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Who Holds War Power In The U.S.?

"How would the pro-Congress model actually work in today's world with the kind of threats we face, how does that allows us to address terrorism?" Yoo asked the AEI audience. "What happens is there's a real trade-off between those (pro-Congress) values and acting swiftly, quickly, and secretly."

Washington (UPI) Oct 31, 2005
The president of the United States has the constitutional authority to initiate military action without congressional approval, according to John Yoo, University of California at Berkeley professor of law and former lawyer at the Department of Justice.

Yoo, a long-standing defender of President George W. Bush's handling of the Iraq and Afghanistan conflicts, challenged both the constitutionality and the effectiveness of giving Congress, rather than the president, the right to go to war. In a speech last week at the conservative American Enterprise Institute, Yoo claimed congressional oversight does not always lead to smarter military decisions, possibly including the current war in Iraq.

"There are certainly decisions that Congress participated in that might have led to bad wars," he said. "Whether the Iraq war turns out well or badly, Congress issued a decision to authorize war. Vietnam is another war for which Congress passed a statute authorizing hostility. It doesn't seem to me that congressional participation automatically leads to good wars."

The wisdom generally accepted by the law community maintains that the framers intentionally gave war powers to the legislature in order to avoid resting authority over such an important decision as war in a single individual. Requiring consensus from all lawmakers would prevent the country from going into combat without careful deliberation.

That deliberation, says Yoo, may not be desirable in today's globalized world where terrorist groups pose an imminent and undetectable threat to American interests. Having the president in charge of military action is in the interest of national security.

"How would the pro-Congress model actually work in today's world with the kind of threats we face, how does that allows us to address terrorism?" Yoo asked the AEI audience. "What happens is there's a real trade-off between those (pro-Congress) values and acting swiftly, quickly, and secretly."

Not only is presidential control in war desirable, but according to Yoo's interpretation, the Constitution supports it.

Yoo outlines his argument in his new book, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (University of Chicago Press).

"I do not think that the president is constitutionally required to get legislative authorization for launching military hostilities, and presidents from Truman through Clinton have not done so," Yoo said in an interview with the book's publisher. "Many scholars have argued that the declare war clause is the root of Congress's control over war ... But the history of the clause gives no indication that this was its original purpose."

Instead, he argues, Congress exercises its influence in military decisions through its "power of the purse." By this reasoning, if there is strong opposition by legislators to a particular action by the president they can simply decide not to fund it.

However, Congress members must worry about political ramifications of denying resources for troops already in the line of fire, and there is debate over whether this is a realistic policy-making structure.

"It's marginal," said Alice Rivlin, a senior fellow for fiscal policy at The Brookings Institute, a Washington think tank, on the effectiveness of the policy. "In principle Congress could refuse to appropriate money for a war, but that would be irresponsible. Using the budget process to make basic policy like 'are we going to war?' is very unusual."

Congress can also play a role in war by delineating what the military can and cannot do. Said Yoo, "There's no doubt that Congress has the power to control the regulation and discipline of the military."

A recent exercise of this power came last month when the Senate, led by Sen. John McCain, R-Ariz., voted 90-9 to ban coercive interrogation tactics by military personnel in response to findings that U.S. forces used cruel and inhumane punishment for detainees in Iraq.

Yoo believes the McCain bill is essentially constitutional, but worries it could impede on the president's also-constitutional role to conduct military affairs. There is a particular risk, he says, in the case of a "ticking time bomb," when a detainee is believed to have information on an imminent attack against the United States.

"I think without designating constitutional power to the president, then the amendment would rule out any kind of coercive interrogation in a ticking time bomb hypothetical. And I actually have a hard time believing that people in Congress would want to completely prohibit anything more than oral questioning if we were in that kind of situation."

Noise from the McCain camp suggests otherwise. Last week Vice President Dick Cheney asked McCain to make an exception for CIA interrogators, but this week the Arizona senator told Newsweek he would not allow weakening of the language of his bill.

"I don't see how you could possibly agree to legitimizing an agent of the government engaging in torture," said McCain in a statement last week. "I don't know how you protect your life by torturing somebody. I've never understood that scenario."

The White House has threatened to veto the legislation if it remains unchanged.

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