If I read the content of John Yoo's infamous argument and the general argument for sweeping war powers for the executive branch correctly, it goes as follows. First, after 9/11, the US was involved in a state of war with Al Qaeda based on self-defense, thus granting the executive branch uncurtailable war powers. Secondly, any investigations and interrogations following from this war are similarly under the broad discretionary power of the president to do as he sees fit without oversight, transparency, or accountability for individual acts in a state of war. The basic argument is that fighting a war is by its nature fast-paced and without rules for the different parties engaged in it, so that to bind the executive by rules would diminish its capacity to fight wars. The logic is straightforward and simple (minded?) despite the 81 pages of argument for the sake of precedent. Here's why its basically wrong, or more accurately only very partially true.

First of all, the concept that the US is waging a war against "Terror" or even against Al Qaeda. The US declared war against Afghanistan because Afghanistan funded and supported Al Qaeda. In essence, they used them as an irregular force to carry out state policy, and by supporting their acts, declared war on the US. Thus, the US has a right to invoke defense and declare was on the state of Afghanistan. This does not give the US war powers against other states where Al Qaeda members might live or be. The US government can't violate, say, Italian law and detain people in Italy, because it would be in essence declaring Italy a war zone. It would be saying that Italy is supporting or willfully neglecting Al Qaeda. If that extreme is not the case then Italian sovereignty is above US imperatives in Italy, and the US must coordinate actions with Italy. The absurdity of a war against "Terror" anywhere and by anyone steps way over the bonds of a war against a state that used an irregular organization as an institution of state policy. The US only really has the extreme wars powers against Al Qaeda in Afghanistan. Otherwise, the idea of enforcing civil law, and the apparently foreign concept (to this president) of state sovereignty hold precedent.

Secondly, the idiocy and possibly cynicism of crying foul as the administration says that oversight in war makes war impossible to wage and thus any internment and interrogation policies are discretionary. The idea of "prisoners of war" represents some sort of middle ground between an all out state of war, when no one has control and all force might be necessary to achieve objectives and state control, where a state has a degree of control where regulation of state power is both prudent and necessary. Once a suspected enemy irregular is in custody, can you really, justifiable, still claim that there remains a state of war (with a straight face)? That's why it is important to get captured combatants out of, or away from the war zone. So that the prisoner doesn't have to be treated as if he/she is still on a battlefield. Once a combatant enters this "middle-ground", the holder should strive as much as possible to institute oversight, transparency, and fair legal precedings (mirroring, if not exactly the same as in a civilian court). How absurd is it to say that the US is at war with the prisoners in GTMO, and then use that as a justification for unlimited discretion in torture and interrogation.

More broadly, the war with Afghanistan (not terror, not Islam, not war against the world or universe) does not justify war powers against people in the US, since the US is NOT a war zone. It doesn't justify war powers in any sovereign foreign state except Afghanistan (and of course, now, in Iraq). I can't tell if the arguments are idiotic, or are a result of fear, or power-drunkeness, or some combination of the three. But the fact is, there is no such thing as civil liberties and international law in a context where the US is at war with anything or anyone it considers a terrorist, including domestic criminals. The fact remains that it would be smarter, more effective, more humane, and generally preferable to treat catching terrorists and thwarting their plots as a law enforcement issue, especially in the United States and other sovereign nations. And it would indicate a nuanced, wise, and effective intelligence to acknowledge that detainees, or prisoners of war (note: as a result of war, not continuing to be capable of war) represent a middle-ground between war and normalized civilian authority where oversight, transparency, procedures to exonerate the innocent, and so on are in place.

This seems fairly straightforward and accurate to me. If it's not, I'd love to know why.

Aaron Rothbaum