Yoo Defends Detainee Measures as 'Rules of War'

John Yoo

John Yoo helped formulate many of the Bush administration's policies for dealing with enemy combatants. Scroll down to read an excerpt from Yoo's new book, War by Other Means. Elisa Arnett hide caption

itoggle caption Elisa Arnett

Your Opinion

Morning Edition asked for your comments on the legislation on enemy combatants.

The newly passed legislation regulating the treatment of terrorism suspects is designed to limit the hundreds of habeas corpus petitions from detainees at Guantanamo Bay that have flooded federal courts, according to John Yoo, a former official of the Bush administration who helped formulate policies for dealing with enemy combatants.

The bill prohibits detainees held by the United States from filing lawsuits challenging their detention, known as habeas corpus pleadings.

A noncitizen who has been declared an enemy combatant has the right to go before a military tribunal for a hearing to challenge the evidence against him, but does not have the right to a lawyer.

"You have representation from an officer, but not necessarily one who's a military lawyer," Yoo explains. The defendant also does not have access to any classified evidence.

"Well, it's not a criminal trial," says Yoo, a law professor at the University of California, Berkeley, who served as a deputy assistant attorney general from 2001 to 2003.

"This is part of the way the rules of war have worked for a long time," he says. "The military proceedings to determine if you're an enemy combatant usually don't require as much proof. You know, the point of the war is not to collect evidence and solve crimes. It's to fight and defeat the enemy. So I think this sort of flexible process reflects the demands and the nature of warfare."

Listeners Comment on Detainee Legislation

Guard tower at Guantanamo Bay. i i

Hundreds of detainees designated as enemy combatants are being held at the U.S. military prison in Guantanamo Bay, Cuba. Mark Wilson/Getty Images hide caption

itoggle caption Mark Wilson/Getty Images
Guard tower at Guantanamo Bay.

Hundreds of detainees designated as enemy combatants are being held at the U.S. military prison in Guantanamo Bay, Cuba.

Mark Wilson/Getty Images

The following is a selection of excerpts from letters sent in by listeners on legislation dealing with enemy combatants that was discussed in an interview with John Yoo, a former Justice Department official.

'Destroying Our Freedoms'

I was chilled to my soul to hear John Yoo describe clearly, and with apparent approval, the steps my country is taking towards becoming a police state, and his insouciance regarding the innocent victims certain to be caught up in the "enemy combatant" net. I've never believed President Bush's simplistic assertion that the terrorists hate us for our freedoms but if Mr. Bush is right, then the President himself, his administration, and the Congress have become the tools by which the terrorists are accomplishing their goal of destroying our freedoms, a situation which the terrorists must regard with much glee. — Jim Larkin, New Haven, Conn.

'Where is Our American Moral Sense?'

Yoo's claim that allowing Habeas Corpus is "too expensive" is outrageous. We went to war with Iraq "on the cheap," with not enough troops, and now we're going to try prisoners "on the cheap?" Where is our American moral sense? Are these people enemy combatants simply because someone calls them that? We cannot keep these people detained for years in prison without charging and trying them. Would John Yoo accept being incarcerated for years without knowing why? — Andi Hubbard

'War Is a Rough Business'

War is a rough business. In war, masses of combatants try to kill opposing masses by any means available. The consequences are brutal, and fairness is never the standard of conduct. Soldiers, guerrillas and innocents on every side are swept up in the conflict, and their experiences are predictably brutal and unfair. These are among the reasons why war is abhorrent. But once war commences, we cannot be so naive as to expect anything else. The injustice of being wrongly confined in a military prison pales in comparison to the agonies that the battlefield visits upon combatants and noncombatants alike. Yes, we should respect the Geneva Conventions. We should observe standards of that quality without international coercion. But, in the context of the world's troubles today, fretting over civil rights at Guantanamo is a grotesque misplacement of priorities. — Jeff Morgenthaler, Boerne, Texas

'Can This Be America?'

Listening to John Yoo talk about this new legislation was chilling. I'm a federal judge, and have taught constitutional law for 16 years. The very idea of holding anyone without trial, without the right to see the evidence that was used to justify naming them an "enemy combatant," and depriving them of the ability to challenge why they are even there is so repugnant to a constitutional democracy that I am shocked that this man actually claims to be defending American values. These are the tactics of the old Soviet Union, not of a country that stands for freedom and the rule of law.

I also quibble with his contention that U.S. citizens still have the right to habeas review. I've read the law. The president can form his own tribunal, which can determine who is an "enemy combatant" (not just an alien enemy combatant), and the decision of that tribunal would not be subject to habeas review. Moreover, persons targeted by this tribunal would not even have access to the military tribunal trial created under this law.

How easy it would be for a president to use such a law to make his political enemies simply disappear. Can this be America? — Leif Clark, San Antonio, Texas

'What Is the Definition of War?'

Bravo to Steve Inskeep for not letting John Yoo wriggle off the hook. This interview clearly illuminated one principal implication of this legislation, namely the establishment of a legal shadowland, beyond the pale of the presumption of innocence, where citizen and noncitizen alike can disappear without the full protection of due process. One thing I would like Mr. Inskeep to have pressed with Mr. Yoo: Just what is the definition of "war" he kept citing as justification for these draconian measures? — Steve MacIntyre, Beaver Dam, Ariz.

'A Never-Ending War on Terror'

Mr. Yoo advocates a system that ensures every actual combatant will be held without trial even if that same procedural net causes 2 or 3 noncombatants to be detained also. This continuing erosion of our civil liberties and rights cannot be justified simply by saying we're in the middle of a never-ending "war on terror." Although eliminating habeas and allowing warrantless spying on American citizens may indeed make us safer and more likely to wake up in the morning, we may not recognize the country in which we wake. —Jim Polan, Tulsa, Okla.

'A Betrayal of the Constitution'

As the mother of a U.S. Marine, I strongly disagree with the recent legislation concerning the rights of detainees. When young men and women join the military, they swear to defend the Constitution of the United States, a document based on our unwavering belief in the rule of law and the application of justice to all, a belief we hold so dear that we are willing to apply it even to those whom we consider our enemies. The Bush administration's attempts to circumvent those principles are nothing less than a betrayal of that very Constitution and of the men and women in uniform who are sacrificing their lives to defend it. — Marguerite Weibel

'The Spirit of 76'

Those who fought to create our republic understood that the right to challenge one's detention, the Writ of Habeas Corpus, the Great Writ, is the cornerstone of liberty. The revolutionary generation understood that this right must be universal. Without the Great Writ tyrants can rule unimpeded, with it tyranny is circumscribed, forced to reveal its methods and thus is undermined... It falls to the current generation, to us, to recognize the fundamental threat which the Bush Administration has posed to our republic and to beat back the Administration’s attacks on liberty and human rights. We must recapture the "Spirit of 76" which recognized that fundamental rights are universal –- applying to all humans, in all portions of the world and at all times. It is time for true patriots to take up pen, take to the streets and turn out to vote in order to deliver an unequivocal message to Bush and the other rulers. It is time for the Spirit of 76 to rise once again and to once again beat back the tyranny of the contemporary version of King George. — Felice Pace, Klamath, Calif.

'How Secure Are We Really?'

Hearing what Mr. Yoo said about the situation with "detainees" is one of the scariest things I've ever heard. It reminded me of horror stories we've been told over the years about "the disappeared" in numerous other countries around the world that we deplore. It causes me to ask: Does democracy only really work when there are no serious threats to our security? If we give up too many freedoms to achieve security, how secure are we really? — Diane Bounds, St. Louis

'No Sense of Humanity'

I have followed John Yoo's pronouncements for quite a while since he appears often on the News Hour. I simply do not ever agree with his type of justice because it is not designed to protect us here in the U.S.A. but is designed to keep this administration's missteps under wraps. This is a government padded under a thick veneer of secrecy. Yoo is brilliant but he has no sense of humanity. What is being legislated clearly puts our armed forces in jeopardy and often deprives other human beings who may very well be innocent, of justice. He argues that habeas corpus for this group would cost us money. What does he think $300 billion spent on an uncalled-for war is costing all of us? — Alexis Donovan, Yonkers, N.Y.

'A Frightening Course'

Everything they used to warn us about Soviet-era Communists is now set policy by the Bush administration — torture, detention without access to lawyers, secret prisons, and so on. I have never been so frightened at the course of our country as I am now. — Homer Thiel, Tucson, Ariz.

'Dignity of Human Beings'

Show me a society's rules of procedure, and I will show you its soul. European jurisprudence established an absolute right of human beings to due process in the fourteenth century. It is a sad commentary on the state of modern society's soul and its moral compass that the nation state and John Yoo put the preservation of the state above the worth and dignity of human beings. Yoo's closing comment that Habeas Corpus should not be given to all human beings because of the "cost," was extraordinarily callous and indifferent to moral principles. — Ken Pennington, Washington, D.C.

'Release Our Enemy?'

Your commentator (Mr. Yoo) did the public and our service members a great disservice by an important omission — he FAILED to correct you by allowing the term "arrest" to be used during the interview. Combatants — legal or illegal — are not "arrested" on the battlefield. They are captured. And once captured, they may be detained under international law until the conflict (war) is over. By using this wrong term — arrested — we imply that normal, civilian type criminal due process is available to them. It is NOT.

Combatants, who are our enemy, are detained after capture. After all, do we want to release our enemy so they can rejoin their forces and continue to fight us? Absolutely not! But the public discussion has lost track of this important point. We get upset over the lack of criminal trials for the enemy and imply that we should release them under a writ of habeas corpus. Release them!??! No! NO! NO!! They are our enemy and they are trying to kill us. — LTC Stevan Rich, Riverside, Calif.

'A Heady Outrage'

Yoo is an outrageous and insane man — as is the United States government for utterly destroying the letter and spirit of our Constitution. How DESPICABLE! How dangerous, frightening and foolish. To place so many lives on the line and then complain that they are costing money because they're exerting erstwhile rights sounds like something out of the Soviet gulags. It leaves all the power in the hands of the Executive — King George III??? And after all the lies Bush has told — including getting us into a horribly botched war — and couple that with the "right to torture," it is a heady outrage that should sicken and horrify every United States citizen. I'd like to see Yoo and Cheney and Rice be arrested and waterboarded without counsel to see if they think it is not some form of torture. — George Carter, Brooklyn, N.Y.

'American Should Reengage the World'

Here is a suggestion: Perhaps America should NOT decide how suspected terrorists should be handled or tried for their violence against humanity. Perhaps instead America should reengage with the world community to determine what actions make sense in suppressing terror and upholding the rights of humanity. Maybe, just maybe, the world would then start think of America as a partner rather than as an egomaniacal nation with big cowboy nuke-boots. — Robin MacDuffie, Schoharie, N.Y.

'A More Perfect System'

The Bush Administration has consistently shown itself to be untrustworthy in its handling of the truth, including the very facts that led our country to war in Iraq. It is highly disconcerting to me in this age of "Neo-McCarthyism" that more processes are not at the disposal of enemy combatants to challenge accusations made against them within the heightened crucible of wartime. With cases like U.K. citizen Omar Deghayes, or in the case of those other enemy combatants who have been tortured and then proven innocent of charges, we have already seen that the current system of handling this issue is an imperfect system. We should be striving for a more perfect system. — Frank Owen, Jackson, Miss.

'Who Will Stand with Us?

The implications of the recent bill to hold so-called enemy combatants until the cessation of hostilities are stark. This country has steadily eroded its position of moral strength in its effort to control terrorism. (What a misnomer it is to call it a "War on Terror.") We won't realize how badly we are being led down the wrong road by the Bush administration until we stand, mouths agape, before the debris of the next 9/11. And who will stand with us then? — Kevin McKenzie, Atlanta

'Presumption of Innocence'

If the news story had been about China rather than the U.S., people would have been outraged at the power of the government to lock up anyone of their choosing with no recourse. I have been concerned for a while that no one seems to remember that presumption of innocence is one of the foundations of our country. — Judy Loren, Cumberland, Maine

'Start Asking Legitimate Hard Questions'

Once again NPR chose the easy, nonconfrontational, let everything slide method of interview when Steve Inskeep allowed John Yoo to say in nearly every sentence, "I think," "I believe." This man is a lawyer, worked on this detainee issue, was in the Presidential loop, was an adviser on the thinking about detainees and he can only "think" or "believe" about it. If he can't say what is exactly in the bill, then get someone who can. If nobody can be found who can answer definitely, then it is time to rewrite the bill so someone does know its content.

NPR needs to stop doing what all the other media are doing — not reporting the news at all, reporting the hard stuff only selectively, and allowing the interviewees to wiggle out of every hard question. Instead, start asking legitimate hard questions and expect and demand some straight answers. You will feel better about yourselves at the end of the day and know that you are finally doing what you are paid to do. — Paul Mitchell, Aurora, N.Y.

'Ashamed To Be an American'

There is no balance without fair and equal rights for all. Just because someone is not born American, we do not have the right to confine them without a swift, fair trial. Those who agreed to this legislation have ruined the U.S. forever. This makes me ashamed to be an American. — Mary Luketich, Austin, Texas

The Cost of Habeas Corpus

I was chilled by Mr. Yoo's assessment of the recent legislation regarding enemy combatants. Why the United States Congress would take steps to do away with 900 years of precedence regarding habeas corpus has yet to be rationally explained. But Mr. Yoo's suggestion that Congress considered it "too expensive" to give the right of habeas corpus to foreign detainees is appalling. With the Congressional Budget Office estimating the monthly cost of the war in Iraq in the billions of dollars, the cost of moving even a few hundred people through the legal system is negligible. Such legislation — and such justifications as offered by Mr. Yoo — can do nothing but damage the position of the U.S. in the eyes of the world. — Maureen Haggstrom, Lexington, Ky.

'Who Do We Think We Are?'

Without meaning to, Mr. Yoo raises a fundamental question for all Americans: Who do we think we are? Are we about "Give me liberty or give me death," or is it "Let me shelter in place while an uncurbed central government imprisons and/or spies on me or my neighbors so somebody like Mr. Yoo can be said to feel more safe?" Mr. Yoo's explanation that perhaps honoring habeas corpus rights is just too inconvenient and too expensive speaks volumes. — Elisa Grammer, Washington, D.C.

'We Must Take Hard Actions'

It would be wrong to hold suspected terrorists if the only risk is that innocent people would also inevitably be imprisoned. This is how the picture is sometimes painted -— that this is the only risk, but it is not. It would be just as wrong NOT to round up and imprison alleged terrorists when in so doing we increase the safety of Americans. It cannot be argued that none of those being held are enemy terrorists. Some inevitably are fanatics who would do harm to America if they had the opportunity so we are adding safety to America by detaining true terrorists. The question is how to balance the additional safety provided by a program that captures real enemies with the cost to those wrongly held. If the proposition that this war is a real war is unacceptable, then it would be very hard to accept the guilt of imprisoning the innocent and harming America's image. But if this is a genuine war, history teaches us that we must take hard actions and learn to accept the consequences along with the victory. — Allen Weber, Burleson, Texas

'Basic Legal Protections'

I like to think that the United States provides basic legal protections to those accused of any crime, be it petty theft or terrorism, not because it's convenient but because we believe that that there are basic human rights that all people possess. To deny those rights to any group of people, even if they are non-citizens accused of horrible crimes, is to damage the beliefs upon which the United States was founded. — David Lund, Staatsburg, N.Y.

'Not the Same Rules'

Steve Inskeep did not seem to understand that the new rules applied to enemy combatants captured on the battlefield. Of course we are not going to use the same rules as someone arrested on the street. You hold them until hostilities cease and then you sort it out. — Glen Smith, Kanarraville, Utah

'Justice Somehow Too Expensive'

It is difficult to reconcile the idea that in a little over 200 years, we have gone from Benjamin Franklin believing that it is better for 100 guilty persons to escape than for just one innocent person to suffer, to the concept that one of the best justifications the administration has for removing the right to habeas corpus is that justice is somehow too expensive. — Charles Walker, Chesapeake, Va.

'Truly a Dictatorial Power'

When the leader of our country has the sole power to lock up forever anyone he sees fit to, we have passed over the line into dictatorship. No matter how justified the law seems in denying the legal process to our "enemies," the President has the ultimate power to say who and who is not an "enemy," thus he has the power to imprison anyone he sees fit to, truly a dictatorial power. — John Snow, Woodinville, Wash.

Related NPR Stories

Excerpt: 'War by Other Means'

'War by Other Means' by John Yoo

If the views of the Bush administration's critics were to prevail, and we were to treat September 11 and other terror attacks as crimes, our system would grant al Qaeda terrorists better legal treatment than that afforded to our own soldiers. The mechanisms of criminal justice forbid government searches of suspects or their possessions without a warrant issued by a neutral magistrate. Police cannot arrest a criminal without probable cause and upon arrest must provide a suspect with Miranda warnings, a lawyer, and the right to remain silent. A suspect has the constitutional right to a speedy trial by jury, and in that proceeding can demand that the government turn over all of its information about the crime and the suspect. He can challenge that information and call his own witnesses in open court. The government must provide all exculpatory evidence to the defendant and access to any witnesses who have information relevant to the trial. A convicted defendant can appeal to higher courts to challenge the verdict and then file for a writ of habeas corpus seeking federal judicial review of any constitutional errors in the trial.

Because the Constitution's Bill of Rights establishes these rules, they are not very flexible. They protect the innocent, but are expensive, tilt in favor of the suspect, and impose high standards of proof on the government. While police can arrest based on "probable cause," a suspect must be released if prosecutors cannot succeed at trial. Courts can convict only if a jury finds that the government has shown "proof beyond a reasonable doubt," which often means something close to certainty. Federal courts and the Supreme Court supervise these rules, which can take years of trials and appeals. If police make a mistake, even in good faith, such as seizing evidence without a proper warrant or failing to read a Miranda warning correctly, the courts will sanction the government by releasing the suspect regardless of the threat he poses to society. As Justice Benjamin Cardozo once observed, "The criminal is to go free because the constable has blundered."

Our founding fathers established this constitutional system because of their concerns over the power of the government. It expresses a worry that the national government would use otherwise unlimited powers to engage in the suppression of political opposition. Sharing that suspicion, many legal conservatives have consistently pressed for the decentralization of power over domestic affairs. But it would be a mistake to believe that the Constitution's framework for criminal justice should apply to war. The former involves the fundamental relationship between the people and its government, and so ought to be regulated by clear, strict rules defining the power given by the principal to its agent. The latter, however, involves a foreign enemy who is not part of the American political community, and so should not benefit from the regular peacetime rules that define it. Applying criminal justice rules to al Qaeda terrorists would gravely impede the killing or capture of the enemy, as well as compromise the secrecy of the United States's military efforts.

According to the Supreme Court, a nation at war is entitled to detain as enemy combatants those "who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts." A nation at war may kill members of the enemy's armed forces. But law enforcement personnel may use force only in defense of their lives or those of others. Once captured, an enemy combatant can be detained until the end of the conflict. Combatants have no right to a lawyer or a criminal trial to determine their guilt or innocence under the usual laws of war. They are simply being held to prevent them from returning to the fight.

While our soldiers are fighting under the rules of war, our enemy thumbs its nose at those rules by attacking in disguise and targeting civilians. As Osama bin Laden declared in 1998 on American television, "We do not have to differentiate between military or civilian. As far as we are concerned, they are all targets." Yet the critics would have us give al Qaeda criminal justice protection precisely because it assumed civilian guise on U.S. soil and attacked civilian targets, effectively rewarding al Qaeda for violating every law of war ever devised.

September 11 put America on notice. Once, only nation-states had the resources to wage war. Al Qaeda is able to finance its jihad outside the traditional structure of the nation-state, and this may well extend to nuclear, biological, or chemical weapons. Mere networks of individuals—affinity groups—can now tap military power. Terrorist networks should not, through this loophole, be allowed to evade the laws of armed conflict among nation-states. While we are at war, we must also recognize that it is a different kind of war, with a slippery enemy that has no territory, population, or uniformed, traditionally organized armed forces, and that can move nimbly through the West's open channels of commerce. We must take aggressive action to defeat al Qaeda, while also adapting the rules of war to provide a new framework to address the new enemies of the twenty-first century.

From War by Other Means copyright 2006 by John Yoo.

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