces as correct
the arguments the Anti-Federalists deployed to try to prevent ratification, and
ignores or dismisses the views of the drafters and proponents. The Anti-
Federalists did not desire a President who held royal prerogativesâ"they wanted
a weaker national government. And the Federalists consistently wrote and
spoke of giving Congress, rather than the President, the power over war and
peace. If Yooâ™s views really had been the shared understanding of âœexecutive
powerâ in 1787â"89, the Constitution would never have been ratified, because
no one desired to have another King. 130
124. Yoo, War Powers, supra note 1, at 242 (emphasis added).
125. See, e.g., id. at 172â"73, 174, 242, 252, 254, 256.
126. See, e.g., id. at 204, 246, 262.
127. See John Fabian Witt, Anglo-American Empire and the Crisis of the Legal Frame (Will
the Real British Empire Please Stand Up?), 120 HARV. L. REV. 754, 765â"68 (2007).
128. Yoo, War Powers, supra note 1, at 278.
129. Id. at 276.
130. See Griffin, supra note 80, at 20 (âœThose skeptical of the proposed Constitution in the
ratifying conventions were not fans of increased executive power. It is reasonable to infer that the
350 CALIFORNIA LAW REVIEW [Vol. 100:331
Yooâ™s reading of the historical materials does not give adequate weight to
the Framersâ™ complicated attitudes toward executive power. The Framers had
learned from their experience with the Articles of Confederation that a stronger
national government was necessary, one that possessed both a robust legislature
with far greater powers than the Continental Congress and a separate executive
able to act with greater âœenergy,â as well as an independent judiciary to provide
a check on the legislative and executive branches. But it had been little more
than a decade since the Framers had thrown off the onerous executive powers
of the King and his royal governors, and they did not desire to replicate them in
the new government. 131 âœYooâ™s theory ignores the great efforts expended in the
Revolutionary era to free the United States from the excesses of executive
power experiencedâ during the colonial period. 132
Yoo claims that there was a consensus among the founding generation
that the new government would âœfollow in the footstepsâ 133 of the British
model, and that the relationship between Congress and the President would
parallel that between Parliament and the King. But the assumption that the
Constitution embodied the views of Blackstone, Locke, and Montesquieu is
unwarranted. 134 Streichler rightly comments that despite the âœgeneral
proposition that the Constitutionâ™s framers operated within the Anglo-American
political tradition,â it would be inappropriate âœto conclude that particular
powers exercised by the king, like the power to decide on war, were granted to
the President because they were with the Crown. After all, the American
Constitution expressly allocated several of the monarchyâ™s war powers to
Congress, including the power to declare war.â 135
The Framers made it clear that they consciously and deliberately rejected
the British constitutional model, particularly with respect to the powers of war
and foreign affairs. For example, Edmund Randolph called executive power the
âœfoetus of monarchyâ and declared that the delegates âœhad no motive to be
governed by the British Governmt. as our prototypeâ because the âœfixt genius
of the people of America required a different form of Government.â 136 James
Constitution could not have been ratified had it been admitted that the president had the power to
commence war, other than in cases of necessity.â); Mortenson, supra note 60, at 396.
131. See Telman, supra note 87, at 180.
133. Yoo, War Powers, supra note 1, at 197; see also id. at 255 (âœWe should construe the
Constitutionâ™s spare language concerning war powers within the context of eighteenth-century British,
colonial, and state governments, which had employed a system of executive initiative balanced by
134. Griffin, supra note 80, at 25â"28.
135. Streichler, supra note 84, at 101; see also Fisher, Presidential War Power, supra note 76,
at 1 (âœ[E]xisting models of government in Europe placed the war power securely in the hands of the
monarch. The framers broke decisively with that tradition. Drawing on lessons learned at home in the
American colonies and the Continental Congress, they deliberately transferred the power to initiate
war from the executive to the legislature.â).
136. Fisher, John Yoo and the Republic, supra note 11, at 184.
2012] THE LAW REVIEW AND THE WORLD 351
Wilson, who drafted the Vesting Clause for the Committee of Detail, said he
âœdid not consider the Prerogatives of the British Monarch as a proper guide in
defining the Executive power,â 137 especially because the power âœof war &
peaceâ was âœof a Legislative nature.â 138 Hamilton, in The Federalist No. 69,
contrasted the Kingâ™s power as a hereditary monarch having the power not only
to command troops but also to declare war and to raise and fund fleets and
armies âœby his own authorityâ with the Presidentâ™s limited power, which would
âœamount to nothing more than the supreme command and direction of the
military and naval forces, as first General and Admiral of the confederacy,â
with Congress holding the right to declare war, raise, regulate, and fund
Yoo quotes this passage from Hamilton, but to discredit it he first scoffs at
Hamiltonâ™s description of the Presidentâ™s power (âœa second-rate Kingâ) and
goes on to state that The Federalist No. 69 was not âœthe authoritative
explanation of the Constitution.â 140 Yoo declares that Hamilton âœcarefully
avoided explaining whether the formal powers transferred from King to
Congress were actually significant.â 141 He characterizes Iredellâ™s similar
distinction between the powers of the President and the King, at the North
Carolina ratification convention, as âœoverdr[awn].â 142
In short, contrary to Yooâ™s theory, the evidence shows that the Framers
âœrejected the English Modelâ"the monarchical modelâ because of their âœdeep
aversion to an unrestrained, unilateral executive power . . . .â 143 As Louis
Fisher put it, to interpret the debates as giving the President the power to
would defeat everything that the framers said about Congress being the
only political body authorized to take the country from a state of peace
to a state of war. The president had the authority to âœrepel sudden
attacksââ"defensive actions. Anything of an offensive nature,
including making war, is reserved only to Congress. 144
137. See Mortenson, supra note 60, at 394 n.49.
138. Moreover, the view that the Framers gave the President the equivalent of the royal
prerogatives and then subtracted out certain specified powers that were given to Congress is
inconsistent with the historical development of the constitutional text. The drafters âœstarted with
foreign affairs and war powers authority concentrated in the Senate and then shifted a carefully
delineated subset of some of those powers, step-by-step, to the President.â Id. at 394 (emphasis added).
139. THE FEDERALIST NO. 69 (Alexander Hamilton); see also Yoo, War Powers, supra note 1,
140. Yoo, War Powers, supra note 1, at 277â"78.
142. Id. at 278.
143. David Gray Adler, George Bush and the Abuse of History: The Constitution and
Presidential Power in Foreign Affairs, 12 UCLA J. OF INTâ™L L. & FOREIGN AFF. 75, 76â"77, 88â"89
(2007); Telman, supra note 87, at 183 (âœThe Framers flat-out rejected the theory of executive power
that Yoo claims they incorporated into the Constitution.â).
144. Fisher, John Yoo and the Republic, supra note 11, at 185; Stromseth, supra note 72, at 860
n.79 (âœYooâ™s formalistic reading . . . does not square, however, with the powerful evidence that the
352 CALIFORNIA LAW REVIEW [Vol. 100:331
In the end, the most telling critique of War Powers may simply be that its
conclusions are completely at odds with what we know of the purposes and
concerns of those who wrote and ratified the Constitution. 145 Michael Ramsey,
himself an originalist, puts a provocative twist on this idea, suggesting that
originalists will not be persuaded by Yooâ™s argument because it âœsimply drifts
too far from the Framersâ™ expressed understandings of their own text, and from
the historical meanings of the words they used,â but that âœevolving
constitutionalistsâ will have a harder time refuting Yooâ™s arguments because
their interpretive theories rely on policy judgments that are less subject to
LAW REVIEWS AND LEGAL SCHOLARSHIP
At least one critic has suggested that War Powers should never have been
published, and that a peer-reviewed journal would have insisted on a more
searching and rigorous editorial review. 147 Though it may be true that a peer-
reviewed history journal would have insisted on substantial revisions or would
not have accepted the article as written, I do not believe that CLR can be
seriously faulted for publishing the article.
The publication process for legal scholarship is not well equipped to
ensure that articles have been rigorously reviewed by experts in the field, as is
the norm in other disciplines. Our profession relies primarily on student-run
and student-edited general interest journals rather than on peer-reviewed
journals. The drawbacks of this system are well known. 148 Selection, the
vetting of methodology and findings, and text editing are performed entirely by
Founders understood Congress to possess the power to decide whether the United States should initiate
or commence war against another state with which the United States was at peace . . . .â).
145. See generally Jack N. Rakove, Remarks on The American Presidency at War: The
Imperial Presidency and the Founding at the University of California, Berkeley, School of Law (Sept.
19, 2008) (âœ[W]hat is the historical story one could tell, that would say, the Framers of our
Constitution, once they started thinking about this, would have wound up with a more monarchical
position than that that would have been practiced in Britain in the early 1780â™s? It just, to me, is
completely implausible as a matter of what they were thinking, how they were speaking, what they
were debating.â). Video of Professor Rakoveâ™s remarks is available at http://www.youtube.com/
watch?v=4WmtK4dkZik&feature=related and http://www.youtube.com/watch?v=xuxNcl4u8ng. The
panel also included John Yoo, Louis Fisher, and Gordon Silverstein.
146. Ramsey, Book Review, supra note 58, at 1451â"52.
147. Fisher, John Yoo and the Republic, supra note 11, at 180â"81 (âœApparently no capacity
existed at the law review to ask pertinent questions and require answers. . . . The students who edited
Yooâ™s article should have independently examined his claim. . . . Students at the California Law
Review should have insisted on coherence, consistency, and clarity in Yooâ™s article. No such obvious
contradiction would be permitted in a scholarly journal.â); see also ROBERT J. SPITZER, SAVING THE
CONSTITUTION FROM LAWYERS: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT
CONSTITUTIONAL MEANING (2008).
148. See, e.g., Richard A. Posner, Against the Law Reviews, LEGAL AFF., Nov./Dec. 2004, at
57, available at http://legalaffairs.org/issues/November-December-2004/review_posner_
2012] THE LAW REVIEW AND THE WORLD 353
students who have only a modest amount of training in law, generally no
training or experience in editing, and familiarity only by happenstance with
specialized subjects or interdisciplinary fields. Peer review is formally
nonexistent. In some cases editors may send a submission to one or two faculty
members for their views of its interest and contribution to the field, but these
faculty comments seldom approach the carefulness or comprehensiveness of
peer review as it is practiced in other academic disciplines. Furthermore,
faculty input is almost always limited to the selection decision. The primary
focus of the editing process is on checking and multiplying citations and
Cite checking is done by a team of students, usually the least experienced
members (or aspiring members) of the journal, each of whom is assigned a
different section of the piece. If a cited source is correctly quoted, it would be
unusual for an editor to check other works to see whether the passage is
representative of the writerâ™s thought, or to verify whether the sources cited by
the author represent the range of views within the profession. If the article
involves a technical topic such as statistical analysis, gene replication
technology, or an empirical study of the effects of the Sarbanes-Oxley rules, it
is unlikely that the authorâ™s methodology will receive a careful review by an
expert at this or any other stage.
Our discipline may be at the mercy of this particular problem because we
are wedded to the student-run and student-edited law review. Law professors
recognize the pedagogical value of law reviews in giving students the
opportunity to work closely with established scholars on their most current
work. Such experience is also highly valued by judges and private employers.
One cannot fault student editors for not having faculty-level expertise sufficient
to lead them to question the whole enterprise, particularly when the author is a
faculty member at their own school. The student editors of War Powers would
not normally be expected to have the expertise necessary to critique the
historical methodology of an article so copiously sourced to Founding-era
materials and secondary sources from both the eighteenth and twentieth
centuries. Indeed, it is far from clear that the article should be regarded as
unpublishable, as opposed to simply âœa minority viewâ or âœwrong.â 149
Moreover, because legal academia values âœbrilliance,â novelty, and sweeping if
149. Yooâ™s methodology has been praised by some, including some who disagree with his
conclusions. See, e.g., Michael D. Ramsey, Text and History in the War Powers Debate: A Reply to
Professor Yoo, 69 U. CHI. L. REV. 1685, 1696 (2002) (stating author âœhas little quarrel with the
historical accountâ in War Powers, though, as a âœtextual originalistâ like Yoo, he finds Yooâ™s
understanding of the meaning of âœdeclare warâ to be too narrow); Martin S. Flaherty, History Right?
Historical Scholarship, Original Understanding, and Treaties as âœSupreme Law of the Land,â 99
COLUM. L. REV. 2095, 2098â"100 (1999) (Yooâ™s work on treaties shows âœsuperior rigorâ to most
âœoriginalist accounts of historyâ though author disagreed with his conclusions); Jack Rakove, John Yoo
on Why the President is King, WASH. POST, Jan. 10, 2010, at B1 (Crisis and Command is a âœdeeply
serious history, of the presidency, sometimes selective in its emphasisâ).
354 CALIFORNIA LAW REVIEW [Vol. 100:331
unfalsifiable theories, there is, I believe, more of a tendency toward
overclaiming than is the norm in many other disciplines. Thus there was
nothing really out of the ordinary in CLRâ™s decision to publish War Powers.
Nevertheless, the article illustrates some of the pitfalls of relying on student-
edited law reviews for publishing specialized or methodologically complex
scholarship, and it may be appropriate to improve the processes by which law
reviews evaluate the methodology and conclusions of the articles they publish.
An example of these issues is an article published by the Stanford Law
Review purporting to demonstrate empirically that affirmative action is bad for
black law students and produces fewer black lawyers than would a race-blind
system. 150 The article attracted a great deal of press and the author appeared on
television to discuss his theory. 151 After the article was published, it was
harshly debunked by statisticians, economists, historians, sociologists, and
other scholars. The Stanford Law Review devoted an entire issue to these
critiques and the authorâ™s response. 152 Even this thoroughgoing effort to
publish contrary views, however, could not adequately correct public
perceptions on an important social issue. The critiques of the article suggest
that if it had undergone peer review, it probably would not have been
published, at least in its original form and using its original methodology.
One might argue that to avoid such problems, student-edited journals
should refrain from publishing articles whose methodology should be peer-
reviewed, but this would deprive authors working in some of the most
important fields of current legal scholarship from publishing in the most
prestigious journals. It does seem appropriate, however, to suggest that law
reviews should make a serious attempt to incorporate components of peer
review into the publication process.
For example, it would not jeopardize the independence of law reviews to
make soliciting comments from faculty members knowledgeable in the subject
a regular part of the selection process. There are certain types of articles in
which the lack of peer review is especially likely to lead to problems. These
include empirical studies involving statistical analysis, work containing formal
mathematical modeling, work that turns on scientific or technical matters,
andâ"perhaps surprisingly to someâ"historical scholarship, particularly when
the author draws from history a prescription for contemporary policy. As David
Shapiro has observed, âœ[W]hen legal academics, and especially those who are
not professional historians, turn to history as an aspect of their inquiry into a
problem of current importance, they tend to find in their investigations that
150. Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools,
57 STAN. L. REV. 367, 372 (2004).
151. See Michele Landis Dauber, The Big Muddy, 57 STAN. L. REV. 1899, 1909â"11 (2005)
(describing media reactions).
152. 57 STAN. L. REV. 1807 (2005).
2012] THE LAW REVIEW AND THE WORLD 355
history supports their personal values and preferences, or to put it more
tactfully, their hypotheses.â 153
At least when a work announces itself as a novel departure and argues that
its reading of history dictates specific policy choices for today, a law review
should be careful to assure that the methodology is valid, the cited evidence is
representative, and the conclusions are well-supported. These efforts should
include, where appropriate, seeking input from faculty outside the law school.
A consortium of law reviews has inaugurated an intriguing approach,
following a pilot program at the South Carolina Law Review. Authors may
submit their manuscripts to the Peer Reviewed Scholarship Marketplace
(PRSM) on an exclusive basis. PRSM sends the article to several reviewers and
six weeks later makes the articles, with comments from the anonymous
reviewers, available to its member journals, in much the same fashion as the
manuscript submission service ExpressO. 154 The process is intended to offer
journals a way of getting expert reviews of articles on a wide variety of topics
without having to seek out individual reviewers, and to help authors make their
work more attractive to journals by providing them with assurances of its merit.
The success of the venture will depend on the quality of the peer review it can
provide 155 and on how many law reviews agree that peer review will improve
their selection process.
On the other side of the printing press, perhaps academics should feel a
greater responsibility to respond in print to articles with which they disagree. A
dialogue between distinguished academics has the capacity to produce more
nuanced understanding, and some such exchanges have resulted in classics of
legal scholarship. 156
153. David L. Shapiro, Ex parte Young and the Uses of History, 67 N.Y.U. ANN. SURV. AM. L.
69, 87 (2011). Professor Shapiro observes that we see the past
through the prism of our own preferences, especially when we are using the past to support
an argument about how to deal with the present. Moreover, I am convinced that this frailty
is given strength by the almost inevitable ambiguity of the raw materials themselves, by the
almost infinite expansiveness of those materials, and by the difficulty of fully
understandingâ"not just intellectually but emotionallyâ"the context in which the materials
had their origin.
Id. at 88.
154. See Home, PEER REVIEWED SCHOLARSHIP MARKETPLACE (PRSM), http://legalpeer
review.org/index.php (last visited Jan. 8, 2012). Of course a peer-reviewing service would be more
difficult to create than a submission service such as ExpressO, which does not evaluate the
submissions. The ExpressO service is described at ExpressO: Express Online Deliveries, BEPRESS,
http://law.bepress.com/expresso (last visited Jan. 10, 2012).
155. PRSM invites âœall members of the legal professionâ"judges, professors, and practitionersâ
to apply to become reviewers. Reviewers, PEER REVIEWED SCHOLARSHIP MARKETPLACE (PRSM),
http://legalpeerreview.org/reviewers.php (last visited Jan. 10, 2012).
156. One example is the series of articles published in the Harvard Law Review on John Hart
Elyâ™s classic work on Erie. See John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693
(1974); Abraham Chayes, Some Further Last Words on Erieâ"The Bead Game, 87 HARV. L. REV. 741
(1974); Ely, Some Further Last Words on Erieâ"The Necklace, 87 HARV. L. REV. 753 (1974); Paul J.
Mishkin, Some Further Last Words on Erieâ"The Thread, 87 HARV. L. REV. 1682 (1974). A recent
356 CALIFORNIA LAW REVIEW [Vol. 100:331
THE LONG ARM OF THE LAW REVIEW: THEORY BECOMES NATIONAL POLICY
Even assuming that the criticisms of Yooâ™s historical analysis are correct,
law reviews publish plenty of misguided or incorrect theories. Our operating
theory is that the cream will rise to the top, good speech will crowd out bad. In
the world of legal scholarship, peer review happens after publication rather than
before. In the case of War Powers, however, the theory did not stay in the
academic pond. Rather like the walking catfish of Florida, 157 it migrated to
government, whereâ"unopposed by more mainstream theoriesâ"it provided the
legal justification for a whole suite of policies that were extreme, illegal, and
harmful to the nation at home and abroad. Had it not been for these legal
opinions, it is likely that the Bush Administrationâ™s programs of torture and
mistreatment of detainees, secret domestic wiretapping, the use of CIA and
private contractor personnel rather than experienced FBI and military
interrogators to conduct âœgloves-offâ interrogations, and the insistence on
devising ad hoc procedures such as military commissions and jurisdiction-
stripping in an attempt to avoid statutory and constitutional constraints in the
âœGlobal War on Terrorismâ would at least have been substantially less
How did an interpretation of executive power that was avowedly novel,
âœ[c]ontrary to the views of todayâ™s scholars,â strongly criticized even before
President Bush took office, 158 and repudiated in harsh terms by other officials
in the Bush administration both contemporaneously and afterward, come to be
the lever that moved world affairs?
The answer lies in a management failure that was, unfortunately, typical
of the Bush administration in times of crisisâ"shaping policy to match political
ends, placing politically reliable but inexperienced individuals in charge of
complex policy decisions, isolating policy making from dissenting views, and
reacting to crisis by concluding that extreme measures were required. For
example, inexperienced political appointees were brought in to head FEMA
with devastating results during Hurricane Katrina; 159 the government insisted
example is David Shapiroâ™s response to John Harrisonâ™s revisionist reading of Ex parte Young, supra
157. See Clarias batrachus, SMITHSONIAN MARINE STATION AT FT. PIERCE,
http://www.sms.si.edu/irlspec/clarias_batrachus htm (last visited Jan. 8, 2012).
158. See Fisher, Unchecked Presidential Wars, supra note 105, at 1658â"68; Stromseth, supra
note 72; Telman, supra note 87.
159. See, e.g., Kevin Drum, FEMAâ™s Failures, WASH. MONTHLY (Sept. 12, 2005, 1:57 AM),
http://www.washingtonmonthly.com/archives/individual/2005_09/007104.php (noting that neither Joe
Allbaugh, appointed to head FEMA in January 2001, nor Michael Brown, who succeeded him in
December 2002, had any previous experience in disaster management; disaster specialists on FEMAâ™s
top staff were replaced by inexperienced political appointees); SELECT BIPARTISAN COMM. TO
INVESTIGATE THE PREPARATION FOR AND RESPONSE TO HURRICANE KATRINA, U.S. HOUSE OF
REPRESENTATIVES, 109TH CONG., A FAILURE OF INITIATIVE: FINAL REPORT (2006), available at
2012] THE LAW REVIEW AND THE WORLD 357
that Iraq had weapons of mass destruction despite red flags and evidence to the
contrary, paving the way to a war that has lasted eight years and cost
trillions; 160 Army Chief of Staff General Eric Shinseki was âœvilified, then
marginalizedâ for advising that hundreds of thousands of troops would be
needed in Iraq; 161 and the catastrophic decision to disband the Iraqi army
bypassed the Joint Chiefs of Staff. 162
Yoo, like the rest of the Bush administration, had only been on the job for
a few months. Suddenly the September 11 terrorist attacks made war powers,
which had previously seemed a somewhat arcane and theoretical topic, an
urgent legal issue. Shock at the enormity of the attacks produced an atmosphere
of crisis, fear, and emergency. Retaliation against Afghanistan was immediate,
and planning for war in Iraq began the day after the attacks, 163 continuing with
a secret presidential directive to the Pentagon less than a week later to prepare
military options for an invasion. 164 In fact, just a week after Bushâ™s
inauguration, the National Security Council discussed plans for the occupation
of Iraq, 165 and within six weeks of the inauguration the Pentagon produced a
memo discussing how to divide up Iraqâ™s oil. 166
160. See, e.g., Martin Chulov & Helen Pidd, Curveball: How US Was Duped by Iraqi
Fantasist Looking to Topple Saddam, THE GUARDIAN, Feb. 15, 2011, http://www.guardian.co.uk/
161. Thom Shanker, New Strategy Vindicates Ex-Army Chief Shinseki, N.Y. TIMES, Jan. 12,
2007, at A13.
162. Gen. Peter Pace, Vice Chairman, Joint Chiefs of Staff, Remarks at the Council on Foreign
Relations, Washington, D.C. (Feb. 17, 2004) (transcript available at http://www.cfr.org/iraq/
conversation-peter-pace/p6785) (âœWe were not asked for a recommendation or for advice.â).
163. See, e.g., NATâ™L COMMâ™N ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11
COMMISSION REPORT 334 (2004) (discussing Richard Clarkeâ™s recollection of a discussion with
President Bush on September 12, 2001), available at http://www.gpo.gov/fdsys/pkg/GPO-
911REPORT/pdf/GPO-911REPORT pdf; The Iraq War, Part I: The U.S. Prepares for Conflict, 2001,
NATâ™L SEC. ARCHIVE (2010), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB326/index htm (âœOn
September 11 al-Qaeda struck and George Bush immediately assumed that Saddam Hussein was
involved. The same held true for Donald Rumsfeld; famously, within hours of the attacks he directed
the Joint Chiefs of Staff to look for evidence to justify attacking Saddam Hussein. . . . National security
staff met at the White House on September 12 and . . . Rumsfeld and Wolfowitz again argued for
attacking Iraq. . . . Bush endorsed the strategy of overthrowing Iraqâ™s government.â) (citations
164. See Glenn Kessler, U.S. Decision on Iraq Has Puzzling Past; Opponents of War Wonder
When, How Policy Was Set, WASH. POST, Jan. 12, 2003, at A1.
165. Rebecca Leung, Bush Sought âœWayâ to Invade Iraq? CBS NEWS (Jan. 9, 2004),
http://www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml (reporting on a âœ60
Minutesâ interview of Paul Oâ™Neill by Lesley Stahl; interview segment available at http://www.
cbsnews.com/video/watch/?id=592691n&tag=contentBody;storyMediaBox); RON SUSKIND, THE
PRICE OF LOYALTY: GEORGE W. BUSH, THE WHITE HOUSE, AND THE EDUCATION OF PAUL Oâ™NEILL
(2004). In Suskind's book, former Treasury Secretary Paul Oâ™Neill reveals that overthrowing Saddam
Hussein was discussed at the first meeting of the National Security Council, of which he was a
member, and that two days later the NSC discussed a memo dated January 31, 2001 and titled âœPlan
for Post-Saddam Iraq.â Id.
166. Leung, supra note 165 (Suskind âœobtained one Pentagon document, dated March 5, 2001,
and entitled â˜Foreign Suitors for Iraqi Oilfield Contracts,â™ which includes a map of potential areas for
358 CALIFORNIA LAW REVIEW [Vol. 100:331
In this crisis atmosphere, OLC was called on to give legal opinions very
quickly. Jay Bybee, the head of OLC, later testified that he was unfamiliar with
the legal issues related to war and, regarding Yoo as an expert, essentially
turned war powers matters over to him. Despite Yooâ™s lack of experience
outside academia 167 and the fact that his views on war powers were concededly
out of the mainstream, there was no effort to provide oversight by more
Yooâ™s professional experience was largely in academic or political
contexts where he was free to espouse controversial views, and he had great
confidence in those views. Stephen Bradbury, who became head of OLC in
2005, told investigators for the Office of Professional Responsibility (OPR)
during its investigation into the âœtorture memosâ that âœpart of the problem with
Yooâ™s work on the Commander-in-Chief section was his entrenched scholarly
view of the subject.â 168 In his view, Yoo
had a deeply ingrained view of the operative principles. And to the
extent there were sources that reflect that view, he may bring them in
and cite them. . . . And if a court here or a court there or a
commentator here or a commentator there takes a different view, thatâ™s
almost of secondary importance because he had such a firmly held
view of what the principles were. 169
Such views could be given freer rein because the questions had seldom arisen
in a practical context and the raw material of scholarship was correspondingly
sparse. Yet, in the words of Alberto Mora, general counsel of the Navy during
Yooâ™s tenure, Yooâ™s analysis âœspots some of the legal trees, but misses the
constitutional forest.â 170
Yooâ™s inclination to march to his own drummer was intensified by the
lack of supervision from more experienced lawyers in the office as well as the
security restrictions that severely limited the number of people outside the OLC
who had knowledge of his memos. The OLC opinions, as well as documents
and information relevant to them, were classified and the Bush administration
was parsimonious in granting clearances. 171 The Joint Chiefs and State
Department were not involved in formulating the opinions, and when they did
167. Outside of clerkships and academia, Yooâ™s only practice experience was as general
counsel to the Senate Judiciary Committee in 1995â"96. Yooâ™s biographical information is available in
his faculty profile, John Choon Yoo, BERKELEY LAW FACULTY PROFILES, http://www.law.
berkeley.edu/php-programs/faculty/facultyProfile php?facID=235 (last visited Jan. 10, 2012).
168. OPR FINAL REPORT, supra note 15, at 122.
169. Id.; see also id. at 228â"29 (discussing instances in which the OLC memoranda failed to
take account of applicable treaties, laws, and prior positions taken by the U.S. government); id. at 251â"
53 (misrepresentation of authorities, failure to disclose that position taken was a minority view).
170. Memorandum from Alberto J. Mora, Gen. Counsel of the Navy, to Inspector Gen., Depâ™t
of the Navy, Statement for the Record: Office of General Counsel Involvement in Interrogation Issues
17 (July 17, 2004), available at http://www newyorker.com/images/pdf/2006/02/27/moramemo.pdf.
171. OPR FINAL REPORT, supra note 15, at 260.
2012] THE LAW REVIEW AND THE WORLD 359
learn of OLCâ™s advice, their objections were disregarded or suppressed. 172 Nor
were any experienced FBI or military interrogators involved in formulating
interrogation policy. Instead, the policy reflected folk wisdom about the
efficacy of harsh treatment and torture. The OPR Report noted that drafts of the
opinions were not circulated to national security experts in the Criminal
Division of the Justice Department, or to the State Department. 173
The audience for Yooâ™s memos was a small group of like-minded officials
who concentrated decision making among themselves. Thus policy making and
legal analysis became insulated not only from divergent opinions, but from
input from experts who did not happen to be part of the group. Alberto Mora,
general counsel of the Navy, William H. Taft IV, general counsel of the State
Department, and Secretary of State Colin Powell attempted to reverse the
administrationâ™s decision that the Geneva Conventions did not apply but their
objections were sidelined. 174
OLCâ™s clients knew what actions they wanted to take, and the OPR
investigation found that the OLC lawyers tended to respond to pressure to give
the client what it wanted. 175 The clients emphasized that if a favorable opinion
was not forthcoming, either the government would not be able to take the
actions necessary to protect the country, or people who carried out the
Presidentâ™s directives might be subject to prosecution. 176 Yooâ™s memos
172. See infra note 174 and accompanying text (regarding the concerns of Alberto Mora,
William H. Taft IV, and Colin Powell).
173. OPR FINAL REPORT, supra note 15, at 259â"60. The report concluded that drafts should
have been circulated to all attorneys and policy makers with expertise and a stake in the issues
174. See infra notes 182â"184 and accompanying text.
175. OPR FINAL REPORT, supra note 15, at 227 (âœWe also found evidence that the OLC
attorneys were aware of the result desired by the client and drafted memoranda to support that result, at
the expense of their duty of thoroughness, objectivity, and candor.â); id. (âœ[T]he client [CIA] clearly
regarded OLC as willing to find a way to achieve the desired result . . . .â). The opinion memoranda
were addressed to Gonzales, Haynes (general counsel of the Department of Defense), and Rizzo
(acting general counsel of the CIA). In their response to the draft OPR Report, Yoo and Bybee also
referred to Vice President Cheneyâ™s general counsel David Addington as their client, id. at 198 n.152,
and Addington referred to himself as OLCâ™s client. Id. at 198. The report discusses pressure applied on
the OLC by Cheney and Addington. See id. at 51, 52, 58; see also id. at 142â"45 (describing the
âœsignificant pressure on OLC and [DOJ] from the White Houseâ). For example, in 2004, Addington
threatened to prevent any promotion in government for Patrick Philbin, the attorney responsible for
withdrawing the Bybee Memo. In 2005, he made good on the threat by âœstrenuously objectingâ to
Philbinâ™s proposed promotion to Principal Deputy Solicitor General, leading to a personal call from
Cheney to Gonzales and Gonzalesâ™s subsequent retreat from the proposal âœto maintain good relations
with the White House.â Id. at 143 n.115; see also id. at 143â"44 (noting one insider believed OLC
knew âœ[Cheney] and Addington would be â˜furiousâ™â if it issued an opinion that âœshut down or
hobbledâ the interrogation program).
176. Michael Isikoff reported that in a meeting in early 2002 Yoo raised the possibility that
âœthe political climate could changeâ and prosecutions could be brought under the War Crimes Act
unless the President issued a determination that the Conventions did not apply. Michael Isikoff, Memos
Reveal War Crimes Warnings, DAILY BEAST (May 16, 2004, 8:00 PM), http://www.thedailybeast.
360 CALIFORNIA LAW REVIEW [Vol. 100:331
provided legal support for whatever the President and his advisers proposed to
do, and a client who is pleased with a lawyerâ™s advice may be inclined to seek
it againâ"especially if the advice may confer immunity from prosecution even
if it turns out to be wrong. Indeed, Yoo (but not Bybee, his nominal boss)
ultimately became a member of the administrationâ™s âœwar council.â 177
All of these circumstances contributed to âœmotivated reasoningââ"the
psychological phenomenon in which emotions and strongly held previous
beliefs can affect reasoning. 178 That is, âœ[p]eople are more likely to arrive at
those conclusions that they want to arrive at.â 179 And motivated reasoning is a
bad way to make policy involving war and military forceâ"even, and
especially, when the stakes seem existential. 180
In sum, circumstances combined to produce a perfect storm of
management failure. In this case, a law review article was consequential, as I
use the term, because it generated attention that led to a job in a location and at
a time uniquely positioned to allow the author to put his theory into reality in
crucial areas of national policy. Stephen Bradbury concluded from Yooâ™s
example that it might be wiser not to place academics into policy-making
In my view, thereâ™s something to be said for not being a scholar or a
professor in this job [in OLC]. . . . And taking a more practical
approach, and one where you donâ™t think you know the answers
already, because you havenâ™t got a body of scholarly work, you know,
177. See JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR
TURNED INTO A WAR ON AMERICAN IDEALS 66 (2008) (reporting that the War Council consisted of
David Addington, Alberto Gonzales, William J. Haynes, Timothy Flanigan, and John Yoo); see also
Chitra Ragavan, Cheneyâ™s Guy, U.S. NEWS & WORLD REP., May 21, 2006, at 6 (recounting one
former officialâ™s description of them as a âœvery narrow, tight groupâ).
178. Motivated reasoning is the tendency to seek out and remember information that confirms
prior beliefs or expectations and disregard or discredit information that contradicts those beliefs. It is
related to âœconfirmation bias,â the tendency to attend more to confirming information than to
disconfirming information, and to âœcognitive dissonance,â the tendency to try to relieve the tension
between inconsistent beliefs. See, e.g., Zina Kunda, The Case for Motivated Reasoning, 108 PSYCHOL.
BULL. 480 (1990), available at http://www.psych.utoronto.ca/users/peterson/psy430s2001/Kunda Z
Motivated Reasoning Psych Bull 1990.pdf; Monica Prasad et al., âœThere Must Be a Reasonâ: Osama,
Saddam, and Inferred Justification, 79 SOC. INQUIRY 142 (2009), available at http://sociology.
buffalo.edu/documents/hoffmansocinquiryarticle_000.pdf; Charles G. Lord et al., Biased Assimilation
and Attitude Polarization: The Effects of Prior Theories on Subsequently Discovered Evidence, 37 J.
PERSONALITY & SOC. PSYCH. 2098 (1979); see also LEON FESTINGER ET AL., WHEN PROPHECY
FAILS (1956) (cognitive dissonance).
179. Kunda, supra note 178. A fascinating study of how such motivated decision making led to
the Challenger disaster is found in JAMES SUROWIECKI, THE WISDOM OF CROWDS: WHY THE MANY
ARE SMARTER THAN THE FEW AND HOW COLLECTIVE WISDOM SHAPES BUSINESS, ECONOMIES,
SOCIETIES, AND NATIONS (2004).
180. See OPR FINAL REPORT, supra note 15, at 254 (âœ[S]ituations of great stress, danger and
fear do not relieve Department attorneys of their duty to provide thorough, objective, and candid legal
advice, even if that advice is not what the client wants to hear.â).
2012] THE LAW REVIEW AND THE WORLD 361
youâ™ve already developed on these questions. And I just think that for
practical reasons thatâ™s healthy. 181
Though Bradburyâ™s criticism of dogmatism is surely correct, the broad
conclusion that academics should not serve in policy-making positions seems
unjustified. Academics have served honorably in government for generations.
They can bring a wide range of professional knowledge and intellectual rigor to
government, helping to offset political pressure and conventional wisdom as
the basis for policy making while gaining practical experience and institutional
knowledge to inform and guide their future scholarship.
At any given time most government lawyers are not former academics,
and government lawyersâ"contemporaneously in the Defense and State
Departments as well as later at the OLCâ"had no difficulty in rejecting Yooâ™s
broad claims of executive power out of hand. In fact, they were among the
strongest critics of the legal opinions that were based on the War Powers
Alberto Mora, who was general counsel to the Navy during Yooâ™s OLC
tenure, waged a dogged, courageous, but ultimately futile battle to prevent the
Department of Defense from adopting Yooâ™s theories. 182 Mora described the
memo on interrogation techniques as âœprofoundly in error,â declaring that the
statement that it was permissible to use cruel, inhuman, and degrading
treatment not amounting to torture was âœa clearly erroneous conclusion that
was at variance with applicable law, both domestic and international, and
trends in constitutional jurisprudence,â and that âœthe memo espoused an
extreme and virtually unlimited theory of the extent of the Presidentâ™s
commander-in-chief authority.â 183 Secretary of State Colin Powell and State
Department general counsel William H. Taft IV (a former Acting Secretary of
Defense under President George H. W. Bush) also argued strenuously against
Yooâ™s analysis of the Geneva Conventions. 184
Jack Goldsmith, Bybeeâ™s immediate successor at the OLC, withdrew the
Yoo Memo and the Torture Memo. His draft of a replacement for the Yoo
Memo, which was unfinished at the time of his departure in July 2004, stated
that the Yoo Memo âœis flawed in so many respects that it must be withdrawn,â
181. OPR FINAL REPORT, supra note 15, at 122 (alterations in original).
182. For a description of Moraâ™s efforts and those of other career military personnel, see
Memorandum from Alberto J. Mora, supra note 170.
183. Id. at 17; see also Jane Mayer, Annals of the Pentagon: The Memo, NEW YORKER, Feb.
27, 2006, available at http://www newyorker.com/archive/2006/02/27/060227fa_fact (reporting on
184. See Memorandum from Colin L. Powell, Secâ™y of State, to Counsel to the President and
Assâ™t to the President for Natâ™l Sec. Affairs, Draft Decision Memorandum for the President on the
Applicability of the Geneva Convention to the Conflict in Afghanistan (Jan. 26, 2002), available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.26.pdf; Memorandum from William H.
Taft IV, Legal Adviser, Depâ™t of State to Counsel to the President, Comments on Your Paper on the
Geneva Convention (Feb. 2, 2002), available at http://www.slate.com/features/whatistorture/
362 CALIFORNIA LAW REVIEW [Vol. 100:331
âœcontains numerous overbroad and unnecessary assertions of the Commander-
in-Chief power,â is âœtoo simplistic,â and âœmakes overly broad and unnecessary
claims about possible defenses to various federal crimes, including torture.â 185
Yooâ™s definition of âœsevere painâ was âœmisleading and unhelpful,â and the
assertion that Congress lacks authority to regulate wartime interrogation is
âœplainly wrong.â 186 The Commander-in-Chief analysis âœis misleading and
under-analyzed to the point of being wrong.â 187
Dan Levin replaced Goldsmith as acting assistant attorney general. âœLevin
stated that when he first read the Bybee Memo, he remembered â˜having the
same reaction I think everybody who reads it hasâ"this is insane, who wrote
this?â™â 188 Levin issued a replacement for the Bybee Memo that withdrew and
criticized the discussion of âœsevere pain,â deleted the Commander-in-Chief
section as well as the discussion of possible defenses, and modified the
discussion of specific intent, which he characterized as âœjust ridiculous.â 189
In short order Levin was replaced as head of OLC by Stephen Bradbury.
According to the Office of Professional Responsibility Report, Bradbury told
investigators that Yooâ™s view of the Commander-in-Chief power âœwas not a
mainstream view,â that the memo did not adequately consider counter-
arguments, and that âœsomebody should have exercised some adult leadership in
that respect.â 190
Shortly after taking office President Obama revoked all of the Bush OLC
memos regarding detention and interrogation, declaring, âœFrom this day
forward, . . . officers, employees and other agents of the United States
Government . . . may not, in conducting interrogations, rely on any
interpretation of the law governing interrogation . . . issued by the Department
of Justice between September 11, 2001 and January 20, 2009.â 191
The OPR ultimately issued its Final Report finding that the Bybee and
Yoo memos âœcontained seriously flawed arguments and . . . did not constitute
thorough, objective, or candid legal advice,â and that their legal analysis was
âœinconsistent with the professional standards applicable to Department of
Justice attorneys.â 192 At the final level of review, however, the OPRâ™s finding
185. Depâ™t of Justice, Office of Profâ™l Responsibility, Report: Investigation into the Office of
Legal Counselâ™s Memoranda on Issues Relating to the Central Intelligence Agencyâ™s Use of
âœEnhanced Interrogation Techniquesâ on Suspected Terrorists 85â"88 (Dec. 22, 2008) (draft report),
available at http://judiciary house.gov/hearings/pdf/OPRFirstReport081222.pdf (quoting Goldsmithâ™s
June 15, 2004, draft memorandum at 1 n.1).
186. Id. (quoting Goldsmithâ™s June 24, 2004, draft memorandum at 28 n.26, 36â"37 n.38).
187. Id. at 86 n.74 (quoting a June 30, 2004, Goldsmith email).
188. Id. at 92 (internal quotation marks omitted).
189. Id. at 97. The replacement memo was posted on the OLC website on December 30, 2004.
See id. at 98.
190. Id. at 90. On May 10, 2005, Bradbury issued a memo to replace the Bybee Memo. Id. at
191. Exec. Order No. 13491, 74 Fed. Reg. 4893 (Jan. 22, 2009).
192. OPR FINAL REPORT, supra note 15, at 226.
2012] THE LAW REVIEW AND THE WORLD 363
of professional misconduct and proposed referral to state bar disciplinary
authorities were reduced to a finding of âœpoor judgment.â 193
It is apparent that the problem was not that a single government lawyer
followed an eccentric legal theory, or that other government lawyers could not
understand that the theory was wrong. Rather, this was a case of a severe
management failure in which policy was made by a small group that held
extreme views, and in which a culture of secrecy and document classification
made it nearly impossible for anyone outside the group to have any effect on
War Powers is seriously flawed as a piece of historical scholarship.
Nevertheless, it is not unusual for law professors to write flawed scholarship or
for law reviews to publish it. And it is not realistic to expect student-run law
reviews to be adequate gatekeepers to prevent all flawed scholarship from
publication, particularly when specialized knowledge is required to discern the
But when scholarship jumps the academic pond and becomes the basis for
national policy, when it leads to monumental effects in the world, then it is
cause for concern. In this case, a relatively junior government lawyer was able
to see his theories implemented as national policy because good policy-making
practice was abandoned in a time of crisis. A small group of like-minded
people held decisions close through aggressive use of classification and failed
to involve others with relevant expertise who would normally be part of the
policy-making process. Yoo was willing to provide legal opinions justifying the
policies the group wished to pursue, and his compliance led to his being asked
to provide opinions on a wide variety of matters. It is telling that a number of
government lawyers in the State and Defense Departments, as well as career
military personnel, who became aware of these legal memoranda strongly
opposed them, and his successors at OLC repudiated and withdrew them.
The most important of these policy consequences was the justification of
torture and other extreme treatment of suspected terrorists based on the theories
advanced in War Powers. Waterboarding, for example, has been prosecuted by
the United States as a war crime when engaged in by our adversaries or even by
domestic law enforcement. 194 Other âœenhancedâ techniques, such as prolonged
193. Memorandum from David Margolis, Assoc. Deputy Attâ™y Gen., for the Attâ™y Gen.,
Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the
Office of Professional Responsibilityâ™s Investigation into the Office of Legal Counselâ™s Memoranda
Concerning Issues Relating to the Central Intelligence Agencyâ™s Use of âœEnhanced Interrogation
Techniquesâ on Suspected Terrorists 1â"2, 68â"69 (Jan. 5, 2010), available at http://judiciary.
194. For a summary of the governmentâ™s history of condemning water torture and punishing
those who engage in it, whether U.S. personnel, enemy soldiers, or domestic law enforcement, see
OPR FINAL REPORT, supra note 15, at 234â"35.
02-Alexander (Do Not Delete) 3/22/2012 5:07:58 PM
364 CALIFORNIA LAW REVIEW [Vol. 100:331
use of sleep deprivation and stress positions, are also widely recognized as
torture or cruel, inhuman, and degrading treatment. 195 It appears that the U.S.
government is not going to fulfill its obligations under international and
domestic law to investigate and punish violations of the prohibition against
torture, even though the government has simultaneously asserted in foreign
courts that they should not exercise universal jurisdiction to hear claims of war
crime violations by the United States because our criminal justice system is
pursuing enforcement. But we should never forget that torture is always illegal,
and can never be justified by exigency or immunized by executive power.
195. See id. at 143â"44, 156, 236â"37.