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  1. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11
  2. The Powers of War and Peace
  3. The Constitution and Foreign Affairs after 9/11
  4. "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11" by John C Yoo

Return to Book Page. The Powers of War and Peace: Since the September 11 attacks on the United States, the Bush administration has come under fire for its methods of combating terrorism. Waging war against al Qaeda has proven to be a legal quagmire, with critics claiming that the administration's response in Afghanistan and Iraq is unconstitutional.

The war on terror—and, in a larger sense, the administration's decision t Since the September 11 attacks on the United States, the Bush administration has come under fire for its methods of combating terrorism. The war on terror—and, in a larger sense, the administration's decision to withdraw from the ABM Treaty and the Kyoto accords—has many wondering whether the constitutional framework for making foreign affairs decisions has been discarded by the present administration.

John Yoo, formerly a lawyer in the Department of Justice, here makes the case for a completely new approach to understanding what the Constitution says about foreign affairs, particularly the powers of war and peace. Looking to American history, Yoo points out that from Truman and Korea to Clinton's intervention in Kosovo, American presidents have had to act decisively on the world stage without a declaration of war. They are able to do so, Yoo argues, because the Constitution grants the president, Congress, and the courts very different powers, requiring them to negotiate the country's foreign policy.

Yoo roots his controversial analysis in a brilliant reconstruction of the original understanding of the foreign affairs power and supplements it with arguments based on constitutional text, structure, and history. Accessibly blending historical arguments with current policy debates, The Powers of War and Peace will no doubt be hotly debated. And while the questions it addresses are as old and fundamental as the Constitution itself, America's response to the September 11 attacks has renewed them with even greater force and urgency.

This year, the issue came to a head as the Bush administration struggled to maintain its aggressive approach to the detention and interrogation of suspected enemy combatants in the war on terrorism. Paperback , pages. To see what your friends thought of this book, please sign up. To ask other readers questions about The Powers of War and Peace , please sign up.

The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11

Be the first to ask a question about The Powers of War and Peace. Lists with This Book. This book is not yet featured on Listopia. Jun 25, Alex rated it really liked it. While I don't agree with John Yoo politically, I have to say that he is a great writer. He breaks down theoretical content to allow the reader to really understand his arguments. He also addresses his arguments, potential flaws with them and why he thinks his position addresses those flaws without bashing the democratic party or those who believe in original intent.

My problem with this book is also its greatest strength: I think there are some sections that, while they are fascinating While I don't agree with John Yoo politically, I have to say that he is a great writer. I think there are some sections that, while they are fascinating, they needed to be a little more concise.

For example, his thorough analysis on the mindset of the Framers during the composition of the Constitution. But going through the voting record of all those in attendance and the states as well? That was a little bit too much for my taste. To be a true scholar, one must know all sides of the argument. Dec 21, Nathan rated it liked it. Interesting analysis of the war and treaty powers under the US Constitution. Tended to get repetitive at times. Worth the read, but I found Crisis and Command to be more well done.

Aug 06, Arthur Bartram rated it did not like it. Perhaps the most morally repulsive books I've encountered in ages. Dec 27, Tom Sulcer rated it did not like it.

For example, Yoo claimed presidents have unilateral authority to initiate wars without Congressional approval. Clearly this violates the Constitution. This power was explicitly given to Congress. And this book tries to justify a variety of acts of tyranny, large and small, by a president beset with a problem he couldn't cope with. But I do not fault President Bush too much -- realize that such an attack would overwhelm ANY president of either party.

Generally, serious terrorism can easily knock over any democratically elected government like a tsunami, and the United States is no exception. Democracies under attack by serious terrorist conspiracies typically revert to an authoritarian structure to fight the attack, and government usually wins its war, but during these times citizens suffer.

The Powers of War and Peace

This happened in the Philippines under Marcos and in Chile under Pinochet. That the Bush administration resorted to extra-legal tactics to try to protect people is understandable but problematic because it undermines freedom and the rule of law. But I think partisans on the left are as clueless as those on the right about what to do.


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How can we cope with mysterious thugs hiding in caves seeking weapons of mass destruction? For me, that's the underlying problem. Solve terrorism; and you'll solve the problem of illegal activity by government and make everybody safer. How is terrorism prevented? Check out my book: You're a well-know liberal. Nothing negative about Clinton and his war against Bosnia, which has no U. I have not been accused of being a well-known liberal for a long time. Actually, I was not a fan of the war on Kosovo, but I thought it was constitutional, and I wrote an opinion piece in the Wall Street Journal at the time arguing that it was legal.

But let's be clear about Kosovo. It was the first war to violate the War Powers Resolution, as hostilities went on for longer than the 60 day limit set by Congress and Congress never passed a statute authorizing the intervention.

The Constitution and Foreign Affairs after 9/11

It clearly violated the strict terms of the U. Charter, as the U. I believe, however, that Kosovo was constitutional because the President in my view has the power to begin military hostilities abroad. And Congress could have prevented the war by refusing to vote funds for the conflict. I do not think that the U. Charter's rules on the use of force can prevent the President, as a matter of domestic constitutional law, from deciding to start military hostilities, just as I think that the U.

One thing that strikes me about what some Senators have argued recently is that they have not been consistent. I do not recall many of today's critics of presidential war powers complaining that President Clinton had violated the Constitution in invading Kosovo. Senator Biden, in particular, I believe said the idea was the most expansive theory of presidential power he had ever heard, but it was in fact claimed by the Clinton administration.

More significantly, it was not just claimed but used. In contrast, while the Bush administration has claimed it has the same power, it has not violated the War Powers Resolution but in fact has sought and received congressional authorization for the wars in Afghanistan and Iraq.

War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.

No nation could preserve its freedom in the midst of continual warfare. It is not often I have the opportunity to have a conversation with President Madison. Let me make one thing clear. I do not believe that it is a good thing for the United States to be at war. I would vastly prefer and wish that we were currently at peace. I agree with Madison's view that war is terribly wasteful and can lead to bad outcomes.

I also agree that it leads to the expansion of executive power in ways we would not want if we were purely at peace although it is also true that since Madison spoke the power of the Presidency has greatly expanded over the regulation of the economy and society. But the question is that if we are to have a war, terrible though it may be, who should decide whether to have it and how it should be fought.

And there, I believe that the President was understood by the drafters of the Constitution to have that power, and that Congress would have the ultimate check through the power of the purse, without which no war could ever be successfully fought. I would also respond to your point with another point from Madison which is a favorite hobby among Madison scholars, who argue over whether Madison was consistent over his career or switched positions for political opportunity.

During the Virginia convention called to ratify the Constitution, the most important of the conventions, Patrick Henry made much this argument, and further claimed that the Constitution should be voted down because it would create in the President a military dictator. Madison responded not by claiming that Congress's power to Declare War would prevent this. Instead, he relied on the power of funding: Apply it to the British Government, which has been mentioned.

The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist. Once done, very few congressional representatives have the political courage to dissent, particularly as they will be attacked as un-patriotic and un-American. Meanwhile, the public is kept in the dark and can have no real opinion, as the executive branch has a monopoly on classified and sensitive information.

Do I have this correct? Did we ever declare war on Iraq? I do not think this is the way our system currently works, as a legal matter, but I think you have a point when it comes to the politics of national security. First, much of what the President does in foreign affairs or national security is done with congressional cooperation.


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  8. We did not declare war in Vietnam or Iraq, but Congress did enact statutes in both cases authorizing the President to use force. While Korea was not authorized by Congress, President Truman could not have fought the war without the huge buildup in the military funded by Congress and the expenses of ongoing military operations provided by Congress.

    Even in the area of covert operations, the President notifies the intelligence committees of his decisions, and if Congress does not like them it can refuse to fund them. But as a political matter, I think you are right. There is no strong political incentive for members of Congress to go out on a limb in foreign affairs. Political scientists observe that members of Congress will be primarily interested in re-election.

    "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11" by John C Yoo

    Their chances of re-election are not enhanced by voting on policies that a will be viewed negatively by large segments of the electorate of their districts; and b whose outcomes are unpredictable. This approach would predict that members of Congress would either want to delegate most questions of national security and war to the President, or take no stand at all and let the President have both the initiative and the blame if things go badly.

    But I do not believe this is a constitutional problem. It is rather a political one. And I would be wary of reading the Constitution in certain ways to fix political problems.


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    5. If Congress does not have the political will to participate more aggressively in war decisions, that is the result of our electoral choices, and not a fault in the Constitution itself. Do you believe the Supreme Court ruled correctly in the Youngstown case when it denied Pres. Truman the authority to seize a stell mill in wartime? If yes, how do you think this case applies today in the war against terrorism? When does it NOT apply? This is a very good question.

      Constitutional Law tutorial: Foreign Affairs and War Powers

      I am not a big fan of the Youngstown decision. Actually, I am not a big fan of the concurrence by Justice Jackson in Youngstown, which has been much discussed in Judge Alito's hearings. Justice Jackson said that presidential actions could be analyzed in three ways: I have long thought Justice Jackson's concurrence is more of a statement about politics, and a true one, that one of constitutional law.

      How could, for example, Congress pass a statute prohibiting the President from exercising a power given to him under the Constitution? If Presidents have the constitutional authority to issue pardons, Congress cannot take it away. If Presidents have been understood to have the power to terminate treaties, and have long exercised it, then I do not see how Congress could prohibit him.

      Likewise, I do not think that the President can take away any of Congress's constitutional authorities. I think the majority opinion in Youngstown, written by Justice Black, had things right. He said that the regulation of labor-management relations at steel mills was fundamentally legislative in nature, which I believe it is.

      If so, the Congress could exercise that power, or delegate it to the President with conditions on its exercise, but that the President could not seize it. Hi, please correct me if I'm wrong, but it seems to me that you are an originalist or a restorationist. If so, where do you find the justification for this line of interpretation in the Constitution itself.

      This is an interesting question. My argument has been against those who believe that the original understanding of the Constitution imposes a fixed way of making war upon the Congress and the President. The argument is that Congress must declare war or authorize hostilities first, and only then can the President wage war.

      This interpretation, by the way, runs directly counter to the practice of various Presidents and Congresses over many decades if not centuries. My book is originalist in method. But it uses originalism to show that the question of war powers is actually open-ended and that the framers did not intend that a strict, legalistic process govern how future Presidents and Congresses decided war questions.

      Transcript "The Powers of War and Peace". Thanks for your help with this. There are several complicated issues in your question.