Yoo Says President's Powers Sufficiently Checked by Congress

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Legal scholar John Yoo talks with Steve Inskeep about the reach of executive power during a time of war. Yoo says the Constitution gives presidents expansive power in these situations, held in check by Congressional review and oversight.

STEVE INSKEEP, host:

Yesterday, a historian told us that in this time of war, President Bush has asserted his power in unprecedented ways. The president based some of his actions on the lawyer we'll meet next.

RENEE MONTAGNE, host:

John Yoo is a conservative legal scholar who worked for the Bush administration. This week, New Yorker Magazine describes Yoo's classified legal memos, memos that influenced administration policies on torture.

INSKEEP: As we're going to hear, even John Yoo is unwilling to go quite as far as the administration, but he says he did come up with a new theory of the president's power under the Constitution. He says he found it by studying the ancient war-making powers of British kings.

Mr. JOHN YOO (Legal scholar for Bush administration): Almost all academics think that Congress has to go first, that they have to turn the key before the president can go to war, and then that the president has to defer to Congress throughout the war's conduct. I think that that's not constitutional, that when it comes to tactical and strategic decisions, that's the president's constitutional prerogative.

INSKEEP: Is it your interpretation of the law that if the president really believes some act is necessary, he can do anything in a time of war?

Mr. YOO: No, I don't think he can do anything. I think he has to believe that the national security's at stake. So, yeah.

INSKEEP: Well, that's what I'm saying. If he believes national security is at stake, he can make that decision alone, and no one else can second guess him.

Mr. YOO: Well, he gets second guessed afterwards. He will be questioned by Congress and the courts after he makes that decision, just the way Abraham Lincoln in the Civil War had to take a lot of immediate actions like raising an army, putting up a blockade of the South, all without congressional permission, and then he went to Congress afterwards and asked for approval of his actions because if Congress disagrees, it can do a lot of things to the president, including impeach him if it disagrees with his decision.

INSKEEP: You're probably familiar with some of the details of the case of Mohammed al-Qahtani.

Mr. YOO: I haven't—I'm not actually—when I was at Justice, I wasn't part of the case for him.

INSKEEP: Well, let's talk about that. Some of the things that were done to this man, who was considered to be a very dangerous suspect—it was feared that he had been the missing 20th hijacker from September 11th. As part of his interrogation, he was stripped naked, forced to wear women's underwear, threatened by dogs. He was given intravenous liquids constantly without ability to use a toilet. Do you think there's any connection between that kind of interrogation and the legal rationales that you have laid out?

Mr. YOO: I don't think so. A lot of that conduct was things that people came up with without authorization from people higher up in the chain of command. But I think some of those things you've listed, I think, are legally problematic.

INSKEEP: Although, the people doing these things wrote them down in U.S. Army logs, which suggests that that they thought it was perfectly legal what they were doing.

Mr. YOO: Right. Right! I don't think that they were authorized by people higher up. And I have to say I never really came across this myself. But I don't think that those methods, you described, were authorized in any way by the work we'd done at the Justice Department at that point.

INSKEEP: Could the president authorize those things if he felt that it was essential for national security?

Mr. YOO: I think that if he thought that this person had information about a pending attack on the United States, that some of those things that you listed would be legal. Now, whether as a policy matter he ought to do those things, I think, it's a totally different question. And the law just doesn't tell you what to do in the situation. But that doesn't mean an American president shouldn't do that because he thinks it's the wrong thing to do, or it's amoral, or it's against American values. Those are all things that the president should consider when he makes those kinds of decisions.

INSKEEP: I want to make sure where you are going with this, because your theories have been described as giving virtually unlimited presidential power.

Mr. YOO: Yeah. I think that's been an exaggeration.

INSKEEP: It does seem clear that you argued for expansive view of presidential power.

Mr. YOO: Mm-Hmm.

INSKEEP: So why not just openly say that? You think the president should be far more powerful than the other branches of the government, in fact, almost unlimited in some areas when it comes to war.

Mr. YOO: No, that's not quite my view. I think in wartime, the president's powers are greatly expanded. But that doesn't mean it's unchecked either. I don't think it's unlimited power. I just think it's exercised in different ways. I think Congress can exercise a really effective check through funding. If Congress disagreed with any of these polices, it can use its funding power. And it did with regard to interrogation. It can do that with the NSA. It can do that with Guantanamo Bay. It can do it tomorrow through the power of the purse.

INSKEEP: Congress imposed a check on interrogation by passing a law. President Bush actually signed the law, but accompanied that with a statement that seemed to suggest that if it was necessary, he could override that.

Mr. YOO: Yeah. I'm not sure that he could actually do that, because the Congress has said you cannot use any funds for, you know, interrogation that violate our standards. And I do think Congress's power of the purse is absolute. I don't think the president can just say well, I'm going to ignore what Congress decides on what to spend money on, I'm just going to start spending it on something else.

INSKEEP: Do you worry about the long term consequences of saying that presidents have greatly expanded powers in wartime; even more expanded power than has been argued in the past, and that the war is permanent?

Mr. YOO: Well, I don't think the war is permanent. But if it does take a long time, I do think that the president should have the military and legal tools to win that war. And that Congress will cooperate, and will have an effective check and balance. It's impossible for any president to wage war unless Congress really agrees.

INSKEEP: Well, John Yoo, thanks very much.

Mr. YOO: Oh, thank you.

INSKEEP: John Yoo has written a new book about his views called The Powers of War and Peace, the Constitution and Foreign Affairs After 9/11. And if you want to read his opinion about the rights of prisoners at Guantanamo Bay, visit npr.org.

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