Law scholars debate use of force in Libya

April 25, 2011, 12:03 a.m.

With the U.S. military’s involvement in Libya still in its infancy, two scholars came together at the Law School on Friday afternoon to debate the constitutionality of America’s intervention in the country. Professor John Yoo of UC-Berkeley and University of San Diego professor Michael Ramsey J.D. ’89 presented opposing arguments, with Yoo defending the constitutionality of President Obama’s decision to carry out airstrikes and Ramsey arguing that intervening in Libya requires a Congressional declaration of war.

Yoo’s appearance generated controversy prior to Friday’s event, organized by the Law School’s Constitutional Law Center. During his time at the Department of Justice under the Bush administration, Yoo co-authored the “Torture Memos,” which provided legal justification for torturing terrorism suspects. Students handed out pamphlets titled “Why John Yoo should be fired, disbarred and prosecuted” at the entrance to the talk, and similar flyers covered the outer wall next to the entrance of the Law School.

“The problem with John Yoo is that he is the person that devised a legal justification for torture, which is universally considered not only morally reprehensible but illegal,” said Omar Shakir ’07, J.D. ’13. “To have him speak at Stanford Law School legitimizes not only him, but also the criminal conduct he helped to facilitate.”

“We’re not talking about someone who just has a perspective we don’t agree with,” he added. “To have him participate in a talk that is sanctioned by the Constitutional Law Center at the Stanford Law School is a black mark on the Law School and the University.”

Michael McConnell, the Constitutional Law Center’s director who moderated the talk and invited Yoo to campus, defended Yoo’s presence at the Law School.

“A university is a place for inclusion, not exclusion, of controversial ideas and controversial people,” he wrote in an email to The Daily. “[Yoo] is a respected member of the faculty of the University of California at Berkeley and has been invited to speak at dozens of universities around the country.”

“Many students chose to protest the invitation, and, in the best tradition of Stanford, they did so in appropriate places and appropriate ways, which did not interfere with the right of other Stanford students to hear the debate, free of disruption,” he added.

The debate itself saw a spirited discussion between Ramsey and Yoo, centering on the true nature of the distribution of war powers between the president and Congress.

Ramsey’s position was grounded in Article I, Section 8 of the U.S. Constitution, which gives Congress the power to declare war. According to the administration, military action in Libya is not a “war” and thus does not require the country to declare war against the Libyan government.

“The 18th-century sources define ‘war’ very broadly,” Ramsey said. “The international law authorities that wrote at this time…defined war simply as armed conflict between sovereigns.”

He added that the meaning of the word “declare” did not mean that the president could begin a war, so long as he did not say that the country was at war with another nation.

“This seems like a very odd arrangement to me,” Ramsey said. “The 18th-century meaning of declaring war is quite a bit broader than that.”

Yoo countered that the president is authorized by the Constitution to respond to attacks on America or its national interest without a Congressional declaration of war, and that Article I, Section 8 was not designed as a check on presidential power.

“[Congress] has created a huge army, navy and air force, which is primarily designed for offensive operations in other people’s countries,” he said. “The president, because of this arrangement, exercises a great deal of initiative and responsibility. However, that does not mean that the president has unfettered power to use that military…Congress [can] cut off funds for any war with which it disagrees.”

Yoo also cited British law that preceded the writing of the U.S. Constitution, where the nation could be at war for quite a while before the legislature actually issued a declaration of war.

“Britain waged six or seven major wars in the 100 years before the Constitution, but they declared war only once before or at the start of hostilities,” he said. “Look at the Declaration of Independence. It is a declaration of war…but Lexington and Concord occurred well over a year before the Declaration of Independence was issued!”

Kabir Sawhney is currently a desk editor for the News section. He served as the Managing Editor of Sports last volume.

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