Lawyers Journal

Bush officials justify war; presidential powers at 10th annual Shakespeare and the Law event

Against the setting of William Shakespeare's Henry V, ex-officials from President George W. Bush's administration defended the legal and moral basis for expanding executive powers at the onset of the War on Terror.

The 10th annual Shakespeare and the Law - a dramatic reading of Henry V followed by a panel discussion - featured a frank and pointed debate over the justification for going to war and the expansion of powers in the name of keeping America safe.

"Shakespeare's telling us something about the law and the decision to go to war," said Daniel J. Kelly, who produced and moderated the event. He is a partner at McCarter & English LLP and chairman of the Boston Lawyers Division of the Federalist Society.

The June 15 event, which was sponsored by the Federalist Society's Boston Lawyers Chapter, Commonwealth Shakespeare Company, the Massachusetts Bar Association and McCarter & English LLP, attracted hundreds of people to the Cutler Majestic Theatre in Boston.

Featured guests included two Bush administration officials: event host and Massachusetts native Andrew H. Card Jr., who served as White House chief of staff; and John Yoo, who authored the infamous memos justifying the legal use of torture against enemy combatants when he was a deputy assistant attorney general in the Office of Legal Counsel of the U.S. Department of Justice.

Card, who noted that he had been the one to interrupt Bush as he was reading a book to an elementary class to relay the news that America was under attack on the morning of Sept. 11, 2001, said that as Bush received the news, he must have thought back to his inaugural oath to "preserve, protect and defend."

Yoo, now a law professor at the University of California at Berkeley, has been vilified by the political left for authoring the so-called "torture memos" criticized by the Justice Department's Office of Professional Responsibility. He strongly defended the president's right to expansive wartime powers.

He also found himself on the defensive against other panelists.

Suffolk University Law School professor Michael Avery started the panel discussion by musing, "Wouldn't it be interesting if we could have the bard pen a play about war in the era of George II?"

Avery had harsh words for Yoo, telling him, "If you make war on the Constitution, you make war on the country," accusing him of conspiring against the Constitution, to boisterous applause from the audience, prompting Kelly to remind the audience that this would be a civil discussion.

Yoo, who joked that it was refreshing to leave the "people's republic" of Berkeley for a "more moderate" place like Boston, noted, "The play is a wonderful commentary on the tensions between law and war."

He criticized the scrutiny that was paid to the legal justifications for waging the war in Iraq, for example, noting that if America had intervened in Rwanda to prevent that country's genocide, it would have been a moral but illegal war.

"We've lost a lot of the richness of debate about whether war is just because we've become focused on whether war is legal," Yoo said.

He also defended the expansion of war powers and a president's need to act above the law when necessary to protect the country, alluding to Henry's decision to execute his French prisoners after the battle of Agincourt out of concern that the French prisoners outnumbered Henry's English soldiers and could have risen against them.

There was discussion about President Obama's embrace - after he was elected - of controversial Bush policies such as detaining potential terror suspects at Guantanamo Bay, warrantless wiretapping of American citizens and rendition.

Card offered a simple explanation for Obama's change of heart from campaign trail criticisms of Bush's policies to his Oval Office continuation of them.

"You're much smarter the day you take the oath of office than the day you're elected," Card said, explaining how receiving information in classified briefings usually changes a president's perspective, adding that Sept. 11 changed the playing field. "The War on Terror challenged our constitutional understanding of the role of the president."

Jeff Jacoby, a conservative columnist for The Boston Globe, illustrated the dilemma facing presidents over whether to wage war on moral or legal grounds by suggesting that the strongest case for invading Iraq would have been the humanitarian argument for stopping Saddam Hussein, who was torturing and killing his own people. Jacoby noted that in retrospect, Franklin Delano Roosevelt could have acted sooner to prevent the Holocaust.

"So much of what we think gives legitimacy to wage war isn't decided until after the war," he said.

Avery, who suggested that the decision to wage war should not be left to the whims of an individual leader of a powerful country, but rather, pass muster with international standards, told Yoo, "I'm as disappointed that (Obama) is continuing the Bush policies as you are thrilled by it."

Yoo said that countries do and should make decisions that end up changing how and when war is waged. "I think it's naïve to say that powerful countries don't drive the laws of war in their national interests."

U.S. District Court Judge Rya W. Zobel took issue with Yoo's argument: "It seems to me that Henry wanted to go to war and then found a reason to do it," she said, adding that following that course of action can lead to lawlessness.

Former Massachusetts Lt. Gov. Kerry Healey noted that the panel discussion revealed the inadequacy of international and domestic law to govern the decision to wage war. "Our current rules aren't adequate. They don't reflect what exists," she said. "So where do we go?"

Jay B. Stephens, who served as associate attorney general of the United States under Bush in 2001 and is now general counsel at Raytheon Co., said a leader determined to go to war would find a legal justification. But just as troubling, he said, is relying on a moral imperative to justify war.

"If we rely on morality for when we go to war, what is the limit for that?"

©2014 Massachusetts Bar Association