Yesterday Glenn Greenwald wrote:
In his column for the American Enterprise Institute today, John Yoo accuses President Obama of transgressing the proper limits of executive power by asserting the right to wage war in Libya without Congress.
That's not really what Yoo was saying. Yoo said that the president was flouting his own understanding of what was constitutional, and was undermining restraints on executive power by ignoring opinions from the Office of Legal Counsel rather than simply putting someone like Yoo there who would give legal sanction to whatever the president wanted him to. Yoo's position is that under Article II, the president can declare war on whomever he wants. That's why he says this:
Let's be clear: Obama has the right result, but for the wrong reasons. He doesn't need to contort the law beyond all recognition to wage war in Libya. Obama could claim that his authority stems from the Constitution's grant of the commander-in-chief and chief executive powers, which presidents before him have used to attack the Barbary pirates, respond to secession, suppress foreign rebellions, defend allies from invasion, stop the deployment of nuclear weapons near our shores, and halt humanitarian disasters. Congress cannot simply order the president how to use his control over the military, just as the president cannot command Congress where to spend federal money. This balance of power stems not just from decades of practice by the president and Congress, but the understanding of the Framers and the constitutional structure, which give to the president the advantages of acting with speed, energy, and dispatch in a dangerous world.
Yoo's issue is that Obama is being hypocritical, and that he would have been fine if he'd just declared himself emperor and asserted the authority to attack whomever he wants whenever he wants.
