Law, war’s stumbling block

IN writing “War by Other Means,” UC Berkeley law professor John Yoo has done Americans a great favor. In it he lays out -- unadorned -- the Bush administration’s opinion of the government’s constitutional separation of powers during wartime. To Yoo, there isn’t any such thing.

The exigencies of war -- including the current “war on terror” -- sweep aside as irrelevant, at best, nearly all restraints on the power of the president to conduct the war as he deems necessary; to treat captured opponents as he wishes; and obey, or disobey, international and U.S. law as it suits him. All of this is in the name of “national security,” a concept that slid into popular language as World War II ended and the Cold War began, and has, like a blanket, concealed both minor misdemeanors and high crimes.

To Yoo, war is serious business best understood by such jurists as U.S. Supreme Court justices Antonin Scalia and Clarence Thomas, and, of course, himself. But war is not understood, or it is willfully misunderstood, by “human rights lawyers, liberal interest groups and political activists,” as he characterizes those who disagree with him.

Yoo, who as a deputy assistant attorney general during Bush’s first term was an important architect of the administration’s approach to the laws of war that has drenched it in so much controversy, bluntly states his personal priorities. Of the Geneva Convention that assures humane treatment of prisoners, he writes: “In our conflict with al Qaeda, information was our primary weapon against a future attack; it made no sense to follow Geneva when the need for intelligence is so great.”

Yoo does grant to the courts the review function entrusted to them by the Constitution. But in wartime, the constitutional scholar writes, “we want to expand, not limit, the powers of government against the enemy.”

Congress last week passed legislation to allow the government to hold, interrogate and try “enemy combatants” while granting them limited legal rights. It was a victory for the president, who three months earlier was told by the Supreme Court that he had overstepped his authority in holding and trying terrorism suspects. Yoo, however, worries that the federal courts may again try to restrain the executive branch in its treatment of prisoners.

“Whether the Detainee Act will serve as a sufficient warning to the courts not to meddle in the business of the political branches remains to be seen,” he writes. His use of the dismissive word “meddle” reveals his true feeling, reflected throughout his book, about the role of the federal courts.

For much of U.S. history, lawyers have at least professed to have a reverence for the Constitution and legal precedent. That has been an attitude shared, or at least pretended to be shared, by political conservatives and liberals alike. Yoo doesn’t even pay it lip service. “Lawyering,” he writes, “is beginning to strangle our government’s ability to fight and win the wars of the twenty-first century.”

As for the administration’s policy on handling suspected terrorists, he adds: “Sometimes people look to the law as if it were a religion or a fully articulated ethical code that will make these decisions for us, relieving us of the difficult job of making a choice. The law sets the rules of the playing field, but it does not set policy within that field.”

It may be that it is not lawyers we need to study and explain the current hot quarrels over the role of judges in contemporary political life, or even historians, but psychologists. Recently two veterans of the Supreme Court discussed on a PBS evening news show the current controversies about court decisions and the recent increase in hostility, as they saw it, to Supreme Court decisions made as part of the court’s constitutional responsibilities.

Recently retired Justice Sandra Day O’Connor seemed to be both baffled and alarmed by the trend in events. Justice Stephen G. Breyer, who remains on the court, appeared less perturbed, but both indicated that they believe there are gaps in the public’s understanding of the law, the Constitution and many of the high court’s rulings, especially among those who don’t agree with them.

In “War by Other Means,” Yoo seems to be trying assiduously to widen the gap. He promoted the notion that the Constitution is a mere document that can be easily and safely put aside if and when it turns out to seem inconvenient in the current situation, whatever that situation happens to be. He has President Bush very much on his side. But others view the Constitution as having a weight and an authority that has proved more enduring than law professors and presidents.

Anthony Day is a former editor of The Times’ editorial pages.