War by Other Means: An Insider's Account of the War on Terror

by John Yoo

  58. Placing of United States Armed Forces Under United Nations Operational or Tactical Control, 20 U.S. Op. OLC 182, 1996 WL 942457 (May 8, 1996). Cf. H. Jefferson Powell, The President's Authority Over Foreign Affairs (2002).

  59. December 2004 OLC Opinion, supra note 19, at n.8.

  60. Waldron, supra note 39, at 1715. A similar position is argued by Thomas Nagel. See Thomas Nagel, "War and Massacre," in War and Moral Responsibility 3 (Marshall Cohen et al. eds., 1974); Thomas Nagel, "Autonomy and Deontology," in Consequentialism and Its Critics 142, 156-67 (Samuel Scheffler ed., 1988). See also David Sussman, "What's Wrong with Torture?," 33 Phil. & Pub. Aff. 1, 2-3 (2005). For legal academics who hold similar views, see Rosa Ehrenreich Brooks, "The New Imperialism: Violence, Norms, and the 'Rule of Law'", 101 Mich. L. Rev. 2275, 2316-18 (2003); Seth F. Kreimer, "Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror," 6 U. Pa. J. Const. L. 278 (2003).

  61. Sanford H. Kadish, "Torture, the State and the Individual," 23 Isr. L. Rev. 345, 346 (1989). Even the most absolutist defenders of individual autonomy from state action, like Charles Fried, Henry Shue, and many other legal scholars, will not rule out coercive measures in all cases. See, e.g., Henry Shue, "Torture," 7 Phil. & Pub. Aff. 124, 143 (1977) (arguing that those who undertook morally justified torture must explain their reasons as defendants in a criminal trial); Charles Fried, Right and Wrong 10 (1978); Richard A. Posner, "The Best Offense," The New Republic, Sept. 2, 2002, at 28, 30; Michael Walzer, "Political Action: The Problem of Dirty Hands," in War and Moral Responsibility 70 (Marshall Cohen et al. eds., 1974); Oren Gross, "Are Torture Warrants Warranted?: Pragmatic Absolutism and Official Disobedience," 88 Minn. L. Rev. 1481 (2004).

  62. Eric A. Posner & Adrian Vermeule, "Should Coercive Interrogation be Legal?," 104 Mich. L. Rev. 671 (2006).

  63. In fact, it appears that our regulatory agencies do not strike the same balance across issues. See Eric A. Posner & Cass R. Sunstein, "Dollars and Death," 72 U. Chi. L. Rev. 537 (2005).

  64. Philip B. Heymann, Terrorism, Freedom, and Security: Winning Without War 109-11 (2003). Sanford Levinson calls this a strategy of "deny the basic premise--i.e., the efficacy of torture--and, therefore, maintain the commitment because it is in fact costless to do so." Sanford Levinson, "Precommitment and 'Postcommitment': The Ban on Torture in the Wake of September 11," 81 Tex. L. Rev. 2013, 2028 (2003).

  65. U.S. Army Interrogation Field Manual 34-52, at 1-1 (May 8, 1987).

  66. United Nations Committee Against Torture: Consideration of Reports Submitted by State Parties Under Article 19 of the Convention, Second Periodic Reports of States Parties, Addendum, Israel 7, U.N. Doc. CAT/C/33/Add.2/Rev.1 (1997).

  67. Israel High Court Opinion, at para. 5. Anecdotal evidence from other conflicts, such as French efforts against the Algerian independence movement, also suggests that actionable intelligence has been obtained by democratic governments using methods going well beyond coercive interrogation and into torture. See discussion in Levinson, supra note 64, at 2030.

  68. Concluding Observations of the Human Rights Committee: Israel, CCPR/CO/78/ISR, at para. 18 (August 21, 2003).

  69. The case is discussed in Alan Dershowitz, Why Terrorism Works, Understanding the Threat, Responding to the Challenge 137-38 (2002), and the 9/11 Commission Report.

  70. See, e.g., 9/11 Commission Report, supra note 69, at 525-27 n.107.

  71. Id. at 247 & 531 nn. 161-62.

  72. See Press Briefing by White House Counsel Judge Alberto Gonzales, DoD General Counsel William Haynes, DoD Deputy General Counsel Daniel Dell'Orto, and Army Deputy Chief of Staff for Intelligence General Keith Alexander (June 22, 2004).

  73. See 9/11 Commission Report, supra note 69, at 248.

  74. Action Memo, for: secretary of defense, From: William J. Haynes, II, general counsel, Subject: Counter-Resistance Techniques, Nov. 27, 2002, approved by SecDef, Dec. 2, 2002.

  75. Shue, supra note 61, at 141; Heymann, supra note 2, at 110.

  76. Heymann, supra note 64, at 112.

  77. Waldron, supra note 39, at 1718-34.

  78. Gross, supra note 61, at 1507-09; Seth Kreimer, "Too close to the Rack and Screw," 6 U. Pa. J. Const. L. 278 (2003); Mordechai Kremnitzer, "The Landau Commission Report-Subordinated to the Law or the Law to the 'Needs' of the Security Service?," 23 Isr. L. Rev. 216, 254-57, 261-62(1989).

  79. Frederick Schauer, "Slippery Slopes," 99 Harv. L. Rev. 361 (1985); Eugene Volokh, "The Mechanisms of the Slippery Slope," 116 Harv. L. Rev. 1026(2003).

  80. Heymann, supra note 64, at 110.

  81. Posner & Vermeule, supra note 62, at 690.

  82. Final Report of the Independent Panel to Review DOD Detention Operations (August 2004), www.au.af.mil/au/awc/awcgate/dod/d20040824 finalreport.pdf. (hereinafter Brown-Schlesinger Report).

  83. The panel concluded, "No approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities."

  84. Church Report, at 3 (March 10, 2005), available at http://www.defense link.mil/news/Mar2005/d20050310exe.pdf.

  85. Brown-Schlesinger Report, supra note 82.

  86. See Working Group Report on Detainee Operations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003) (hereinafter Working Group Report).

  87. Id. at 63.

  88. U.S. Army Interrogation Field Manual 34-52, at Appendix H (May 8, 1987).

  89. Working Group Report, supra note 86, at 64. Two involved manipulation of the environment and diet, not to be done in any way that would harm the detainee. Interrogators might want to adjust the temperature or introduce an unpleasant smell, and could do this if they did not injure the detainee in any way and the interrogator accompanied the detainee at all times.

  90. Id. at 65.

  91. Id. at 70.

  92. After receiving the working group report, he issued an order to the commander of the U.S. Southern Command on April 16, 2003, authorizing the use of twenty-four of the first twenty-six interrogation methods recommended by the working group. Memorandum for Commander, U.S. Southern Command, Subject: Counter-Resistance Techniques in the War on Terrorism (Apr. 16, 2003).

  93. Posner & Vermeule, supra note 62.

  Chapter 8

  1. Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.

  2. Editorial, "A Travesty of Justice," N.Y. Times, Nov. 16, 2001.

  3. Letter to the Honorable Patrick J. Leahy, chairman, senate judiciary committee, Dec. 5, 2001, at http://highbury.law.yale.edu/outside/html/Public _Affairs/152/Leahy.pdf; the signers of the letter can be found at http://highbury.law.yale.edu/outside/html/Public_Affairs/152/OrigSig.pdf.

  4. Neal K. Katyal & Laurence H. Tribe, "Waging War, Deciding Guilt: Trying the Military Tribunals," 111 Yale L.J. 1259, 1309 (2002).

  5. George Lardner Jr., "Democrats Blast Order on Tribunals," Wash. Post, Nov. 29, 2001.

  6. Opening Statement of Senator Patrick Leahy, chairman, senate judiciary committee, "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism," Nov. 28, 2001, available at: http://leahy.senate.gov/press/ 200111/112801.html.

  7. Id.

  8. Dan Eggen, "Ashcroft Defends Anti-Terrorism Steps," Wash. Post, Dec. 7, 2001.

  9. Department of Defense, Military Commission Order No. 1, Subject: Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism (Mar. 21, 2002) (superceded).

  10. Department of Defense, Military Commission Instruction No. 2, Subject: Crimes and Elements for Trials by Military Commission (Apr. 30, 2002).

  11. Under the ICC, a prosecutor who loses a case can appeal the decision, this is not possible under the military commissions, or
in a civilian U.S. criminal trial.

  12. See Laurence H. Silberman, "Will Lawyering Strangle Democratic Capitalism?," Regulation, Mar.-Apr. 1978, at 15.

  13. Jerry Markon & Timothy Dwyer, "Some Saw Moussaoui as Bit Player, Juror Says," Wash. Post, May 5, 2006.

  14. Dan Eggen, "New Home is 'Alcatraz of the Rockies,'" Wash. Post, May 5, 2006.

  15. 9/11 Commission Report, 273-76.

  16. Jerry Markon, "Moussaoui Pleads Guilty in 9/11 Plot," Wash. Post, Apr. 23, 2005.

  17. Jerry Markon & Timothy Dwyer, "Moussaoui Repeatedly Ejected at Trial; Outbursts Mark Start of Jury Selection Process," Wash. Post, Feb. 7, 2006.

  18. United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004); United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004); United States v. Moussaoui, 333 F.3d 509 (4th Cir. 2003).

  19. Andrew C. McCarthy, "The Intelligence Mess: How It Happened, What To Do About It," 117 Commentary 11 (Apr. 1, 2004).

  20. United States v. Moussaoui, 282 F. Supp. 2d 480, 487 (E.D. Va. 2003).

  21. United States v. Nixon, 418 U.S. 683 (1974).

  22. Id. at 712-13.

  23. A federal law, the Classified Information Procedures Act, creates a similar process for allowing summaries of classified national security documents to be given to juries instead of the documents themselves. Classified Information Procedures Act (CIPA), 18 U.S.C.A. App. 3 SSSS 1-16.

  24. United States v. Moussaoui, 365 F.3d 292, 306 (4th Cir. 2003).

  25. Id. at 313-17. An earlier appeal had dismissed the case on a technical jurisdictional ground, United States v. Moussaoui, 333 F.3d 5089 (4th Cir. 2003), which had generated substantial difference of opinion among the judges of the Fourth Circuit as a whole, but did not lead to a full en banc argument. United States v. Moussaoui, 336 F.3d 279 (4th Cir. 2003) (en banc) (denying motion for rehearing en banc).

  26. Jerry Markon, "Moussaoui Pleads Guilty in Terror Plot," Wash. Post, Apr. 23, 2005.

  27. Jerry Markon, "Judge Bars Moussaoui From Jury Selection," Wash. Post, Feb. 15, 2006.

  28. Jerry Markon & Timothy Dwyer, "Moussaoui Unfazed as 9/11 Attacks Detailed," Wash. Post, Mar. 8, 2006.

  29. Jerry Markon & Timothy Dwyer, "Moussaoui Says He Was to Fly 5th Plane," Wash. Post, Mar. 28, 2006; Dana Milbank, "A Terrorist's Grand Delusions," Wash. Post, Mar. 28, 2005.

  30. Jerry Markon & Timothy Dwyer, "Moussaoui Tells Court 9/11's Toll Was Too Low," Wash. Post, Apr. 14, 2006. Even so, the trial still threatened to run aground. Judge Brinkema halted the proceedings and almost ended the death penalty phase when it was revealed that a career Transportation Security Administration lawyer had e-mailed transcripts of the trial to government witnesses and attempted to coach them in their testimony. While those witnesses were banned from testifying and the lawyer was cited for misconduct, the conduct almost derailed the Moussaoui case yet again. Jerry Markon & Timothy Dwyer, "Judge Halts Terror Trial," Wash. Post, Mar. 14, 2006.

  31. Even after his conviction and sentencing, Moussaoui continued to play games. Facing transfer to a super-maximum-security prison, he filed a motion seeking to withdraw his guilty plea and asked for a new trial. He claims now that he was not involved in the 9/11 plot, and was only sent to train for a second wave of attacks. He wrote that he now believes "it is possible I can receive a fair trial even with Americans as jurors." Jerry Markon, "Moussaoui Fails in Bid to Withdraw 9/11 Guilty Plea," Wash. Post, May 9, 2006.

  32. President Bush Welcomes German Chancellor to the White House, May 3, 2006, available at: http://www.whitehouse.gov/news/releases/2006/05/ 20060503-15.html.

  33. Ruth Wedgwood, "Al Qaeda, Terrorism, and Military Commissions," 96 Am. J. Int'l L. 328, 330-31 (2002).

  34. Geoffrey Stone, Perilous Times: Civil Liberties in Wartime (2004).

  35. Id. at 331-32.

  36. Barbara Olshansky, Secret Trials and Executions: Military Tribunals and the Threat to Democracy (2006).

  37. Thomas L. Friedman, "A Travesty of Justice," N.Y. Times, Nov. 16, 2001.

  38. For a critical review of the history, see Louis Fisher, Military Tribunals & Presidential Power: American Revolution to the War on Terrorism (2005). A valuable source is Brian Baldrate, "The Supreme Court's Role in Defining the Jurisdiction of Military Tribunals: A Study, Critique, & Proposal for Hamdan v. Rumsfeld," 186 Mil. L. Rev. 1 (2005); see also American Bar Association Task Force on Terrorism and the Law, Report and Recommendations on Military Commissions (Jan. 4, 2002). Law professors have written on both sides of the issue. See also Curtis Bradley & Jack Goldsmith, "The Constitutional Validity of Military Commissions," 5 Greenbag 2d 249 (2002); David J. Bederman, "Article II Courts," 44 Mercer L. Rev. 825 (1993); Harold Koh, "The Case Against Military Commissions," 96 Am. J. Int'l L. 337 (2002).

  39. William Winthrop, Military Law and Precedents 832 (2d ed. 1920).

  40. Proclamation Suspending the Writ of Habeas Corpus Because of Resistance to Draft (Sept. 24, 1862), in 6 Life and Works of Abraham Lincoln 203 (Marion Mills Miller ed., 1907)

  41. Winthrop, supra note 39, at 834, 853.

  42. Ex Parte Vallandigham, 68 U.S. 243 (1863).

  43. Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868)(No. 9,899).

  44. Military Commissions, 11 U.S. Op. Atty. Gen. 297 (1865).

  45. See Eli E. Nobleman, "Military Government Courts: Law and Justice in the American Zone of Germany," 33 A.B.A. J. 777, 777-80 (1947); Pitman B. Potter, "Legal Bases and Character of Military Occupation in Germany and Japan," 43 Am. J. Int'l L. 323 (1949).

  46. A. Wigfall Green, "The Military Commission," 42 Am. J. Int'l L. 832, 833 (1948).

  47. The facts of the Nazi saboteur case are recounted in David Danelski, "The Saboteurs' Case," 1 J. S. Ct. Hist. 61 (1996); Louis Fisher, Nazi Saboteurs on Trial (2003); Michael R. Belknap, "The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur Case," 89 Mil. L. Rev. 9 (1980); Eugene Rachlis, They Came to Kill: The Story of Eight Nazi Saboteurs in America (1962); Ex Parte Quirin, 317 U.S. 1 (1942).

  48. Danelski, supra note 47, at 65.

  49. Id.

  50. 7 Fed. Reg. 5101 (1942).

  51. Danelski, supra note 47, at 69.

  52. See U.S. Dep't of Defense, Military Commission Order No. 1, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism para. 5 ("Procedures Accorded the Accused") and para. 6 ("Conduct of the Trial") (Mar. 21, 2002), available at http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf; Crimes and Elements for Trials by Military Commissions, 32 C.F.R. 11.3.

  53. "By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases." Ex Parte Quirin, 317 U.S. at 28.

  54. Ex Parte Yamashita, 327 U.S. 1 (1946).

  55. Hiroto v. McArthur, 338 U.S. 197 (1948); Johnson v. Eisentrager, 339 U.S. 763 (1950). In a 1952 case in which the wife of an American serviceman in occupied Germany was tried by military tribunal for murdering her husband, the Supreme Court again upheld military commissions as authorized by Congress. Madsen v. Kinsella, 343 U.S. 341, 348-49 (1952).

  56. In fact, Congress reiterated the point again in 1996 in the legislative history to the War Crimes Act. The act, Congress observed, "is not intended to affect in any way the jurisdiction of any court-martial, military commission, or other military tribunal under any article of the Uniform Code of Military Justice or under the law of war or the law of nations." H.R. Rep. No. 104-698, at 12 (1996), reprinted in 1996 U.S.C.C.A.N. 2166, 2177.

  57. Now codified at 10 U.S.C. SS 821 (2004) ("The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals").


  58. Ex Parte Yamashita, 327 U.S. at 11, citing Quirin, 317 U.S at 28.

  59. Quirin, 317 U.S. at 37.

  60. The Geneva Conventions, and their successor treaties (which the United States has not ratified), deal with civil wars and insurgencies which cover certain groups that are not nations. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).

  61. Rasul v. Bush, 542 U.S. 466, 483-84 (2004).

  62. Detainee Treatment Act of 2005, Pub. L. No. 109-148, SS 1005(e)(1), 119 Stat. 2739, 2742 (2005).

  63. GPW art. 102, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950).

  64. See, e.g., Jordan Paust, "Antiterrorism Military Commissions: Courting Illegality," 23 Mich. J. Int'l L. 1 (2001); Jordan Paust, "Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Procedure," 23 Mich. J. Int'l L. 677(2002).

  65. The critics claim that distinguishing between aliens and citizens violates core international law norms of equal treatment. This reflects a fundamental failure to understand the difference between war and peace. In peacetime, the United States does provide extensive due process and equal protection for aliens, as it should, and there is no difference between an alien or citizen before a federal court. Wartime, however, is different. Foreign enemies, almost by definition, are aliens, although al Qaeda is trying to change that by intensively recruiting American citizens. In wartime, the United States can and has detained and deported enemy aliens. It has seized the property of enemy governments and its citizens. It has sent its military forces to kill and destroy the enemy's armed forces. A nation at war could not carry out war at all if it had to treat citizens and aliens completely equally.

  66. Paust, supra note 64, at 688-89.

  Conclusion

  1. Hamdan v. Rumsfeld, 2006 WL 1764793 (U.S.) (June 29, 2006).

  2. Richard A. Posner, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform 209-11 (2006).