by John Yoo
In war, our courts should not stand (and historically have not stood) as neutral arbiters between our government and the enemy. Courts viewed their role as helping the other branches conduct the war effectively, which was why only American citizens or aliens on U.S. territory were entitled to the benefits of our Bill of Rights.
The federal judiciary has significant institutional disadvantages in making or carrying out national security policy. Judges are generalists. They are not appointed because of their expertise in any particular topic, but because of their careers as prominent litigators or public officials. With few exceptions, Congress has organized the federal courts into a decentralized system along geographic, not subject matter, lines. In contrast, foreign affairs requires expertise in matters such as international politics, regions, technologies, or intelligence, subjects in which few judges have experience.
Courts acquire information only through the course of litigation, they make decisions in a formalized way with an inner logic often unrelated to the matter at hand, and they are slow to correct their errors or to change policy in response to new circumstances, because of the years typically needed to complete a case.81 The enemy combatant cases, in which the legal issues were clear, no discovery was needed, and detainees had significant interest in a swift resolution, still required roughly two to three years of litigation before any hearings could even be held. Appeals to correct errors usually take years to resolve. Judicial mistakes in peacetime will not cost society much in a specific case, and errors can often be fixed over time. By contrast, a judicial error (like any error) in wartime can have an immediate and dramatically higher cost that cannot be reversed.
Some welcomed the Court's intervention because it would prompt Congress to act. When Congress did act at the end of December 2005, it did the opposite of what civil libertarians expected. It overruled Rasul. Two months after the Court signaled that it would hear another detainee case from Guantanamo, Congress eliminated federal court jurisdiction over any case from the base. Several hundred cases that had been pending were suddenly moot.82 Clearly, the Rehnquist Court had gone too far in expanding the habeas corpus statute, abandoning Eisentrager, and intruding into the prerogatives of the political branches in waging war.
A long list of law professors lobbied against the bill's passage. They argued that by overruling Rasul Congress had unconstitutionally interfered with the judicial power of the Supreme Court to hear cases under federal law.83 They seriously exaggerated. Rasul upset the settled understanding that the right to habeas corpus did not extend to aliens held outside the territorial United States in wartime. Congress was merely restoring the previous interpretation, a kind of statutory error correction. Congress was not removing judicial review over habeas cases that had long been recognized and applied.84
However, Congress took the Court's advice in part and added a review process for enemy combatants that had not previously existed. Congress vested jurisdiction in the U.S. Court of Appeals for the D.C. Circuit to hear appeals of the determinations of the Defense Department's CSRTs. Review, however, would be narrow. The D.C. Circuit's review is limited only to whether the tribunals followed the Defense Department's own rules. In other words, the D.C. Circuit does not sit to try an enemy combatant, or to reach its own decision on whether he should be released. The D.C. Circuit may also decide whether those procedures are consistent with the Constitution or federal laws. It does not appear, however, that a finding that procedures are unconstitutional would require the release of an enemy combatant. Rather, the Defense Department would be required to revise the procedures.
While the Detainee Act grants more judicial review than the Bush administration, or indeed any administration, would have liked, it eliminated habeas corpus for alien enemy combatants held outside the sovereign territory of the United States as well as claims of action under other laws, such as the Alien Tort Statute. It said, in other words, that the Supreme Court had gotten it wrong in Rasul. It was a rare and extraordinary thing for Congress to checkmate the Supreme Court as it did, and it signals how far the Court had exceeded the traditional practice of the judiciary in wartime. Whether the Detainee Act will serve as a sufficient warning to the courts not to meddle in the business of the political branches remains to be seen.
7
INTERROGATION
On March 28, 2002, it has been reported, American and Pakistan intelligence agents assaulted a two-story apartment building in Faisalabad, an industrial city in northeastern Pakistan. American agents threw stun grenades and swarmed an apartment where a dozen suspected al Qaeda operatives were sleeping. Four tried to escape by jumping to the roof of another building, and in the scuffle their leader was shot in the groin and thigh.1
Almost completely unfurnished, according to press reports, the apartment in the Shahbaz Cottage building held a trove of computer equipment, storage drives, and CDs. Occupants had told neighbors they were Arab traders selling T-shirts and sheets, but the apartment in reality had become a "provisional headquarters" for the al Qaeda terrorist network.2 Soon American intelligence agents realized that their biggest catch wasn't computers, but al Qaeda's number three leader, Abu Zubaydah. With the death of Mohammed Atef in the American invasion of Afghanistan in November 2001, Zubaydah had assumed the role of chief military planner for al Qaeda, ranking in importance only behind Osama bin Laden and Ayman al Zawahiri.
It is difficult to understate the importance of the capture. Zubaydah had long been an integral part of al Qaeda plans to attack the West. One of the planners of the failed 2000 millennium attacks, he ran a foiled plot to bomb American and Israeli tourists in Jordan in 1999 and had directed frustrated attacks on the American embassies in France and the former Yugoslavia. Before 9/11, he had spent several years screening al Qaeda recruits. He chose several of the 9/11 hijackers, briefed shoe bomber Richard Reid, and met with Jose Padilla and approved his plans to explode a dirty bomb in the United States.
With his new promotion, Zubaydah headed the organization and planning of al Qaeda's operations. With al Qaeda reeling from American success in Afghanistan, and bin Laden and Zawahiri in hiding, Zubaydah took on the role of building and managing al Qaeda's network of covert cells throughout the world. More than anyone else, he knew the identities of hundreds of terrorists and their plans. In confirming the capture a few days later, Rumsfeld said, "We are asking for a good deal of information and intend to keep doing it."3 If anyone had "actionable intelligence" that could be put to use straightaway to kill or capture al Qaeda operatives and frustrate their plans of attack, it was Zubaydah. It was as if a foreign enemy had captured Rumsfeld or Tenet.
Zubaydah was of a different generation than men like bin Laden and Zawahiri. According to press reports, he was young, comfortable with the communications tools of the twenty-first century, and skilled at the craft of intelligence operations. Responsible for training recruits, Zubaydah was an expert at resisting regular interrogation methods. He was said to be in charge of training materials for al Qaeda cells.4 It was safe to assume that simple questioning and standard mind games (good cop-bad cop) wouldn't work on him. These would be ineffective with those who are willing to die for their cause and who have undergone extensive training to resist questioning.
In the months after Zubaydah's capture, the United States found several other al Qaeda leaders. A year to the day of the September 11 attacks, as the press has reported, Pakistani authorities captured Ramzi bin al Shibh after a fierce three-hour gunfight in Karachi, Pakistan. Bin al Shibh was the right-hand man to Khalid Sheikh Mohammed, referred to by American intelligence and law enforcement as "KSM." A thirty-year-old Yemeni, bin al Shibh had journeyed to Hamburg, Germany, where he became close friends and a fellow al Qaeda member with Mohammed Atta, the tactical commander of the 9/11 attacks.5 Handpicked by Osama bin Laden to join the 9/11 attackers, bin al Shibh's American visa applications had been repeatedly rejected. He continued to serve as a conduit for money and instructions between al Qaeda leaders and th
e hijackers. In interrogations, bin al Shibh described himself as the coordinator of the attacks.
Six months later, according to reports, American and Pakistani intelligence landed a bigger fish, KSM himself. Labeled by the 9/11 Commission Report as the "principal architect" of the 9/11 attacks and a "terrorist entrepreneur," KSM was captured on March 1, 2003, in Rawalpindi, Pakistan.6 The uncle of Ramzi Yousef, who had carried out the first bombing of the World Trade Center, KSM had worked on the foiled plan to bomb twelve American airliners over the Pacific. It was KSM who met with bin Laden in 1996 and proposed the idea of crashing planes into American targets. He helped select the operatives, provided the financing and preparation for their trip to the United States, and continued to stay in close contact with them in the months leading up to 9/11. After the U.S. invasion of Afghanistan and the capture of Zubaydah, KSM became the most important leader after bin Laden and Zawahiri. If catching Zubaydah was like capturing al Qaeda's defense secretary, finding KSM was like netting al Qaeda's chairman of the Joint Chiefs of Staff.
These three seasoned al Qaeda commanders, as the 9/11 Commission Report makes clear, provided useful information to the United States.7 As the press has reported, one arrest followed the other--information from Zubaydah allowed the United States to capture bin al Shibh, which finally led to KSM.8 Not only did their captures take significant parts of the al Qaeda leadership out of action, they led to the recovery of much information that prevented future terrorist attacks and helped American intelligence more fully understand the operation of the terrorist network. As the government has publicly acknowledged, all three were involved in approving, training, and preparing Jose Padilla for his mission to the United States.9 Both Porter Goss, the past director of the CIA, and Vice President Cheney, who know far more than they can reveal publicly, have said that such operations, are vital to protect the United States from attack.10
Law
If administration critics had their way, however, it is likely that none of this information would ever have come into our hands. They want us to question al Qaeda leaders only verbally, no matter how much information they might have or what attacks might be planned in the future. Further, they argue that any effort to coerce a detainee, even an Abu Zubaydah or Ramzi bin al Shibh or KSM, constitutes prohibited "torture."
Critics tell a "torture narrative," which goes like this: The Bush administration used torture to extract information from al Qaeda leaders, and decided to use the same methods on the detainees at Guantanamo Bay, whom it deprived of Geneva Conventions protections precisely for this purpose.11 Harsh interrogation methods became part of military culture and "migrated" to Iraq, where they produced the horrible abuses at Abu Ghraib.
This argument is an exercise in hyperbole and partisan smear. The Bush administration researched and debated the Geneva issue three months after the 9/11 attacks. Iraq presented a different situation entirely because Iraq clearly was a war covered under the Geneva Conventions. Iraq was never once mentioned by anyone during the debates within the administration in December 2001 and January 2002. American forces were still in Afghanistan and President Bush would not launch his political offensive on Iraq until the fall of 2002. The invasion of Iraq was more than a year in the future.
There is a clear legal difference between the war against al Qaeda and the war in Iraq. Iraq is a party to the Geneva Conventions. Its troops have fought in accordance with the requirements for POW status (as they did in the first Persian Gulf War in 1991). At the outset of the invasion, President Bush and the Pentagon declared that the Geneva Conventions applied. Nonetheless, the pictures of the appalling abuses at Abu Ghraib, which emerged in the summer of 2004, allowed some to jump to a conclusion--one that was utterly false--that the Pentagon had ordered the torture of Iraqis. Believers of the narrative refuse to trust a word of the bipartisan investigations that have demolished the link between the decisions about Guantanamo Bay and Abu Ghraib, or between decisions in Washington and the prison abuses.
The Abu Ghraib photos sparked extensive leaking inside the Beltway. Classified memos prepared by OLC analyzing how the Geneva Conventions, the Convention Against Torture (CAT), and a federal law banning torture applied to captured al Qaeda and Taliban fighters were handed to the press. After administration opponents had finished scouring them for juicy passages for popular consumption, the charges that the Bush administration had sought to undermine or evade the law flew fast and furious. Senator Dianne Feinstein claimed that the analyses appeared "to be an effort to redefine torture and narrow prohibitions against it."
In August 2002, Bybee signed an opinion that concluded, after a thorough review of the law, that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years." While the advice was entirely accurate, conspiracy theories have since grown up around our work. One has it that it was really Vice President Dick Cheney's office, led by David Addington, which wrote parts of the memorandum to promote Cheney's drive to expand the powers of the executive branch.12 Others claim that OLC had allied with "neo-cons" in other agencies, such as the Defense Department's civilian leadership and Cheney's office, to promote the violation of international and federal law without proper controls by other offices in the Justice Department and other agencies.
Bandied about as they may be, these theories are utterly without foundation in the truth. The subject matter was certainly extraordinary and demanded unusually tight controls because of its sensitivity. Justice Department officials have prohibited any specific discussion of the process that produced the 2002 memo, out of concern about revealing confidential information. But I can describe the standard process for opinions involving intelligence matters. Normally, the general counsel of one of the intelligence agencies would identify a legal issue involving a proposed operation or program. The NSC's legal adviser would formally ask OLC for the opinion. He would set the classification level of the work and would dictate, in consultation with the White House counsel, which agencies and personnel would have access to it. Sometimes neither State nor Defense lawyers would know about the opinion. We regularly notified the offices of the attorney general and the deputy attorney general about all pending opinions, and gave them periodic updates on our progress. Within OLC, career attorneys handle the initial research and drafting of opinions, with editing and review by two political appointees at my level, and then final rewriting and editing by the head of the office. Any opinion would circulate to the NSC legal advisor, the White House counsel's office, and the intelligence agencies for their comments. OLC always welcomed comments, suggested edits, and questions. But in no case was a single word of any opinion every written by anyone outside the Justice Department.
Some in the media have speculated that the opinion somehow did not move through the proper channels within the Justice Department. That too is wrong. Aside from the restricted circle of personnel who could work on it, the opinion went through the normal process of review. No one urged us to make any significant changes in the opinion, and I do not recall anyone disagreeing with the basic conclusions of the opinion. That is not to say that anyone thought it was an easy question to answer; everyone understood that the opinion addressed difficult questions fraught with serious consequences.
Controversy has surrounded OLC's opinion ever since. In December 2004, just a few days before Alberto Gonzales's confirmation hearings to become attorney general, DOJ replaced the memo with a superseding legal opinion in an effort to satisfy the administration critics, who were having a field day attributing the Abu Ghraib photos to the 2002 legal memos. I felt it was a disservice to the personnel, especially those in the field, who had to rely on the Justice Department's advice to take risks in fighting the war on terrorism. Since the legal
conclusions in the new memo were basically the same, this exercise in political image-making may have seemed worth it simply to ease Gonzales's confirmation (though not by much, as it turned out). But it was a misguided politicization of the Justice Department's job of giving legal advice. The second opinion not only retracted the bright lines the 2002 memo attempted to draw, replacing them with vague language that gave less offense, it provided much less guidance or clarity. The men and women risking their lives in the field to protect the country would now not be allowed to know specifically what they could and could not do.
Because the federal antitorture law used words rare in the federal code, no prosecutions had been brought under it, and it had never been interpreted by a federal court. We wrote the memo to give the executive branch guidance on these specifics. The 2002 memo was, in effect, rewritten in 2004 to take out language about what torture was or wasn't, to placate the sensibilities of those who didn't like seeing the law of torture and harsh interrogation even discussed. Nothing of substance about the law had changed.
The harder question was what interrogation methods fell short of the torture ban and could be used against al Qaeda leaders. Federal law commands that al Qaeda and Taliban operatives not be tortured. The President had gone much farther than that, ordering from the outset that they be treated humanely. In its antitorture law in force at the time of the 2002 memos, Congress made clear that the United States could not use interrogation methods that caused "severe physical or mental pain or suffering," and no one in the government questioned that ban, or suggested methods to violate it. But would limiting a captured terrorist to six hours' sleep, isolating him, interrogating him for several hours, or requiring him to exercise constitute "severe physical or mental pain or suffering"? Are these actions inhuman or cruel? Could these methods be used if our government had intelligence that al Qaeda was seeking to carry out another attack on the United States? The legal meaning of "torture" is not as all-inclusive as some people would like it to be. Legally, we are not required to treat captured terrorists engaged in war against us as if they were suspects held at an American police station. Limiting our intelligence and military officials to polite questioning, and demanding that terrorists receive lawyers, Miranda warnings, and a court trial, would only hurt our ability to stop future attacks. Unpleasant as it is, our government has a responsibility to eliminate the al Qaeda threat and to do what is reasonably necessary in self-defense.