"...I think reasonable people can agree on a lot of the aspects of the War on Terrorism." Former Deputy Assistant Attorney General John Yoo Talks About Terrorism, the Justice Department and the Supreme Court

On the radio program "Your Turn — Meeting Nonsense with Common Sense," the Center for Individual Freedom’s General Counsel, Renee Giachino, recently interviewed former Deputy Assistant Attorney General John Yoo about what it was like to work at the U.S. Department of Justice following September 11th and the impact of the Supreme Court’s rulings on detainees and the War on Terrorism.

What follows are excerpts from the interview.

GIACHINO: It is my extreme pleasure to introduce my next guest and friend, John Yoo, Professor of Law at Boalt Hall School of Law at the University of California, Berkeley. Professor Yoo is well-respected by all who know him for his work done during his time as a Supreme Court clerk to Justice Clarence Thomas, as professor of law and visiting professor at some our Nation’s best law schools and in his most recent former role as Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice.

I have invited Professor Yoo on the program this afternoon to discuss with the listeners the Supreme Court’s most recent decisions in the three detainee cases and the role of the President in this on-going war against terrorism.

John, not long after you left the hallowed walls of Boalt Hall School of Law to fill the appointed role of deputy assistant attorney general in what is affectionately known as the attorney general’s lawyer, that is the Office of Legal Counsel, I had the pleasure of joining you for dinner to discuss briefly your new job at the Justice Department, a role that then was evolving daily, if not minute-by-minute, considering the fact that our dinner engagement came just days after the fateful events of 9-11. Can you please describe for the listeners what it was it like to be at the Justice Department at the time of September 11th?

YOO: Thanks for giving me the opportunity to talk about it. It was the first time that our country has been directly attacked I think since the Civil War or by a foreign country since the War of 1812, and certainly it was an extraordinary event in a bad way, but it was extraordinary. I was at the office when I saw the second plane hit on television. The government and the entire city of Washington were evacuated within an hour after the second tower was hit. Of course we had the attack on the Pentagon that came soon thereafter. There was a real feeling, which is a first for Americans our age, that the Nation itself was under attack, and many people in our country had not felt that since Pearl Harbor.

Since I worked on war powers issues at the time, I did not get to evacuate. I had to stay at my post until probably well into the early morning of the following day.

GIACHINO: I’m sure it was very frightening.

YOO: Yes, you’re right. There were rumors all over town about the State Department being attacked or Congress being attacked or the Supreme Court being attacked, which all luckily turned out to not be true. But one thing that I know that I will always remember about that day was when I did finally drive home and it was dark and driving by the Pentagon as I did every day and seeing the Pentagon on fire at nighttime. It is something I never hope to see again.

GIACHINO: Do you think September 11th permanently changes the law in America or did September 11th only permanently change law enforcement in America? What is your assessment of that?

YOO: I think it has changed law in America, and I think the Supreme Court recognized that last week in this way. I think before September 11th our country, our legal system and our political system thought of terrorism as a criminal problem, as a problem that would be handled by prosecutors and FBI agents and the court system. So, for example, after the 1998 bombings of our embassy in Africa, we sent the FBI to investigate the attack. It was a very traditional criminal law enforcement response. I think after September 11th the War on Terrorism is not solely a law enforcement issue. Law enforcement is certainly still a crucial part of fighting al Qaeda and its allies, but we are also now using the legal tools of wartime.

So, last week, for example, the Supreme Court said that an enemy combatant, even a United States citizen who joins up with the enemy and fights against the United States, can be detained, held, but doesn’t have to be criminally charged and tried in a federal criminal court. That they can be held like a prisoner-of-war as a prisoner would normally be held in wartime.

GIACHINO: John, I think the lingering impact of the Supreme Court’s detainee cases remains to be seen, isn’t that right? I just finished a great interview with Leonard Leo, co-editor of the recently released book "Presidential Leadership." In the book, one of the essay contributors writes that "the presidency has an almost unchallenged role to play in the foreign affairs area, where the Supreme Court tends almost always to defer to presidential judgments about issues of constitutional meaning. In the whole critical area of foreign policy and domestic security, therefore, the president is the dominant interpreter of the Constitution." In light of the President’s efforts to fight the War on Terror, do you think this characterization remains true?

YOO: No, I don’t think so after last week. I think that essay is certainly true until last week. Last week changed a lot of things. Now, the Supreme Court didn’t say exactly how far it was going to go, but, in last week’s decisions, the Supreme Court, for the first time, for example, said that it would review the legality of detaining enemy prisoners-of-war held outside the United States. And that’s never happened in our history before. And, as recently as 1950, the Supreme Court denied a claim by enemy prisoners that they should have a right to relief in our own courts. So I think the Court has said it will become more involved than it has in the past.

As you said just a minute ago though, these decisions leave a lot of the hard questions open, so we don’t know how far the Court will go in reviewing the President’s decisions and whether it will still defer a lot to the President’s judgments and his interpretations of the Constitution. I think this is, in part, a reaction to the different kind of war we are facing, in where this really is the first time in a long time that a war has been fought out within the territory of the United States. I think if there had just been a war in Afghanistan and a war in Iraq, with no domestic September 11th attack and no efforts by the enemy to continue attacking within the United States, I think you would have seen the tradition of presidential preeminence. But because this war has become much more domestic, it is almost impossible for the courts not to get involved in it.

GIACHINO: John, I know I asked you to come on the air to talk about the three detainee cases, but I think you raise an excellent point when you mention that the Supreme Court really raises more questions than it answers with those decisions. With that in mind, I want to ask you to comment on what I think is a similar event that happened at the Court this term. As many of the listeners may recall, the Supreme Court ruled last month in the Cheney energy task force case that, at least for now, the executive branch’s documents remain off limits, concluding that wide-ranging discovery requests approved by the district court against the Vice President and senior administration officials were "anything but appropriate," and that any form of discovery in this civil case against a sitting President raised serious constitutional questions. John, what I’m wondering is, what result, if any, do you think that the Cheney case will have on future efforts by another governmental agency or individual to obtain access to inter-office memos and executive branch documents, including, but not limited to, memos discussing the scope of the protections of the Geneva Conventions as applied in this War on Terrorism?

YOO: Well, the interesting thing is that the decision in the Cheney case really was the first decision in a long time where the Court did not side on the part of those who wanted more discovery from the government, which really is an important decision. In a long time, the Court had not said that there is a sort of executive privilege to keep documents away from people who want them to ensure that the government can discuss things candidly and openly on issues of foreign policy and in receipt of legal advice, for example.

So, although as you say, and you are quite right, the case did leave a lot of big questions open, and the case has been sent back to the lower court where it will have to fight out and figure out exactly what kind of documents must be produced and which ones don’t and which ones get privileged and which ones don’t, this decision is going to encourage the government and agencies to raise these kind of things more often because until this point the courts really had not sided with them. On the other hand, I would think that this is the kind of case where you would want the government to get that kind of protection. I think, for example, the cases that came out of the Clinton impeachment period are very different. That was a case where the President, like in the Nixon case, was being accused of having committed a criminal act. The Cheney case is about setting government policy amongst government officials and the information is not needed to further the criminal process or investigation. It’s a civil case. So it seems that here the right to the information is less, and perhaps the need for the government to keep the discussions somewhat confidential makes a lot more sense.

GIACHINO: John, we have a caller on the line with a question for you. Go ahead, please.

CALLER: I really have two questions. One, why doesn’t this country declare war anymore? And, two, does declaring war allow certain things or restrict certain things and is that the reason we don’t declare war anymore?

YOO: That’s a very good question. In fact, I think I wrote an article about this in 1996, so I’ve thought a lot about the declarations of war. You know, the U.S. has not declared war since 1941 during World War II. It has used force since then many, many times and the most recent obvious example being the Iraq conflict. Instead we often have cases where Congress just passes a statute that authorizes the use of force. There are several reasons people give why we’ve gone now to this authorization of uses of force rather than declaring war. One is simply that the U.N. Charter outlawed war so you only use force now and you don’t declare war anymore. I don’t tend to believe that that argument is right.

I think the second reason that is given is more persuasive. That is, that we don’t have total wars anymore. We don’t have mobilization of the economy for wartime, we don’t have marshal law, and we don’t have suspension of habeas corpus. When you declare war, you really expand the powers of the government domestically, as opposed to when it is peacetime. And I think what we had from 1945 even until now is we have these smaller wars abroad, but none of the kind of full-mobilization wars that we used to have in, say, World War I or World War II or even the Civil War. And so, because we don’t transform our domestic affairs and, for example, President Bush wants things to continue very normally here in America, there is not a total war and a declaration of war is not necessary.

The last point I would make about the War on Terrorism is that I think by declaring war, as for example by declaring war against al Qaeda, we would actually be raising their prestige in the world. We declare war against other countries with which we have grievances or who have attacked us and who we hope to eventually have peaceful relations with once the war is over. I think with al Qaeda, we shouldn’t be in the business of treating these sorts of Islamic extremists, who are conducting warfare in the most illegal and violent manner that is designed to kill civilians, with all the privileges and rights that we normally reserve to nations.

GIACHINO: John is there a website that listeners can go to in order to access your article about declaration of war.

YOO: There is actually a good website called www.ssrn.com which collects lots of papers and articles by legal academics.

GIACHINO: John, I’d like now to turn to your role at the Justice Department. I know you have faced some criticism over your role in providing advice on how the President could wage the War against Terrorism? How did you see your role at the Justice Department with regard to these issues?

YOO: Well, it’s a good question. I think I thought of it as trying to give my client, which of course was the government, the best reading of what the law requires, and the problem is that in these kinds of cases we have two new things. One is that it is a new kind of war. You have a war that is not against a nation-state but rather against a non-state actor, the al Qaeda terrorist network. And two, these are not the kinds of laws that are regularly interpreted by the courts, and so you don’t have a lot of precedent available which is the usual tool that people have available when they need to interpret the law. But the job remains the same, which is to try to give the President or the White House or the Department of Defense or other agencies a good sense of the lines that the law draws so that they can then make the policy choices that it’s their job to make.

GIACHINO: John, do you think that, despite all the overblown rhetoric, the administration approached these issues in a conscientious way, in trying to balance security needs with the rights of the accused?

YOO: I do. I think actually in this conflict that the Administration has been extremely sensitive to civil liberties. And, in fact if you compare this conflict to previous conflicts like President Roosevelt in World War II or President Wilson in World War I or President Lincoln in the Civil War, I think that you see in this conflict a real sensitivity and regard for civil liberties and individual rights. You don’t see anything like what previous Presidents had done, for example, in the domestic area in support of war.

GIACHINO: On a personal note, John, I know that because of your advice to the administration, you have become something of an issue on campus. I understand, unfortunately, that some law students organized a petition demanding that you be forced to resign your teaching position unless you renounce positions you took while a lawyer at the Justice Department. How has that affected your ability to teach and given the tensions between left and right on a lot of these issues, is there any receptivity by either side, on campus, to understand the other views, or has this just become another head-on clash of ideology with no end in sight?

YOO: I hope not. I do think that people who are calling for resignations represent a minority of the views on campus, and I think still a majority of the faculty and students recognize that the whole point of a university is not to sort of spoon feed people views they agree with but, in fact, to challenge people of all different stripes of ideology on issues that they had not thought about before and teach them how to learn and think and analyze critically. And, I would be really worried if that value was lost regardless of how this individual issue comes out.

But you know, I think reasonable people can agree on a lot of the aspects of the War on Terrorism. I think that was on display with our Supreme Court last week where many people of different ideological views on the Court could agree that we’re at war and that we can contain enemy combatants at war and so on. So I still have hope that this is not just going to become an issue that is just an ideological match up.

GIACHINO: John, thank you again for coming on the program. I’d love to have you back again to talk about this issue and others. Thank you again.

YOO: It’s been a real pleasure.

July 15, 2004
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