by John Yoo
NOTES
Introduction
1. Letter from Thomas Jefferson to James Madison, Sept. 21, 1795, in 16 The Papers of James Madison 88-89 (J. C. A. Stagg et al. eds. 1989).
Chapter 1
1. Philip B. Heymann, Terrorism, Freedom, and Security: Winning Without War 20 (2003).
2. Joyce Appleby & Gary Hart, "Bush Power Grab Must Be Stopped by U.S. Citizenry," San Jose Mercury News, March 29, 2006.
3. Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism 13 (2006).
4. See Brief for Respondent, Rumsfeld v. Padilla, No. 03-1027 (Apr. 12,2004), at 2004 WL 812830.
5. Brief of Janet Reno, et al., Amici Curiae in Support of Respondents, Rumsfeld v. Padilla, No. 03-1027 (Apr. 12, 2004), at 2004 WL 782374.
6. See, e.g., United States v. bin Laden, 132 F. Supp. 2d 168 (S.D.N.Y. 2001).
7. Jean Bethke Elshtain, Just War Against Terror: The Burden of American Power in a Violent World (2003).
8. They are inspired by the thinking of Sayyid Qutb, a leading thinker in the Muslim Brotherhood movement. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 51 (W.W. Norton, 2004) (hereinafter 9/11 Commission Report).
9. Id.
10. Id.
11. Id. at 54.
12. Id. at 47.
13. Id. at 51.
14. U.S. Dep't of State, Fact Sheet: "The Charges Against International Terrorist Osama bin Laden" (Dec. 15, 1999), available at http://usinfo.state.gov/topical/pol/terror/99129502.htm.
15. An enemy's conscious political object also distinguishes war from an emergency, which can arise from an act of God, such as Hurricane Katrina or a pandemic, or impersonal market forces, such as the Great Depression. Ackerman, supra note 4, believes 9/11 was neither crime nor war, but an emergency. This could be a simple problem of categorization. If an emergency because of terrorist attack allows the government to exercise the same powers as in wartime, then labeling the post-9/11 world an emergency rather than a war is of no real difference.
16. The 1996 Amended Protocol II to the 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons art. 1(2), S. Treaty Doc. No. 105-1, at 39 (1997).
17. See 3 "U.S. Practice in International Law" SS 2, at 3443 (1995). See also G. I. A. D. Draper, The Red Cross Conventions 15-16 (1958).
18. Posse Comitatus Act, 18 U.S.C. SS 1382.
19. Memorandum for the Deputy Counsel to the President, From: John Yoo, Deputy Assistant Attorney General, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001).
20. John Yoo, "The Continuation of Politics by Other Means: The Original Understanding of War Powers," 84 Cal. L. Rev. 167-305 (1996); John Yoo, "Clio at War: The Use and Misuse of History in the War Powers Debate," 70 U. Colo.L. Rev. 1169-1222 (1999); John Yoo, "Kosovo, War Powers, and the Multilateral Future," 148 U. Pa. L. Rev. 1673-1731 (2000); John Yoo, "Why Were International Legal Scholars MIA on Kosovo?," 1 Chi. J. Int'l L 149-57 (2000); John Yoo, U.N. Wars, U.S. War Powers, 1 Chi. J. Int'l L. 355-73 (2000). Parts of these articles later appeared in John Yoo, The Powers of War and Peace (2005).
21. Address to a Joint Session of Congress and to the American People, Sept. 20, 2001, available at: http://www.whitehouse.gov/news/releases/2001/09/ 20010920-8.html.
22. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001).
23. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
24. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
25. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat 2135.
26. Describing September 11 as "mass murder," as President Bush did in one speech, also suggests crime fighting rather than war. Statement by the President in his Address to the Nation, Sept. 11, 2001, http://www.whitehouse.gov/news/releases/2001/09/20010911-16.html.
27. 124 S. Ct. 2686 (2004).
28. 124 S. Ct. 2633 (2004).
29. Hamdi, 124 S. Ct. at 2640.
30. U.N. Security Council Res. 1368, S/RES/1369 (2001).
31. International Court of Justice (hereinafter ICJ) (July 9, 2004), para.139. This result traces its origins back to another controversial ICJ decision, Nicaragua v. United States, 1996 ICJ 14 para. 195, which found that the United States had attacked Nicaragua by supporting the Contras. The United States withdrew from the ICJ's jurisdiction and refused to comply with the decision.
32. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961). The exclusionary rule has been effectively criticized by Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 20-31 (1997).
33. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).
34. Hamdi, 124 S. Ct. at 2640 [quoting Ex Parte Quirin, 317 U.S. 1, 20(1942)].
35. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1971) (use of force against suspect must be reasonable).
36. 9/11 Commission Report, supra note 8, at 47.
Chapter 2
1. See, e.g., Phillippe Sands, Lawless World: American and the Making and Breaking of Rules--From FDR's Atlantic Charter to George W. Bush's Illegal War 205(2005); Kenneth Roth, "Getting Away With Torture," 11 Global Governance 389 (2005).
2. Marc Sandalow (quoting William Schulz, executive director of Amnesty International USA), "American Treatment of Prisoners Assailed," S.F. Chron., May 26, 2005.
3. Geneva Convention (Third) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950) (hereinafter GPW).
4. 18 U.S.C. SS 2441.
5. Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, From: Jay S. Bybee Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice (Jan. 22, 2002).
6. GPW, supra note 3, art. 120.
7. Id. at art. 2.
8. Id. at art. 3.
9. See, e.g., Joyce Gutteridge, "The Geneva Conventions of 1949," 26 Brit.Y.B. Int'l L. 294, 300 (1949); Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 4399 (Yves Sandoz et al. eds., 1987); Irving Draper, Reflections on Law and Armed Conflicts 108 (1998).
10. See, e.g., Jeremy Waldron, "Torture and Positive Law: Jurisprudence for the White House," 105 Colum. L. Rev. 1681, 1691-95 (2005).
11. See, e.g., The Prosecutor v. Dusko Tadic (Jurisdiction of the Tribunal), (Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia 1995), 105 I.L.R. 453 (1997); Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), ICJ (1986), 76 I.L.R. 218(1988).
12. Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions, Jan. 29, 1987, available at http://www.reagan.utexas.edu/archives/ speeches/1987/012987B.htm.
13. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, (1936).
14. Clark v. Allen, 331 U.S. 503 (1947).
15. Quoted in Memorandum, supra note 5, at 17 n.38.
16. Id.
17. Id. at 18.
18. Id. at 20.
19. GPW supra note 3, at art. 4(A)(3).
20. Id. at art. 4(A)(2).
21. Dana Milbank, "In Cheney's Shadow," Wash. Post, Oct. 11, 2004, Charlie Savage, "Cheney Aide Is Screening Legislation," Boston Globe, May 28, 2006, Ron Hutcheson, "Quiet Force Behind Bush Policies," Philadelphia Inquirer, Mar. 20, 2006.
22. See Memorandum to John C. Yoo, Deputy Assistant Attorney General, Office of the Legal Counsel, United States Department of Justice, from William H. Taft, Legal Adviser, Re: Your Draft Memorandum of January 9 (Jan. 11, 2002), quoted in Robert J. Delahunty & John Yoo, "Statehood and the Third Geneva Convention
," 46 Va. J. Int'l L. 131 (2006). Mr. Taft's two-page letter is accompanied by a memorandum, stamped "Draft," prepared by him or his Office.
23. See Message to the Senate, supra note 12.
24. See, e.g., "Denied: A Shield for Terrorists," N.Y. Times, Feb. 17, 1987.
25. See Mary Elise Sarotte, "Transatlantic Tension and Threat Perception," 58 Naval War College Rev. 25 (2005); see also Eliot A. Cohen, "History and Hyperpower," 83 Foreign Affairs 49 (2004).
26. Robert Kagan, Of Paradise and Power 3 (2003).
27. Jeremy Rabkin, The Case for Sovereignty: Why the World Should Welcome American Independence (2004).
28. Draft Memorandum for the President, From Alberto R. Gonzales, Subject: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban (Jan. 25, 2002).
29. Memorandum to the Counsel to the President & the Assistant to the President for National Security Affairs, From: Colin L. Powell, Secretary of State, Subject: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan (Jan. 26, 2002).
30. Letter to the President, from Attorney General Ashcroft (Feb. 1, 2002).
31. Memorandum for the Vice President, Secretary of State, Secretary of Defense, Attorney General, Chief of Staff to the President, Director of Central Intelligence, Assistant to the President for National Security Affairs, Chairman of the Joint Chiefs of Staff, Re: Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002).
32. See, e.g., Waldron, supra note 10.
33. President's Weekly Radio Address, May 13, 2006, available at http: //www.whitehouse.gov/news/releases/2006/05/20050513.html.; Rice Says United States Does Not Torture Terrorists, Dec. 5, 2005, available at: http://usinfo.state.gov/is/Archive/2005/Dec/05-978451.html.; see also infra chapter 7.
34. 11 U.S. Op. Atty. Gen. 297, 1865 WL 1168 (U.S.A.G.).
35. "By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants." Ex Parte Quirin, 317 U.S. 1, 30-31 (1942).
36. Ben Fox, "Guards and Detainees Clash at Guantanamo," Associated Press, May 20, 2006.
Chapter 3
1. David Johnston & David E. Sanger, "Fatal Strike in Yemen Was Based on Rules Set Out by Bush," N.Y. Times, Nov. 6, 2002; see also Walter Pincus, "U.S. Strike Kills Six in Al Qaeda," Wash. Post, Nov. 5, 2002.
2. Michael Powell & Dana Priest, "U.S. Citizen Killed by CIA Linked to N.Y. Terror Case," Wash. Post, Nov. 9, 2002; "7th Man Is Accused Of Role in Terror Cell With Al Qaeda Link," N.Y. Times, May 22, 2003.
3. See James Risen, "Bin Laden Aide Reported Killed By U.S. Bombs," N.Y. Times, Nov. 17, 2001; Thom Shanker & Carlotta Gall, "U.S. Attack On Warlord Aims to Help Interim Leader," N.Y. Times, May 9, 2002; Douglas Jehl, "Remotely Controlled Craft Part of U.S.-Pakistan Drive Against Al Qaeda, Ex-Officials Say," N.Y. Times, May 16, 2005.
4. Ellen Knickmeyer, "Zarqawi's Hideout Was Secret Till Last Minute," Wash. Post, June 11, 2006.
5. Bob Woodward, Bush at War 100-01 (2002).
6. James Risen & David Johnston, "Bush Has Widened Authority of C.I.A. to Kill Terrorists," N.Y. Times, Dec. 15, 2002.
7. Josh Meyer, "CIA Expands Use of Drones in Terror War," L.A. Times, Jan. 29, 2006; Chris Downes, "'Targeted Killings' In an Age of Terror: The Legality of the Yemen Strike," 9 J. Conflict & Sec. L. 277 (2004).
8. David E. Sanger & David Johnston, "Allies Think Iraqi Leader Eluded Death In U.S. Strike," N.Y. Times, March 24, 2003.
9. Kevin Sullivan & Rajiv Chandrasekaran, "Hussein's Two Sons Killed In Firefight With U.S. Troops," Wash. Post, July 23, 2003.
10. President Bush Discusses Progress in Iraq, July 23, 2003, available at http://www.whitehouse.gov/news/releases/2003/07/20030723-1.html.
11. Craig Whitlock & Kamran Khan, "Blast in Pakistan Kills Al Qaeda Commander," Wash. Post, Dec. 4, 2005.
12. Kamran Khan & Griff Witte, "Protests Spread Across Pakistan," Wash. Post, Jan. 16, 2006.
13. Exec. Order No. 12333, 3 C.R.F. SS 2.11, at 200, 213 (1982).
14. Downes, supra note 7, at 278.
15. George Gedda, "Policy Against Assassinations Was No Barrier," Philadelphia Inquirer, July 24, 2003.
16. Thomas Powers, "Target Practice," N.Y. Times, July 13, 2003.
17. In 1941, British commandos attempted to kill German field marshal Erwin Rommel in Libya; in 1942, British-supported Czech partisans ambushed Nazi SS General Reinhard Heydrich; in 1943, American fighter planes intercepted and shot down a plane ferrying Japanese admiral Isoroku Yamamoto over the Pacific; in 1951, Navy planes killed 500 Chinese and North Korean senior officers at a planning conference in North Korea. These examples are taken from W. Hays Parks, Department of the Army Pamphlet 27-50-204, Memorandum of Law: Executive Order 12333 and Assassination, Army Lawyer 4 (Dec. 1989).
18. In April 1986, Libyan agents bombed a Berlin disco frequented by U.S. servicemen; two servicemen died in the explosion. Intelligence agencies stopped a second Libyan attack against the American embassy in Paris. President Reagan responded by sending American bombers against military and intelligence targets in Libya, including one which Colonel Qadhafi himself apparently used as a residence. As Abraham Sofaer, former judge and State Department legal adviser under President Reagan, later wrote, Qadhafi was not "personally immune from the risks of exposure to a legitimate attack. He was and is personally responsible for Libya's policy of training, assisting, and utilizing terrorists in attacks on U.S. citizens, diplomats troops, and facilities. His position as head of state provided him no legal immunity from being attacked when present at a proper military target." Abraham Sofaer, "Terrorism, the Law, and National Defense," 126 Mil. L. Rev. 89, 120 (1989).
19. See, e.g., Albert-Laszlo Barbasi, Linked (2003).
20. Esther Schrader, "Response to Terror," L.A. Times, Feb. 15, 2002.
21. Eric Schmitt, "Pentagon Says U.S. Airstrike Killed Women and Children," N.Y. Times, Mar. 13, 2002.
22. 9/11 Commission Report, supra note 9. at 111.
23. Id. at 112-13.
24. Id. at 113.
25. Id.
26. Id. at 114 (quoting interview with unnamed head of CIA counterterrorism unit).
27. Id. at 132.
28. Exec. Order No. 12333, supra note 13, at 200, 213.
29. Exec. Order 11905, 3 C.F.R. SS 5(g), at 90, 101 (1977). There is some debate over whether the Carter and Reagan executive orders intended to broaden the definition of assassination. Ford's version prohibited "political" assassination. The Carter and subsequent Reagan versions dropped the word "political." Exec. Order 12036, 3 C.F.R. SS 2-305, at 112, 129 (1979). One could argue that the deletion of "political" was meant to include individual killings not of a political nature, or that "political" was seen as surplus language and the deletion did not signify a change in meaning.
30. Sofaer, supra note 18, at 116-17; Parks, supra note 17.
31. Sofaer, supra note 18, at 118.
32. Alleged Assassination Plots Involving Foreign Leaders: An Interim Report of the Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities (1976)
33. See, e.g., H.R. 15,542, 94th Cong., 2d Sess. SS 9(1) (1976) ("Whoever, except in time of war, while engaged in the duties of an intelligence operation of the government of the United States, willfully kills any person shall be imprisoned for not less than one year.").
34. Sofaer, supra note 18, at 119; William C. Banks & Peter Raven-Hansen, "Targeted Killing and Assassination: The U.S. Legal Framework," 37 U. Rich. L. Rev. 667, 717-26 (2003).
35. U.N. Charter, Ch. I, Art. 2(4).
36. U.N. Charter, Ch. VII, Art. 42.
37. U.N. Charter, Ch. VII, Art. 51.
38. See discussion in John Yoo, "Using Force," 71 U. Chi. L. Rev. 729 (2004).
39. Memorandum for the Attorney General, from Norbert A. Schle
i, Assistant Attorney General, Office of Legal Counsel, Re: Legality under International Law of Remedial Action against Use of Cuba as a Missile Base by the Soviet Union 2 (Aug. 30, 1962), reprinted in 6 Green Bag 2d 195, 196 (2003).
40. Daniel Webster, Letter to Henry Fox, British Minister in Washington (Apr. 24, 1841) in Kenneth Bourne and D. Cameron Watt, eds., 1 British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print (Part I, Series C) 153, 159 (1986).
41. Myres S. McDougal, "The Soviet-Cuban Quarantine and Self-Defense," 57 Am. J. Int'l L. 597, 598 (1963); W.T. Mallison, Jr., "Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defense Claims Valid Under International Law," 31 Geo. Wash. L. Rev. 335, 348 (1962-63).
42. Hugo Grotius, The Laws of War and Peace, bk. III, Sec. XVIII(2).
43. Parks, supra note 17, at 5.
44. Hague Regulation 23(b) makes it "especially forbidden" to "kill or wound treacherously individuals belonging to the hostile nation or army"; 23(c) makes it forbidden "to kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion"; 23(d) makes it forbidden "to declare that no quarter will be given." Regulations Respecting the Laws and Customs of War on Land, 36 Stat. 2277, Annex to Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2295, 205 Consol. T.S. 277. See also U.S. Army Field Manual 27-10, The Law of Land Warfare, at para. 31.
