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Full-Text Articles in Law
Making War, John C. Yoo, Robert Delahunty
Making War, John C. Yoo, Robert Delahunty
John C Yoo
We respond here to Unleashing the Dogs of War by Sai Prakash, which represents the latest originalist argument that war cannot be started by the executive without congressional authorization. First, we argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point for constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure …
Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, John C. Yoo, Jesse Choper
Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, John C. Yoo, Jesse Choper
John C Yoo
Many have long debated whether Congress may strip the federal courts completely of jurisdiction over certain classes of cases. Until the last few years, these debates met the very definition of academic. Aside from two statutes, Congress had never engaged in clear removal of cases from the Supreme Court or the lower federal courts. That changed with the Court's decision in Rasul v. Bush, which extended the federal writ of habeas corpus to alien enemy combatants detained at the Guantanamo Bay, Cuba Naval Station. In response to Rasul, Congress enacted the Detainee Treatment Act of 2005 (DTA), which forbade any …
Counterintuitive: Intelligence Operations And International Law, John C. Yoo, Glenn Sulmasy
Counterintuitive: Intelligence Operations And International Law, John C. Yoo, Glenn Sulmasy
John C Yoo
This essay addresses proposals for international regulation of intelligence gathering activities. We show that international law currently does not express any strong norms against intelligence gathering. We argue that international law is incapable of regulating such activities and proposals for change would prove counterproductive. Careful attention to the causes of war between rational nation-states shows that these efforts will have the highly undesirable result of making war more, rather than less, likely.
The Terrorist Surveillance Program And The Constitution, John C. Yoo
The Terrorist Surveillance Program And The Constitution, John C. Yoo
John C Yoo
In response to the September 11 attacks, President Bush created the Terrorist Surveillance Program, which authorized the National Security Agency to intercept phone calls and emails traveling into and out of the United States. One of the parties to the communication had to be someone suspected of being a member of al Qaeda. This surveillance took place outside the framework of the Foreign Intelligence Surveillance Act, which since 1978 has regulated the interception of communications entering or leaving the United States. This Essay argues that the TSP represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during …
Challenges To Civilian Control Of The Military: A Rational Choice Approach To The War On Terror, John C. Yoo
Challenges To Civilian Control Of The Military: A Rational Choice Approach To The War On Terror, John C. Yoo
John C Yoo
An overlooked gap in the legal study of national security decisionmaking is civil-military relations. Civilian control of the military remains one of the fundamental norms of our constitutional system, and it appears regularly in the day-to-day functioning of our national security institutions. The War on Terror has exacerbated growing tensions between the civilian leadership and the American military, particularly with the Judge Advocate General's Corps. We propose a rational choice framework to understand and better address challenges to civilian-military relations.
Executive Power V. International Law, John C. Yoo, Robert J. Delahunty
Executive Power V. International Law, John C. Yoo, Robert J. Delahunty
John C Yoo
Critics of the Bush administration's conduct of the war on terrorism and the wars in Afghanistan and Iraq have made the claim that the President cannot order conduct that is inconsistent with international law. Not only is the argument under-theorized, it runs counter to the best reading of the constitutional text, structure, and the history of American practice. A careful examination of the constitutional text, for example, shows that international law that does not take the form of a treaty or other authoritative adoption by the political branches will not enjoy supremacy effect. If international law cannot claim the status …
The Terrorist Surveillance Program And The Constitution, John C. Yoo
The Terrorist Surveillance Program And The Constitution, John C. Yoo
John C Yoo
In response to the September 11 attacks, President Bush created the Terrorist Surveillance Program, which authorized the National Security Agency to intercept phone calls and emails traveling into and out of the United States. One of the parties to the communication had to be someone suspected of being a member of al Qaeda. This surveillance took place outside the framework of the Foreign Intelligence Surveillance Act, which since 1978 has regulated the interception of communications entering or leaving the United States. This Essay argues that the TSP represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during …