by John Yoo
Banning "treachery" does not prevent the targeting of individual enemy soldiers or commanders. This distinction was drawn in the very first effort to codify the rules of war, undertaken by Francis Lieber during the Civil War, and issued as General Order Number 100 in 1863 to the Union armies.45 Under the laws of war today, "treacherously" refers to deceiving the enemy by disguising your forces in the guise of noncombatants protected from attack, or declaring an enemy outside the protection of the laws of war. It could refer to soldiers disguising themselves as civilians or Red Cross workers,46 or refusing to accept the surrender of a wounded soldier, or placing a bounty on an enemy's head. It has never been understood to prohibit targeting specific enemy commanders or other personnel, and the laws of war do not prohibit the use of surprise, ruses, commando teams operating behind the lines, or stealthy tactics to kill enemy personnel. American forces could launch special forces assaults to kill bin Laden, but they could not refuse his surrender, they could not dress as aid workers, and they could not shoot him if he were wounded and unable to fight.
Even though al Qaeda members are legitimate targets, and there can be little doubt that al Qaeda would not feel itself bound by any rules, not everything is permissible. Under the rules of war, soldiers must obey the principles of "necessity," "discrimination," and "proportionality." "Necessity" demands that nations engage only in destruction "necessary" to achieve a military objective.47 "Discrimination" means targeting combatants and, within the limits of military technology, sparing civilians from the cruelty of war. "Proportionality" requires that the means used in an attack and the degree of destruction relate to the military goal.48 Standards of honor and ethics apply. War is not an excuse to wreak havoc or display vindictiveness against the enemy.
Developed by the practice of armies over hundreds of years, these rules place significant limits on warfare. American bombers could not carpet-bomb towns or cities to destroy a few al Qaeda cells. Attacks are also subject to the prohibitions set forth in various laws of war treaties on weapons that cause "unnecessary suffering," such as certain types of explosive bullets, poison, and of course chemical and biological weapons. But if we have a window of opportunity to target bin Laden or his lieutenants, we should strike. We just must select means that will cause the least damage possible, to surrounding civilians.
Other nations' experiences provide an example of how these principles work out in practice. Israel has conducted a campaign of "targeted killings" since 2000 in response to the second Palestinian intifada,49 using helicopter gunships and even jet fighters to launch missiles at the leaders of the terrorist groups Hamas and Islamic Jihad and the military wing of the Fatah party. The attacks usually occur on territory transferred to the control of the Palestinian Authority under the Oslo Accords.50 Israel considers itself to be in a state of armed conflict with these terrorist groups and their leaders legitimate military targets. It strives "to use the minimum force necessary to prevent terrorism, acting in compliance with the principles and practice of armed conflict. It takes care to target only those responsible for the violence and makes every effort to avoid the involvement of innocent civilians."51 While Israel has received a fair amount of international criticism, it has also succeeded in reducing the number of terrorist bombings and civilian casualties that would otherwise have occurred, using both military and nonmilitary means. In seeking to kill bin Laden and his lieutenants, the United States is taking a page out of the Israeli terrorism playbook.
Advances in military technology allow us to avoid the high civilian death tolls of past wars to reach military targets. To destroy Japan's industrial base and induce it to surrender in World War II, the United States killed hundreds of thousands of civilians in bombing raids on cities such as Tokyo and Osaka, not to mention the loss of life in Hiroshima and Nagasaki. American and British bombers destroyed German cities such as Berlin and Dresden, causing the deaths of tens of thousands of civilians. If the Allies could have killed Adolf Hitler with similarly indiscriminate levels of force, they surely would have done so. During the Cold War, America's strategic air and missile commands were prepared to launch assaults that would have killed millions of civilians to deter an attack on the West.
Today's technology allows us to target enemy commanders with pinpoint accuracy. Satellite reconnaissance and electronic eavesdropping allow the United States to spot the exact location of al Qaeda terrorists. Pilotless drones can circle areas of known terrorist activity for hours on end, permitting the United States to act instantly on that intelligence. Precision-guided munitions can hit targets within a margin of error of only yards, reducing civilian casualties. We used the lethal combination of intelligence and advanced weaponry on al-Harithi's car, Saddam Hussein's compound, and Zawahiri's dinner party. Even when attacks have failed, and only second-tier al Qaeda operatives were killed, civilian loss of life has been light in comparison with previous wars.
What about reciprocity? Attorney General Reno warned President Clinton that attacking bin Laden would make American officials targets. In retrospect, those concerns were misplaced and our exercise of restraint did nothing to avert 9/11. If anything, it seems to have encouraged al Qaeda, by convincing its leaders that the United States would not meaningfully respond to attacks. As 9/11 made clear, all of America, leaders and civilians, are al Qaeda's target. It is absurd to believe that if we refrain from targeting bin Laden and his commanders al Qaeda will refrain from similar attacks on our leaders.
Reciprocity is an important principle at work in law and policy. It underlies the laws of war. The international legal system has no supranational government with a legislature that can make laws on behalf of the world, nor an executive branch with an army or police force to enforce them. Nations at war will restrain their conduct if their opponent will, and if neither gains any advantage by doing so. If a nation violates the laws of war, its enemy is likely to do the same in response.52 Restraint in an individual instance may be perceived by an enemy as humanitarian53 and might thereby have a positive effect. But it is reciprocity, both positive and negative, that has historically induced the enemy to obey the laws of war. World War II Germany did not refrain from using chemical weapons out of humanitarian concern for Allied suffering, but because the Allies were fully prepared to retaliate in kind.54
Al Qaeda will never follow the rules of war; it gains its only tactical advantages by systematically flouting them. American restraint in the use of force, the methods of attack, or the treatment of prisoners will not change the incentives of al Qaeda members bent on salvation in the next world, not this one. But al Qaeda's fundamentally lawless nature does not free the United States from all constraints. Standard principles of reciprocity counsel that we follow customary rules on targeting and the use of force. Ample historical and legal precedent allow American policy makers to address the unique threat that al Qaeda poses. Law has never been a static system, but an evolving one, rooted in rules and principles that change over time to suit changing circumstances. There may be negotiations with terrorists at some point, the United Kingdom-IRA and the Israeli-Palestinian prisoner exchanges. But it is difficult to see that happening any time soon with al Qaeda. For al Qaeda to agree to play on a level playing field with the United States would be tantamount to its accepting defeat. The legal task for us now is to build on old concepts, like piracy, and adapt to new concepts such as precision targeting through intelligence and technology.
4
THE PATRIOT ACT
In the first few days after September 11, Justice Department attorneys gathered in a conference room in the FBI's Strategic Information and Operations Center (SIOC). The SIOC occupies a floor within the J. Edgar Hoover Building across Constitution Avenue from the Justice Department. It was created in 1989 exactly for a day like September 11. It has a thousand phones, 225 computer terminals, networks, secure rooms, and a control room and watch floor. It serves as a twenty-four-hour-a-day command center. 1 Even as one arm of the Justice Department and the FBI
worked furiously in the SIOC to piece together the 9/11 plot, another group nearby was beginning a different mission: to change our laws to prevent another attack. This would produce the Patriot Act, the most vilified and misunderstood piece of legislation to come out of the war on terrorism.
The meetings were chaired by Larry Thompson, the deputy attorney general, or DAG, Justice's chief operating officer. Thompson was a rare bird in Washington, D.C., a conservative African-American who was best of friends with the leader of that flock, Justice Clarence Thomas. In his mid-fifties, Thompson brought a sterling reputation and decades of experience in criminal law to the job. He had been the U.S. attorney for Georgia under the Reagan administration, served as an independent counsel, and was a partner at a prominent Atlanta law firm. He had testified in favor of Justice Thomas and advised him during the confirmation hearings. A natural leader, Thompson was the prosecutor who provided the experience in federal criminal law that Ashcroft lacked. He had a no-nonsense attitude in conducting meetings, listened carefully to all points of view, and always displayed fine judgment. Along with Michael Chertoff, the head of the criminal division, Thompson held the Justice Department together in those first days after 9/11.
Ashcroft relied on Thompson to develop initial proposals, and on Viet Dinh, an assistant attorney general, to guide the package through Congress. Viet and I had known each other since law school. We had both clerked for D.C. Federal Appeals Court Judge Laurence Silberman, and had clerked on the Supreme Court the same year, he for Justice Sandra Day O'Connor. We had gone on to work in the Senate the year after, he in the Whitewater investigation, where he worked closely with Chertoff. We even both became law professors, I at Berkeley, he at Georgetown. Viet had a tough job of stewarding the Patriot Act, along with his other assignment of defending the Bush administration's nominees for federal judgeships, another flashpoint between the President and Congress at the time.
A common misperception promoted by civil libertarians is that the Patriot Act was the product of a Republican administration chafing at the bit to take away civil liberties. Nothing could be further from the truth. Almost all of the first proposals originated with career lawyers at the Justice Department who had worked on national security issues for many years, either in espionage or terrorism prosecutions.
These civil servants helped put together the first outline of the Patriot Act from a "wish list" of amendments to the terrorism laws that DOJ had not gotten the last time Congress passed an antiterrorism package in 1996. The proposals were mostly evolutionary changes to adapt to the new world of cell phones, quick travel, and the Internet. Congress had enacted the Foreign Intelligence Surveillance Act of 1978 (FISA), our primary tool to monitor and intercept the communications of national security threats, in the age of rotary phones, Ma Bell, and expensive air travel. I was asked to work on fixing the most important defect in our intelligence laws--the legal "Wall" that had separated foreign intelligence and domestic law enforcement. Blocking communication between intelligence and law enforcement officials, the Wall had played a role in our failure to stop the 9/11 attacks.
Without understanding FISA, it is impossible to understand the Patriot Act--which is probably one reason why polemicists find it easy to attack. FISA had responded to decades of presidential authorization of electronic surveillance for national security purposes without a judicial warrant. Every president from FDR to Carter had approved wiretaps on suspected agents. In the early years of the Cold War, there was a tremendous concern with communists and their sympathizers subverting national security. In the early 1950s, Senator Joseph McCarthy ignited a controversy and initiated hearings to investigate allegations that communists had infiltrated the U.S. government. McCarthy's accusations and smear tactics went too far and, gradually, there was a shift in the tide of public opinion toward the protection of civil liberties, even at the expense of national security. As the Cold War stabilized into a rough balance of nuclear parity in the 1960s, domestic national security threats seemed to diminish even further.
In the Watergate scandals of the 1970s Nixon invoked national security to conceal his wiretapping of domestic political opponents. Concern over civil liberties hit a high-water mark. When Congress responded, its action was a reflection of more than just the magnitude of Nixon's actions, but a growing concern about government abuse of civil liberties, in particular those of individuals involved in the civil rights and anti-Vietnam movements. In 1978, Congress enacted FISA to replace presidentially ordered monitoring of national security threats with a system similar to that used by law enforcement to conduct electronic surveillance of criminal suspects, but with important differences because of the classified information involved. It was this law, not the Patriot Act, which created a system of secret federal courts that issue secret warrants, based on classified evidence, to monitor potential foreign spies and agents.2 Imposing a judicial warrant process on what had once been done by presidential fiat was the first in a series of restraints upon the executive branch in favor of civil liberties. Later, the courts and the Justice Department interpreted FISA to prevent the sharing of information gained from FISA warrants--which are easier for the government to receive--with criminal investigators. The concern was that FISA would be used as an end for running around normal criminal procedures. This gave birth to the famous Wall, which separated law enforcement from counterintelligence and counterterrorism.
It was precisely this Wall that every blue-ribbon commission to study our national security problems after 9/11 has said must be torn down. Despite efforts over the years to modernize it, FISA is still a product of the 1970s. It was created specifically to hamstring the executive branch in favor of civil liberties, based on the technologies and enemies in existence at the time. It does not meet today's challenge--a sophisticated, covert, foreign enemy that does not operate out of embassies like the spies of the Cold War, but instead conceals its communications within the billions of innocent phone calls and e-mails sent every day. The reforms that addressed abuses of executive power in the 1960s and 1970s resulted in a shift in favor of civil liberties that created the legal regime in place on 9/11. And 9/11 dramatized how drastically we need to reconsider what was done.
Today, FISA remains the main method by which the United States government conducts surveillance and searches of domestic targets suspected of international terrorism. FISA created the Foreign Intelligence Surveillance Court, known as the "FISC," made up of federal judges located around the country. Upon application by a special office in the Justice Department, the FISC can issue a warrant that authorizes electronic surveillance to obtain "foreign intelligence information" if there is "probable cause" to believe the target is "an agent of a foreign power."3 The definition of "foreign power" includes international terrorist organizations.4
The most important constitutional issue raised by FISA is that the search warrant is not based on the Fourth Amendment's normal standard for a warrant. Under the Fourth Amendment, as it has been interpreted by the courts, a judge can issue a search warrant if there is "probable cause" to believe that the target has been or is involved in criminal activity--not just on speculation that someone has committed or may commit a crime. The government must have some proof--not beyond a reasonable doubt; not even more likely than not--that an individual is involved in a crime. FISA, however, permits search warrants based on a lower standard, on just probable cause that the individual is an agent of a terrorist organization. For agents of a foreign power who are either citizens or permanent resident aliens, FISA also requires that they "knowingly" engage in "clandestine intelligence gathering activities," a standard somewhat closer to that of a normal warrant.5
FISA generally is not used to investigate crimes that have already occurred. Instead, it monitors individuals who might harm national security in the future. It seeks to prevent future threats to the national security. Courts and the Justice Department created the Wall to prevent domestic law enforcement from taking advantage of FISA's lower standar
ds to investigate purely domestic crime. But in guarding against Nixonian abuse of national security searches, the Wall also prevented entirely good-faith sharing of information and pooling of knowledge against real foreign threats.
The Patriot Act's fixing of these problems, oddly enough, has probably attracted more criticism than any other Bush administration anti-terrorism initiatives. I say "oddly" because the Patriot Act reasonably responds to the huge challenges posed by al Qaeda. Passed within weeks of 9/11 by large House and Senate majorities, it was a grab bag of modifications to existing law that the Department of Justice under both parties had been requesting for years. Nearly unaltered except for a few minor procedural civil liberties protections, it was renewed in March 2006 by a two-thirds majority in the House and by 89-10 in the Senate--after years of hand-wringing, filibusters, and short-term extensions as well as the Bush administration's low poll ratings.
While the Patriot Act had suffered politically from the growing impatience over the Iraq war, the truth is that the worst thing about it is its Orwellian name. It suggested that the government might be poised to abridge civil liberties under the sheep's clothing of patriotism. Its eventual reenactment suggested that the most scathing criticisms were more rhetorical than real.
