How the Commander in Chief Power Swallowed the Rest of the Constitution

Criminal Justice Ethics, Vol. 26, No. 2, pp. 44-51, 2007

University of Pittsburgh Legal Studies Research Paper No. 2008-15

9 Pages Posted: 5 May 2008

See all articles by David A. Harris

David A. Harris

University of Pittsburgh - School of Law

Abstract

In his book, "War by Other Means", John Yoo, a former high-ranking official in the U.S. Department of Justice's Office of Legal Counsel under President George W. Bush, attempts to advance legal justifications for many of the Administration's most controversial programs in the war on terror, including coercive interrogations, the National Security Agency's wiretapping programs, military commissions, and The USA PATRIOT Act. Yoo, perhaps best known as the author of several of the so-called "torture memos" that the Administration used as the legal underpinning for its harsh questioning of detainees, argues that the president's constitutional role as commander in chief in a time of war allows almost any imaginable exercise of power by the executive that might be linked, however tenuously, to national security. In this essay, I assert that Yoo cannot be correct. His expansive reading of the wartime power of the executive makes the other branches of government, and even the Constitution itself, into an afterthought for any purpose the president may unilaterally ordain. While our system of government clearly gives the president considerable power to wage war and tend to foreign affairs, Yoo's vision takes us beyond protecting and defending the Constitution, to destroying it.

Keywords: : constitutional law, constitution, commander in chief, war, wartime, executive, executive power, executive branch, war on terror, September 11.

Suggested Citation

Harris, David A., How the Commander in Chief Power Swallowed the Rest of the Constitution. Criminal Justice Ethics, Vol. 26, No. 2, pp. 44-51, 2007, University of Pittsburgh Legal Studies Research Paper No. 2008-15, Available at SSRN: https://ssrn.com/abstract=1129237

David A. Harris (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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