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NewsReal Blog Interview with John Yoo, Part 3: Good Presidents Make Their Own Rules

Posted By Elise Cooper On March 7, 2010 @ 9:51 am In NewsReal Blog | No Comments


John Yoo is currently a professor of law at the University of California, Berkeley. From 2001 to 2003 he was a deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice. It was during this time that he co-authored the Bybee memo defining torture and American Habeas Corpus which was the legal basis for the CIA’s harsh interrogation techniques. He is the author of The Powers of War and Peace: Foreign Affairs and the Constitution after 9/11, War By Other Means: An Insider’s Account of the War on Terror and Crisis and Command: A History of Executive Power from George Washington to George W. Bush. NewsReal Blog had the pleasure of interviewing him on a wide range of issues.

Click here for Part 1

Click here for Part 2

NRB: Your latest book, Crisis and Command, talks about how Presidents from George Washington through George W. Bush used their Constitutional Power. How do you think Washington and the framers thought about Presidential power?

Yoo: Washington set the precedent and traditions for the President. The framers thought the Presidency would be a fairly modest office when it came to domestic affairs and Congress would take the lead. In contrast the President would have a great deal of power with foreign affairs as long as there was a crisis.

NRB: Who is the hero of the book?

Yoo: The hero of the book is Lincoln because he confronted the greatest crisis in our history. He had a real fortitude of character and he was willing to use the full powers of the Constitution to meet the challenge of secession.

NRB: Who would you consider one of the worst Presidents?

Yoo: President James Buchanan because he thought secession was unconstitutional just like Lincoln but turned the whole issue over to Congress.

NRB: Is there any previous President that agreed with President George W. Bush who asserted that during war time the President has far reaching authority?

Yoo: During war time the President has to press the boundaries of the Constitution. Take FDR for example. Congress tried to prevent him from entering World War II with the neutrality acts. Roosevelt saw the threat to the security of the country and used his constitutional executive powers to violate those acts.

NRB: How do you think the framers of the Constitution would react to the recent Supreme Court decisions regarding the War on Terror (habeas corpus to the terrorists, the President must defer to Congress on the rules of a military commission)?

Yoo: In this day and age we fall into this assumption that the judiciary is supreme in interpreting the Constitution concerning national security issues, an idea that would have driven Jefferson, Jackson, Lincoln, and FDR crazy. They would not have agreed with our current attitudes of deference to the Supreme Court, but would want to interpret the Constitution for themselves.

NRB: What is one of the main lessons of your book?

Yoo: Congress has plenty of Constitutional powers at its disposal. They could veto or block a President’s initiatives that it disagrees with in war time. For example, Congress can cut off funds for any military conflict. If they wanted to end the war in Iraq Congress could have easily have stopped it by just cutting off the funds.

NRB: How do you think the framers of the Constitution would have reacted to President Obama using his executive power?

Yoo: Looking at what President Obama has done, I think it’s the reverse of what the framers had in mind. He seems to think that the main job of the President is to spark some kind of domestic revolution and at the same time he tries to pull the President back from its leading role in national security. Take for example the KSM decision or the decision to put the Christmas Day bomber into the civilian law enforcement system. Both these decisions give the courts the lead roles in deciding what to do with the terrorists. I think that would have been stunning to the framers, that the Presidency would not be the lead institution to deal with the war.


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