John Yoo has been in the news a lot lately, not just because of his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush, but because he’s one of the authors of the Bush Administration “torture memos” that were the legal basis for the enhanced interrogation techniques the Bush Administration used against Al-Qaeda. Late last week, much to the dismay of many liberals who desperately want a Bush Administration scalp, the DOJ essentially cleared Yoo of professional-misconduct allegations for his authorship of the memos.
Earlier this week, I had a chance to interview John Yoo. What follows is a slightly edited transcript of our conversation.
All right, for the average person out there who doesn’t have a law degree, explain why the Geneva Convention shouldn’t apply to members of Al Qaeda we capture on foreign battlefields?
That’s a good question. Basically it’s because the Geneva Conventions are a written treaty that apply between nations that have signed it or countries or armed forces that agree to follow them in combat.
The problem with Al Qaeda is that they’re not a nation that has signed the Geneva Conventions and two, they have shown no desire to follow any of the rules of war. In fact, if you think about how Al Qaeda operates, they succeed by blurring the very careful rules that we have created over thousands of years to try to limit the damage of war to combatants.
So, for example, Al Qaeda launches surprise attacks on purely civilian targets by hijacking airplanes filled with civilians. This is done with operatives who do not wear uniforms. It violates all rules of war. The key, real principle behind the rules of war, is to distinguish between who’s a combatant and who’s a civilian.
So that’s why the Geneva Conventions require people who get treatment as POWs to wear uniforms, operate in regular armed units, and not to deliberately target civilians for attack. So I think that Al Qaeda really doesn’t deserve the benefits of the Geneva Conventions because they’re not willing to play by the rules.
Let me ask you a related question about the Geneva Convention. Since we do apply it in practice to groups like Al Qaeda and since no one seems to apply it to the United States, isn’t the treaty basically pointless?
The most important thing, I think, for the treaties like the Geneva Conventions, is that they govern when we fight wars against other countries. Though as you say, when we have fought wars against other countries, they have habitually violated the Geneva Conventions and abused our men and women in uniform.
We saw that in the Iraq wars. We’ve seen it in Afghanistan and saw it in Vietnam and Korea. So one very important point you bring up is there are people who say, “Oh, we need to follow the Geneva Conventions because otherwise when we fight, the other side won’t follow them either.” A very important point you make is that we have fought a lot of wars governed by the Geneva Conventions and our enemies don’t follow it anyway.
Did we torture anyone at Gitmo?
My view is that the legal advice that we gave was so that no one would be tortured. The basic question we had in the months right after 9/11 was, ”Do we want to do more to pressure Al Qaeda leaders and their highest operatives than read them their Miranda rights, give them a lawyer, and bringing them into the United States for a civilian trial?” Treating terrorism as if it were a law enforcement problem, like drug running or a garden-variety crime, had failed before 9/11.
Of course, we don’t want to do anything that crosses the line into torture. But, we do want to place pressure on these Al Qaeda leaders in a way that goes beyond law enforcement. So what our intelligence agencies and our military were trying to do was pressure people in the area that the law permitted, but not go so far that we would actually violate the ban on torture.
Let me ask you a question based on that. When you did the John Stewart appearance, liberals hated it. They felt it was too fair to you, I guess….
You wouldn’t want that.
You wouldn’t want to have a fair interview.
Yeah, that’s a big problem. Now Tapped came up with a number of questions they thought Stewart should have asked you. I’m going to ask you one of them.
“He never asked Yoo whether he thought Zubayda being stuffed in a box to the point that his gunshot wounds reopened was “well beyond the line.”
Well, first of all, I don’t think that was something that was authorized. You’re not allowed to do anything that would threaten the health of the detainees. So doing something to him where his wounds would be reopened would be a violation.
I don’t believe that the Justice Department ever advised that someone could do that. Now the problem is that there are all these claims and allegations of things that critics of the administration imagined that the Bush administration did, which it never did. People’s imaginations have run riot about all this and I think when more information has come out, people will begin to see how careful our interrogators were to not violate any of the rules…
Now, let me ask you another question here and this is more theoretical. Given the powers the President of the United States has under the law, could he legally order the torture of a non-American member of Al Qaeda if he chose to do so? Could Barack Obama do it legally, let’s say?
Well, I think this is the hardest question that I address in Crisis and Command and some of my earlier books. If you look carefully at what Obama, Bush, McCain or even Bill Clinton has said, they’ve said the President has to do what’s necessary if the country is really threatened with attack.
I think those presidents are saying they’re willing to cross the line, if necessary, to protect the country. I understand why they say that because if you look at these previous presidents in our history, they have always understood that their highest constitutional duty is to protect the safety of the American people from foreign attack.
So it sounds like what you’re saying is that our Presidents have concluded that, yes, if it came down to it, they legally could order torture.
Right. Let me say that it’s not that it’s not without checks and balances, of course. Congress has a number of avenues that it could use to block the President. If they didn’t like Guantanamo Bay, they could defund it tomorrow if they wanted to. If they didn’t like the interrogation policy, they could block that, too. They just don’t have to pay for it. They could shut down all the units that do it.
In this hypothetical situation you describe, which I don’t think we’ve had to face yet in this war on terror, the Congress could impeach the President. My view actually is that if a President was confronted with that choice — if they had strong information that a pending attack was about to occur and they made the decision to instead give the detainee a Miranda warning and a lawyer, I think Congress would impeach him for that.
I agree with you. In the afterword part of your book, you didn’t seem to think highly of putting terrorists captured on the battlefield through the civilian court system. Can you give a brief explanation of why?
I think it’s a terrible idea for a number of reasons and we’re seeing that right now with the proposed trial of Khalid Sheikh Mohammed in New York City. It’s not even really whether he’s going to be convicted or not in the end, although you have a much higher chance of an acquittal, I think, in a civilian court. Really, it’s for three reasons.
One is if we’re going to put these folks in civilian court, we’re probably going to start treating them like criminal defendants right away, which means that we’re drying up the most important source of information that we have on Al Qaeda and its pending attacks. The thing to remember is that this is an enemy that has no country, no territory, and no cities or population. They have no regular armed forces. So the only way we can gain intelligence on where they’re going to attack is from their own people. So, if we’re going to start giving them with Miranda warnings and lawyers, we’re going to dry up our best source of information.
The second thing is we’re going to have to open up our files and produce in open court the intelligence sources and methods that we used to capture them. So essentially, the trials have become a trial of the CIA and how did they know where Khalid Sheikh Mohammed was, how did they capture him, what intelligence did we get, and so on. That would be an intelligence bonanza for Al Qaeda.
The third thing is that it’s going to create terrible incentives for our men and women who are actually on the battlefield carrying out the fight against Al Qaeda. If they are going to detain Al Qaeda operatives abroad, they have to assume there’s a chance that they might be tried in civilian court. So, they’re going to have to start following the rules that govern our own police officers — but on the battlefield. They’re going to have to read Miranda warnings, let them have access to a lawyer in the battlefield area, collect witness statements, collect evidence on the field — and make sure it gets transported back to New York and Washington. Think about that — they have to do that while they’re also performing their missions, fighting the enemy, and protecting their own safety. I think it’s going to put our men and women in uniform even more in harm’s way than is necessary to beat Al Qaeda.
Let me ask you about an area where libertarians and conservatives often disagree, declarations of war. Do you think the resolution Congress approved in regard to Iraq meets the constitutional standard of a declaration of war?
Well, first, let me, you know, disclose that I don’t think the Declare War clause itself creates the requirement that Congress has to approve all wars before they occur and certainly I think whether it’s called a Declaration of War or it’s just called an authorization is not that important.
…We’ve had over 130 uses of forces abroad by our military and only five declarations of war. In fact, the very first two wars that the United States fought, the wars against the Indian Tribes under President Washington and then the Naval War against France under President Adams — neither of them had declarations of war.
…If Congress didn’t agree with having the war, they could just choose not to build the military for it. Since 1945 we have these large standing armies which give even more initiative to the President. But war is so expensive that we couldn’t even wage the Kosovo War, where no ground troops were used, without special appropriations from Congress. So Congress has, at least in my view, ample constitutional authority to check presidential war making whenever it wants to. They just choose not to because they have no political will, not because there is any kind of constitutional defect.
Last question, John. Do you think the desire some people have to criminalize policy agreements and put people in jail for having different political views – that’s something that’s been aimed at you, for example — do you think that smacks of fascism?
Well, I think it’s a grave, grave mistake. When one administration uses criminal laws against a previous administration, it ruins the ability of government to function effectively. People will not consider all the options. They might not make the best choices for the American public because they worry a lot more about their own personal situation. I think that’s the last thing we want in our government — for people in the government to be more worried about themselves than about the public interest.
John, I really appreciate your time.
Once again, John Yoo’s new book is called Crisis and Command: A History of Executive Power from George Washington to George W. Bush.