Dana Milbank doesn’t like John Yoo’s constitutional arguments for expanding the war-making powers of the executive. (For an mp3 file of Yoo’s speech at the Heritage foundation go here.) . Conservative columnist Tony Blankley approves of a legal argument by liberal law professor Alan Dershowitz. Yoo and Dershowitz are grappling in constitutional terms with the changing nature of warfare and the need for an agile, energetic executive faced by terrorist attacks. Neither legal argument seems to take account of some basic strategic realities described by Carl Von Clausewitz.
Yoo, in particular, seems unaware of the Clausewitzian trinity of war. (Click here for a discussion by Villacres and Brassford.) This trinity arises. Von Clausewitz contends from the interplay of “ (1) primordial violence, hatred, and enmity; (2) the play of chance and probability; and (3) war's element of subordination to rational policy”. Col. Harry Summers related these three to the 1) the people 2) the military, and 3) the government. The military learned, in Secretary of Defense Weinberger’s formulation, that reasonable assurance of public support is essential to victory on the battlefield. Without it tactical victories will not prevent strategic defeat – as in Vietnam. (Go here for my summary of this in relation to the Just War theory.) In the end the people - whose sons and daughters fight the war - provide strategic support.
Yoo may be on solid constitutional ground in arguing for expanded powers for the President. Even if he is, experience of Vietnam and Iraq ought to have taught us that victory is more likely if the objectives are clear and just and if the people support the war. Constraints on war powers were written into the constitution for a simple reason: the founding fathers did not want another king who could send their sons into combat without good and sufficient cause. Yoo’s interpretation makes this more probable. Congressional scrutiny helps insure clear objectives and public support. an energetic executive is likely to fail on both counts - and then blame the liberal press for criticizing his lack of clarity.
Dershowitz, on the other hand, recognizes that the nature of warfare has changed and that preventive action may be necessary even when a threat is not immanent. As he says, even when the threat is not immanent – as was the case with Iraq – the opportunity to take preventive action may be fleeting.
This discussion is, as we used to say, “above my pay grade”. I’m not a legal scholar or a strategist. I can, however, observe that there are just war issues involved. The criteria of just cause, legitimate authority, and last resort are all involved in the questions raised by Yoo and Dershowitz. Is it too much to ask that the Bishops find at least one theologian to reflect on these issues?
(Milbank adds a few ad hominem comments to his column. Statements such as "Yoo, a Korean American who immigrated as an infant, is not yet 40. With a pudgy face and a soft voice, he speaks in a measured manner that has a way of softening the extraordinary nature of many of his utterances." are not objective news reporting.)
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