by John Yoo
Lastly, OLC wanted to make clear that we were discussing only issues of law, not policy. Even if al Qaeda or Taliban fighters did not deserve the legal protections of the Geneva Conventions, the President could still extend those rights as a matter of policy and goodwill. OLC provided historical examples where the United States had provided POW status when not legally required. At the outset of the Korean War, neither the United States nor North Korea had yet ratified the 1949 Geneva Conventions, but General Douglas MacArthur ordered the troops under his command to follow the "humanitarian principles" of common article 3 and the more detailed requirements of the POW convention. During Vietnam, the United States provided POW status to members of the Vietcong, even though they refused to operate in accordance with the principles of lawful combat. In Panama, the United States chose to treat the followers of General Manuel Noriega according to the Geneva Conventions, without conceding that the law required it. In Somalia, Haiti, and Bosnia, American forces agreed with their allies to apply the "principles and spirit" of the Conventions, even though it was unclear whether the wars were civil or international, and many combatants did not obey the rules of warfare. Our point was that the United States could find it advantageous to follow the Geneva Conventions, even if not legally bound to, but that then again it might not. That would be a question for the policy makers--Powell, Rumsfeld, Ashcroft, Tenet, and Rice--to decide, not OLC.
As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the attorney general's office, the White House counsel's office, the Departments of State and Defense, and the NSC met a few floors away to discuss the work on our opinion. We sat at a large round table in a room in the ornate, Empire-style Old Executive Office Building where secretaries of state once conducted business. Just a few days before, American and British special forces and their Afghan allies had killed many al Qaeda fighters in the mountainous caves of Tora Bora, but had just missed Osama bin Laden and his top lieutenants.
This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism. We certainly did not all agree, nor did we always get along, but we all believed that we were doing what was best for the nation and its citizens. Meetings were usually chaired by Alberto Gonzales, now attorney general, then the counsel to the President. A short man with perfectly combed jet black hair, Gonzales was a real-life Horatio Alger story. He had grown up in modest circumstances in Texas and enlisted in the Air Force, which encouraged him to go to college. He went to Rice and Harvard Law School, and then returned to Texas, where as a corporate lawyer he came to the attention of Governor George W. Bush. He served as counsel to the governor, was elected Texas secretary of state, joined the Texas Supreme Court, and then came to the White House as the President's counsel. Gonzales's usual modus operandi was to keep his talking to a minimum, to seek a full discussion of the contending views, and to keep his own views private. He hated conflict and would have preferred that every meeting ended in a consensus, yet I found that when he had to, he could make the toughest decisions a lawyer would face. In private, he loved a good joke and had an easygoing, agreeable manner, which concealed a fierce competitive streak. At the same time, he could never understand why opponents (both inside and outside the administration) would resort to bureaucratic maneuvers, personal attacks, leaks, or exaggerations and distortions to prevail. Gonzales came to Washington with no agenda but that of providing his client, George W. Bush, with the best legal advice possible.
At meetings, his deputy, Timothy Flanigan, usually played the role of inquisitor, pressing different agencies to explain their legal reasoning or to justify their policy recommendations. I had known Flanigan ever since he had interviewed me for a job when I was fresh out of law school. He was sometimes overweight, sometimes not, with a glint in his eye and always ready with a funny remark, which must be a job requirement for someone with fourteen children. He had gone to the University of Virginia Law School, clerked for Chief Justice Warren Burger, and then worked in OLC before becoming its head at the end of the last Bush administration. Flanigan had worked at a variety of law firms before leaving private practice for a few years to work on a biography of Burger. He had been a critical member of the Bush campaign's legal team during the Florida recount. Flanigan did not shy away from conflict, as Gonzales did, and knew the ways of Washington, whereas Gonzales had no Beltway experience. Flanigan brought the ties to the broader Washington political and legal community, while Gonzales provided the personal relationship with Bush.
The State Department was usually represented by one of the most experienced officials to have served as its legal adviser, William Howard Taft IV. Taft was a thin man who bore little resemblance to his prodigious presidential progenitor. He had already enjoyed a long career as deputy secretary of defense and DOD's general counsel during the Reagan administration. Another regular participant at meetings on terrorism policy was John Bellinger, the legal adviser to the NSC, who would succeed Taft when Rice became secretary of state. An official in the Clinton Justice Department, Bellinger often shared Taft's accommodating attitude toward international law.
William "Jim" Haynes represented the Defense Department as its general counsel. Haynes was a charming, athletic man; D.C.'s legal newspaper, the Legal Times, had done an early profile comparing him to James Bond, which prompted no end of teasing from his colleagues. Haynes was a natural leader who inspired trust from those he worked with. He never sought the spotlight, never sought to dominate a meeting, but instead wanted to hear the positions of the different agencies. He saw his mission as preserving the Defense Department's legal and policy options and the prerogatives of his boss, Secretary Donald Rumsfeld. He attended Harvard Law School, served in the Army, and later became general counsel of the Army under Bush 41. After working for defense contractors and law firms during the Clinton years, Haynes was chosen by Rumsfeld to help transform the military, which made him a target of military lawyers, just as Rumsfeld had encountered resistance from the military brass. Haynes would later be nominated for a federal judgeship in Virginia, but his nomination would be held up by senators critical of the Bush administration's terrorism policies.
Some in the media have become obsessed with another lawyer, David Addington, then counsel to Vice President Cheney, now his chief of staff.21 No doubt the fascination with Addington is part of a broader effort to claim that Cheney is really in charge of the White House rather than merely fulfilling the vice president's traditional role as the defender of the President and his party. The punditry's fixation on Addington is, I believe, in large part a response to his colorful personality. In the usual sea of colorless, blue-suited, white-shirted, stripe-tied bureaucrats, men and women whose main goal is to create no waves and make no enemies, Addington stands out. A tall, white-bearded man with a booming voice and a confident, combative manner, Addington always does his homework--he reads voraciously, not just cases, laws, and treaties, but the daily flow of memoranda that course through the White House. He never declines the opportunity to press agency general counsels on whether they are interpreting the law or making policy.
He was the equal of any other lawyer in experience, having served as DOD general counsel under Cheney, special assistant to President Reagan, and lawyer for the House Intelligence Committee. Yet, Addington was always conscious of his position. He enjoyed saying that the vice president "was not in charge of anything" so all he could do "was ask lots of questions"--which often flowed in a torrent, replete with references to CIA practice, military jargon, Marshall Court opinions, and sometimes sarcastic comments. Various media reports claim that his influence was so outsized he even had a hand in drafting Justice Department legal opinions in the war on terrorism. As the drafter of many of those opinions, I find this claim so erroneous as to be laughable, but it does show how wrong the press can get basic facts.
The State Department and OLC often disagreed about international law. State believed that internatio
nal law had a binding effect on the President, indeed on the United States, both internationally and domestically. Following its traditional view since at least Bush 41, OLC usually argued that international law that did not take the form of a treaty was not federal law because it was not given such authority by the Constitution's Supremacy Clause. In our arguments, State would authoritatively pronounce what the international law was. OLC usually responded "Why?"--as in why do you believe that, why should we follow Europe's view of international law, why should we not fall back on our traditions and historical state practices?
OLC's conclusion that the Geneva Conventions did not apply to al Qaeda did not ruffle any feathers. But it is no secret that the State Department disagreed with our view that the Taliban were not owed POW status. It argued that a territory could not lose its status as a nation-state, even though this had justified American intervention in places like Somalia and Haiti. Taft predicted that a presidential decision that Afghanistan was a failed state would cause the heavens of international law to fall. If the Geneva Conventions did not apply to a failed state, no treaties at all would apply to a failed state. Afghanistan's inability to be a party to any treaties "would have far-reaching implications for the conduct of U.S. foreign policy toward other States with questionable governing regimes."22 If Afghanistan was a failed state, it would no longer be a member of the United Nations, International Monetary Fund, or World Bank, or a party to the nuclear nonproliferation treaty. The ownership of assets, liability for claims and debts, and "diplomatic relations and the status of our embassy" would be in question. Taft argued that maintaining Afghanistan's status as a state would keep these treaties in place, "to ensure the protection of the population." We thought these arguments were fundamentally ones of policy--they sketched the implications of a finding of a failed state--but did not actually come to grips with the question: Does a state really exist when its territory is gripped by civil war and subject to the control of warlords? Does a state exist when basic services are denied the population, and terrorists can freely roam throughout the land? In this respect, we thought Taft's memo represented the typically conservative thinking of foreign ministries, which places a priority on stabilizing relations with other states--even if it means creating or maintaining fictions--rather than adapting to new circumstances. It reminded me of the decision of the first Bush and Clinton administrations to claim that the ABM Treaty of 1972 still existed even after the collapse of the Soviet Union.
Military lawyers from the Pentagon had a policy concern. Known as "JAGs," short for judge advocates general, they worried that if the United States did not follow the Geneva Conventions, our enemies might take it as a justification to abuse American POWs in the future. They believed that the Geneva Conventions were now "customary international law"--applicable not by treaty, but by custom developed through the practice of states over time. Most rules of civilized warfare, such as the ban on targeting civilians, had been accepted through custom long before taking the form of a treaty. It did not matter whether al Qaeda had signed the Geneva Conventions or not, the JAGs argued; the principles applied to any war and to anyone that the United States fought. Some, such as Senator Lindsey Graham (himself a JAG), have suggested that the JAGs were shut out of the decision process. From what I saw, the military had a fair opportunity to make its views known. Representatives from the Joint Chiefs of Staff, including uniformed lawyers, were present at important meetings on the Geneva question and fully aired their arguments.
The Justice Department disagreed. Whether to treat captured al Qaeda or Taliban fighters as we would soldiers captured fighting for France or Germany is a matter of policy. The law does not require us to provide them all with similar treatment, because the law cannot predict everything that may occur in life or war. It did not anticipate a war fought with a non-state terrorist organization with the destructive power of a nation. That does not mean that we recommended the administration do everything the law allowed. Setting policy within the limits of the law would depend on the circumstances.
It was far from obvious that following the Geneva Conventions in the war against al Qaeda would be wise. Our policy makers had to ask whether it would yield any benefits or act as a hindrance. Although the United States had obeyed the Geneva Conventions scrupulously in previous wars, our enemies in Korea, Vietnam, and the first Persian Gulf War abused American soldiers anyway. Mistreatment of prisoners is another form of "asymmetric warfare" that weaker opponents use against their stronger enemies. There is no reason to think that al Qaeda or the Taliban would act any differently than had communist China, North Vietnam, or Saddam Hussein. If anything, al Qaeda shows no desire to take prisoners at all, or provide them with humane conditions--but rather instantly executes them (a Geneva Convention violation). Nations at war with the United States will treat American POWs humanely or abuse them based on the imperatives of war, not on what we do against al Qaeda.
OLC concluded that the Geneva Conventions had not assumed the status of customary international law that bound the United States, nor, for that matter, all nations in the world. Even if the Geneva Conventions could be seen as universal, and not just applicable to signatories, they only governed either conventional wars among nation-states using regular armed forces or rebel groups in a civil war. There was no customary international law on terrorist organizations like al Qaeda that could launch a devastating international attack. No clear customary international law on megaterrorism like 9/11 existed.
The United States has never in its history consented to the idea that the laws of war protect terrorists. In the wake of the wars of decolonization and independence in the third world, several nations sought to extend the protections of the Geneva Conventions to those who did not fight on behalf of states--freedom fighters, rebels, liberation movements, or even terrorists (as the saying goes, "One man's terrorist is another man's freedom fighter"). In 1977, Additional Protocols to the conventions extended POW protections to the fighters of non-state actors, and were signed by President Jimmy Carter. President Reagan decided in 1987 against seeking Senate approval. Reagan criticized the first protocol because it "would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. They would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves."23 He concluded that "we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law." In a sign of how much the world has changed, the editorial page of the New York Times praised Reagan's decision.24
What clearer evidence could there be that the United States has not agreed to give terrorists the protections due to honorable warriors? That it has not agreed to an international practice of considering war with terrorists to be covered by the Geneva Conventions. This is the law of the land.
Customary rules of international law can develop even without a written treaty, but only through the long practice and agreement of states. There is no world government that legislates and enforces rules on nations. At this moment in world history the United States' conduct should bear the most weight in defining the customs of war. Our defense budget is greater than the defense spending of the next fifteen nations combined.25 We are the only nation that consistently fights wars around the world to protect its interests, to maintain peace in unstable regions, and to prevent human rights catastrophes. American troops helped keep the peace in Europe after World War II, maintained a delicate balance of power in Asia, and prevented any foreign intervention in the Americas. We have sought with less success to bring a better world to parts of Africa and the Middle East. Our NATO allies could not even stop the fighting along their border, in the former Yugoslavia, without American participation. Even while fighting two wars simultaneously in Afghanistan and Iraq, our military strength remains unrivaled.
Whether nations should adapt the Geneva Conventions to in
ternational terrorist organizations like al Qaeda under international law, which arises largely by the practice, agreement, and custom of states, is decided by the nations that actually fight wars. That critical question should not be decided by taking an international opinion poll, where many of the votes are cast by nations that are not democracies, or don't have to face the tough choices demanded by war. The United States has used its dominant military position to create and maintain a liberal international order based on democracy and free trade. U.S. practice in its wars--to maintain global peace and stability--have primary authority in setting international law on the rules of warfare.
Nevertheless, other nations and human rights groups fiercely attacked the United States for its Geneva Convention decision. Normally stalwart European allies, like the Germans, have called for Gitmo to be closed down. None of these nations have the responsibility of holding large numbers of dangerous al Qaeda operatives. They are happy to criticize the United States, but privately they don't want the United States to release their own al Qaeda citizens, who could return home to wreak havoc. Some commentators, like Robert Kagan, have suggested that the differences over the war on terrorism stem from wholly different political cultures. "Europe is turning away from power, or to put it a little differently, it is moving beyond power into a self-contained world of laws and rules and transnational negotiation and cooperation."26 The United States, on the other hand, has chosen to rely more on power than international law, on military force as much as on persuasion, and sees a world of threats, not peaceful cooperation. "Americans are from Mars, and Europeans are from Venus," Kagan says. Jeremy Rabkin believes that Europeans are engaged in a misguided and dangerous project to degrade national sovereignty and replace it with global governance by international institutions.27
