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
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
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
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
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
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
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
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
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