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The Devil’s Advocate


December 19, 2005

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As deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice from 2001 to 2003, John Yoo authored the first in a series of memos on the administration’s treatment of prisoners, international law and torture.

His January 9, 2002, memo reasoned that the Geneva Conventions do not apply in the war on terror, as al Qaeda is not a state or a signatory to the Conventions. In the debate that followed, those within the administration who would give the president a free hand on matters of interrogation, like Yoo himself, would win the day. Following Yoo’s memo (and his legal reasoning) was the notorious “torture memo.” Many have seen this as setting a tone—and sending a signal—that led to abuses like those at Abu Ghraib and Guantanamo.

As The Washington Post reported, the memos “created the context for a record of persistent ill treatment … of detainees at prisons in Iraq, Afghanistan, Cuba’s Guantanamo Bay and undisclosed locations.”

In his new book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, Yoo makes his case for a strong executive, and examines the president’s powers to make war, sign and void treaties and set foreign policy. Suggesting his and the president’s critics are being self-righteous and unrealistic, Yoo defends his positions in the conversation that follows, which took place by email. He is Professor of Law at the Boalt School of Law at the University of California at Berkeley.

[Interviewed by Joel Whitney]

Guernica: Shouldn’t we be troubled by the fact that the U.S. no longer declares war?

John Yoo: No. Declarations of war have never been a constitutional requirement for military action abroad. The United States has used force abroad more than 130 times, but has only declared war five times—the War of 1812, the Mexican-American War, the Spanish-American War, and World Wars I and II.

Guernica: Doesn’t the Constitution explicitly give Congress the power to declare war, and isn’t this an important part of the separation of powers?

John Yoo: I believe that the power to declare war is most important in limiting the powers of the national government in regard to the rights of its citizens, but that it does not require Congress to give its approval before the president uses force abroad. I do not believe that the framers of the Constitution understood the power to declare to mean “authorize” or “commence” war. That does not mean that the separation of powers or checks and balances will not work. Congress has ample checks through its control over the size and shape of the military and its power of the purse to control and prevent warmaking by the president. If Congress wanted to stop the wars in Kosovo, Afghanistan, and Iraq, all it had to do was nothing—just refuse to provide the president with any funds to fight the wars. Instead, it seems to me, Congress has created and funded a huge peacetime military that has substantial abilities to wage offensive operations, and it has not placed restrictions on the use of that military or the funds to support it, because it would rather let the president take the political risks in deciding on war. If Congress wanted to play a role in restricting war, it could—it simply does not want to. But we should not mistake a failure of political will for a violation of the Constitution.

Guernica: How important is it for the president to seek Congressional approval for war and why? Is this done for political reasons in your view?

John Yoo: I think it can be very important for the president to seek congressional approval, even though not constitutionally required to do so (in my view), in certain situations. It makes sense to go to Congress to signal our national resolve and our willingness to fight to defend other nations or the freedom of their peoples. It can also help the president to go to Congress to seek a commitment of long-term funding for future military action. At the same time, presidents have fought many recent wars, including Korea, Panama, Grenada, and Kosovo, without any congressional permission aside from funding.

Guernica: Is it legal (constitutional) for the U.S. to wage wars that break with international law, especially in cases where a pact or treaty will be broken that past administrations are signatories to?

John Yoo: The Constitution nowhere brackets the war powers of the United States with international law. The Constitution makes clear that the laws of the land include only the Constitution, statutes, and treaties. International law that does not take the form of treaties are not included in this list, and so do not bind the United States in its decisions to make war. President Roosevelt very well may have acted contrary to international law rules on neutrality by aiding Great Britain before U.S. entry into World War II, but this by itself was not illegal under our Constitution. As a sovereign nation, the United States can also break treaties, if it chooses to do so, in deciding on going to war. For example, in Kosovo the United States never received authorization from the United Nations Security Council to attack Serbia nor did it claim self-defense, the only two grounds under which a nation may engage in an armed conflict under the U.N. Charter.

Guernica: In an interview on the University of Chicago Press web site, you note that since al Qaeda is not a country and is not a signatory to the Geneva Conventions, the Conventions do not apply in much of the war on terror. Couldn’t the same argument be made in the reverse?—because the U.S. tortures, even when it is engaged in activities in countries that have signed the Geneva Conventions, our enemies in combat may torture our soldiers? Doesn’t it take away protections for our own soldiers by setting an ugly precedent?

John Yoo: No. First, it is the policy of the United States not to engage in torture, and there are federal criminal laws that prohibit torture.

Second, the United States is at war with the al Qaeda terrorist group. Al Qaeda is not a nation-state and it has not signed the Geneva Conventions. It shows no desire to obey the laws of war; if anything it directly violates them by disguising themselves as civilians and attacking purely civilian targets to cause massive casualties. The Geneva Conventions simply do not apply between the United States and an entity that has not signed them.

Third, in any future conflict with another nation or nations, if they have signed the Geneva Convention, then they would apply to protect the soldiers of both sides. It would be illegal for either nation at war to abuse soldiers. That does not mean that such abuse would not occur; American prisoners of war have been badly mistreated in many of the conflicts since World War II, even when the enemy has signed the Geneva Conventions. But I suspect that the more important question in the minds of an enemy would be whether their own soldiers are well treated by the United States, rather than how we treated al Qaeda terrorists in a different war.

Guernica: The decision over whether to apply the Geneva Conventions was hotly debated within the Bush administration. You were at the center of that debate and came out against applying the Conventions in a famous memo (of January 9, 2002). You told PBS there were pros and cons to adhering to the Conventions. What were the biggest pros and cons?

John Yoo: There are pros and cons about the policy decision whether to follow the Geneva Conventions in a war where they do not legally apply. Among the pros might be benefits for America’s image, its ability to argue in future conflicts that the Conventions should be followed, and training soldiers to follow only the Geneva standards. Among the cons might be greater security and safety for our troops who capture and detain al Qaeda operatives and the ability to gather more actionable intelligence swiftly.

There was nothing wrong—and everything right—with analyzing a law that establishes boundaries on interrogation in the war on terrorism.

Guernica: Personally, what are your feelings about torture? Is it a necessary part of the US’s arsenal?

John Yoo: Personally, I do not think that torture is necessary. But it may be the case that interrogation methods that go beyond questioning, but do not arise to the level of torture, may be necessary to get actionable intelligence from high-ranking al Qaeda leaders. I do not know whether that is true as a matter of fact; I do not have access to the information or data to make an informed decision. That is up to our elected leaders.

Guernica: Isn’t the U.S. bound by the UN Convention Against Torture not to engage in any kind of torture? (Torture in that document was defined as “any act by which severe pain, whether physical or mental, is intentionally inflicted” to gain information, extract a confession, or as punishment.)

John Yoo: There is a clear and necessary difference between law and policy. The memo did not advocate or recommend torture; indeed, it did not discuss the pros and cons of any interrogation tactic. Rather, the memo sought to answer a discrete question: What is the meaning of “torture” under the federal criminal laws? What the law permits and what policymakers chose to do are entirely different things. Second, there was nothing wrong—and everything right—with analyzing a law that establishes boundaries on interrogation in the war on terrorism. Unlike previous wars, our enemy now is a stateless network of religious extremists. They do not obey the laws of war, they hide among peaceful populations and launch surprise attacks on civilians. They have no armed forces per se, no territory or citizens to defend and no fear of dying during their attacks. Information is our primary weapon against this enemy, and intelligence gathered from captured operatives is perhaps the most effective means of preventing future attacks.

Guernica: Didn’t your office then seek to narrow the definition of torture to “severe pain equivalent to that associated with organ failure or death”—which is pretty narrow indeed?

John Yoo: An American leader would be derelict of duty if he did not seek to understand all his options in such unprecedented circumstances. Presidents Lincoln during the Civil War and Roosevelt in the lead-up to World War II sought legal advice about the outer bounds of their power—even if they did not always use it. Our leaders should ask legal questions first, before setting policy or making decisions in a fog of uncertainty.

Guernica: Even friends of the Bush administration like John McCain condemn the use of torture and atrocities like Abu Ghraib as responsible for a vast erosion of the US’s image and as useful recruiting tools for al Qaeda, not to mention inhumane and—as some have said—“un-American”?

John Yoo: There are no easy legal answers about torture, despite the moral certitude displayed by the administration’s critics. The Reagan and first Bush administrations developed a strict test for torture—the “specific intent” to inflict “severe physical or mental pain or suffering”—that was adopted by Congress and the Clinton administration in 1994. It uses words rare in the federal code, no prosecutions have been brought under it, and it has never been interpreted by a court. As a result, the 2002 memo looked to other federal laws, domestic and international judicial decisions, legislative history and presidential and diplomatic records, which reinforced the conclusion that the United States intentionally defined torture strictly.

It is easy now for critics to claim that the work was poor; they haven’t produced their own analyses or confronted any of the hard questions. For example, would they say that no technique beyond shouted questions could be used to interrogate a high-level terrorist leader, such as Osama bin Laden, who knows of planned attacks on the United States?

To comment on this piece: editors@guernicamag.com

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