In Defense of a Strong Executive Branch

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In our weekly Opinion Page feature, John Yoo writes that Congress should not try to micromanage the executive branch. And Gen. Joseph Hoar argues that the United States must maintain its moral authority in the world.

NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington, and here are the headlines from some of the other stories we're following here today at NPR News.

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And right now it's time for the TALK OF THE NATION Opinion Page. There's talk in Washington today of a possible compromise on interrogation and detainee rights. Last week a group of prominent Republican senators joined Democrats to speak out against the president's plan to allow for harsh interrogation methods and for prosecution of terrorism suspects in military tribunals. They offered a plan of their own instead.

In an op-ed in Sunday's New York Times former Justice Department Official John Yoo wrote that it's not Congress's role to micromanage the country's day-to-day policy decisions. A strong president, he argued, can confront the difficult choices like these that Congress wants to avoid.

We have a link to his op-ed and to our previous opinion pages at our Web site, the TALK OF THE NATION page at npr.org.

John Yoo is now professor of law at the University of California at Berkeley and former deputy assistant attorney general at the Department of Justice. He's with us from a studio on the campus at the University of California at Berkeley. Nice to talk to you again.

Professor JOHN YOO (University of California at Berkeley): Hi. Thanks for having me back on.

CONAN: And we'll also have somebody with a military viewpoint on this. Retired General Joseph Hoar, former commander in chief of the United States Central Command, who's with us by phone from Del Mar, California. And nice to have you back on the program, General, as well.

General JOSEPH HOAR (Former Commander in Chief, United States Central Command; U.S. Marine Corps, Retired): Thank you.

CONAN: And, John Yoo, what do you mean when you say Congress shouldn't micromanage the executive branch?

Prof. YOO: Well, I think it goes to the very root of why we have an executive in the first place. And the idea was that legislatures are good at passing, you know, broad laws with policy choices made in them. But that legislature, particularly as big as one as our Congress, can't be there to oversee the day-to-day implementation of policy. And that the reason we have an executive branch in part is not just to execute the laws but to also to respond to events and challenges that the laws couldn't anticipate when they were passed.

A good example of this might be the Foreign Intelligence Surveillance Act, which was passed in 1978 in response to President Nixon and Watergate and his abuse of national security powers to wiretap his political enemies. The FISA law, though, wasn't really apt for the new world of terrorism and for the new technologies that terrorists used against us on 9/11.

And so in those kinds of situations, and wartime is really the one where you see this the greatest, president's powers expand to try to adapt our country's policies and to react to those kinds of emergencies and challenges.

CONAN: And in an emergency I guess I could see your point, but obviously the FISA law was adapted to a certain situation. There's been a long time now, five years, for Congress to write a new law for a new situation.

Prof. YOO: Yeah. I think the problem that we have, at least with the FISA situation, is that what the government did, this NSA program of trying to wiretap communications into and out of the United States involving terrorists. And, you know, to be frank, I worked on that program when I was in the government, according to people like The New York Times news pages.

CONAN: You're not denying their accuracy.

Prof. YOO: I'm not denying it. I mean they were good enough to publish my op-ed. So I think that, you know, there you have a situation where we had this new challenge, the president tried to respond because there was a gap in FISA. And the problem was there was a danger to losing the advantage that our NSA operators had if the president went to Congress and sought a law that would be public. And in justifying the law, you'd have to make public exactly what things the government was doing that needed new authorization.

And so I think that's a real tension that confronts the government. We're - you know, this kind of war relies a lot more on intelligence and information and covert activity than previous wars, and so, you know, we have to be conscious that while we do want to have a full and open debate, we also want to try to protect those secrets that are allowing us to effectively fight.

CONAN: And we get back to the Geneva Conventions. In the recent Hamdan decision, the United States Supreme Court said the president has to go to Congress to get this authorization if he wants to continue this interrogation.

Mr. YOO: This is sort of the interesting thing about the Hamdan case. It has been read as a rebuke to the president and the president's military commissions and the fact that the military commissions don't comply with the Geneva Conventions. But if you read it closely, it's very careful to skirt around the issue of the president's power and really directs most of its attention to Congress and says, you know, Congress's laws require this, and if Congress wants to update those laws or pass a new law authorizing these military commissions, it should and that - you know, four of the justices in fact say if, you know, the Congress does this, military commissions will be fine.

The other thing that I thought that was remarkable is that the courts are getting involved, in a way, during wartime in a way they hadn't been, so - that's really, I think, the real story. So I think some of the story that we read about is, oh, the president's trying to expand his power, and I don't think that's quite right, at least in wartime.

You know, I think President Bush's power is being used more greatly is a way other presidents have used their powers more greatly in war, but the unusual thing in this war that hadn't happened before is that the courts have intervened and become much more active while hostilities were going on than they ever had been in the past.

CONAN: General Hoar, in your view, should the United States attempt to rewrite its belief of what Article 3 of the Geneva Convention says?

Gen. HOAR: No, I don't think so at all, and I think that John Yoo's characterization of what's going on in Washington is - an attempt on the part of the Congress to micromanage - is completely off base. This is an extraordinarily important decision, and it's important for three important reasons, I believe. First of all, we are endangering the lives of American servicemen and women who are in uniform and are serving in combat zones or in dangerous areas. We can't expect our own people to be treated under the provisions of the Geneva Convention as written unless we offer the same sort of procedural protections for people that are acting as our enemies.

CONAN: What about the argument that you hear a lot: al-Qaida pays no attention to the Geneva Convention.

Gen. HOAR: Well, thank you very much. That's the second point. This is really not about al-Qaida, it's about us. It's about the American people and what we stand for. And there was a lot of talk 20 years ago about the United States being the city on the hill, and in my own travels, particularly in the Middle East, this is still true. So many people look to the United States as a beacon of democracy, as a place that most of them would like to live. When they have problems with the United States, it's not about us as Americans, it's about our policies.

But this issue is not about al-Qaida. It is about who we are as Americans. And with respect to that, when we look at the ongoing problems in the world, I think that Colin Powell had it absolutely right that this is a war of perceptions, and we have people - after Abu Ghraib and the stories coming out of Guantanamo Bay, that we've not done a very good job in terms of how we've dealt with people that have come into our custody.

CONAN: And John Yoo, I wonder how you reply to the views of General Powell and General Hoar and Senator McCain, who as you know was a long-time prisoner in North Korea, who's saying, look, it's not about this conflict, it's about all the future conflicts.

Mr. YOO: First, can I just make a brief point about the micromanagement?

CONAN: Please.

Mr. YOO: It's just that, you know, we've had wars before where we've had military commissions, and President Roosevelt created them in World War II. Congress never passed a law like this or even proposed one, to try to set out a detailed code of procedure for military commissions. This is unprecedented, that it would pass a law like this or consider it. It usually left it up to the president to do. It would pass - there is a law on the books that just says we recognize the practice of having military commissions. So I think it is unprecedented that Congress would consider doing this, and it is a little micromanagement in the sense that previous presidents in wartime had much more flexibility.

As to the claim about this policy argument, I think one thing to build on your question, is that this claim of reciprocity I don't think works with terrorists, an example of trying to fit this new circumstance with terrorism into the old paradigm of war between nation-states. From everything we know, al-Qaida and its allies have no interest in following the laws of war. In fact, the reason they're so effective is because they violate the laws of war, and so there's not much likelihood of reciprocity, and I didn't hear the general try to defend that statement.

CONAN: No, he said it's not about them, it's about us.

Mr. YOO: Right, it's not about - so the first thing he said to you was about reciprocity, getting our people treated well, but then I think you have to acknowledge in reality they are not treated well. Even in wars where we do follow the Geneva Conventions, our officers and troops often get mistreated, at least since World War II.

CONAN: Is that an argument to reject the Geneva Conventions entirely?

Mr. YOO: I'm not saying we should reject it. I think traditionally what's happened is that presidents should try to develop rules that we will use with terrorists, because I think it's fair to say that this new phenomenon of an enemy like al-Qaida is not something that people who wrote the Geneva Conventions ever could thought of in 1949, and so what we're really trying to do is figure out new rules that would apply that take into account the principles of the Geneva Convention but are drafted towards advancing against this new kind of enemy.

In terms of the costs and benefits abroad, you know, I don't really think it's good to argue in such absolute terms, like we should always apply the Geneva Conventions regardless, because I think it doesn't take account of the cost. So the president, you know, gave a speech last week detailing the actionable intelligence that our CIA was able to get from people like Khalid Shaikh Mohammed and so on to prevent attacks on the United States. That's a benefit of not applying the Geneva Conventions where they don't need to be to terrorists, and that's going to be a cost if we follow this idea: well, we have to follow the Geneva Conventions entirely in this new situation. You have to ask yourself, is it worth it to give up all that intelligence that the president outlined in his speech that we were able to get and that would stop those attacks?

So I think, you know, these are things we have to weigh and balance against each other. I don't think there's an obvious, absolute right answer.

CONAN: Just one quick question and then we'll get some listeners on the line. The Geneva Conventions - reciprocity was not an issue in the Korean War, or for that matter in the Vietnam War, in which John McCain fought and stayed as a prisoner for five years. Nevertheless, the United States obeyed, for its part, the Geneva Conventions and thought it was important to sustain the moral high ground.

Mr. YOO: I do think that there may be good policy reasons to follow it. I'm not saying that - I would say that they legally weren't required to, but I think there may be very good policy reasons to. For example, you know, if you follow the Geneva Conventions voluntarily it may encourage the other side to surrender at a higher rate, if they know we're going to treat them well. But I think we have to weigh the costs and benefits, too. There are also costs to following that policy if it means that that the CIA can't use coercive interrogation methods against al-Qaida leaders.

CONAN: You're listening to the Opinion Page on TALK OF THE NATION. Our guests are John Yoo, a professor of law at the University of California at Berkeley. Retired General Joseph Hoar, former commander in chief at the United States Central Command, and this is TALK OF THE NATION from NPR News.

And let's get a caller on the line. Excuse me, I hit the wrong button. This is Perry. Perry's calling us from Plattsburg, New York.

PERRY (Caller): Yes, hello there. This is Perry Walker, and I would like for them to stay with the Geneva Conventions, what we have now. You can see that that is the standard we've set, and I think we ought to stay there. There are ramifications when you start changing that, even in police tactics, when they go to interrogating, you know, people that have committed crimes and so forth. They'll give you any story you want to hear as long as you, you know, quit torturing them. You don't get - the Stockholm syndrome. I'd like to make them more - although you don't really want to be friends with these guys, we've seen with the Stockholm syndrome that they begin to feel a part of you when you treat them right, over a long period of time.

CONAN: Can we get a response from you, General Hoar?

Gen. HOAR: Yes. I think Perry is absolutely right. I chaired a conference on this subject in December in Washington, D.C., and we had a very broad group of people there, including Israeli and people that were informed about the British tactics. And both Israel and the United Kingdom had chosen to walk away from terror because - from torture - because they found that it didn't work. And I think it's quite interesting that rather than intimidation and torture, that working with people over time to gain their confidence appeared to work in both Northern Ireland and in dealing with Palestinians.

CONAN: John Yoo, a lot of people say you may get information from torture or aggressive questioning. It may not be accurate.

Mr. YOO: Well, obviously if we could get the information in ways that didn't involve coercion, that would be the best for everyone. I do think, though, that if you look at the situation of people like Khalid Shaikh Mohammed or Ramzi Binalshibh or Abu Zubeida, these are people we now know were trained to resist standard interrogation and were not producing any information. Also, in terms of the Israeli experience, the Israelis did use coercive interrogation methods. They don't torture people, but they use methods designed to interrogate coercively, and they have reported to places like the United Nations that this has produced information that could not be received in any other way, that have prevented scores of terrorist attacks.

So I do think that, you know, I'm not an expert, but I do think that states have said that these work in certain kinds of situations. I think the problem is, do we want to take that option completely off the table? Are we so comfortable in the way that we're dealing with the terrorist threat that if we were to capture another Khalid Shaikh Mohammed or Abu Zubeida, we are comfortable saying, we're not going to use any coercive interrogation methods at all, that we will only try to use methods no more vigorous than good cop/bad cop no matter what kind of information they might have.

CONAN: Perry, thanks very much for the call.

PERRY: Thank you so much, and I just think this idea of the Stockholm syndrome is very important, that you'll get more information from those people - from anybody. We've had conflicts before and very strange, you know, awful things, but the Geneva Convention has worked before, and it's been the standard. I think we need to hold that standard.

CONAN: Thanks very much, Perry. Let's go now to Cherry. Cherry's with us from Myrtle Beach, South Carolina.

CHERRY (Caller): Hi, thank you for taking my call.

CONAN: Go ahead, please.

CHERRY: Yes, I had to call in on this after Attorney General Gonzales's comment today that aspects of the Geneva Convention they were finding confusing, and you know, we've been working under the Geneva Convention for what, 60 years now, and they found it, you know - they were able to interpret it fairly well during the Cold War, Vietnam and all the other conflicts we've been involved in since World War II.

CONAN: General Hoar, as a military man, did you find the Geneva Conventions confusing?

Gen. HOAR: No, I don't think so at all, and I think that the men that were fighting in the front lines didn't find it confusing. It doesn't mean that there weren't abuses. But the question is that if you have a clear policy, as I think you have right now, and you enforce it, and you keep the troops well-informed about what they may do and what they can't do, and similarly for interrogators and people that are running prisoner-of-war camps and places like Guantanamo, I think that you would not have the abuses that have appeared in Abu Ghraib and apparently in Guantanamo Bay as well, and you wouldn't have the terrible public relations problem that has been created by abuse of prisoners.

CONAN: Cherry, thanks very much for the call.

CHERRY: May I...

CONAN: I'm afraid we're out of time, Cherry. We're just up against the clock. Thanks so much. And General Hoar, thank you for your time today.

Gen. HOAR: Great to talk to you.

CONAN: Joseph Hoar, former commander in chief of the United States Central Command. John Yoo, appreciate your time too.

Mr. YOO: Thanks for having me back.

CONAN: John Yoo is now a professor of law at the University of California at Berkeley. I'm Neal Conan. This is TALK OF THE NATION from NPR News.

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