David Luban, writing in the March 15 issue of The New York Review of Books, assesses the contribution John Yoo has made to our understanding of executive power and the war on terror in his book, War by Other Means: An Insider’s Account of the War on Terror. Since I have previously quoted an extended argument that the “war on terror” is only a metaphorical war, let me here quote Luban’s argument to the contrary, a point on which he and Yoo agree:
Some of Bush’s critics deny that the struggle against al-Qaeda is a war, but I think this is wrongheaded. . . . September 11 was an aerial attack against US targets using, in effect, a stolen air force, and was one of many attacks by Islamist extremists who, to greater and lesser degrees, are determined to kill for ideological purposes. It is a campaign, not a crime wave. What al-Qaeda shares with traditional war-makers, and what differentiates it from an equally violent and powerful narcotics cartel, is that it uses violence in service of politics.
But that is where Luban and Yoo begin to part company:
The problem lies not in the label, but in the consequences that supposedly follow from it. For Yoo, labeling the struggle “war” activates every war power formerly associated with battle commanders. The central contradiction, which Yoo never overcomes, is that while he insists that the US is fighting a new kind of war, he also insists that it should be fought with the full panoply of traditional presidential war powers. But these war powers were designed for conflicts in which the enemy is in uniform and belongs to an identifiable foreign government, and whose duration and conclusion are defined by victories, surrenders, and peace treaties.
Ah, the power of vocabulary. One party insists it is a “war” and claims the powers war has traditionally brought; the other party is willing to concede it is a “war” but not a “traditional” one such as would justify traditional powers. So, new kind of war or new kind of security challenge? Is this anything more than a semantic question? Isn’t Luban right to insist that the real question is not what we call it but what we do about it? That we must not let vocabulary substitute for strategy?
I also found this passage quite interesting, given Yoo’s arguments for expansive interpretation of President Bush’s powers:
Only once has Yoo complained that a president “exercised the powers of the imperial presidency to the utmost…in our dealings with foreign nations.” He added, “Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system,” and “the administration has played fast and loose with the law.” He added that “when it comes to using the American military, no president in recent times has had a quicker trigger finger.” Yoo wrote those words about President Clinton in 2000.
Luban also documents quite a few occasions on which Yoo brushes aside facts and criticisms as if they came from left-wing conspiracy theorists when in fact they come from DoD reports. All in all, it sounds as if this is not a great book, but it is an extremely thoughtful and informative review.