The Case for Executive Power

A legal and historical defense of the Bush administration

Crisis and Command, by John Yoo, Kaplan Publishing, 2009. $29.95, 544 pp.


On Sept. 11, 2001, all but a few employees were required to evacuate the Justice Department’s Office of Legal Counsel. Among the select personnel asked to remain behind was John Yoo, a young Harvard- and Yale-educated lawyer. In the weeks and months that followed, Yoo and his OLC colleagues played a central role in crafting the legal basis for the most controversial tactics employed by President George W. Bush in the war on terror—coercive interrogation techniques, which many call torture, and the indefinite detainment of suspected terrorists. In Crisis and Command, Yoo offers a defense of his legal interpretations and argues that wars and national-security crises not only warrant but even require the broad expansion of executive power. Yoo draws from a deep well of history in making his argument, tracing the expansion and use of executive power in times of crisis. Despite an overly selective reading of the past, Yoo presents an apology for executive power that must be seriously reckoned with.
A History of Power
Yoo starts his history at the 1787 Constitutional Convention, where James Madison proposed an executive beholden to the legislative branch, while Alexander Hamilton proposed an executive with broad powers and life tenure. The executive branch that emerged, Yoo argues, was much closer in practice to Hamilton’s vision than Madison’s. This became evident as early as George Washington’s first term, when questions lingered as to whether the various executive departments would be autonomous or whether the president alone held executive authority. Though “the constitutional text is silent as to whether cabinet officers must obey presidential orders,” Yoo writes, Washington subordinated executive-branch officials to the role of assistants and thus assumed unitary authority for the president.
Yoo contends that from this point onward, there was a distinct trend towards the expansion of executive power in moments of crisis, from Thomas Jefferson’s Louisiana Purchase through Lincoln’s Emancipation Proclamation and Roosevelt’s New Deal. Yoo uses this history to justify Bush’s assumption of enormous executive power. “President Bush’s actions relied on broad claims of presidential power,” he writes, “but again they fell within the precedents set by earlier presidents.” Those who find Bush’s use of presidential authority galling, Yoo suggests, must also find fault with Lincoln, Roosevelt, and Jefferson’s uses of executive power.
Choosing History
Yoo’s history, however, is weakened by its underemphasis of certain key events. For instance, Yoo emphasizes Roosevelt’s willingness to assume broad constitutional authority in addressing the Great Depression and WWII. However, Yoo devotes a mere six pages of his book to the notorious Executive Order 9066, with which Roosevelt violated the civil liberties of more than 120,000 law-abiding Japanese-Americans.
Yoo also chronicles Roosevelt’s wiretapping of all communications into and out of the United States after 1940. While Yoo concedes that these policies were misguided, he does not seem to take seriously the dangerous precedents they set. Yoo’s scant coverage of these and other ill-conceived presidential actions makes the reader question his critical balance.
Commission and Omission
In his final defense of the Bush administration, Yoo argues that the greatest American presidents took on broad authority and were “responsible for some of the most explosive constitutional confrontations in American history.” But Bush could have been reckless and unsuccessful in addition to bold, a possibility Yoo does not really address. Lyndon Johnson and Richard Nixon seem the perfect counterexamples to Lincoln and Jefferson. Presidential greatness is invariably determined by the outcomes of executive policies, not by their constitutional novelty.
The broader message of Yoo’s work is that no executive will ever execute his authority will complete judiciousness. As Yoo noted in a recent interview with Jon Stewart, “the Constitution doesn’t prevent [executives] from making poor decisions.” And Yoo believes that “mistakes of commission” are always better than “mistakes of omission.” Put plainly, Yoo concludes that it is better for a president to act decisively to protect his country, even if he is later rebuffed by history, than for a president not to act at all when his country is in danger. This is Yoo’s most forceful argument: in crisis moments a passive president may be the last thing we want.
Jeffrey Lerman ’13 is a Contributing Writer.