by John Yoo
Hardly the call to take the gloves off. The working group, after carefully considering all the issues, approved a set of twenty-two oral interrogation methods while reserving anything more aggressive for use only on specific detainees with important information subject to senior commander approval. It reiterated President Bush's 2002 executive order that all prisoners be treated humanely, consistent with the principles of the Geneva Conventions--even though al Qaeda and Taliban fighters were not legally entitled to those protections. The group also outlined the potential costs of exceptional interrogation methods--loss of support among allies, weakened protections for captured U.S. personnel, confusion among interrogators about approved methods, and weakening of standards of conduct and morale among U.S. troops.
Perhaps the most important fact ignored in all the press was that Rumsfeld specifically refused to authorize these exceptional interrogation methods for Guantanamo Bay, but for one.92 Concerned about the possibility of physical mistreatment, Rumsfeld struck the use of blindfolds and even mild, noninjurious physical contact from the list of conventional interrogation techniques. Of the exceptional methods, Rumsfeld authorized only isolation, and only if it would last no longer than thirty days. That was it. Rumsfeld did not approve use of dogs, physical contact, slapping, sleep deprivation, stress positions, or required calisthenics.
All this strongly indicates that the Abu Ghraib abuses would have occurred regardless of anything Rumsfeld decided. They would likely have happened no matter what the CIA had done. The CIA's interrogations were carefully cordoned off from other departments. The Pentagon had approved no physical pressure for use at Guantanamo Bay, much less Iraq. The guards responsible for the Abu Ghraib abuses were not reading OLC legal opinions, nor were they parsing Rumsfeld's orders to Southern Command.
No one is denying the abuses of Abu Ghraib or attempting to understate their terrible nature. But multiple investigations have shown that they occurred because of a lack of sufficient resources and personnel at the prison. Defense Department officials had not devoted sufficient troops to the task of rebuilding Iraq in general, and to detention operations in particular. Iraqi counterinsurgency operations produced large numbers of detainees that clearly overwhelmed the limited resources of the prison guard units sent to Iraq. Abu Ghraib was not secure, and often subject to attack, which produced enormous stress on the units there. These circumstances do not represent a conspiracy to abuse Iraqi detainees. Furthermore, the abuses at Abu Ghraib first came to the attention of military investigators and disciplinary proceedings had already begun long before any media revelations occurred. Since the leaking of the Abu Ghraib photographs, the process of military justice has continued, and several enlisted personnel and officers have been tried and convicted, while others are currently under investigation.
Abu Ghraib has been a propaganda bonanza for America's enemies and critics, undermining America's claims to be a force for good in the world and fanning anti-American conspiracy theories. Yet one could equally argue that America's response to the abuses of Abu Ghraib have put the strength and openness of our democracy on display. Despite all the remonstrations, the United States openly investigated abuses, corrected them, and openly debated interrogation policy. No one could responsibly mistake America for a Middle Eastern autocracy. Efforts by China, Russia, and some European nations to contain America's military and economic power are probably far more important in the long term than the negative publicity from Abu Ghraib.
These costs must be balanced against the benefits. Unpopularity abroad, taken alone, cannot be a veto on American policy. President Reagan's decision to base intermediate nuclear missiles in Europe in the mid-1980s, as part of a general buildup in nuclear and conventional forces and pursuit of an antimissile defense, was deeply unpopular, leading to mass protests and accusations that the United States was risking nuclear war with the Soviet Union. Reagan went ahead anyway, because his administration judged that the gains from restoring American military strength and bankrupting the Soviet Union outweighed the political costs. Reagan was proved right. Today our elected leaders must decide if rejecting coercive interrogation of al Qaeda outweighs the lives that might be saved from a possible future attack. In 2002, the Bush administration decided that the intelligence gained through coercive interrogation was needed to prevent another attack on the United States, and that this priority outweighed the costs.
What if we had chosen inaction? Suppose a second attack in the United States, equal to or greater than 9/11, had occurred in the intervening period? Al Qaeda has a record of follow-up attacks, has sent more operatives to the United States since 9/11, and has actively sought weapons of mass destruction--nuclear, chemical, and biological. Is a second attack an acceptable price to pay for rejecting coercive interrogation? I doubt any responsible American political leader would take any such position. John Kerry criticized Bush for allowing the Abu Ghraib abuses to occur, but did not declare that he would ban coercive interrogation with good reason.
Limits
Abu Ghraib, no doubt, has harmed America's efforts in the war on terrorism, not just the scandal itself but because a law passed at the end of last year now prohibits certain coercive interrogation measures. Known as the McCain Amendment, after its chief sponsor, Arizona Republican Senator John McCain, the legislation prohibits cruel, inhuman, and degrading treatment by both the military and intelligence agencies. It limits interrogation methods to those specified in the military field manual (a new edition is under development to replace the 1987 version).
As a downed pilot tortured for years by the North Vietnamese, Senator McCain speaks with an unmatched moral authority on the issue of torture. But I believe his law is unwise. Such flat prohibitions leave little discretion for unforeseen or catastrophic circumstances. If the text of the McCain Amendment were to be enforced as is, we could not coercively interrogate a terrorist, even if he were involved in a plot to detonate a WMD on an American city. Realizing this, Senator McCain himself acknowledged that the legislation should not prevent the President "from doing what he would have to do" in a ticking-bomb scenario. McCain's amendment did not explicitly prohibit necessity or self-defense as common law defenses. Thus, under the law, these defenses will continue to exist, as they did in the earlier 1994 antitorture law.
The McCain Amendment was one way of regulating coercive interrogation. Several others have been proposed. The Israeli Supreme Court recognizes a ban plus an express necessity defense. Law professor and pundit Alan Dershowitz proposes a system of warrants issued by judges, like FISA, but that replicates FISA's faults. Law professors Eric Posner and Adrian Vermeule argue that our legal system should handle coercive interrogation as it does police use of deadly force: with training, special rules, and immunity for those who follow the rules.93
All of these proposals have their points of common sense, their advantages and disadvantages. A stated rule like the McCain Amendment may seem clear, but no rule clarifies or foresees everything about the future. Rules in this area unduly restrict the flexibility of the people who must make good decisions among shifting complexities, particularly in the areas of foreign affairs, national security, and war. Proposals like Dershowitz's require judges to approve events beforehand, which will not often be possible. Judges are good at focusing on what has happened in the past. Whether an attack might occur in the future, its magnitude, and how to stop it is beyond their usual expertise.
Posner's and Vermeule's approach is preferable, in that it judges whether a standard has been broken after the fact. But they propose in essence a large, costly regulatory apparatus that could suffer from 20/20 hindsight and politicization as much as other judging bodies. For judging if someone has done something truly wrong, we already have several large bureaucracies, and the legal system.
The McCain Amendment gave future presidents, CIA directors, national security advisers, secretaries of defense, and generals less room for discretion, telling the executive that some forms of interrogation are n
ever worth the benefits, no matter what, and that the letter of the rule must trump the good faith judgment of those actually dealing with ticking time bombs. Like Miranda, it ties the hands of the government with a rule. But Miranda is less costly to society. It is easy to follow, and the harm any individual ordinary criminal can inflict, if wrongly freed, is limited. The potential harm an al Qaeda operative can inflict is potentially enormous.
There are ways that the legal system could develop effective approaches toward coercive interrogation. A President could decline to prosecute an officer whom he believed properly acted in self-defense, or in an emergency, or out of necessity. A President could pardon those involved. Even if a prosecution occurs, a jury must still find that the defense is not met, and convict the agent and his superiors of violating federal law. It would require only one juror to agree that it was reasonable for the defendants to believe the coercive interrogation would yield information that would save many lives, and that it was necessary under the circumstances, to prevent a conviction. This approach, as the Israeli Supreme Court pointed out, maintains society's moral condemnation of harsh interrogation, but also recognizes an exception for emergencies. Defenses are an appropriate escape hatch for rules that will at some point need some exceptions to be drawn, even exceptions that prove the rule.
I cannot help but wonder, though, if critics will descend upon even this modest explanation of how legal defenses might work, outraged by the mere suggestion that sometimes exoneration of a government interrogator might be the right outcome.
Prosecution enforces the criminal law. Judges ultimately would decide what interrogation is too harsh. We have all the problems of courts: 20/20 hindsight, courtroom posturing, media circuses, lack of secrecy, exposure of sources and methods of intelligence-gathering, and uninformed, unpredictable juries. At root is the judicial branch's basic, structural lack of executive, managerial, and policy expertise.
The executive branch should continue to bear primary responsibility for deciding when to use coercive interrogation, training special operations teams, and developing guidelines for its use, while keeping the House and Senate intelligence committees informed. Covert actions developed by the President and his staff and briefed to the intelligence committees have included targeted killings and paramilitary operations against foreign nations. Judicial review has not intervened, nor has it been necessary. These institutional arrangements could also be up to supervising interrogations.
In the world of intelligence, the executive branch agencies have understood for many years now that congressional support is essential for the long-term success of their missions. They have been and will increasingly be reluctant to carry out any debatable action without both the approval of the President and the political support of Congress. Whether this is a good development, only time will tell.
People have different values and principles, and they will balance the costs and benefits of coercive interrogation differently. But the war we face is anything but ordinary.
September 11 requires us to make difficult choices. The law does not give us all the answers. The law requires our elected leaders to make policy judgments. That is how it should be. Coercive interrogation can produce information from al Qaeda leaders and operatives that helps our military, intelligence, and law enforcement personnel prevent future attacks. It will have costs on the world stage and in the changing moods of the public. But we should also not lose sight of the benefits--for it is much more than luck that has allowed our government, to date, to frustrate and disrupt terrorist efforts to carry out another 9/11.
8
MILITARY COMMISSIONS
President Bush announced his most practical, yet least successful, antiterrorism initiative--an executive order establishing military commissions--shortly after September 11.1 Military commissions are a specialized form of military court that presidents and generals have used in most American wars. They are meant to balance two competing goals: providing a fair trial for enemies who commit war crimes, and protecting the nation's military and intelligence interests.
Military commissions had been dormant for many years, but OLC staff knew all about them. A bronze plaque on the wall of our fifth-floor offices commemorated the 1942 trial by military commission of nine German Nazi saboteurs. On September 12, 2001, a Justice Department veteran reminded me about the plaque, growling that any terrorists we caught ought to be tried in the same way. The Justice Department under George H. W. Bush had considered a military commission to try the bombers of the Pan Am flight over Lockerbie, Scotland, too, he told me.
An OLC colleague and I were asked to review President Bush's military order in the weeks after 9/11. We didn't think it ran afoul of the Constitution. In fact, it read just like the order issued by President Franklin Roosevelt in 1942, the constitutionality of which the Supreme Court had upheld in Ex Parte Quirin. Military commissions seemed a good choice for bringing terrorists to justice. Trial in open federal court posed obvious national security and secrecy issues. International war crime tribunals for the former Yugoslavia and Rwanda had been slow, costly, and, in Slobodan Milosevic's case, susceptible to being used as a platform for grandstanding by the accused. Even with full international sanction, these tribunals had been widely criticized on a number of grounds. Meanwhile, military commissions to try enemy combatants enjoyed a long pedigree in American history.
Yet as soon as the order left the White House, civil libertarian lobbies, the media, and the academy screamed "foul." The editorial page of the New York Times thundered, "In his effort to defend America from terrorists, Mr. Bush is eroding the very values and principles he seeks to protect, including the rule of law."2 The Times was of the opinion that military commissions "do an end run around the Constitution" and were "an insult to the exquisite balancing of executive, legislative and judicial powers that the Framers incorporated into the Constitution." A group of law professors sent a letter to the Senate Judiciary Committee claiming that President Bush's decision "undermines the tradition of the Separation of Powers" and confidently asserted, "No court has upheld unilateral action by the Executive that provided for as dramatic a departure from constitutional norms as does this Order."3 Harvard law professor Laurence Tribe, the nation's leading liberal constitutional law professor, and Neal Katyal, a Georgetown professor who has gone on to litigate challenges to the military commissions, announced that such tribunals were unconstitutional without a declaration of war or a new congressional statute.4 Senator Patrick Leahy, then chairman of the Senate Judiciary Committee, complained that President Bush had "cut out Congress in determining the appropriate tribunal and procedures to try terrorists."5
The truth is that military commissions rest on centuries of American practice, Supreme Court precedent, and, not least, the Constitution's text and structure. The administration had made no secret about them. In November 2001, President Bush issued a skeletal order, under his authority as commander in chief and the power given to him by Congress in the AUMF, that military commissions would be used to try only non-U.S. citizens involved with al Qaeda or other terror groups that threatened the United States. The September 11 attacks, the order said, had created "a state of armed conflict that requires the use of the United States Armed Forces." Military commissions to try enemy combatants would be established to "protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks." The commissions would provide a "full and fair trial," but could use more relaxed rules of evidence, and could convict on a vote of two thirds of the commission. Authority was delegated to the Department of Defense to fill out this framework.
To put our initial approval on paper, OLC issued a lengthy legal opinion on the constitutionality of military commissions. Press reports also describe a struggle between the White House, the Defense Department, and Attorney General Ashcroft over who would decide when military commissions ought to be used. Defense wanted to decide, but Ashcroft, ever a defender of hi
s bureaucratic turf, wanted a veto. After a contentious White House meeting, President Bush broke the deadlock by deciding that only he would decide when an al Qaeda detainee would be sent before a military court--which was the right outcome, placing the responsibility where it ought to rest.
In the fall of 2001, some Senate Democrats decided that military commissions would be their point of attack to paint the Bush administration as a threat to civil liberties. We helped Chertoff and Ashcroft prepare for public hearings before the then-Democrat-run Senate Judiciary Committee, where Leahy was eager to spearhead the opposition. He fumed that the administration's antiterrorism policies as a whole disregarded "the checks and balances that make up our constitutional framework."6 This was just two months after September 11, while our troops were on the ground in Afghanistan and our agents were searching feverishly for sleeper cells in the United States. Civil libertarians were pursuing the most extreme of positions and were putting everyone on notice that they would use the Judiciary Committee hearings to come after the administration full bore.
Chertoff and Ashcroft were a study in contrasts. While Chertoff liked to pore through the briefing books and come up with his own perfectly turned phrase, Ashcroft prepared by talking the issue through over and over with staff. After several days of briefings, explanations, and trial runs, Chertoff and Ashcroft were ready.
Chertoff went first. In a hearing before the Senate Judiciary Committee on November, 28, 2001, Senate Democrats accused the Bush administration of inventing a bizarre military court system free of any congressional or judicial oversight. Chertoff was a predator ready to spring. He shot back that military trials fell within the President's power as commander in chief, that they had been used in wars going back to the Revolution, and that they fell within carefully established constitutional limits.7 Chertoff's ability to understand law at the highest constitutional levels while maintaining a command of the details was masterful. Senators showed no desire to engage him in a debate over constitutional theory or historical practice. Their confidence renewed, Senate Republicans worked hard to support tough measures in the war against terrorists. With their help, Chertoff had successfully defused the growing momentum in the Senate to harass the administration with hearings and investigations at the very start of a war. After Chertoff's performance, it was clear that no one had the stomach for that fight, at least not yet.