by John Yoo
This wasn't just a nonbinding expression of condemnation of the attacks. The law empowered the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."23 The President's authority was not limited to the immediate perpetrators of the attacks but to any nation, entity, or individual who has "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Congress had declared things to be a threat to national security, like drug trafficking or organized crime, but had never before authorized the President to use "all necessary and appropriate force" against these entities.
In October 2001, President Bush ordered the United States military to attack al Qaeda and the Taliban militia harboring them in Afghanistan. This campaign drove al Qaeda and Taliban forces from their strongholds and permitted the installation of a friendly provisional government in Afghanistan.
The Justice Department and the FBI launched a sweeping investigation in response to 9/11. Congress enacted the Patriot Act in October 2001 to expand the Justice Department's powers of surveillance against terrorists.24 By executive order, the President created a new Office for Homeland Security within the White House to coordinate the domestic program against terrorism. Congress later established a cabinet-level Department of Homeland Security consolidating twenty-two previously disparate domestic agencies into one department to eliminate overlap, turf struggles, and confusion.25
Some complain that these measures violate the Constitution because we cannot use military measures against crime. Bush administration rhetoric even seems to suggest this at times. The terminology "war on terrorism" causes confusion by suggesting that we are at war with a combat tactic, not a concrete enemy, as former CIA director James Woolsey has pointed out. He likens a "war against terrorism" to a "war against kamikazes." The war on terror to many ears echoes the avowedly metaphorical "war on drugs" that has always been fought as a criminal matter.26 Our political leaders have watered down "war" in the interests of mobilizing the nation to solve persistent social problems. However, the United States is not at war with every terrorist group in the world, or all who employ terrorist tactics, or a social problem, but with al Qaeda.
Rhetoric aside, it is perfectly clear that we are now engaged in an international armed conflict with al Qaeda, however much politics may fog the issue. Critics may try to get a federal court to rule that this is not war, or the laws of war do not apply, or that the United States must use only criminal law enforcement tools. But so far, the courts have not upheld this position. It is true that the Supreme Court's 2004 decision on enemy combatants was read by some as dealing a blow to the Bush administration's interpretation of the war on terrorism. Rasul v. Bush held that the federal courts would--for the first time--review the grounds for detaining alien enemy combatants held outside the United States.27 In Hamdi v. Rumsfeld, the justices required that American citizens detained in the war have access to a lawyer and a fair hearing.28
On closer examination, Hamdi actually affirmed the administration's basic legal approach to the war and left the executive branch plenty of flexibility to prevail in the future. Despite enormous political pressure from the media, the academy, and activist litigators, the justices did not turn the clock back to September 10, 2001. They agreed that the United States was indeed at war, one authorized by Congress. As Justice O'Connor wrote for the Court's plurality:
There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for [the September 11] attacks, are individuals Congress sought to target in passing the [Authorization for Use of Military Force]. We conclude that detention of individuals falling into that limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.29
The justices implicitly recognized in Hamdi that the United States may use all the tools of war--including detention without criminal trial--to fight a new kind of enemy that has no territory, no population, and no desire to spare innocent civilian life.
At the same time, the courts unwisely injected themselves into military matters. At one level, these decisions recognize the unique challenges of the war on terrorism. In past wars, it was usually simple to identify a member of the enemy by his uniform. Because our enemy attacks covertly, our system seeks the review of another branch of government to guarantee that an American is actually a threat to national security before he can be detained. On the other hand, we should not extend our constitutional system's checks and balances to benefit aliens captured and held outside the United States in wartime. Both inside and outside the Justice Department, I advocated more judicial deference to the executive branch's constitutional authority over the conduct of war.
One place where we should not look to determine whether war exists is to international organizations like the United Nations. Certainly some alliances, such as the North Atlantic Treaty Organization (NATO), can play a useful role, but that is because they consist of actual governments with populations at risk and real militaries to protect them. NATO immediately recognized that the 9/11 attacks constituted an armed attack, offered to send planes to help defend the United States, and deployed troops to assist in the reconstruction of Afghanistan. The United Nations, however, is another story. A day after the attacks, the UN Security Council issued a resolution recognizing the United States' right of "self-defense," and found international terrorism to be a threat to "international peace and security"30--code words in international law justifying the use of military force. The UN's International Court of Justice, on the other hand, has refused to acknowledge that non-state actors have become makers of war against nations. It has repeatedly claimed that nations can only exercise the right of self-defense against other states, most recently in its controversial decision with Israel's construction of its security barrier along the West Bank.31
Nations should decide whether war exists. It is their populations under threat, their armed forces that maintain peace and security, and their intelligence and security agencies that will defeat those who threaten them. Al Qaeda's defeat will certainly not come at the hands of the United Nations, nor at the hands of the many nations in the UN General Assembly and other UN institutions that have no assets or forces to contribute.
Implications
If the views of the Bush administration's critics were to prevail, and we were to treat September 11 and other terror attacks as crimes, our system would grant al Qaeda terrorists better legal treatment than that afforded to our own soldiers. The mechanisms of criminal justice forbid government searches of suspects or their possessions without a warrant issued by a neutral magistrate. Police cannot arrest a criminal without probable cause and upon arrest must provide a suspect with Miranda warnings, a lawyer, and the right to remain silent. A suspect has the constitutional right to a speedy trial by jury, and in that proceeding can demand that the government turn over all of its information about the crime and the suspect. He can challenge that information and call his own witnesses in open court. The government must provide all exculpatory evidence to the defendant and access to any witnesses who have information relevant to the trial. A convicted defendant can appeal to higher courts to challenge the verdict and then file for a writ of habeas corpus seeking federal judicial review of any constitutional errors in the trial.
Because the Constitution's Bill of Rights establishes these rules, they are not very flexible. They protect the innocent, but are expensive, tilt in favor of the suspect, and impose high standards of proof on the government. While police can arrest based on "probable cause," a suspect must be released if pro
secutors cannot succeed at trial. Courts can convict only if a jury finds that the government has shown "proof beyond a reasonable doubt," which often means something close to certainty. Federal courts and the Supreme Court supervise these rules, which can take years of trials and appeals. If police make a mistake, even in good faith, such as seizing evidence without a proper warrant or failing to read a Miranda warning correctly, the courts will sanction the government by releasing the suspect regardless of the threat he poses to society.32 As Justice Benjamin Cardozo once observed, "The criminal is to go free because the constable has blundered."33
Our founding fathers established this constitutional system because of their concerns over the power of the government. It expresses a worry that the national government would use otherwise unlimited powers to engage in the suppression of political opposition. Sharing that suspicion, many legal conservatives have consistently pressed for the decentralization of power over domestic affairs. But it would be a mistake to believe that the Constitution's framework for criminal justice should apply to war. The former involves the fundamental relationship between the people and its government, and so ought to be regulated by clear, strict rules defining the power given by the principal to its agent. The latter, however, involves a foreign enemy who is not part of the American political community, and so should not benefit from the regular peacetime rules that define it. Applying criminal justice rules to al Qaeda terrorists would gravely impede the killing or capture of the enemy, as well as compromise the secrecy of the United States's military efforts.
According to the Supreme Court, a nation at war is entitled to detain as enemy combatants those "who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts."34 A nation at war may kill members of the enemy's armed forces. But law enforcement personnel may use force only in defense of their lives or those of others.35 Once captured, an enemy combatant can be detained until the end of the conflict. Combatants have no right to a lawyer or a criminal trial to determine their guilt or innocence under the usual laws of war. They are simply being held to prevent them from returning to the fight.
While our soldiers are fighting under the rules of war, our enemy thumbs its nose at those rules by attacking in disguise and targeting civilians. As Osama bin Laden declared in 1998 on American television, "We do not have to differentiate between military or civilian. As far as we are concerned, they are all targets."36 Yet the critics would have us give al Qaeda criminal justice protection precisely because it assumed civilian guise on U.S. soil and attacked civilian targets, effectively rewarding al Qaeda for violating every law of war ever devised.
September 11 put America on notice. Once, only nation-states had the resources to wage war. Al Qaeda is able to finance its jihad outside the traditional structure of the nation-state, and this may well extend to nuclear, biological, or chemical weapons. Mere networks of individuals--affinity groups--can now tap military power. Terrorist networks should not, through this loophole, be allowed to evade the laws of armed conflict among nation-states. While we are at war, we must also recognize that it is a different kind of war, with a slippery enemy that has no territory, population, or uniformed, traditionally organized armed forces, and that can move nimbly through the West's open channels of commerce. We must take aggressive action to defeat al Qaeda, while also adapting the rules of war to provide a new framework to address the new enemies of the twenty-first century.
2
THE GENEVA CONVENTIONS
On a cold winter morning in January 2002, three months after the United States invaded Afghanistan, we flew through clear skies over sparkling blue-green waters into Cuba. A gust of warm, humid air, full of the smell of tropical flowers and trees, embraced us as we disembarked at the U.S. Naval Base at Guantanamo Bay, nicknamed Gitmo by the military. I couldn't help thinking that it would all make great beachfront property if Castro ever died.
America had been at war in Afghanistan for three months. One month before, the military, the CIA, and our allies in the Northern Alliance had decisively seized control of Afghanistan, forced al Qaeda from its terrorist bases, and captured hundreds of al Qaeda and Taliban fighters. We were in Cuba to see the detention facility where many of those fighters would spend the rest of the war.
I was the junior person on the flight--not quite the bag carrier, but far down on the agency "org charts"--among the senior lawyers there from the White House and Departments of Defense, State, and Justice. At the time, I was working for the Justice Department's Office of Legal Counsel. Although relatively unknown outside the Beltway, OLC is one of the most powerful legal offices within the federal government. It exists to interpret the Constitution and federal law for the executive branch. In peacetime, OLC usually occupies itself with resolving arcane questions of federal law or resolving interagency disputes. In times of war it advises the President and attorney general on the executive branch's constitutional powers. In the months following 9/11, OLC went into overdrive.
At the beginning of the Bush administration, OLC was an elite office within a government teeming with extraordinarily talented lawyers. Most of OLC's civil service staff were young attorneys just off of or headed to a prestigious clerkship in the federal appellate courts, or even the Supreme Court. Just above them were several experts in foreign affairs, national security, or presidential power with decades of experience. OLC has always been known for attracting deep thinkers on constitutional law, those more interested in figuring out separation-of-powers problems than litigating cases. OLC was often referred to as the attorney general's law firm, or the President's law firm, or the general counsel's general counsel, because when any new or difficult legal question arose, it often found its way there. Its alumni include three Supreme Court justices--Chief Justice William Rehnquist, Justice Antonin Scalia, and now Justice Samuel Alito--several federal appeals judges, attorneys general and solicitors general, and many leading law professors.
As a deputy to the assistant attorney general in charge of the office, I was a Bush administration appointee who shared its general constitutional philosophy. Three of the four other deputies had clerked for Justice Scalia or, like myself, for Justice Clarence Thomas. Other leadership positions within the Justice Department were also held by young conservative lawyers in their early thirties or forties; most had worked for Reagan-or Bush-appointed judges or Republican members of the House and Senate. They were matched by a White House counsel's staff that similarly was composed almost wholly of Supreme Court clerks. Many of us knew each other from going to the same law schools, clerking for the same judges, or working at the same law firms. Heading it all was Jay Bybee, a law professor from the University of Nevada, Las Vegas, who had previously served in the Justice Department and the White House counsel's office under Presidents Reagan and Bush, and who would soon become a judge on a federal appeals court in Nevada.
Figuring out into which pigeonhole al Qaeda fit under the laws of war fell to the small group of us at OLC who worked on foreign affairs and national security. I had been hired specifically to supervise OLC's work on these issues. Since 1993, I had taught courses in foreign relations and international law at the Boalt Hall School of Law at the University of California at Berkeley. I had taken a sabbatical during that time to serve as a law clerk to Supreme Court Justice Clarence Thomas and as general counsel to the Senate Judiciary Committee under Senator Orrin Hatch, where I gained a first-hand education in the practical workings of the Constitution's separation of powers. Among scholars, I was probably best known for my work on the historical understanding of the Constitution's war power, and I had written a number of articles on the relationship between presidential and legislative powers over foreign affairs. In an administration that arrived in D.C. to focus on domestic issues, like tax cuts, fetal tissue research, and faith-based policies, I was one of the few appointed Justice Department officials whose business was national security and foreign affair
s. As the administration moved to adapt the rules of war to this new kind of enemy, OLC's lawyers would play a central role in almost every issue raised by the war on terrorism.
The group of us who landed that day in Cuba surely had no idea then that the "front" in the war on terrorism would soon move from the battlefields of Afghanistan to the cells of Gitmo and the federal courtrooms. Warfare is not limited to military strategies and tactics on a battlefield. In this war, the detection of terrorist networks, detention, interrogation, and covert action are key. The goal is to prevent a terrorist attack--akin to the 9/11 attacks, or the Madrid and London bombings--before it happens. We had to decide what status to accord captured members of al Qaeda and its allies. Ultimately, OLC would advise the White House that the conflict with al Qaeda was not governed by the Geneva Conventions and that its members were not legally entitled to prisoner of war (POW) status. We would also advise that members of the Taliban could lose their right to POW status by refusing to obey the laws of war. President Bush would accept that advice in a decision in early 2002.
Ever since then, human rights lawyers, liberal interest groups, and political activists have attacked the administration for allegedly violating domestic and international law in the war on terrorism. Their criticism intensified after the release of photos depicting the abuse of Iraqi detainees at the Abu Ghraib prison in the spring of 2004. Charging administration officials with violating international and American law, they claim that Abu Ghraib is only the tip of an iceberg of systematic torture by the Defense Department and the CIA.1 They rail that White House and Justice Department lawyers are guilty of war crimes for daring to find that al Qaeda terrorists are not legitimate prisoners of war. Amnesty International has called for investigations of "high-level torture architects" like Attorney General Alberto Gonzales; David Addington, the counsel to Vice President Dick Cheney; William "Jim" Haynes, the general counsel of the Defense Department; and several lawyers at the Justice Department, including yours truly.2
