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Adrian Fisher and John Yoo

By Jack M. Balkin

Steve Griffin has written a remarkable analysis of the rise of presidential power, focusing in particular on the analysis offered by the State Department to justify Harry Truman's unilateral decision to send American troops to Korea, the first of our major wars to be "undeclared" by Congress. There were, to be sure, a host of minor conflicts, but, as Steve notes, the Korean War can by no means be placed in their category. Steve's analysis of the State Department memorandum is devastating, at least if one takes it seriously as an argument within the standard conventions of American legal practice. What especially interested me, as I read his analysis, was whether there is a potential comparison to be drawn between the author of that memorandum, I assume Adrian Fisher, who was legal adviser to Dean Acheson during the relevant period, and John Yoo. That is, if one adopts Steve's convincing analysis, Fisher and other apologists for Truman's unprecedented unilateralism believed themselves, perhaps correctly, to be in a brand new world, which we denominate the Cold War. Recall that Acheson's best-selling memoir was entitled Present at the Creation. There can be little doubt that Acheson viewed the post-World War II world as essentially different (and I use the word "essentially" advisedly), calling for brand new conceptualizations of national, including presidential, power. (Acheson, of course, would be one of the ostensible "wise men" called to give advice by John Kennedy during the Cuban Missile Crisis. Thank God Kennedy has the wisdom to reject it, but Acheson certainly had no doubt that the President could, unilaterally, declare World War III without an iota of consultation with Congress (since, after all, time was of the essence).) What is so interesting about Steve's argument is that he doesn't necessarily disagree with the diagnosis offered by Acheson and his colleagues, he simply thinks they affected a transformation of the Constitution without going through the bother of formal constitutional amendment or even getting the imprimatur of the Supreme Court after defending their assertions in court. That is, according to Steve, neither text, history, nor doctrine supports the State Department's reading of Truman's power.

So this brings me to John Yoo:

There can be no doubt that Yoo also viewed himself as "present at the creation," of a post-Sept. 11 world requiring anything-goes executive unilateralism. And he in fact could draw on what Steve calls the post-1950 development of the new constitutional understanding (at least in the executive branch and among its friends). Most of us believe that Yoo dreadfully overreached in his depiction of a basically monarchical--or dictatorial--presidency. But what really interests me is whether Yoo's overreaching was any greater than that of Adrian Fisher and Dean Acheson? Do we have a metric by which to make such comparisons?

Fisher, Wikipedia tells us, had a long and honorable career, serving in the administrations of every Democratic President through Jimmy Carter. I have no desire to impugn that career, especially because he was apparently a devotee of nuclear disarmament and linked arms control agreements. That being said, do "we"--i.e., liberal Democrats--have a duty to plow through the historical sources, as Steve has so ably done, and reconsider the provenance of many of the things that were written at the time? Or can we analyze (and castigate) John Yoo without looking at some of the work of Fisher and many other people far more distinguished than John Yoo and just as committed, when all is said and done, to building the scaffolding for (relatively) uncontrolled executive power in the realm of foreign and military policy? Or is it sufficient to say that Harry Truman's (and Adrien Fisher's) motivations were better, that they sent American forces to die (and kill) in behalf of the United Nations, or, finally, that such dying and killing is simply so different from justifying torture that we can focus exclusively on the latter without addressing the former?

I would, of course, be extremely intersted to know Steve's own views about the "professional competence" of the State Department's memorandum.

Full post as published by Balkinization on September 14, 2009 (boomark / email).