Reviewing The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, by John Yoo
John Yoo is nothing if not controversial. During his tenure at the Department of Justice’s Office of Legal Counsel (OLC), he became widely known for, among other things, drafting the Administration’s legal justification for the use of aggressive interrogation techniques.1 His prior academic writing also frequently staked out bold positions supporting expansive interpretations of executive power in the realm of foreign affairs. Yoo’s recent book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, amplifies many of the themes of his earlier work in academia. In it, he addresses two fundamental aspects of foreign policy making, the war power and the treaty power, each of which he analyzes from a decidedly revisionist perspective.
The system of detention and military trial authorized by President George W. Bush on November 13, 2001, and additional claimed authority to hold terrorist suspects indefinitely without process, have been litigated in several judicial circuits, moving from district courts to the Supreme Court and back down again. In 2006, these authorities returned to the Court for further exploration in Hamdan v. Rumsfeld. Regrettably, until very recently the separation of powers issues raised by the President’s initiatives received little attention from Congress, which, under the Constitution, has primary responsibility over military courts, tribunals “inferior to the supreme Court,” “Offenses against the Law of Nations,” the war power, and “Rules concerning Captures on Land and Water.” Because of congressional passivity, the principal checks on presidential power have been supplied instead by litigants and courts. The constitutional issues that emerge from this concentration of power in the presidency form the central theme of this article.
Reviewing Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism, by Geoffrey R. Stone
Geoffrey Stone’s most recent contribution to our understanding of the First Amendment is at once important, current, and fatalistic. It is important in that it meticulously chronicles the ways in which wartime American governments have trampled free speech rights. For instance, when dealing with the Sedition Act of 1798, Stone deftly introduces the complicated politics and personalities of the time, explaining the developing system of political parties, the expanding feud between John Adams (leading the Federalists) and Thomas Jefferson (leading the Republicans), and the myriad influences on the young United States generated by the French Revolution and the associated war between England and France.