Tomgram: David Cole on John Yoo and the Imperial Presidency

[Guest guest]

A

Wed, 02 Nov 2005 02:52:23 -0000

David Cole on Yoo at TomDispatch

 

 

 

 

http://www.tomdispatch.com/index.mhtml?emx=x & pid=32668

 

 

Tomgram: David Cole on John Yoo and the Imperial Presidency

 

Here is the key passage in Senator John McCain's anti-torture

amendment to the 2006 Defense Appropriations Bill (which the Bush

administration has threatened to veto if it arrives so amended): " No

individual in the custody or under the physical control of the United

States Government, regardless of nationality or physical location,

shall be subject to cruel, inhuman, or degrading treatment or punishment. "

 

Here are the August 2002 words of John Yoo, then-deputy assistant

attorney general in the Office of Legal Counsel at the Department of

Justice (now a law professor at Berkeley and the author of a new book

reviewed below) in his infamous " torture memo " to White House Counsel

Alberto Gonzales. After hauling out many dictionaries, Yoo managed to

redefine torture in the following pretzled fashion: " must be

equivalent in intensity to the pain accompanying serious physical

injury, such as organ failure, impairment of bodily function, or even

death. " Thus, did a junior member of the Bush administration open the

legal way for waterboarding in the White House. This is the man who,

only two weeks after September 11, wrote a memo to Gonzales' deputy

entitled The President's Constitutional Authority to Conduct Military

Operations against Terrorists and Nations Supporting Them, which is

certainly in the running for the most sweeping claim of unfettered

executive power in our nation's history and which laid the (il)legal

groundwork for an Iraq war of choice to come. " In the exercise of his

plenary power to use military force, " Yoo insisted, " the President's

decisions are for him alone and are unreviewable. "

 

Over four years later, lobbying for torture is no longer restricted to

secret, high-level White House meetings, insider memos from Justice

Department lawyers, or little privately scrawled notes from Donald

Rumsfeld -- like the one on a November 27, 2002 memo on acceptable

interrogation methods: " I stand for 8-10 hours a day. Why is standing

[as a counter-resistance technique] limited to 4 hours? " Last week, on

the torture side of the ledger, Vice President Cheney descended from

the imperial heavens to lobby Senator McCain, a man who knows

something about torture first-hand, to exempt the CIA (and possibly

other secret agencies) from his amendment. According to the New York

Times, here is the (tortured) wording of the exemption the Vice

President was pushing:

 

" [The measure] shall not apply with respect to clandestine

counterterrorism operations conducted abroad, with respect to

terrorists who are not citizens of the United States, that are carried

out by an element of the United States government other than the

Department of Defense and are consistent with the Constitution and

laws of the United States and treaties to which the United States is a

party, if the president determines that such operations are vital to

the protection of the United States or its citizens from terrorist

attack. "

 

" As for Mr. Cheney, " the Washington Post editorial page commented

astringently, " [h]e will be remembered as the vice president who

campaigned for torture. "

 

Last week, by the way, the ACLU released " an analysis of new and

previously released autopsy and death reports of detainees held in

U.S. facilities in Iraq and Afghanistan, many of whom died while being

interrogated. The documents show that detainees were hooded, gagged,

strangled, beaten with blunt objects, subjected to sleep deprivation

and to hot and cold environmental conditions… The documents show that

detainees died during or after interrogations by Navy Seals, Military

Intelligence and `OGA' (Other Governmental Agency) -- a term,

according to the ACLU, that is commonly used to refer to the CIA. "

Evidently, this is just everyday life in the world created by Dick

Cheney and John Yoo.

 

As it happened, Cheney was going for the torture trifecta. The Monday

after the indictment and resignation of I. Lewis Libby, he announced

the appointment of a new vice-presidential chief of staff, his counsel

David Addington, a man the Washington Post has identified as " a

principal author of the White House memo justifying torture of

terrorism suspects. He was a prime advocate of arguments supporting

the holding of terrorism suspects without access to courts. " These

days, it seems, this is nothing short of a qualification for holding

high office. After all, the three men who head our new Homeland

Security State -- Alberto Gonzales, Michael Chertoff, and Donald

Rumsfeld (Justice, Homeland Security, and Defense) -- were all

intimately involved in creating and/or parsing pretzled definitions of

torture meant to free our " commander-in-chief " to order more or less

anything he wanted done to anyone at all out there in the imperium.

 

Now, the Vice President proudly joins this line-up with the lovely

complaint (according to a number of publications) that McCain's

amendment " would bind the president's hands in wartime. " (Ouch! And

how that would hurt!)

 

Despite his anodyne prose, John Yoo is a living link between an

imperial presidency freed of all constraints -- or all that matter

anyway -- and the plunge into barbarism that has made torture the

binding issue of this administration. (It's the sort of connection

that Caligula or Claudius would have grasped instantly.) David Cole,

whose Enemy Aliens: Double Standards and Constitutional Freedoms in

the War on Terrorism takes up the denial of basic constitutional

rights in the name of " wartime " expediency, considers Yoo's new book

and the extreme theory of presidential power it proposes in an essay

that is running in the November 17 issue of the New York Review of

Books and appears here thanks to the kindness of that magazine's

editors. Tom

 

What Bush Wants to Hear

A Consideration of John Yoo's The Powers of War and Peace: The

Constitution and Foreign Affairs After 9/11

By David Cole

 

Few lawyers have had more influence on President Bush's legal

policies in the " war on terror " than John Yoo. This is a remarkable

feat, because Yoo was not a cabinet official, not a White House

lawyer, and not even a senior officer within the Justice Department.

He was merely a mid-level attorney in the Justice Department's Office

of Legal Counsel with little supervisory authority and no power to

enforce laws. Yet by all accounts, Yoo had a hand in virtually every

major legal decision involving the U.S. response to the attacks of

September 11, and at every point, so far as we know, his advice was

virtually always the same -- the president can do whatever the

president wants.

 

Yoo's most famous piece of advice was in an August 2002 memorandum

stating that the president cannot constitutionally be barred from

ordering torture in wartime -- even though the United States has

signed and ratified a treaty absolutely forbidding torture under all

circumstances, and even though Congress has passed a law pursuant to

that treaty, which without any exceptions prohibits torture. Yoo

reasoned that because the Constitution makes the president the

" Commander-in-Chief, " no law can restrict the actions he may take in

pursuit of war. On this reasoning, the president would be entitled by

the Constitution to resort to genocide if he wished.

 

Yoo is now back in private life, having returned to the law

faculty at the University of California at Berkeley. Unlike some other

former members of the administration, he seems to have few if any

second thoughts about what he did, and has continued to aggressively

defend his views. His book The Powers of War and Peace: The

Constitution and Foreign Affairs After 9/11 shows why Yoo was so

influential in the Bush administration. It presents exactly the

arguments that the president would have wanted to hear. Yoo contends

that the president has unilateral authority to initiate wars without

congressional approval, and to interpret, terminate, and violate

international treaties at will. Indeed, ratified treaties, Yoo

believes, cannot be enforced by courts unless Congress enacts

additional legislation to implement them. According to this view,

Congress's foreign affairs authority is largely limited to enacting

domestic legislation and appropriating money. In other words, when it

comes to foreign affairs, the president exercises unilateral authority

largely unchecked by law -- constitutional or international.

 

Yoo is by no means the first to advance such positions. Many

conservatives favor a strong executive, especially when it comes to

foreign affairs, and they are generally skeptical about international

law. What Yoo offers that is new is an attempt to reconcile these

modern-day conservative preferences with an influential conservative

theory of constitutional interpretation: the " originalist " approach,

which claims that the Constitution must be interpreted according to

the specific understandings held by the framers, the ratifiers, and

the public when the Constitution and its amendments were drafted.

 

The problem for originalists who believe in a strong executive and

are cynical about international law is that the framers held precisely

the opposite views -- they were intensely wary of executive power, and

as leaders of a new and vulnerable nation, they were eager to ensure

that the mutual obligations they had negotiated with other countries

would be honored and enforced. During the last two centuries, of

course, executive power has greatly expanded in practice; and the

attitude of many U.S. leaders toward international law has grown

increasingly disrespectful as the relative strength of the U.S.

compared to other nations has increased. But these developments are

difficult to square with the doctrine of " original intent, " which, at

least as expressed by Justice Antonin Scalia and other extreme

conservatives, largely disregards the development of the law for the

past two centuries. Yoo's task is to reconcile the contemporary uses

of American power with his belief in original intent. His views

prevailed under the Bush administration, and therefore should be

examined not only for their cogency and historical accuracy, but for

their consequences for U.S. policy in the " war on terror. "

 

War

 

On its face, the Constitution divides power over foreign affairs.

It gives Congress substantial responsibility, especially with respect

to war. Congress has the power to raise and regulate the military; to

declare war and issue " Letters of Marque and Reprisal, " which

authorize lesser forms of conflict; to define offenses against the law

of nations; and to regulate international commerce. The Senate must

confirm all treaties and all appointments of ambassadors. The

president is named as the " Commander-in-Chief, " and appoints

ambassadors and makes treaties subject to the Senate's consent. In

addition, the words " executive power " have, since the beginning of the

republic, been regarded as giving the president an implicit authority

to represent the nation in foreign affairs.

 

These divisions of responsibility were conceived for widely

recognized historical and philosophical reasons. The Constitution was

drafted following the Revolutionary War, in which the colonies

rebelled against the abuses of the British monarchy, the prototypical

example of an unaccountable executive. The new nation so distrusted

executive power that the first attempt to form a federal government,

the Articles of Confederation, created only a multi-member Continental

Congress, which was in turn dependent on the states for virtually all

significant functions, including imposing taxes, regulating citizens'

behavior, raising an army, and going to war. That experiment failed,

so the Constitution's drafters gave Congress more power, and revived

the concept of a branch of government headed by a single executive.

But they insisted on substantial limits on the power of the new

executive branch, and accordingly assigned to Congress strong powers

that had traditionally been viewed as belonging to the executive --

including the power to declare war.

 

Many of the framers passionately defended the decision to deny the

president the power to involve the nation in war. When Pierce Butler,

a member of the Constitutional Convention, proposed giving the

president the power to make war, his proposal was roundly rejected.

George Mason said the president was " not to be trusted " with the power

of war, and that it should be left with Congress as a way of " clogging

rather than facilitating war. " James Wilson, another member, argued

that giving Congress the authority to declare war " will not hurry us

into war; it is calculated to guard against it. It will not be in the

power of a single man, or a single body of men, to involve us in such

distress; for the important power of declaring war is vested in the

legislature at large. " Even Alexander Hamilton, one of the founders

most in favor of strong executive power, said that " the Legislature

alone can interrupt [the blessings of peace] by placing the nation in

a state of war. " As John Hart Ely, former dean of Stanford Law School,

has commented, while the original intention of the Founders on many

matters is often " obscure to the point of inscrutability, " when it

comes to war powers " it isn't. "

 

In the face of this evidence, Yoo boldly asserts that a deeper

historical inquiry reveals a very different original intention --

namely, to endow the president with power over foreign affairs

virtually identical to that of the king of England, including the

power to initiate wars without congressional authorization. He argues

that the power to " declare War " given to Congress was not meant to

include the power to begin or authorize a war, but simply the power to

state officially that a war was on -- a statement that would be " a

courtesy to the enemy " and would authorize the executive to exercise

various domestic wartime powers. At most, Yoo contends, the clause

giving Congress power to " declare War " was meant to require

congressional approval for " total war, " a term Yoo never defines, but

it left to the president the unilateral decision to engage in all

lesser hostilities. He quotes dictionaries from the founding period

that defined " declare " as " to pronounce " or " to proclaim, " not " to

commence. " He points out that the Constitution did not give Congress

the power to " engage in " or to " levy " war, terms used in other

constitutional provisions referring to war. And he notes that unlike

some state constitutions of the time, the federal constitution did not

require the president to consult Congress before going to war.

 

All the evidence Yoo cites, however, can be read more convincingly

to corroborate the view he seeks to challenge -- namely, that the

Constitution gave the president only the power, as commander in chief,

to carry out defensive wars when the country came under attack, and to

direct operations in wars that Congress authorized. British precedent

is of limited utility here, since the framers consciously departed

from so much of it. Dictionary definitions of " declare " also offer

little guidance, since Yoo ignores that there is a world of difference

between someone's " declaring " his or her love for wine or Mozart and a

sovereign's declaring war. " Declare War " was in fact a legal term of

art, and there is evidence that it was used at the time to mean both

the commencement of hostilities and a statement officially recognizing

that war was ongoing. The use of the word " declare " rather than " levy "

or " engage in " simply reflects the division of authority under which

the president actually levies -- or carries on -- the war once it is

begun. Indeed, the framers famously substituted " declare " for " make "

in enumerating Congress's war powers for just this reason. And the

framers had no reason to require the president to consult with

Congress before going to war since it was Congress's decision, not the

president's.

 

Most troubling for Yoo's thesis, his account renders the power to

" declare War " a meaningless formality. At the time of the

Constitution's drafting, a formal " declaration of war " was not

necessary for the exercise of war powers under either domestic or

international law, so Yoo's hypothesis that the declaration served

that purpose fails. Yoo's further suggestion that the clause

recognizes a distinction between " total wars, " which must be declared,

and lesser wars, which need not be, has no historical basis. Despite

his ostensible commitment to originalism, Yoo cites no evidence

whatever to suggest that any such distinction existed for the founding

generation. Nor does he ever explain what the distinction might mean

today. And the fact that the text grants Congress both the power to

" declare War " and to issue " Letters of Marque and Reprisal " strongly

suggests an intent that Congress decide on all forms of military

conflict other than repelling attacks. Once these explanations

evaporate, all that is left for Yoo's theory of the war clause is that

it gives Congress the power to provide a " courtesy to the enemy " --

hardly a persuasive refutation of the clear language of the framers

quoted above.

 

Yoo's evidence does not undermine the conclusion that the framers

intended Congress to take responsibility for the decision to send the

nation into war. But in some sense, arguments against his theory are

academic. Modern practice is closer to Yoo's view than to the framers'

vision. Beginning with the Korean War, presidents have routinely

involved the nation in military conflicts without waiting for Congress

to authorize their initiatives. Yoo notes that while the nation has

been involved in approximately 125 military conflicts, Congress has

declared war only five times. Were the framers lacking in practical

judgment when they gave Congress this power?

 

Yoo claims that since September 11, it is all the more essential

that the nation be able to act swiftly and without hesitation, even

preemptively, to protect itself. We can't afford to wait around for

Congress to figure out what it wants to do. The " war on terror " does

not permit democratic deliberation, at least not in advance. And, as

Yoo repeatedly insists, Congress remains free to cut off funds for any

military action that it does not like.

 

But there is as good reason today as there was when the

Constitution was drafted to give Congress the power to authorize

military activities. As the framers accurately predicted, presidents

have proven much more eager than Congress to involve the nation in

wars. It is easier for one person to make up his mind than for a

majority of two houses of Congress to agree on a war policy.

 

Presidents also tend to benefit from war more than members of

Congress, by increasing their short-term popularity, by acquiring

broader powers over both the civilian economy and the armed forces,

and, sometimes, by the historical recognition later accorded them.

Moreover, as the Vietnam War illustrated, even when a war becomes

extremely unpopular, it is not easy to cut off funds for the troops.

 

It is true, as Yoo observes, that, since Harry Truman, presidents

of both parties have generally resisted the view that they need

congressional authorization to commit forces to military conflict. But

this attitude is in fact a relatively recent development. While formal

declarations of war have been rare, Yoo fails to note that presidents

have generally sought congressional authorization for military

actions. Until the Korean War, presidents either openly acknowledged

that congressional authorization was necessary or offered rationales

for why a particular military initiative was an exception to that

rule. Thus, the view that Yoo promotes as " original " has in fact been

advanced only during the last fifty years, and only by self-interested

executives.

 

This view is particularly disputed by Congress, as can be seen in

the 1973 War Powers Resolution, which sought to reaffirm and restore

Congress's constitutional role in deciding on whether to go to war,

and also in the legislative debates that inevitably take place when

presidents talk of going to war. As the war in Iraq has painfully

underscored, the decision to go to war, especially a war initiated by

the president without broad international support, can have disastrous

consequences; and extricating the country from such a war can be

extremely difficult. Were Congress to be eliminated from the initial

decision-making process, as Yoo would prefer, the result would almost

certainly be even more wars, and more quagmires such as the one in

Iraq. On this issue, the framers were persuasive, and it is Yoo who

has failed to understand both the checks on executive power they

imposed and the reasons they did so.

 

Treaties

 

Yoo's interpretation of the treaty power, like his view of the war

power, departs dramatically from the text of the Constitution and its

traditional understanding. The Constitution's Supremacy Clause

explicitly provides that

 

" all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby.

 

On the strength of that clause, and statements made about treaties

at the time of the framing, it has long been accepted that treaties

have the force of law in the United States, create binding

obligations, and may be enforced by courts. Indeed, the Supreme Court

long ago stated that treaties are " to be regarded...as equivalent to

an act of the legislature. "

 

In the modern era, Congress often specifies when ratifying a

treaty that it should not be enforceable in court until further

legislation is enacted. And even without such directives, courts

sometimes find treaties not to be judicially enforceable; the U.S.

Court of Appeals for the D.C. Circuit did so recently in rejecting a

Guantánamo detainee's claim that his pending trial in a military

tribunal violated the Geneva Conventions.

 

Yoo would go further, insisting on a presumption against judicial

enforcement unless Congress clearly specifies otherwise. On this view,

treaties lack the force of law, and become mere political promises,

having about as much force as campaign rhetoric. And he further claims

that the president has unilateral authority to interpret, reinterpret,

and terminate treaties, effectively rendering presidents above the law

when it comes to treaties.

 

To support these revisionist views, Yoo relies heavily and

repeatedly on a rigid dichotomy between foreign affairs -- which he

sees, in the British tradition, as the executive's domain -- and

domestic matters -- which he sees as the province of the legislature.

But as we have seen, the Constitution's framers explicitly rejected

such a rigid division, giving Congress and the Senate substantial

power over functions that the British saw as executive in nature,

including the power to make war and treaties, and expressly assigning

the judiciary the responsibility to enforce treaties as the " Law of

the Land. "

 

If anything, Yoo's historical evidence is even thinner with

respect to the treaty power and the Supremacy Clause than it is with

respect to the clause on declaring war. As Jack Rakove, one of the

foremost historians of the federal period, has concluded, the framers

" were virtually of one mind when it came to giving treaties the status

of law. " As other historians have pointed out, one of the principal

incentives for convening the Constitutional Convention was the

embarrassing refusal of state governments to enforce treaties. The

Supremacy Clause solved that problem in as direct a way as possible --

by making treaties the " Law of the Land, " enforceable in courts and

binding on government and citizenry alike. That treaties were not

thought to need further implementing is underscored by the framers'

unanimous decision to omit treaty enforcement from Congress's

enumerated powers, " as being superfluous since treaties were to be

`laws.' " Yoo's account turns that conclusion on its head; his reading

would render superfluous the Supremacy Clause's assertion that

treaties are laws. If treaties had domestic force only when

implemented by a subsequent statute, as Yoo maintains, then the

statute itself would have the status of the " Law of the Land, " not the

treaty.

 

Yoo is no more convincing with respect to presidential

interpretation of treaties. He maintains that because foreign policy

is an executive prerogative, the executive must be able to reinterpret

and terminate treaties unilaterally. But while the Constitution

plainly envisioned the president as the principal negotiator of

treaties, it also gave clear responsibilities for treaties to the

other branches; all treaties must be approved by two-thirds of the

Senate, and once ratified, treaties become " law " enforceable by the

courts. The president must certainly be able to interpret treaties in

order to " execute " the laws, just as he must be able to interpret

statutes for that purpose. But there is no reason why his

interpretations of treaties should be any more binding on courts or

the legislature than his interpretations of statutes.

 

The Rule of Law

 

Yoo's views on the war and treaty powers share two features.

First, they both depart radically from the text of the Constitution.

He would reduce the power to " declare War " to a mere formality, a

courtesy to the enemy; and he would render entirely superfluous the

Supremacy Clause's provision that treaties are the " Law of the Land. "

It is ironic that a president who proclaims his faith in " strict

construction " of the Constitution would have found Yoo's

interpretations so persuasive, for Yoo is anything but a strict

constructionist. One of the arguments most often made in defense of

" originalism " is that interpretations emphasizing a " living " or

evolving Constitution are too open-ended, and accordingly they permit

judges to stray too far from the text. Yoo unwittingly demonstrates

that his brand of originalism is just as vulnerable to that criticism

as other approaches, if not more so. He not only departs from the

text, but contradicts the principles that underlie it.

 

Second, and more significantly, all of Yoo's departures from the

text of the Constitution point in one direction -- toward eliminating

legal checks on presidential power over foreign affairs. He is candid

about this, and defends his theory on the ground that it preserves

" flexibility " for the executive in foreign affairs. But the specific

" flexibility " he seeks to preserve is the flexibility to involve the

nation in war without congressional approval, and to ignore and

violate international commitments with impunity. As Carlos Vazquez, a

professor of law at Georgetown, has argued in response to Yoo,

" flexibility has its benefits, but so does precommitment. " The

Constitution committed the nation to a legal regime that would make it

difficult to go to war and that would provide reliable enforcement of

international obligations. Yoo would dispense with both in the name of

letting the president have his way.

 

Even if Yoo is wrong about the original understanding in 1787, is

he wrong about 2005? As the subtitle of his book indicates, his

argument rests not just on revisionist history, but also on arguments

about what is practically necessary in a twenty-first-century world

threatened by terrorism and weapons of mass destruction. He contends

that these developments demand that the president have the leeway to

insulate his foreign policy decisions both from the will of Congress

and from the demands of international law.

 

Here it is worth reviewing the positions Yoo advocated while in

the executive branch and since, and their consequences in the " war on

terror. " At every turn, Yoo has sought to exploit the " flexibility " he

finds in the Constitution to advocate an approach to the " war on

terror " in which legal limits are either interpreted away or rejected

outright. Just two weeks after the September 11 attacks, Yoo sent an

extensive memo to Tim Flanigan, deputy White House counsel, arguing

that the President had unilateral authority to use military force not

only against the terrorists responsible for the September 11 attacks

but against terrorists anywhere on the globe, with or without

congressional authorization.

 

Yoo followed that opinion with a series of memos in January 2002

maintaining, against the strong objections of the State Department,

that the Geneva Conventions should not be applied to any detainees

captured in the conflict in Afghanistan. Yoo argued that the president

could unilaterally suspend the conventions; that al-Qaeda was not

party to the treaty; that Afghanistan was a " failed state " and

therefore the president could ignore the fact that it had signed the

conventions; and that the Taliban had failed to adhere to the

requirements of the Geneva Conventions regarding the conduct of war

and therefore deserved no protection. Nor, he argued, was the

president bound by customary international law, which insists on

humane treatment for all wartime detainees. Relying on Yoo's

reasoning, the Bush administration claimed that it could capture and

detain any person who the president said was a member or supporter of

al-Qaeda or the Taliban, and could categorically deny all detainees

the protections of the Geneva Conventions, including a hearing to

permit them to challenge their status and restrictions on inhumane

interrogation practices.

 

Echoing Yoo, Alberto Gonzales, then White House counsel, argued at

the time that one of the principal reasons for denying detainees

protection under the Geneva Conventions was to " preserve flexibility "

and make it easier to " quickly obtain information from captured

terrorists and their sponsors. " When CIA officials reportedly raised

concerns that the methods they were using to interrogate high-level

al-Qaeda detainees -- such as waterboarding -- might subject them to

criminal liability, Yoo was again consulted. In response, he drafted

the August 1, 2002, torture memo, signed by his superior, Jay Bybee,

and delivered to Gonzales. In that memo, Yoo " interpreted " the

criminal and international law bans on torture in as narrow and

legalistic a way as possible; his evident purpose was to allow

government officials to use as much coercion as possible in

interrogations.

 

Yoo wrote that threats of death are permissible if they do not

threaten " imminent death, " and that drugs designed to disrupt the

personality may be administered so long as they do not " penetrate to

the core of an individual's ability to perceive the world around him. "

He said that the law prohibiting torture did not prevent interrogators

from inflicting mental harm so long as it was not " prolonged. "

Physical pain could be inflicted so long as it was less severe than

the pain associated with " serious physical injury, such as organ

failure, impairment of bodily function, or even death. "

 

Even this interpretation did not preserve enough executive

" flexibility " for Yoo. In a separate section of the memo, he argued

that if these loopholes were not sufficient, the president was free to

order outright torture. Any law limiting the president's authority to

order torture during wartime, the memo claimed, would " violate the

Constitution's sole vesting of the Commander-in-Chief authority in the

President. "

 

Since leaving the Justice Department, Yoo has also defended the

practice of " extraordinary renditions, " in which the United States has

kidnapped numerous " suspects " in the war on terror and " rendered " them

to third countries with records of torturing detainees. He has argued

that the federal courts have no right to review actions by the

president that are said to violate the War Powers Clause. And he has

defended the practice of targeted assassinations, otherwise known as

" summary executions. "

 

In short, the flexibility Yoo advocates allows the administration

to lock up human beings indefinitely without charges or hearings, to

subject them to brutally coercive interrogation tactics, to send them

to other countries with a record of doing worse, to assassinate

persons it describes as the enemy without trial, and to keep the

courts from interfering with all such actions.

 

Has such flexibility actually aided the U.S. in dealing with

terrorism? In all likelihood, the policies and attitudes Yoo has

advanced have made the country less secure. The abuses at Guantánamo

and Abu Ghraib have become international embarrassments for the United

States, and by many accounts have helped to recruit young people to

join al-Qaeda. The U.S. has squandered the sympathy it had on

September 12, 2001, and we now find ourselves in a world perhaps more

hostile than ever before.

 

With respect to detainees, thanks to Yoo, the U.S. is now in an

untenable bind: on the one hand, it has become increasingly

unacceptable for the U.S. to hold hundreds of prisoners indefinitely

without trying them; on the other hand our coercive and inhumane

interrogation tactics have effectively granted many of the prisoners

immunity from trial. Because the evidence we might use against them is

tainted by their mistreatment, trials would likely turn into occasions

for exposing the United States' brutal interrogation tactics. This

predicament was entirely avoidable. Had we given alleged al-Qaeda

detainees the fair hearings required by the Geneva Conventions at the

outset, and had we conducted humane interrogations at Guantánamo, Abu

Ghraib, Camp Mercury, and elsewhere, few would have objected to the

U.S. holding some detainees for the duration of the military conflict,

and we could have tried those responsible for war crimes. What has

been so objectionable to many in the U.S. and abroad is the

government's refusal to accept even the limited constraints of the

laws of war.

 

The consequences of Yoo's vaunted " flexibility " have been

self-destructive for the U.S. -- we have turned a world in which

international law was on our side into one in which we see it as our

enemy. The Pentagon's National Defense Strategy, issued in March 2005,

states,

 

" Our strength as a nation state will continue to be challenged

by those who employ a strategy of the weak, using international fora,

judicial processes, and terrorism. "

 

The proposition that judicial processes -- the very essence of the

rule of law -- are to be dismissed as a strategy of the weak, akin to

terrorism, suggests the continuing strength of Yoo's influence. When

the rule of law is seen simply as a device used by terrorists,

something has gone perilously wrong. Michael Ignatieff has written

that " it is the very nature of a democracy that it not only does, but

should, fight with one hand tied behind its back. It is also in the

nature of democracy that it prevails against its enemies precisely

because it does. " Yoo persuaded the Bush administration to untie its

hand and abandon the constraints of the rule of law. Perhaps that is

why we are not prevailing.

 

David Cole is a law professor at Georgetown and a contributor to

the New York Review of Books where this piece has just appeared. He is

the author of Enemy Aliens: Double Standards and Constitutional

Freedoms in the War on Terrorism, recently published in a revised

paperback edition.

 

[Note: This piece originally contained numerous footnotes, which

can be found in the November 17 issue of the New York Review of Books

or, next week, at that magazine's website where the piece will be also

posted.]

 

This article appears in the November 17 issue of the New York Review

of Books

 

Copyright 2005 David Cole