John Yoo Endorses Barack Obama's "Kinetic Military Action"


In the recent Reason.tv video "What Happened to the Antiwar Movement," my colleague Brian Doherty noted that you can actually still find bumper stickers in these United States featuring a peace symbol inside the first letter of the word Obama. Assuming the president's new "kinetic military action" in the Middle East hasn't prompted those car owners to peel the stickers off, here's something that might: John Yoo, the controversial former Bush administration lawyer, executive power enthusiast, "torture memo" author, and Andrew Jackson apologist, thinks Obama's undeclared war on Libya is a perfectly acceptable use of presidential power. As Yoo wrote last week in The Wall Street Journal:

President Barack Obama has again flip-flopped on national security—and we can all be grateful. Having kept Guantanamo Bay open, resumed military commission trials for terrorists, and expanded the use of drones, the president has now ordered the U.S. military into action without Congress's blessing….

Last Monday, Mr. Obama notified Congress that he ordered military action in Libya "pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."

For once, Mr. Obama has the Constitution about right.

I wonder how many Obama voters expected John Yoo to endorse their man's vision of presidential war powers? But regardless, as New York University legal scholar Richard Epstein explains, both Yoo and Obama have it wrong:

The power to declare war lies in the Congress; the power to execute the decision to declare war rests in the President.  The power to declare as I understand is the power to change the state of relations between the United States and a foreign nation, so that the laws of war now apply to them.  The function of the President is then to lead that military effort as the commander-in-chief, not of the United States writ large, but of the Army and the Navy, and the militia when called into the active service of the United States—which it can be only when done pursuant to some Congressional action.  As was made very clear in Federalist Number 69, the President's power are far more limited than those of a king or even the governor of a state.