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By Curt Levey Posted in Uncategorized — Comments (1) / Email this page » / Leave a comment »

Since my post about John Yoo’s recent op-ed on Congress’s response to Hamdan v. Rumsfeld, I’ve had a chance to review his new book, “War by Other Means: An Insider's Account of the War on Terror.” The book is aptly subtitled. Yoo’s critics and supporters alike agree that he was the chief architect of the legal analysis behind the Administration’s war on terror, while serving as deputy assistant attorney general in DOJ’s Office of Legal Counsel from 2001 to 2003.

“War by Other Means” examines all aspects of the war on terror, including the NSA wiretapping controversy, the Patriot Act, the legal status of enemy combatants, coercive interrogation of detainees, the Supreme Court’s Hamdan decision, the applicability of the Geneva Conventions, military commissions, and the cases of specific terrorist suspects, such as Jose Padilla.

Throughout the book, Yoo’s central theses are that 1) during wartime, the boundaries of the separation of powers shift, giving the President, as commander-in-chief, broader authority; and 2) in Yoo’s words, "it would be a mistake to believe that the Constitution's framework for criminal justice should apply to war.” Yoo explains that

[Criminal justice] involves the fundamental relationship between the people and its government, and so ought to be regulated by clear, strict rules defining the power given by the principal to its agent. [War], however, involves a foreign enemy who is not part of the American political community, and so should not benefit from the regular peacetime rules that define it.

I highly recommend reading “War by Other Means.” You may not agree with Yoo’s theses, but his arguments are sure to be thought-provoking, and you'll come away with an in-depth understanding of the legal case for expanded presidential power in wartime.