by John Yoo
In addition, the executive branch is always in operation, indeed with much the same personnel from administration to administration regardless of party. It can better react with flexibility to unforeseen events. It is difficult for anyone, Congress or the agencies, to write laws that can anticipate every future emergency, especially events like 9/11 that were beyond the American experience. FISA or the Geneva Conventions were not written with terrorist groups wielding the destructive power of a nation-state in mind. As in any crisis, the administration had to act in the moment, and could not wait for Congress to prescribe detailed rules. Seeking a change in the laws might even tip off al Qaeda to our intelligence sources and methods. Only the executive branch has the ability to adapt quickly to new emergencies and unforeseen circumstances like 9/11.
In June 2006, in Hamdan v. Rumsfeld, a 5-3 majority of the Supreme Court held that Bush's military commissions did not meet the standards set out in the Uniform Code of Military Justice (UCMJ).1 In effect, the Court tossed back to Congress the question of precisely how and whether to conduct military commissions, with some general instructions on issues of procedure that the Court found troubling and in need of further congressional authorization. In contrast to Quirin, the justices found that Bush had failed to explain why the normal courts-martial procedures used for American soldiers were impractical to use in war crimes trials. This, the Court said, seemed to be required by the laws establishing courts-martial. The Court also held that the UCMJ requires military commissions to follow common article 3 of the Geneva Conventions. Both the UCMJ and common article 3, the justices suggested, were violated by the very benefit, from the military perspective, provided by the commissions: preventing the defendant's access to evidence and witnesses critical to national security. The government had failed, the Court said, to show that such departures from regular courts-martial procedures were necessary.
Hamdan itself is certainly not the broad defeat for the Bush administration's terrorism policies that many in the media have claimed in its immediate aftermath. If the President and Congress wish, they can correct defects in military commission procedures, for instance, by making a good showing of the necessity for the differences in procedure and evidentiary standards between courts-martial and commissions. Or they might devise independent appeal or review mechanisms for any secrecy measures that might affect fairness to the accused. Or they might eliminate any possibility that procedural rules are changed unfairly in the middle of a trial, another lacuna pinpointed by the majority. Or it could pass a one-sentence amendment to the UCMJ supporting the Bush administration's military commissions and making clear that the Geneva Conventions, not even common article 3, do not apply to the war on terrorism.
The Court only addressed the use of military commissions. It did not hold them unconstitutional, nor did it revisit its Hamdi decision of two years ago which allows the government to hold terrorists until the end of fighting. Even if no military commissions were held, no al Qaeda terrorists at Guantanamo Bay would be back on the street. Justice Stevens' majority opinion carefully did not address the President's inherent constitutional authority. It limited itself to interpreting two provisions of the UCMJ, one which declared that passage of the UCMJ was not meant to deprive military commissions of their usual jurisdiction, and another requiring the use of courts-martial procedures except where not practical.
I think the Court's decision was mistaken on a number of grounds. It misread the 2005 Detainee Treatment Act, which had ordered federal courts not to take up habeas cases brought by enemy combatants, like Hamdan, from Guantanamo Bay. It narrowed the very same authorization to use military force that it had read broadly just two years ago, and ignored the literally centuries of practice by presidents and Congress on military commissions. The Court essentially overruled Quirin, which had found a law identical to the UCMJ provision to be solid authorization for FDR's 1942 military commission. Perhaps most troubling, the justices rejected the President's judgment that military necessity demanded commission procedures to protect classified information. Instead, it substituted its own view that the rights of an al Qaeda terrorist suspected of war crimes should come first. That view, while worthy of respect, was not informed by any of the nonjudicial considerations in the case, in particular, the nation's very serious military considerations. The Court admitted exactly this when it said that it had not been presented with any evidence about the need for any differences in trial procedure between courts-martial and military commissions. It was only for this reason that it struck down military commissions as not in compliance with the UCMJ.
The five justices in Hamdan rejected out of hand the usual judicial deference to presidential interpretation of treaties, particularly a law-of-war treaty while fighting was ongoing. Its analysis of the Conventions here was weak, selective, and ahistorical, never coming to grips with the fact that the background to the 1949 Conventions, the substantial commentary saying that the Geneva Conventions did not apply to international terrorist groups, and President Reagan's decision to reject the 1977 additional protocols to the Conventions, made it clear that neither the President nor Congress believed or anticipated that Geneva would bind the U.S. in conflicts with international terrorists such as al Qaeda who had never signed the treaties. Instead, the Court chose to reinvent this area of law out of whole cloth.
Johnson v. Eisentrager and other cases from World War II had found that Congress never intended the Geneva Conventions (in an earlier form) to provide benefits to enemy combatants in our own courts. The Court once believed that this was a question for the President and Congress, not the courts, to decide. The five justices in the Hamdan majority evaded its earlier precedents by imagining that Congress overruled Eisentrager in 1950. Why? That year, Congress passed the UCMJ. When it did so, it reenacted Section 821's recognition of military commissions unchanged from its text at the time of Quirin and before. The Court provided no historical evidence at all to think that Congress believed it was overruling Eisentrager and applying Geneva's common article 3 to non-state actors. In fact, this would have been impossible, because Eisentrager was decided after Congress had passed the UCMJ. The United States did not even ratify the 1949 Geneva Conventions until 1955. This glaring mistake shows how far the five justices in Hamdan were willing to go to impose their preferred policies on the war on terrorism.
But Hamdan portends much more than whether the administration can subject ten or twenty al Qaeda suspects to trial by military commission. The Hamdan Court displayed a lack of judicial restraint that would have shocked its predecessors. This signals a dangerous judicial intention to intervene in wartime policy. American practice has long recognized that the President, as commander in chief, plays the leading role in war. Presidents have started wars without congressional authorization, and they have exercised complete control over military strategy and tactics. Presidents can act with a speed, flexibility, and secrecy that the other branches of government cannot match. By contrast, legislatures are large, diffuse, and slow. Their collective design may make them better for deliberating over policy, but at the cost of delay, lack of resolve, and difficulty in adapting flexibly to unforeseen circumstances.
The September 11 attacks succeeded in part because our government was mired in a terrorism-as-crime approach. In the pre-September 11 world, we worried less about preventing terrorist attacks and more about protecting against presidential abuse of civil liberties typified by Watergate--hence the Wall that prevented our law enforcement and intelligence agencies from sharing information. Our laws considered war as conflict only between nations, and failed to anticipate the rise of a non-state terrorist organization that could kill 3,000 Americans, destroy the World Trade Center, and damage the Pentagon in a single day.
President Bush invoked his authority as commander in chief to fight this new, shadowy enemy that does not wear uniforms, targets civilians for surprise attack, and refuses to obey any of the rules of civilized warfare. Like Washington, Jackson, Lincoln, and FDR be
fore him, Bush established military commissions to try enemy combatants for war crimes. If Bush's commander in chief authority does not extend to something so tied up in strategy and tactics as punishing and deterring war crimes by the enemy, then we have accepted a system where the slaves would have remained confederate property during the Civil War, and where FDR could not have brought the United States to the aid of Great Britain as it was reeling from the German onslaught.
What makes this war fundamentally different is not that President Bush acted and Congress watched, but that the Supreme Court has decided to interfere with warfare still continuing. With its seizure of control over some of our nation's most controversial issues, like abortion, affirmative action, and public aid to religion, maybe the justices' intervention should come as no surprise. But its effort to impose the Geneva Conventions on American conduct in the war on terrorism threatens judicial micromanagement not just of the trial of enemy combatants, but of the way the United States detains, interrogates, and even targets them for attack. This is something entirely new in American history. The Supreme Court has never sought to impose policies governing warfare on the President while fighting was ongoing.
Here, unlike with the issues of abortion or religion, the Supreme Court does not have the last word. Congress and the President can enact a simple law putting the Court back in its traditional place, and our war effort will probably go forward with its usual combination of presidential initiative and general congressional support. The Supreme Court may believe it is protecting the Constitution by requiring Congress to pass a law authorizing Bush's antiterrorism policies, but all it has done is interfered with the working arrangement that the President and Congress had already reached. As with the 2005 Detainee Treatment Act, the justices will merely have forced the President and Congress to expend significant political time and energy to overrule them--time and energy better spent on taking the fight to al Qaeda.
It should come as no surprise that Congress has not enacted a grand statue regulating all facets of terrorism policy. There wouldn't be much political upside and, if they choose rules that turn out to be mistaken, it might come back to haunt them at the ballot box. Instead, Congress has focused its attention on the far less risky enterprise of reorganizing the government. Reform of intelligence and national security has now consumed a great deal of time and energy. Two national commissions, the 9/11 Commission and the Silberman-Robb Commission, held extensive hearings and issued detailed reports. Congress issued two broad pieces of legislation, one establishing the Department of Homeland Security, the other creating the Director of National Intelligence. Investigating and studying, populating and funding these new agencies, developing new lines of management, and fighting all the resulting battles over turf and power has required resources that might have been better spent on tracking and destroying parts of the terrorist network.
Creating a Homeland Security Department or a National Intelligence Director creates the appearance of reform, but whether it leads to improvements in security or more capable offensive operations against terrorists is questionable. Centralization has created yet another layer of bureaucracy between the President and the agencies in charge of handling intelligence and national security--the secretary of homeland security first, and now the director of national intelligence. Firing the incompetent or the ineffective doesn't happen very often in government because civil servants are protected by the equivalent of tenure, so reforms are inherently limited to reshufflings of the deck. Judge Posner has recently argued that our intelligence agencies prior to the current reform initiatives were probably more efficiently organized than the ones we have today.2 I tend to agree.
Reshuffling among agencies is relatively cheap, and it deflects attention away from hard challenges on terrorism. One difficult truth is that surprise attacks have succeeded against the United States in the past and are difficult to stop. Attacks in the future will take unexpected forms that will be difficult for us to imagine beforehand--which is why they sometimes succeed. A well-oiled intelligence system cannot stop everything. Improving intelligence, tightening border searches, and increasing security at vulnerable domestic targets may help to keep us safer, but some proposals will be expensive and demand more personnel than we currently devote to security.
Whether to overhaul the FBI is one of the most difficult questions we have yet to address. The FBI, which is the closest thing we have to a national police force, combines both domestic law enforcement and counterintelligence functions. As this book has shown, the crime and national security approaches to terrorism are very different. Arguably the FBI's failings contributed to our inability to stop the 9/11 attacks. The FBI, which follows a plan of decentralization centered around its 56 field offices--it has stumbled badly in attempting to install a modern computer network that will allow better information-sharing and has not successfully integrated its national security responsibilities.3 The FBI's culture is fundamentally that of law enforcement, which is not surprising given its primary duties, but this inevitably shapes the way its agents approach national security and intelligence. When criminal investigators want to assemble a case that can be brought in court, they look retrospectively at the evidence, and they ultimately seek to imprison the guilty as a deterrent to others. Intelligence officers focus prospectively--on preventing a future attack--and they are less interested in winning high-profile convictions than they are in infiltrating and eliminating enemy networks. Great Britain recognizes the incompatibility of law enforcement and national security and has divided its domestic intelligence agency, known as MI5, from the traditional domestic policing functions of Scotland Yard, and from foreign intelligence (MI6).
If Congress is going to continue its fetish for reorganization, it should turn to the most important and difficult question, whether the FBI's efforts at reform are succeeding, or whether it is time to establish a new domestic intelligence agency separate from crime fighting. A hard truth about terrorism is that even if we devote more resources to domestic security, great uncertainty will still surround our ability to defeat the terrorists.
The fairness and transparency of our laws--and America's solicitude for human rights, both before and after the detainee cases--takes a backseat to no nation. The many men and women of the DOD and the DOJ and many other agencies who spent three years studying and setting up our military commissions to be both fair and protect this nation's security did an excellent job under radically new, difficult circumstances. They deserve our gratitude. The threats we face today are new, but our laws are old. Many of these old laws contain core principles with hard-won wisdom it would be foolish to try to reinvent. The future of the American war against terrorism will probably not come in a comprehensive statute that "reforms" policy and anticipates every future contingency. The future of the American war against terrorism, like it or not, is being and will continue to be fought by the men and women of the executive branch of this nation. If 9/11 taught us anything, it was that al Qaeda is unpredictable, resourceful, dogged, and on the move in their jihad against our country. New laws could bring political certainties and consensus, but they will come at the price of flexibility and adaptability. In their brevity and relative simplicity, and because they are rooted in history honed by experience, the rules of war give our armed forces and intelligence agencies the flexibility to respond aggressively and creatively to new threats in a realm in which individual judgment and initiative are central, and not every problem can be solved by a rule book. Because of the nature of the President and the Congress, built into their DNA by the Constitution, we will continue to see initiative from the executive branch and relative passivity from the legislature.
We can't know how the courts of the future will respond to inevitable future litigation, but Hamdan shows that they are not shy about asserting new powers. I predict that we will not find the answers to terrorism in new government reorganizations, new job descriptions, and new judicial rulings. The best we can do to prevent another terrori
st attack is to spend less energy reengineering government and overturning settled practice, and to devote more resources to taking the offensive against al Qaeda abroad and defending ourselves at home.
ACKNOWLEDGMENTS
A number of people in government have helped me think about the questions in this book. Some of them are mentioned in it, some of them are not. All of them, especially those I worked with in the Justice Department, have my deepest thanks. We are fortunate to have a government staffed by such selfless, devoted public servants. I have benefited greatly by the comments of my friends and colleagues Jesse Choper, Robert Delahunty, Sandy Kadish, Laurent Mayali, Eric Posner, Sai Prakash, Ricki Silberman, and Adrian Vermeule, who have read parts or all of the manuscript. I have benefited from the superb help of outstanding research assistants, including Peter Brachman, Sean Callagy, Patrick Hein, Keenan Kmiec, Galit Raguan, and Will Trachman. Boalt Hall's dean, Chris Edley, has generously supported my research and writing, and the head of the American Enterprise Institute, Chris DeMuth, has given me the opportunity to develop some of these ideas in the Washington, D.C., policy world. I am grateful to them both; they are model academic administrators and gracious leaders.
My agent, Lynn Chu, was an amazing translator of sometimes soporific academic prose. She coached this book from the first glimmer of an idea to the last stroke on the keyboard. Jamison Stoltz at Grove/Atlantic, Inc., in addition to being a much-needed editor, gave this book its focus and immediacy.
My parents, John Hyun Soo Yoo and Sook Hee Lee Yoo, have been a constant encouragement and source of support over the last years. Their courage in leaving the land of their birth to come to America to make new lives for themselves and their children has always served as an example to me. My brother, Chris, has always been the very definition of the good brother: loyal, giving, and cheerful. Much of my thinking on these questions has been shaped, in part, by his good common sense. Without my wife, Elsa, this book, and anything else I have managed to do, would have been impossible. During some very difficult and challenging times, she has been more understanding, helpful, and supportive than I could ever deserve. I could not have survived my time in government, and the years after it--and could not have written this book--without her. This book is for her.
