John Yoo: National security, executive power and the war on terrorism

John Yoo
Law Professor, Author
Wednesday, March 3, 2010; 1:00 PM

John Yoo, law professor at the University of California at Berkeley, former Justice Department deputy assistant attorney general and author of "Crisis and Command: A History of Executive Power from George Washington to George W. Bush," was online Wednesday, March 3, at 1 p.m. ET to discuss his book, which explores the relationship between the three branches of government and the rules of war, including surveillance, detention, interrogation and trial.


John Yoo: Hi, John Yoo here to answer your questions about my new book, Crisis and Command: The History of Executive Power from George Washington to George W. Bush. I am sure there will be questions about my work in the Bush administration too. Fire away.


Presidential abuse of power: Have you read the book by Vincent Bugliosi called "The Prosecution of George W. Bush for Murder'? He lays out the case for any state attorney general that has had casualties in Iraq to prosecute by using statements and reports by Bush, Cheney, Rice, Feith, Rumsfeld, etc.

It was compelling reading in that Bugliosi showed a passion in his writings unlike his other books. Also the fact that there is no statute of limitations on murder can be a sword hanging over the former president's head.

John Yoo: I have not read the book. But judging from the title, it is hard to take it seriously. In Crisis and Command, I explain how Presidents, of both political parties, have had to make difficult choices, tragic choices in fact, to lead the nation through great crises. If the claim of this other book is that any President who has led the nation in war is somehow responsible for the crime of murder for American casualties, it would effectively prevent the President from ever waging war or defending the nation effectively. I am willing to bet that no such claim has ever been recognized by any federal court in American history. In fact, I would suspect that most courts would consider it to be frivolous. I wonder whether the authors or readers would be willing to apply the claim to other Presidents, regardless of political party or agreement with the objectives of the war -- in other words, is this just partisan advocacy or really a neutral principle of law. For example, would we want to prosecute the other Presidents whom, in Crisis and Command, I claim are great because of their use of broad presidential power to protect the country, like Lincoln and FDR?


Freising, Germany: In your historical analysis, how has Congress fared after a president has extended executive authority? Was there a tendency to become more partisan in Congress, and what were the affects on the seceeding administrations?

John Yoo: In Crisis and Command, I argue that Congress has powerful checks on Presidents even in wartime, such as the authority over legislation, funding, and ultimately impeachment. Once crises have subsided, presidential powers have receded and Congress has usually established its leading role in domestic affairs, as the Framers of the Constitution intended. President Lincoln and the Civil War, for example, were followed by a long period of congressional dominance of policy, as was Woodrow Wilson after World War I. I would not say that matters became more partisan, but that politics returned to normal. The Presidents who followed the Civil War and Reconstruction, and those that came after World War I, for example, are relatively forgotten today, because domestic politics snapped back to their regular patterns.


Reston, Va.: In the reasoning you used to justify the actions of the Bush administration, you seemed to believe that the executive branch has additional powers during a time of war, even if no official state of war exists (which can only be declared by Congress). Simply put, if the Bush administration decided it was at war, that was good enough for you. Do you believe the constitutional requirement that war can only be declared by Congress no longer holds? If not, how do you explain your reasoning?

John Yoo: I believe, as I explain at great length in Crisis and Command, that the Constitution's grant of executive power to the President gives him the ability to respond quickly and decisively to emergencies. So yes, once the United States was attacked by al Qaeda on September 11, 2001, the President had the imemdiate authority to respond militarily to prevent future attacks on the country. Even scholars, such as John Hart Ely, who believe that the Declare War Clause requires that Presidents receive the approval of Congress before they can wage war, agree that there must be an exception to respond to attacks on the United States.

This requires us to read into the Declare War Clause an unwritten exception, one that does not make textual sense when read in light of other portions of the Constitution, for example Article I, Section 10, which specifically allows states to "engage in war" without the permission of Congress if "actually invaded, or in such imminent Danger as will not permit of delay." Why would the Framers be so specific about allowing a defense to attacks for states, but not for the Declare War Clause.

I have argued that it is better to read the Declare War Clause as not requiring Congress to pre-approve all uses of force, but to understand it as Congress's power over the legal status of a conflict. Congress has plenty of other powers that it can and has used to control war, most importantly its authority over the shape and size of the military and its funding of wars.


War powers and domestic terrorists: What checks are there on the president when he (or someday she) deems domestic actions vital to national security? For example, let's say President Obama determined that domestic terrorists were a threat to our war effort, and found it necessary to pre-emptively intern some figures suspected of planning an attack on the Pentagon. Does he have to right to do so?

John Yoo: Other Presidents have faced domestic dimensions of national security crises, most notably Abraham Lincoln. As I show in Crisis and Command, Lincoln understood that his authority to take steps domestically were limited by what was reasonable to achieve the goals of the war. Take Lincoln's greatest act, the Emancipation Proclamation, which was what we today would call a unilateral act of executive authority. Lincoln freed the slaves solely under his power as Commander-in-Chief, and so limited its effects only to the South and the areas of fighting. He did not apply it to loyal parts of the Union where slavery still existed. At the same time, Lincoln did order the detention of suspected Confederate spies and operatives even behind the front lines, which Congress would not approve for several years later. Congress always has the ability to stop the President from doing so, if it wishes.


Torture: How proud are you of finding a way to make torture "legal"? Do you feel other countries should adopt your reasoning too?

John Yoo: This is not a matter of pride or not. It is a matter of answering a difficult question put to the government because of the September 11, 2001 attacks. Intelligence is the critical weapon in this conflict, because our enemy has no borders, no territory, no armed forces, and no population. The way to stop al Qaeda is to gather the intelligence to learn their plans of attack and stop them. Like it or not, the greatest source of this information is going to come from captured al Qaeda leaders and their communications. At the Justice Department in the first months after the 9/11 attacks, we sought to define what torture was, as established by an Act of Congress, to make sure that the CIA did not carry out any interrogation methods that violated the law. If you were to read that work, you will see, in fact, that we indeed looked at the legal reasoning of other countries, specifically Israel and Great Britain. You may have a different result in mind, and maybe you would have drawn the line of what was and was not torture differently, and you may even have done so differently under the circumstances and pressures of those days, but I would like to point out that it should be incumbent on critics to put themselves in that situation and give us their best legal opinion on the meaning of the statute. It is easy to play a Monday morning quarterback and look back with years of hindsight when one has the luxury of not working under the pressures of a recent attack on the country.


Ethics: If the U.S. and the world prosecuted, and actually hung, several Japanese soldiers for waterboarding prisoners during WWII; if R.Reagan's DOJ successfully prosecuted a Texas sheriff and his deputies for waterboarding suspects in 1983, how could you possibly have come to the conclusion that it was now okay for the U.S. -- our United States, the land of liberty and justice! -- to use this tactic against anyone else?

John Yoo: I think this is one of the many unfair and unjust criticisms of the CIA's interrogation policies carried out in the months after September 11. I ask if you have actually read the decisions of the U.S. military commissions that tried Japanese soldiers at the end of World War II. If you do so, you will see that the pure abuse that our soldiers suffered bears no resemblance to the CIA's interrogation methods. Moreover, these Japanese soldiers were convicted for abuse that included far more than simply forcing soldiers to drink massive amounts of water, but for also physical beatings, burnings, and so on. I think that comparisons of this to the CIA's interrogation methods unfairly smear the men and women in the CIA who tried their best to do everything by the book and to observe the lines actually set out by Congress.


Exterminating villages of civilians: Do you still believe that the president can order the extermination of villages of civilians absent a declaration of war?

John Yoo: This questions shows the utterly biased investigation conducted by the Office of Professional Responsibility. In its report, which was rightly rejected by David Margolis, the Justice Department's senior career lawyer, OPR claimed that I advocated that the President should exterminate a village of civilians. Of course, I said nothing of the sort, but you would not know it from the way OPR investigators quoted me out of context. What I said is that this was a decision for the President, not Congress, to make. I said that in past wars, the United States had bombed civilian targets -- Hiroshima and Nagasaki come to mind, as well as the U.S. strategic bombing campaign in Europe during World War II. Those are controversial decisions today, but my point only was that our Constitution vest such decisions over tactics and strategy in wartime to the President. Otherwise, I suppose, Congress could order the President to drop nuclear weapons or bomb civilian targets, and he would have no choice but to carry it out. That does not mean that a President is not accountable for his decisions -- if Congress disagrees, it can take a number of measures to make it difficult for him to carry out his strategies (such as by refusing to fund the military or build the army and navy he needs) or it can impeach him.


Richmond, Va.: Does it concern you that many of your OLC e-mails have disappeared despite federal laws that require the archiving of those documents? Do you have any theories as to why those e-mails were not retrievable?

John Yoo: I am glad that you asked this so that I can be clear. This is again an example of the biased manner in which the Office of Professional Responsibility conducted its investigation. And, I cannot help but add again, the longtime civil servant in the Justice Department whose job it is to review the office's work, someone who is respected by DOJ officials of both parties, rejected that report.

I don't know what happened, if anything, to any of my emails. I left the Justice Department in the summer of 2003, many years before the emails were sought. I don't quite understand why OPR made this claim in a footnote in its report. During my hours of interviews with them many years ago, OPR investigators showed me several printouts of emails of mine from this period back in the spring and summer of 2002. I cannot guess why they had my emails five years ago and now claim they cannot find them. They should be easy to find anyway -- if OPR has access to the email files of the other lawyers in DOJ, then all they have to do is see what emails they got from me. If anyone needs to be asked, it is OPR's investigators, not me.

Lastly, the claim that there would be emails about this shows a lack of understanding of the world of intelligence. The email system at the Justice Department is unsecured; it cannot be used to send classified emails. DOJ attorneys could not have emailed each other about interrogation methods or other CIA matters on this email system because those issues are classified at the highest level of secrecy.


Interrogations and Imprisonment: What are your thoughts that the United States, as the world's largest military power, needs to set an example on how to handle captured suspected combatants and terrorists? If we violate common moral standards, don't we both put our own captured military and government personnel at risk as well as losing some international respect?

John Yoo: The United States of course wants to follow the highest standards of conduct with regard to enemy combatants who follow the rules of war. It should and does follow the Geneva Conventions scrupulously when fighting the armed forces of other nations that have signed the Geneva Conventions or follow their principles. But whether these same rules should apply to al Qaeda is a different matter. al Qaeda does not follow the Geneva Conventions, and it operates by violating the core principle of the laws of war -- that the harm of war be limited, as much as possible, to combatants and to protect innocent civilians. Al Qaeda attacks purely civilian targets by surprise while disguised as civilians. Why should the United States, which has every interest in enforcing the laws of war and the Geneva Conventions, give the same high protections to al Qaeda operatives who violate the laws of war as we do to those who follow the law (i.e., the combatants of other nations). American policy shows that we will enforce the law when it applies, and that we will not give its benefits to those who are not entitled to them and do not deserve them.

It is an important question whether by doing so, we would put our own troops under threat when they are captured. This is a policy question, not a legal one of interpreting the Conventions and the laws of war. Even though the Geneva Conventions, in my view, do not protect al Qaeda operatives, policymakers could still give them those benefits as a matter of choice. But that course would assume that in a future war, say against a China or Russia, our soldiers would be abused because of the way that the United States treated al Qaeda operatives in a wholly different war. I find that hard to believe. I think a China or Russia will care about how their soldiers are treated by us.


Homerville, Ohio: As a spec ops troop that served in the Reagan Wars (drug/Iran Contra) in Central and South America, what Washington calls "protected under National Security," we call Political Security. The Washington types get rich, and we that did the deed, can't even prove what we did, and end up denied even the entry to the Veterans Administration. Is this what the founding fathers had in mind?

John Yoo: If you are a special operations soldier, I am sorry that the government has in some way not recognized your service. I do not think that this is what the Founding Fathers had in mind. You and the men and women serving in the special operations forces in Afghanistan, Iraq, and the war against al Qaeda deserve our nation's deepest respect and gratitude.

Personally, as I discuss in Crisis and Command, I do not think that Presidents who have had to make tough decisions when confronted by crisis and emergency have acted out of personal ambition or a desire to help the wealthy. I think men such as Washington, Lincoln or FDR broadly exercised their executive power because they genuinely saw terrible threats to American national security. They often did so knowing that their actions would be controversial and that they would provoke severe political reactions against them. They went forward anyway, giving presidential power, I argue in my book, a somewhat tragic quality.


Richmond, Va.: Would a Congressional Declaration of War have been better for the clarification of the president's war powers than the current Authorizations for the use of Force that have been used since World War II?

Why do you believe that no president has sought an actual Declaration of War since then? Is this a desirable development?

On a related note, who will determine when the state of war with al-Qaeda is at an end?

John Yoo: As I have argued in Crisis and Command, declarations of war were not thought necessary for the United States to begin military hostilities. We have had many wars in our history, but only five declarations of war (1812, 1848, 1898, WWI, WWII). As you rightly point out, the practice has been for Congress to enact authorizations by statute for the use of force, as it did both after the 9/11 attacks and before the Iraq war.

I do not believe that a declaration of war is necessary to clarify the President's powers. The authorizations serve pretty much the same purpose. My thought on why the nation has not sought declarations of war is because our elected leaders have not thought that the wars since WWII have called for the full mobilization of domestic society that past wars may have. In fact, during the Cold War and since, our nation has fought wars while attempting to maintain the normal tempo of domestic life at home.

As to when the war with al Qaeda will end, that will be up to the President, I think, with Congress's cooperation. It would be impossible for the Congress to keep a war going once the President declares it over. And if the President wants to keep it going and Congress wants it over, Congress can cut off all funding for the conflict right away and the hostilities will end. In the past, the courts have deferred to the decisions of the elected branches to determine when the war ends. But as we have seen, the Supreme Court in the war against al Qaeda has seized a role for itself that it never has in past conflicts.


Richmond, Va.: What would you recommend doing about the detainees in Guantanamo?

John Yoo: I think that the detainees in Guantanamo Bay should stay in Guantanamo Bay. The United States has built, at great cost, a world class facility there. It is about as secure as any place could be from al Qaeda efforts to attack and free terrorist operatives and leaders. I think that the decision to transfer the detainees to Illinois or any other place within the continental United States is a serious mistake, and we should not think of transferring terrorists to the United States as a part of some kind of jobs program, as I am afraid some officials do.


John Yoo: Thank you everyone for an engaging and entertaining discussion. I am sorry I could not get to all of the questions. Best wishes, John Yoo


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