by John Yoo
Our political system holds its leaders accountable for their decisions. If the electorate disagrees with those choices, they can press Congress to change the law or they can seek to remove the official responsible for the policy through the electoral process. Our nation had a presidential and congressional election after Abu Ghraib and the leaking of the OLC memos. If the people had disagreed with administration policies, they could have made a change. The complaint of the critics was, in essence, that government lawyers should impose specific policies upon the President, following their personal policy views on what the law ought to be. The critics sought to use litigation to move wartime policy in their preferred directions rather than working through our elected representatives.
The critics' desire to impose their own policy concepts, by misreading the law, comes through on the question of defenses to possible violations of the antitorture law. Before 9/11, legal thinking had focused on whether necessity or self-defense could justify or excuse torture.40 Necessity--or the "choice of evils," as it is known--is the most discussed justification for violations of criminal law. Defendants raise it whenever they feel they have to violate a law to avoid even greater harm or evil to themselves or others.41 The well-known "ticking bomb" scenario is often cited in discussions of the necessity defense: What kind of force should be used with a terrorist who knows the location of a ticking time bomb that will take many civilian lives? Legal thinkers love to wrestle with the probabilities, ethics, and costs and benefits of this problem. Is it justifiable to kill an innocent person to save two other lives? What if, post-9/11, we found an al Qaeda member involved in a plot to blow up a nuclear weapon in Los Angeles? After all, "any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds of thousands of lives."42
Self-defense is another possible defense for an intelligence agent.43 Congress expressly refused to rule it out when it passed the antitorture law. A defendant can use "reasonable force" when he reasonably believes he or another person is in imminent danger of bodily harm.44 As with necessity, whether a claim of self-defense will be upheld will depend on the facts.45 It is also possible that a nation's overall right to defend itself from terror supports an individual agent's claim in his use of force against a terror suspect.46 If self-defense is a standard defense to homicide, it is difficult to see why it would not be a defense to torture as well.
Administration critics strongly disagreed with the discussion of defenses. A group of law professors and lawyers attacked the notion of a defense as "contrived" and "distorted,"47 wrongly and unjustifiably implying that there is no such thing as a defense against a law. Congress considered eliminating common law defenses for government officials engaged in harsh interrogation, but decided against it. It intentionally left out of the statute CAT provisions that eliminated defenses based on war or public emergency.48 American law thus presumes self-defense and necessity defenses to exist for violations of any criminal law. Unless Congress changes the law, these defenses will apply.49
Columnist Anthony Lewis replies that discussing available legal defenses shows a criminal desire on the part of the administration to violate the law and get away with it. We work to send our police officers onto the streets with a full understanding of the rules on the use of force, including the rules on firing their weapon in self-defense. Our intelligence officers deserve the same clarity. Otherwise, those who risk their own lives to keep other Americans safe will be forced to struggle with broad, vague prohibitions, behind which lurk massive liabilities. I think that our agents in the field deserve better.
In the summer of 2004, as the Abu Ghraib controversy hit the front pages, the Justice Department bowed to administration critics and withdrew the leaked 2002 opinion. I thought this a terrible precedent. It showed that Justice Department judgments on the law had become just one more political target open to partisan attack and political negotiation. The implication was that if one put enough pressure on the Justice Department it, like any other part of the government, would bend. It also suggested to me that the leadership of the Justice Department that had replaced the team there on 9/11 was too worried about the public perceptions of its work.
At the end of 2004, the Justice Department issued a revised opinion. The biggest change was that it withdrew the 2002 discussion of defenses on the grounds that "[c]onsideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture."50 In 2002, we thought that the opinion interpreting the federal antitorture law ought not be tailored to any single interrogation method. Two years later, DOJ officials looked back with the benefit of 20/20 hindsight to second-guess us. To say that this was unnecessary was akin to a situation in which a passenger, having arrived at his destination, tells the driver there is no need to read the map to find the best route. Obviously, once policy makers have made their choices, other possibilities become irrelevant, but not before.
The 2004 memo's other significant change was to replace the 2002 definition of torture. It said that torture might be broader than "excruciating or agonizing pain or suffering," using words not much different from those of the antitorture statute itself. It then proceeded to list acts that everyone would agree were torture. The 2004 opinion studiously avoided providing a precise definition of the law. In essence, the Justice Department in 2004 said we had made a mistake two years earlier by trying to interpret the law with any clarity.
Though it criticized our earlier work, the 2004 opinion included a footnote to say that all interrogation methods that earlier opinions had found legal were still legal. In other words, the differences in the opinions were for appearances' sake. In the real world of interrogation policy nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.
For some new officials at Justice, who came onto the job years after 9/11, withdrawing the 2002 opinion wasn't enough. It was as if, sensing the 2004 opinion's ambivalence and its decision to muddy the legal waters, these individuals decided they needed to go to extraordinary lengths to discredit the first opinion. They ordered the opening of an investigation into all those who worked on it, from the career attorneys to the head of the office, to determine whether we had violated our professional responsibilities in providing legal advice.
Investigators decided to rely on criticism in the press as the grounds of their inquiry. One section of the 2002 opinion argued that the antitorture statute's general prohibitions should not be interpreted to apply to military and intelligence operations in wartime.51 Congress had included no language specifically regarding national security affairs, and if it had, that might conflict with the President's commander-in-chief power to defend the nation from attack. This section of the memo provided a legal framework for the White House and the CIA. What might happen if someone stepped over the line was a question we would have been derelict not to address. The antitorture law's vague terminology and the scarcity of authoritative decisions also elevated the chance of a conflict between the branches arising at some point in the future.
A collection of law professors, human rights activists, and former American Bar Association presidents, among others, declared that the idea that the President can refuse to obey an unconstitutional law is "an unprecedented and under-analyzed claim that the Executive Branch is a law unto itself," which is "incompatible with the rule of law and the principle that no one is above the law."52 They argued that the idea that the commander-in-chief power could override the antitorture statute violated professional ethics because we did not discuss Justice Robert Jackson's individual opinion in a famous separation-of-powers case, Youngstown Sheet & Tube Co. v. Sawyer.53 Democrat senators turned Youngstown into a rallying cry during Gonzales' confirmation hearings as attorney general.
Youngstown addressed President Truman'
s effort to seize steel mills shut down by a labor strike during the Korean War. Truman claimed that maintaining steel production was necessary to supply munitions and material to American troops in combat. Youngstown held that the regulation of labor-management relations constituted lawmaking that could only be performed by Congress. Because Congress had rejected any delegation of authority to the President, the steel mills were beyond Truman's control. Justice Jackson penned a well-known opinion, representing his views alone, with a three-part framework: Presidential power supported by congressional approval would be at its greatest height, presidential power in the face of silence would be in a "zone of twilight," and presidential power faced by disapproval would be "at its lowest ebb."54 Based on Jackson's approach, critics of the executive branch claim that the President cannot act against the wishes of Congress, even in wartime.
We did not cite Justice Jackson's individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President's conduct of foreign affairs and national security. Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes.55 It does not address the scope of the commander-in-chief power involving military strategy or intelligence tactics in war. If anything, Youngstown supports the proposition that one branch cannot intrude on the clear constitutional turf of another. Even Justice Jackson recognized that, at its lowest ebb, the President would prevail if "he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Detention and interrogation policy are at the heart of the President's commander-in-chief power to wage war, and long constitutional history supports the President's leading role on such matters.56 This is why all administrations have refused to acknowledge the legality of the War Powers Resolution, and have regularly started and continued military conflicts without congressional approval.
The Justice Department officials who launched the ethics investigation either ignored the department's long tradition in defending the President's commander-in-chief power or responded reflexively to political controversy. They certainly did not check the bona fides of the critics who first made the accusation that not citing Youngstown amounted to a failure of professional responsibility. Many of the leading critics were former Clinton officials who overlooked their administration's own legal views, which, on the matter of executive authority in war and national security, were nearly identical to ours. In 1994, Janet Reno's OLC, headed by Duke law professor Walter Dellinger, opined that the President could "decline to enforce a statute that he views as unconstitutional."57 This is especially true, OLC observed, "of provisions limiting the President's authority as commander in chief." His office later found unconstitutional a congressional proposal to prohibit American troops from serving under foreign or international commands.58 Dellinger's opinion cited Youngstown only once--in support of the proposition that the President has the right to refuse to execute a law. A second opinion never mentioned Youngstown. Far from inventing some novel interpretation of the Constitution, OLC was really doing little more than following in the footsteps of the Clinton Justice Department and all prior Justice Departments.
I cannot help but think that Justice Department officials panicked when the Abu Ghraib scandal erupted, and then were misled by the charges about ethics. Claims about "ethics" always emerge as a weapon, both on the left and the right, when the party in power cannot be budged on policy specifics. Justice officials surely did not consider the long-run implications of what they were doing. The Justice Department and specifically OLC serve in part as the lawyers for the executive branch. If they were to accept that Youngstown controlled the executive branch in war, the President's powers would be crippled. If the President had no independent constitutional powers, Congress could pass laws preventing a President from firing cabinet members, signing international agreements, or directing foreign policy or military strategy without getting approval from Congress first. No President's administration wants that, Republican or Democrat.
In the rush to distance themselves from the 2002 opinion, the Justice Department leaders forgot to think about incentives. In the war on terrorism, we will need officials at all levels, from career civil servants to cabinet members, to innovate and take risks. An ethics investigation only signals that those who try to work through the difficult issues of this war, and work aggressively to defeat al Qaeda, may wind up under fire if political controversy erupts.
The administration sought to "move on" and appease its critics. The effect was predictable. The critics were not appeased. They were only emboldened by their success at making administration members look for all the world like confessed torturers. So this purely political gambit did not allow the administration to "move on." Instead, it paid a high price. By refusing to defend its own logic, and pretending to distance itself from it, the administration only succeeded in eroding public support for the war against al Qaeda.
Attorney General Ashcroft made that political decision, and I think it has become fairly clear that it was a mistake. I can understand the pressures he and others were under. I believe that he worked as hard as anyone in his department to get up to speed on terrorism issues. Admirably, in other cases he did not flinch when he and his department became the subject of critics' ire.
But his office pretended during the summer of 2004 that the attorney general had been out of the loop in 2002. It was a transparent effort to avoid responsibility by pleading ignorance of the activities of his own department. No opinion of that significance could ever issue from the Justice Department without the review of the attorney general's staff, in particular that of his counselor, or without the attorney general's personal approval. I wish Ashcroft had stood up and defended the work of the dedicated men and women in his department. Instead an investigation was launched into so-called "ethics." It is fair to disagree with our conclusions on the merits. But to claim ethical violations is unfounded and unfair.
The purpose of all OLC opinions is to make sure the government operates within the boundaries set by law. The 2004 OLC opinion withdrew the discussion of defenses and the Commander-in-Chief Clause, and intentionally blurred the definition of torture. But it still found that all the interrogation methods approved under the 2002 opinion were legal.59 In 2002, we believed that legal clarity could help win the war on terrorism. In 2004, justice put politics first.
Policy
American law prohibits torture but not coercive interrogation. Once a classic law school hypothetical, it is now up to our elected leaders to decide what kind of coercive interrogation is allowed. If they had ignored this task, they would have cast the burden on our troops and intelligence officers to guess just what is permitted and what not, at their own peril.
Some believe that coercive interrogation is never justified in a moral society that respects human rights and rejects barbarism, even if the consequences are another 9/11 or worse. NYU law professor Jeremy Waldron, perhaps the leading legal philosopher of his generation (and a former Berkeley colleague of mine), when confronted with the hypothetical of using "excruciating pain" to learn the location of a nuclear bomb in an American city, says, "My own answer to this question is a simple No."60 Under this absolutist view, the ban on coercive interrogation overrides any other consideration of policy or costs and benefits; the number of lives that could be saved, even if in the millions, is irrelevant.
Such arguments, of course, turn us away from the actual choices we face. Many legal philosophers will say they reject torture or other forms of physical pressure, but shy away from Waldron's inflexible position. My Berkeley colleague Sandy Kadish writes, "[T]he use of torture is so profound a violation of a human right that almost nothing can redeem it--almost, because one can not rule out a case in which the lives of many innocent persons will surely be saved by its use against a single person."61
I think most Americans,
and certainly anyone of either political party who must actually run a government, would find Kadish's position reasonable. We remain horrified by the idea of using physical or mental pressure to elicit information, but we cannot rule it out in all cases. A leader can also be morally wrong to choose to allow the deaths of thousands of citizens rather than consider coercive interrogation of a single terrorist leader. Civil libertarians often claim that this is not a realistic choice, but just an artificial hypothetical. That is simply wrong. We continue today to face an enemy that murdered three thousand citizens on September 11. It has attempted to acquire biological and nuclear weapons, and will use them against us if possible. Unfortunately, these are hypotheticals no more.
Waving away these new realities also denies a more basic reality of modern politics. Our government makes cost-benefit decisions all the time, sometimes in cases where human life or safety is at stake. The death penalty is only one example;62 some criminal offenses are so heinous that we end the lives of those who commit them. Take the use of force by soldiers or police. We allow the military to shoot to kill members of the enemy and to destroy property so as to protect the country and pursue the national interest. We ask soldiers to launch attacks in which some will lose their lives for military objectives. We permit cops to resort to deadly force to protect their lives or the lives of others. We ask firemen and police to risk their lives for the public safety. Our government makes hard, tragic choices in less obvious ways every day. It sets pollution levels for the air or water knowing that it will produce some level of sickness and disease, but that it must balance economic growth against environmental protection. It must decide how fast to bring drugs to market, understanding that some will suffer serious or even life-threatening side effects, while others will die while approval is pending. The government makes these tradeoffs in many areas of regulation almost every day.63