By James McIntyre (PO ’19), Staff Writer
John Yoo, a law professor at the University of California Berkeley and former Justice Department attorney, specializes in constitutional law. On April 13th 2017, Yoo discussed war powers during his talk at Claremont McKenna College. He is the author of countless articles and books, including his upcoming book Embracing the Machines: Robots, Cyber, and New Rules for War.
CJLPP: The first question I have for you is regarding the Unitary Executive Theory. You’ve expressed support for it in a number of works. In your paper “War and Constitutional Text,” you argue that Congress does not have the “sole authority to initiate hostilities.” In another paper, you argue that the Supreme Court is not equipped to involve itself in military matters. So, I wanted to ask you, if the President has the power to initiate hostilities him or herself, and wide control over military matters, what is to stop the President from acting tyrannically under the guise of emergency power? A lot of people on these college campuses are concerned about this regarding Donald Trump. Is there anything to stop him from imposing martial law on Washington D.C. after a terrorist attack or something of that sort?
Yoo: Well, there’s the Constitution and then there’s practical politics and history. So, when you look at the practical politics and history, there’s never been a President who has imposed tyrannical rule in the United States with far worse circumstances than we have now. Even Abraham Lincoln, during the Civil War, didn’t impose a tyranny domestically even though that was probably the most dire threat the country has ever faced. And then second, if you want to look at the level of the constitutional text, you would need the cooperation of the President and the Congress together because it’s the Congress that controls the size and shape of the military. And so, if the President were to try to do something like that, he would still need the cooperation of the legislature, and they have a natural reason to oppose any kind of tyranny on the part of the President. I think these kind of claims of tyranny are overbroad, just the way they were under President Obama. People who claimed that “President Obama is imposing a tyranny too,” I thought that was all exaggerated. I think it is with Trump too. I don’t think that necessarily means that Trump is using executive power in every case correctly, but I don’t think Trump is imposing a dictatorship either. I think it’s a little much.
CJLPP: Justice Jackson, in a concurrence in Youngstown Sheet & Tube Co. v. Sawyer, argued that the Court should more intensely scrutinize the executive branch when Congress opposes its actions. This is something that the Bush administration pushed back against. Do you give any credence to Jackson’s concurrence, or do you think that was mistaken constitutionally?
Yoo: I think Jackson’s concurrence makes a lot more sense when we’re talking about domestic affairs. And the case itself you’re referring to, Youngstown, was a case where the executive branch was trying to seize and run steel mills during wartime. Justice Jackson’s concurrence was, in a way, almost more a description of politics than constitutional law. I think it’s a matter of political reality that if the President acts against the express will of Congress that we’re going to have a constitutional confrontation. But, I think Justice Jackson’s opinion does not apply to the use of the power of the United States abroad, outside the United States. That’s where the President has his broadest constitutional authority. So, I think that’s how I would understand Youngstown concurrence, because I can’t believe that Justice Jackson himself or the Supreme Court would say that Congress can pass laws which dictate to the President how to wage war abroad. That’s what some people think Youngstown means, but I don’t that’s ever been the case in our history.
CJLPP: In your upcoming book Embracing the Machines, you argue in favor of expanding new military technologies, such as drones and autonomous robots. In an interview at the Claremont Institute, you criticized Obama’s drone program as undermining intelligence gather projects. So, I wanted to ask, how should the U.S. go about expanding the drone program without losing its ability to interrogate for information?
Yoo: I was critical of the Obama administration for overusing drones, not expanding drones, but choosing to use drones as the answer every time when they could locate a terrorist threat. It seems to me that the preference would be to try to capture terrorist leaders rather than to drop or guide a precision guided missile on them from a drone. I’ve always actually been puzzled by people who think this would be somehow be better for human rights too, that drones are a better solution. I think that they’re not. I think they make a lot of sense when you can’t capture safely a terrorist leader. But for example, even in the case of the Osama bin Laden raid, I don’t understand why the United States didn’t just capture Osama bin Laden rather than kill him. And the reason why is because that is our primary source of intelligence on pending new threats is what do the terrorist leaders know. That’s a different question than how broadly can we use drones or cyberweapons legally. So, you can have a broad use of them, but when it comes to individual cases, you can choose what kind of approach or what kind of weapon you want to use. So, I think we are on the cusp of broad change in the way technology affects war. And we’re just starting to see it. Drones is just the first of a lot of changes coming down the road. Cyberwarfare, things we’ve been seeing in the press are another example. But we haven’t really seen them really fully deployed in conflict between nations. And so, I argue that the United States shouldn’t restrain itself in developing these weapons because I think they’re actually better for humanity because they’re more precise, they inflict less damage. I think we should only encourage weapons that cause less harm, not more.
CJLPP: Regarding Obama’s airstrikes in Libya, there were question raised regarding whether or not this situation constituted “hostilities”, with the Obama administration arguing that it did not. So, how would you define “hostilities” in the light of new technologies, specifically with drones? Do drone strikes count? And what about Trump’s action today with the “Mother of all Bombs,” referring specifically to the most powerful non-nuclear weapon that the United States possesses that was dropped on Afghanistan today (April 13th, 2017)?
Yoo: You mean like the bunker busting bomb? So, I don’t take seriously the Obama administration’s claim that the Libyan air war wasn’t a war or wasn’t hostilities because it was conducted from the air and there were no ground troops. It just doesn’t make any sense. And at the time I criticized the justification. That’s because they wanted to take the position that the President wasn’t really exercising much power, which I think is kind of silly. If the United States drops a bomb and kills the head of state in another country, that’s certainly “hostilities.” It doesn’t matter whether it’s done by air or ground. So, I don’t think it’s a very serious argument. So, I think the Libyan War was “hostilities.” I think it was a war. I think our attacks on Syria are acts of war, and are hostilities too. That just goes to my point, the only way to reconcile that practice, I think, with the Constitution, is if you have the view that the President can wage hostilities without a declaration of war. If you have the view that a lot of, I think, liberal scholars have, that Congress has to approve all hostilities, then you have to think that the Libyan War was unconstitutional, that the Syrian intervention is unconstitutional, that a lot of the fighting in Iraq was unconstitutional. I don’t have that view, but I think if you do, then how do you reconcile them? I think critics would have to say that it’s unconstitutional, the President has to stop, which has never been the practice of our country.
CJLPP: How do you then define hostilities in the light of new technologies? Would all of these technologies count as hostilities?
Yoo: I don’t think the type of technology makes a difference as to whether it’s war or not. It’s the effect. So, if you kill someone—a member of the enemy’s armed forces—with a drone, a bomb, ground troops, I think it’s all a state of war. I don’t think it should matter what tool you use. It’s what effect it causes.
CJLPP: In Democracy in America, Tocqueville wrote that “a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority.” He also discusses the role of lawyers as a restraint on the majority. After reading these passages, one might worry about the moral role of lawyers in America. In an interview with the Claremont Institute, you said that there is “no good avenue in the government to undertake moral thinking.” What do you think that avenue might look like? How does this work when the legal proceedings are often in secret on matters of national security? And do you agree with Tocqueville that lawyers are ill equipped for that role?
Yoo: So, I think that people in the government and outside the government expect lawyers to have moral answers for government decisions. And I think that they are in no better position, or worse position, to make moral judgements. That’s not their job. I think in the government, lawyers’ job is to interpret the law, and carry it out. That might mean that you’re asked to interpret and carry out laws that you might happen to disagree with. Suppose you’re a lawyer, and you don’t believe in abortion, and you think abortion is immoral, but you might work in a government agency where you’re required to defend the rights of abortion clinics or give money out to groups that undertake abortions. The lawyer’s job is could say that’s legal, I may be in moral disagreement with it, but it’s legal. I think that happens all the time. I don’t think Tocqueville is right if his view is that lawyers are somehow especially susceptible to carrying out government wishes. Actually, Tocqueville’s discussions of lawyers that I remember better is where he thinks of lawyers as, sort of, the American equivalent of an aristocracy. And he thought of them as an aristocracy not because it was, you know, an inherited position that passed down from generation to generation, but more because lawyers were a kind of natural brake on democracy, that they are interested in process, slowing things down and so on. I think there’s a lot more truth to that, that lawyers slow things down in a way, and serve to restrain the majority more than probably other classes or job descriptions might.
CJLPP: On a related note, but transitioning to the topic of Guantanamo Bay, Mohamedou Slahi, a Guantanamo inmate, recently wrote a book, Guantánamo Diary, describing some of the conditions he was forced to endure. Referring to being forced to drink seawater, he writes: “It was so nasty I threw up…They stuffed the air between my clothes and me with ice cubes from my neck to my ankles…every once in a while one of the guards smashed me, most of the time in the face.” The book also describes long periods of isolation, being chained the floors in agonizing positions, extreme temperature, lack of food and sleep, beatings, and mock executions. And many of these claims from were corroborated by the U.S. Senate Armed Services Committee and the Justice Department in 2008.
So, while you were at the Justice Department, you said that physical torture “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” And so I wanted to ask—does the treatment described in Mr. Slahi’s book constitute torture? And does the Constitution offer any protections to people like him?
Yoo: I’m not fluent with this case. I don’t know whether what he says is true. I’m not aware that the Justice Department said that this was true, and I don’t know of any Justice Department verification of any claims like that. So, I would say that if the Justice Department looked at that, I would imagine they would find that wasn’t torture, and so I’m surprised to hear that some agency of the United States government said it was. I’m not aware of the Senate in 2008 said that this was torture either. So, I wouldn’t say so.
CJLPP: As a constitutional scholar, would you believe that to constitute as torture?
Yoo: Not in the way that it was defined at the time that the statute existed back then. But I don’t know if these set of facts you’re giving me are true or not. I actually do not believe that the Justice Department found that to be true.
[Note from the CJLPP: There appears to be a misunderstanding here. The interviewer intended to say that the Justice Department and Senate Armed Services Committee corroborated some of the information provided in Mr. Slahi’s book, not that either entity found the interrogation to be “torture” in a legal sense. Refer to this footnote for relevant links.]
CJLPP: On another note, in a debate that you had with law professor Doug Cassel, he asked if crushing a child’s testicles might be permissible under the law. In your opinion, does this constitute torture?
Yoo: All I said was that it’s under the President’s power. I would obviously say that was torture under the statute, but in wartime, the President is the final decision-maker.
CJLPP: So, to be absolutely clear, the President has the power to torture?
Yoo: The statute would prohibit it, but the President is the final decision-maker on all tactics in wartime, not Congress. So, I’m not saying that the President would or wouldn’t—in fact, if you look at the rest of that debate, I’d say that no President would order anything like that ever, but the President has the final decision, not Congress. To sum it up, this is exactly what I’m saying—the statute would prohibit it. I agree that would be torture. The President makes the final decision. That doesn’t mean the statute’s irrelevant, but the President is the Commander in Chief who makes the final decision. I don’t think the President would ever do anything like that. I don’t think any American President would.
CJLPP: In a paper at the Chemical Weapons Convention, you argued that it is unconstitutional because it is a violation of the Appointments Clause. In your book The Powers of War and Peace, you argue that the President has the sole authority to interpret the Geneva Conventions and other treaties, because it is part of conducting foreign affairs. The Chemical Weapons Convention is a treaty, so why can’t the federal government skirt around the Appointments Clause issue by just arguing that treaty enforcement is a foreign affairs issue, under the purview of the presidential discretion?
Yoo: Because we carry out a treaty domestically. That’s up to Congress, so any Congress can decide how under a statute a treaty is implemented domestically, and you can’t use a treaty to violate the Constitution. The Constitution is the highest law of the land. All treaties have to be consistent with the Constitution, not the other way around. So, we can’t say a treaty allows us to violate some other provision of the Constitution. That’s the point of the article—is that if the treaty is unconstitutional, the treaty doesn’t get enforced, not the Constitution.
CJLPP: So, is it your view that a treaty, as it’s implemented inside the United States, is not a foreign affairs issue, but rather a domestic issue?
Yoo: No–the carrying out of the treaty within the United States is up to Congress. That’s the way our system works. But even so, it doesn’t matter, because a treaty can’t allow the government to do something that would violate the Constitution. You couldn’t sign a treaty that says “we sign a treaty that the Congress it the commander in chief.” You can’t sign a treaty that says “part of the government’s enforcement powers transfer from the President to an international body,” which is what happened in the Chemical Weapons Convention. It all still has to be consistent with the Constitution. It doesn’t matter whether it’s foreign affairs or domestic affairs. They all have to be consistent with the Constitution.
CJLPP: Transitioning now to the topic of the Supreme Court—many hold the opinion that Judge Bork was eminently qualified for the Supreme Court, but was rejected by the Senate for out of the mainstream views. In your opinion, was this fair? Under what grounds should Senators confirm or not confirm a Supreme Court nominee? Should it be just qualifications, or does ideology play a role?
Yoo: I personally think that the Senate can use whatever grounds it wants to give its advice and consent. The Constitution doesn’t require that it only be qualifications. They certainly can take ideology into account.
CJLPP: Okay, so you would agree that Mitch McConnell’s tactics against Judge Garland were perfectly justified?
Yoo: That’s a totally separate question than the one you just asked me. So, just because I think ideology can be taken into account doesn’t really matter one way or the other when you think about the filibuster. I happen to think that the filibuster is a bad idea generally, in all applications. But it doesn’t follow that, regardless of what you think about whether ideology can be used or not is a different question than what you think about the filibuster. But I do happen to think the filibuster should be dispensed with, not just for appointments, but for legislation too.
CJLPP: In Taming Globalization, you argue that state implementation of international law and agreements is necessary to avoid various constitutional issues. So, if this becomes reality, how should we adjudicate a dispute between a state government and the courts or the President? If Presidents interpret treaties, how can the judiciary effectively deal with state violations of constitutional rights that the President might order in interpreting a treaty?
Yoo: So, I think it’s very similar to the other question. A President can’t interpret and enforce a treaty that would violate the Constitution. So, no matter if a state does it, Congress, or the President, a treaty can’t be an authority to violate the Bill of Rights. They would all lose. And that actually is the core function of the judiciary—is to defend individual rights against actions of the federal or state governments. So, I don’t think that’s a very difficult issue, in fact.
CJLPP: You have said in the past that the judiciary doesn’t really have a place making decisions that have to do with war. So, what would happen if a President interpreted a treaty during wartime in such a way that might violate state constitutions, or constitutional rights?
Yoo: Well, state constitutions are different. State constitutions don’t prevail over the federal Constitution or federal law. So, if a President, or a President and Congress, take a valid wartime measure, it doesn’t even matter if there’s a treaty, if there’s some decision they think is necessary to winning war, the state constitution can’t stand in the way. If cases of wartime measure against individuals inside the United States, then courts traditionally have judicial review. What I think is a problem is when courts try to adjudicate cases involving the conduct of war outside the United States, in foreign territory, involving the military. There, I think the judiciary is particularly poorly suited to making decisions.
CJLPP: On another topic, what is it like being a Bush-era conservative at Berkeley? And do you see yourself as a mentor to other conservative students at all?
Yoo: I don’t know what it’s like or not like. I’m just a conservative. I don’t know if it has to do with Bush or not. I was conservative on the Berkeley campus before President Bush was president. So, I think conservatives in the universities and colleges are in a distinct minority. I think that means that conservatives actually have to do better and overperform in scholarship and teaching. They have to clear the bar much much higher, I feel, because they are ideologically the minority on campus. I think students are probably, when they get to college, are distributed politically much like the country. Probably a third of students are liberal, a third are conservative, a third are moderates. So, I think that they should have the ability to have professors of all ideologies teaching classes, getting advice from people. So, yeah, I guess I probably give advice to conservatives, but I give advice to liberal students too. I don’t really think of it that way.
CJLPP: Lastly, do you have any ideas for how you think universities could go about diversifying their faculty pools? Do you think it’s just a matter of deciding to?
Yoo: Yeah, I think there’s plenty of ideological diversity in the pool of people who want to be professors. I don’t think that the pool of professorial candidates is heavily over weighted to liberalism, to liberals, to the extent you see it in the actual faculty ranks where it’s, based on what measure you use, it sounds like anywhere from 80 to 90 percent of all professors are liberal. I think universities are doing themselves a disservice by over hiring people from one ideological spectrum. So, yeah, I think it’s a matter of will. I don’t think it has to be extra recruitment efforts or anything like that
CJLPP: Thank you so much for your time and expertise.
 Note from CJLPP: The following links contain information about Mr. Slahi’s book and the government reports corroborating some of its details.
Information on the Justice Department’s Inquiry: http://www.cnn.com/2015/01/21/americas/guantanamo-bay-prisoner-book/
Some of Slahi’s claims are corroborated by reports published by the U.S. Senate Armed Services Committee and the Department of Justice in 2008.
Report by the Armed Services Committee: https://www.armed-services.senate.gov/imo/media/doc/Detainee-Report-Final_April-22-2009.pdf
See pages xxii for information on sleep deprivation
See page 135 and its following pages for further information on Slahi’s interrogation