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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

The United States Senate recently approved an amendment that would ban American forces from the use of torture under any circumstances. Torture of prisoners of war is already barred by the Geneva Conventions. The United States is a signatory. But some terror suspects are designated enemy combatants not covered by Geneva and, thus, subject to more aggressive interrogation. Senator John McCain sponsored the new amendment to cover all prisoners in US custody and put a stop to the kind of abuses we saw at Abu Ghraib prison in Iraq.

The White House opposes the amendment and threatens to veto the defense bill if it includes it. Yesterday there were reports that Vice President Dick Cheney met with Senator McCain to say that the administration would support the ban if it includes an exemption for the CIA. Publicly, the White House insists that the president does not condone torture and would never authorize its use. At this point, the prospects of the McCain torture amendment are still unclear.

Later in the program, we'll talk with junior senator from Illinois. Democrat Barack Obama will be with us. But first, interrogation and the war on terror. Do we need clearer rules on the treatment of suspected terrorists? Should al-Qaeda operatives who may be planning attacks on this country be treated as prisoners of war? Our number is (800) 989-8255. That's (800) 989-TALK. The e-mail address is totn@npr.org.

To begin, we turn to Michael Hirsh, senior editor at Newsweek magazine, who's been following this story. He's joined us here in Studio 3A. Good to have you back on the program, Michael.

Mr. MICHAEL HIRSH (Newsweek): Good to be here.

CONAN: Now McCain's provision--we're talking about these definitions of torture. As I understand it, the McCain amendment would say the Army Field Manual's guidelines on interrogation, everybody just follow those.

Mr. HIRSH: That's right. That's one aspect of it. The other is that it would attempt to close a loophole over the question of whether detainees abroad held on foreign soil, who are not Americans, would be subject to the same kinds of protections that the Senate agreed to when it signed on for the convention against torture, which would mean anything--you could not do anything that violated the Fifth, Eighth and 14th amendments, the protection that's given to Americans here. And it would seek to make sure that similar protections were offered anywhere around the world.

CONAN: So this would apply to people like Khalid Sheik Mohammed, formerly number three in al-Qaeda, who's one of the so-called ghost detainees. He's being held by the US somewhere.

Mr. HIRSH: That's right. It would basically apply to any detainee under any circumstance and, of course, the reason McCain is offering this is because for, you know, a period of a year and a half or more since the Abu Ghraib scandal broke and the issue of interrogations really came to the forefront, there's been no clarity at all on how we treat detainees. It's not a question of, you know, whether you can take a known terrorist like Khalid Sheik Mohammed--and there's only one or two like that--in a dark room somewhere and do something bad to him. It's a question of what's happened to thousands of detainees in facilities all over, including Iraq and Afghanistan, and the lack of clarity here. And that's what McCain is really trying to redress here. I don't think he has any particular concern for Khalid Sheik Mohammed per se.

CONAN: Now as I understand it, there were reports yesterday in The New York Times and The Washington Post about a meeting between Vice President Cheney and Senator McCain about this amendment. The report said that Vice President Cheney said, `Look, we'll support it if there's an exemption for the CIA investigating some prisoners overseas.' I understand you've spoken with Senator McCain about that.

Mr. HIRSH: Oh, that's right. McCain said to me--and I think he's said elsewhere--that he would not permit any kind of a weakening of the language of this kind. He did have this meeting. He is going to oppose anything that waters down the bill. Now the irony of this effort by the administration, which is really only one of several efforts. It's on different fronts to change the language. The irony of these efforts is that basically, they would undermine exactly the intent of McCain's bill, which is to close this loophole. I mean, if you exempt the CIA or if you do as they're doing in other cases, try to take out language referring to physical location, so that you could allow this to occur overseas, then there's no point in having the amendment. In fact, McCain and his--the people he has working for him say that this could end up being worse, because you could end up having a law on the books that essentially authorizes torture, which is, you know, even more than we have now.

CONAN: And has the White House--the White House has not confirmed that this meeting ever happened even.

Mr. HIRSH: No, they have not come out and said it; nor has the CIA. Supposedly, Porter Goss, the director of the CIA, was at the meeting as well. But, you know, we've talked to enough sources that confirm that the newspaper reports are accurate.

CONAN: Now the Senate approved the McCain amendment by a vote of 90-to-9, which is a sort of veto-proof margin. However, it's attached to a defense bill that's currently going to a conference committee. There is no similar language in the House version of this bill, so its fate winds up in the hands of a conference committee, a couple of senators and a couple of representatives from the House.

Mr. HIRSH: That's right. Right now, the conferees are meeting. The way this works is in order to bring together the House and the Senate bills on defense appropriations or to reconcile them, to use the jargon, they have to have a conference. They come out with a conference report, and then there is an up-or-down vote on that conference report, which would include this amendment as currently understood. But what's happening over the next several days and weeks is that the conference is getting together and they're going to just consider these attempts to weaken the language that are being put forward by the administration and by some senators and House members that are acting--or making the administration's case, like Senator Stevens of Alaska. And you're essentially going to have--the big four here are--I mean, Senator Stevens and the ranking member, Senator Inouye on the Senate side, and then...

CONAN: Alaska and Hawaii respectively.

Mr. HIRSH: Right, right. And then on the House side, you've got Congressman Bill Young, the Republican chairman of the Defense Appropriations...

CONAN: From Florida.

Mr. HIRSH: Right. And then you have Senator Murtha from Pennsylvania.

CONAN: Representative Murtha. You promoted him.

Mr. HIRSH: That's right. I don't think he's running. Sorry about that. Anyway, it'll probably come down to a discussion between those four as to, you know, whether they're going to accept this language. In that process, McCain can do some lobbying, as he's now doing, to try to keep his language, but it may well come down to whether a weakened amendment comes out of the final reconciliation and then McCain decides, you know, he doesn't want to support that.

CONAN: And the administration has yet to decide, or finally, I guess, that if a defense appropriations bill emerged with this amendment in it, they've threatened to veto it.

Mr. HIRSH: That threat is still out there. They haven't taken it back, as far as I understand. There are, you know, somewhat changed circumstances now politically since they first made that threat over the summer. I mean, obviously Bush is weaker in the polls. There are a lot of issues about, you know, the future of the administration. So it's not clear. I have not been able to get a clear answer, quite frankly, whether that veto threat is still out there.

CONAN: We obviously want to hear viewpoints on this controversy, about the question of interrogation in time of war. If you'd like to join the conversation, our number is (800) 989-8255. And the e-mail address is totn@npr.org.

We're also going to invite two other points of view to join us now. General Joseph Hoar, former commander in chief of Central Command, joins us by phone from Delmar in California. Good to have you back on the program, sir.

General JOSEPH HOAR (Former Commander In Chief, Central Command): Thanks very much, Neal.

CONAN: And also with us is John Yoo, a former Justice Department lawyer under President Bush. He's with us from a studio at the University of California at Berkeley, where he's currently a professor of law, and it's nice to talk with you again, Professor Yoo.

Professor JOHN YOO (University of California): Thanks for having me on, Neal.

CONAN: General Hoar, let's start with you. You're among a group of former military officers who signed a letter expressing support for Senator McCain's amendment. Tell us, why do you think this amendment is necessary?

Gen. HOAR: Well, I'd like to say, first of all, that I'm not sure how this started with Senator McCain, but I know it started with me with an organization called Human Rights First. And several of us that had been associated with this wrote a letter to Senator McCain, asking him to consider the possibility that he would support an amendment like this. And so I think it's a terribly important one and one that needs doing, and I think that it should apply to all people in the government, not just the military.

CONAN: Not just the military, including the Central Intelligence Agency, who might be holding, you know, very dangerous suspects.

Gen. HOAR: Well, I don't--well, I think this issue can be discussed at several different levels. One is the obvious one, that we need to protect American fighting men and women who are protected by the Geneva Accords. And if we don't stand by the principles of Geneva, we can't expect anybody else to treat our people that way. But I think on the ground, to have two separate systems, I'm reminded of Gary Schroen's book, "First In," about his experience as the lead CIA operative in Afghanistan and how he was shortly joined thereafter with Special Forces soldiers. I don't see how, on the ground, you can have one set of regulations that apply to uniformed Americans and another that applied to another agency in the government. I think that's a recipe for disaster. So on a practical level, I don't see how it could work.

CONAN: John Yoo, same question to you. Is this provision necessary?

Prof. YOO: I think it's important to clarify what this provision would actually do in changing the law, and I think we understand that it's not that necessary. First, torture legally is already prohibited in Iraq by the Geneva Conventions, and torture is already prohibited by federal law by the war on terrorism. What the amendment does is that it tries to prohibit things short of torture, what the international law calls cruel, inhumane and degrading treatment. Now that's already prohibited in Iraq by the Geneva Convention and military regulations. So the only change that this amendment would cause in policy--but I think it's a very significant and important change--would be to prohibit the use of interrogation methods short of torture against al-Qaeda members in the war on terrorism. Because all the things the amendment tries to do are already prohibited in Iraq and against people who fight, according to the Geneva Conventions.

CONAN: So...

Prof. YOO: I don't think--oh, go ahead.

CONAN: ...you're talking about interrogation techniques that would be beyond those in the Army Field Manual that the amendment cites, but would yet still fall short of what you would define as torture.

Prof. YOO: Yes, exactly.

CONAN: This is a subjective definition?

Prof. YOO: Well, I think it's a hard thing to define. I think a lot of people have different definitions of torture. Whatever those might be, there is a distinction made in international law, in the treaties we've signed, in the Geneva Conventions themselves between torture and things short of torture. So, for example, if people who are supporting the amendment were successful and try to impose a Geneva Convention standard on all questioning by all parts of the government against anyone captured, Iraq or in the war on terrorism, then essentially you're limited to questioning. You can't even use plea bargains. That's actually prohibited by the Geneva Conventions, to say, `If you cooperate with you, we'll give you better conditions to live under. We'll cut short any sentence you might have before some military tribunal or something like that.'

CONAN: We're going to continue this conversation after a short break and take your calls. Would you favor a bill to ban torture of all detainees under all circumstances? Do you think the CIA should be exempted? (800) 989-8255, (800) 989-TALK. Our e-mail address is totn@npr.org.

This is TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

We're discussing a proposed Senate amendment that would ban torture of any prisoner in US custody. The Bush administration reportedly wants an exemption to allow the CIA to aggressively interrogate al-Qaeda suspects outside of the United States. Our guests are Michael Hirsh, a senior editor for Newsweek magazine; General Joseph Hoar, former commander in chief of US Central Command; and John Yoo, professor of law at the University of California at Berkeley, a former lawyer at the Justice Department. And, of course, you're invited to join us, (800) 989-8255, (800) 989-TALK. And our e-mail address is totn@npr.org.

And before we go to the phones, Michael Hirsh, I did want to ask you, John Yoo was talking about definitions of torture. The amendment talks about the Army Field Man--is there any accepted definition of what is unacceptable?

Mr. HIRSH: No. And that's precisely the problem here that we've been trying to address since the Abu Ghraib scandal broke and that McCain's legislation is trying to address. I mean, an instructive story here is the one told by Captain Ian Fishback, the 82nd Airborne officer who came forward in recent weeks and said he tried for 17 months when he was in Iraq and afterwards to determine what standards of interrogation could be used. He never got a clear answer. Alberto Gonzales, the attorney general of the United States, could not give a clear answer during his own confirmation hearings about what standards of abuse, you know, would be disallowed. You know, this is the key problem, and in the absence of that definition, what you've had is a lot of abuses that were permitted to occur, if only by default. And I think McCain is outraged by this. He's a former POW. You know, he was subjected to torture himself, and he's saying this is not something as a country we should sanction. And so the point of this legislation is to redress this complete inability on the part of the administration, as many critics see it, to define during these recent years what they would allow inside the interrogation room.

CONAN: General Hoar, let me ask you. The abuses that we saw at Abu Ghraib--this was primarily, not entirely, but primarily a US Army facility at that time. Those would have been barred under the Geneva Conventions, as John Yoo was talking about, from--by--US Army officials would have been restricted to the Field Manual or should have been.

Gen. HOAR: Yes. Absolutely. And I think the issue at Abu Ghraib is very instructive here. We talk about the global war on terror, but it probably ought to be the global war on ideas. Within the Muslim world, you have a percentage at one end of the spectrum that's educated in Europe or the United States and has one foot in each culture. At the other end, you have the jihadis, the ones that want us out of the Middle East and want us to lose some of our global power. But for the large number of Muslims throughout the world, they're interested in the same sort of things that Americans are...

CONAN: Yeah.

Gen. HOAR: ...their family, their health, getting along, making sure that their children get a good education. And these are the people that are outraged when they see something like the pictures that come out of Abu Ghraib. We lose people. We lose their support. We cause, in some cases, undecided people to think that al-Qaeda makes a better case than the case for democracy and for open society and so forth. And so when we have these kinds of discussions, and this sort of thing is beamed all over the world that it's going to be OK for some people in the government to use these techniques, which are outside the Geneva Convention, we lose the support of people.

We have populations like Jordan today--King Abdullah of Jordan could not be more helpful in our efforts in the Middle East. And yet, only 5 percent of the population of Jordan have a favorable view of the United States. And this is directly associated with the kinds of things like Abu Ghraib that keep popping up on Al-Jazeera and Al-Arabiyah and other Arab language networks.

CONAN: Probably fair to point out that Jordan is not exactly pure as the driven snow on the question of torture either, but that's of its own citizens at least. John Yoo, let me ask you, what about the double standard argument that General Hoar makes, how it's impossible to have one set of rules for one group of American forces and another set of rules for another?

Prof. YOO: I think that's a good point. First, let me also say that Abu Ghraib was illegal under the Geneva Conventions and under the law as it is now. But shouldn't there be a second standard? And let me try to give it some concrete weight. The United States in 2002, according to press reports, captured Abu Zubaydah, the number three guy in al-Qaeda, the guy who was in charge of operational plans, the guy who planned the 9/11 attacks. As I understand the McCain amendment, he should be treated exactly the same as a POW, despite the fact that he's not legally covered by the Geneva Conventions and he has information, which is the only way we're going to stop future 9/11 attacks.

So is it really the case that supporters of the McCain amendment believe that we are limited to shouted questions or perhaps mind games, you know, good cop-bad cop, the kind of things in the military interrogation manual, when we question someone like Abu Zubaydah, who has in his head plans about attacking the United States in the future. I think you do need to have two different standards because we're fighting two different separates kinds of wars with two different enemies, and one of them--unfortunately, the ones who carried out the 9/11 attacks--do not operate according to the Geneva Conventions. They do not follow any laws of war, do not take prisoners and target civilians intentionally to kill them, all violations of the laws of war.

CONAN: Let's get listeners involved in the conversation. Again, it's (800) 989-8255. And we'll turn first to James. James calling us from Jacksonville in Florida.

JAMES (Caller): Good afternoon, Neal, General, gentlemen. General, sir, actually, there's something that I want to point out that sort of tacks on to your comment. I'm in the Navy. I'm an operator. I'm a naval aviator. And I'm way out of the game when it comes to policy. But as far as implication, one of the things that was brought up during SERE school, which for those listeners that don't know, it's Survival, Evasion, Resistance and Escape school, was that due to Abu Ghraib and the other things that have happened during the Iraq War and the perception that the Arab world has had that the United States no longer enjoys the sort of high road, if you will, as far as the Geneva Convention status is concerned for its operators. So one of the things that was brought up was that we may be, as operators, more subject to transgressions against the Geneva Convention than perhaps in the past because, in essence, the United States had lowered itself to its standards; whether legally or legally is not the question. The fact of the matter is that it happened. And I just thought maybe that was a perception that--or a perspective that hadn't been offered. It may have been brought up, but from an operator level, it maybe hadn't been offered yet.

CONAN: And, John Yoo, that is another argument against the--having something that goes beyond the Geneva Convention.

Prof. YOO: You know, I agree, and I think that's a hard policy question, is what you should do as a matter of policy? But I do think, one, at least in the war on terrorism, do we really believe that even if we gave Geneva Convention protections to members of al-Qaeda, that they would treat our men and women in the field who were putting their lives on the line to the same level of treatment? As far as we can tell, they don't even take prisoners. So I think the harder question is what about the next war? Is it really the case that if we don't follow the Geneva Conventions vs. al-Qaeda, you know, a nation that never signed them, will the next war--say, it was against China or Russia or somebody--would they mistreat our POWs because of what we did to someone else in a different conflict? That might be true. It might not--also may not be true. And I think that's a hard question, but I think it's not something people can say with certainty, as some people do, that that's going to happen.

CONAN: General Hoar, I know this is one of your central points.

Gen. HOAR: Yes. I think at the heart of it, for anybody that's had any extensive service, our concern is always the men and women in uniform, and I suspect that this is one of the arguments that Senator McCain made, having been subjected to years of torture. But I think the point that I thought was most telling with respect to Senator McCain, said that, `This isn't about al-Qaeda. It's about us, who we are as Americans and what are our standards?' And I think that's terribly important. And the young man that called from Jacksonville, Florida, has a very good point. Legal or illegal, Abu Ghraib existed, and it certainly has poisoned the well with respect to how people in the Muslim world view the United States.

CONAN: A...

JAMES: And just in the larger international world as well, it's a whole lot harder to exert international pressure when you no longer have the righteous man or the high road. That was my only point, sir.

CONAN: James, thanks very much for the call and good luck to you.

JAMES: Thank you, Neal. Thank you, sir.

CONAN: Appreciate it. Let's talk now with Ramsey(ph). Ramsey calling us from Portland, Oregon.

RAMSEY (Caller): Yes. Can you hear me?

CONAN: Yes, you're on the air. Go ahead.

RAMSEY: OK. I was an interrogator in Vietnam. In fact, I was a military intelligence section chief for an interrogation section in Vietnam. And I have a lot to say about this. Can you hear me still?

CONAN: Yes, you're still on the air.

RAMSEY: Good. One, torture is never appropriate, ever. It doesn't produce (technical difficulties) intelligence. The best intelligence we ever got were volunteered by people that were, you know, changing political views and things like that. And the second point I'd like to make is the CIA should never be given free rein in the affairs of our country. I'm not going to go into specifics, but I can tell you that they (technical difficulties).

CONAN: I'm sorry, Ramsey, could you say that again? Your phone's breaking up.

RAMSEY: The CIA should never have free rein--Can you hear me?

CONAN: We're having difficulty.

RAMSEY: (Technical difficulties) stand outside here. Can you hear me now?

CONAN: Sounds a little better. Try it again.

RAMSEY: OK. The CIA should never be given free rein in these situations or be absolved from any kind of sanctions that we put on them, because I saw them in action in Vietnam, and they're not to be trusted.

CONAN: Michael Hirsh, let me ask you, to begin with, there have been a lot of discussion, a lot of studies--is torture effective in terms of extracting information?

Mr. HIRSH: No. I would agree with the caller. I mean, most experts who have studied this say that it's not. Essentially, when you torture someone, you corrupt the subject, as they put it. He'll say anything, truths or untruths, you know, to be relieved of the torture. Generally, psychological techniques, you know, however rough they might be, are considered far more effective. So I do think there's a legitimate argument to be made that even when you're dealing with a Khalid Sheik Mohammeds and the Abu Zubaydahs, the real bad guys, that you don't get very far with physical abuse.

CONAN: And, John Yoo--again, you're talking about aggressive interrogation that falls short of torture but beyond the Army Field Manual. But does physical abuse fall into that?

Prof. YOO: I don't think so. I think physical abuse that many people would consider to be torture would not count. But let me give some proposals or things that I don't think people think they're torture but are coercive, could be coercive, like what we put recruits through, through basic training, or what James, the previous caller, called SEAR training, which is, you know, training pilots to resist interrogation. I don't think we feel our armed forces are torturing our basic training recruits or torturing our pilots, but they're certainly put through training that calls on people to do more than just being subject to questions. And so I think the problem is there do we feel comfortable enough to totally take all those options off the table permanently in a war which is quite different than--and I quite agree with the general, it is quite a different war. It might even be a war on ideas, but it's also a war we're having difficulty fighting. And shouldn't it be the case that we should consider all these options first before we just sort of pull them all off the table in this kind of war on terrorism?

CONAN: Ramsey, thanks very much for the call. We appreciate it.

RAMSEY: Well, thank you. I appreciate it.

CONAN: And we're talking about interrogation and torture. You're listening to TALK OF THE NATION from NPR News.

Let's get another caller on the line, Itzak(ph). Itzak's calling us from Philadelphia.

ITZAK (Caller): Hi. I wanted to direct my comments to Professor Yoo. First, he speaks about Abu Zubaydah. We don't have, from a legal perspective at least that I know of, any proof that Abu Zubaydah did whatever he's supposed to have done. That's the first thing. All the suspects that are being caught, they have never been proven to be guilty of any crime. And I was in the Israeli army, I know the tactics that Israel used to use, most of them--torture was found to be the stupidest thing to use. As your previous guest just said, it doesn't work.

And also with regard to Professor Yoo's description of basic training and the SEAR training, that's voluntary. You can't compare the two. And even in a war, you still have to have proof. Even when you're on the ground as a soldier, you need to have proof that somebody's in a position before you just start shooting.

CONAN: Mm-hmm.

ITZAK: And especially when legal issues come and people's rights, their basic human rights--unless we prove them guilty, they're not.

CONAN: Itzak's point--I think he's talking about due process here, Professor Yoo.

Prof. YOO: Yeah, this is something we talked about on your show before.

CONAN: Yes.

Prof. YOO: I think there's just a fundamental confusion between crime and war. In war, we take prisoners. And whether the Geneva Conventions or not apply, you don't have to prove to a court or prove to some other decision-maker any kind of crime or some kind of legal proof that we think of when we think of the domestic criminal justice system, 'cause the purpose of detention is not to punish them; it is to hold them so they cannot fight again in the future. So World War II captured millions of German, Italian prisoners of war, didn't have hearings before judges. We didn't have to prove to some level of legal proof that we think of in the criminal justice system, that they are "guilty," quote, unquote, of something in detention.

CONAN: Well, they were in German or Japanese uniforms, so we knew they were on the other side.

Prof. YOO: Yeah, I mean--I say it's easier to tell in normal wars who is a member of the enemy, but that doesn't mean you can't detain members of the enemy and it doesn't mean you have to import this whole legal system and its concept of due process, which has been primarily developed for domestic affairs. So I think this just shows that there's come confusion or it's an effort to bring in criminal justice standards into wartime, which has its own rules, but they're just very different.

CONAN: Michael Hirsh.

Mr. HIRSH: Well, I just think that, you know--John Yoo keeps talking about confusion, but it really goes, you know, right back to, you know, his own desk when he was, you know, with the Justice Department helping to draft these memos that gave unlimited power to the executive branch and really left open this whole definition of torture and abuse. It has not been defined. It has not been clarified. This is a legislative attempt to rectify the errors that you and other lawyers left out there. And so it's a consummate irony to hear him talking about how much confusion there is. Of course, there's confusion; it's been one of the legacies of this administration.

I will just say also that the CIA, to defend it for a moment, did try to get some legal guidance on what to do with many of these detainees because they were, you know, confused. What do you do? If you're not going to try them, do we release them? There still is no disposition for many of these detainees because of the failure of the legal experts in the administration to clarify this matter.

CONAN: And, John You, we're running out of time in this segment. We'll give you a chance to reply to that when we come back from a short break.

We're talking about a proposed amendment that would bar the use of torture by US forces under all and any circumstances. I'm Neal Conan. If you'd like to join the conversation, it's (800) 989-8255; (800) 989-TALK. Our e-mail address is totn@npr.org at npr.org.

When we come back from the break, we also expect that Senator Barack Obama, the junior Democrat from Illinois, will be joining us. So if you'd like to join him in the conversation, that same number and that same e-mail address apply.

Back after the break. It's TALK OF THE NATION from NPR News.

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CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

We want to wrap up our conversation on interrogation, torture in the McCain amendment, which is pending before a House-Senate conference. It may get held up. Our guests are: Michael Hirsh of Newsweek magazine; General Joseph Hoar, former commander in chief of the United States Central Command, retired general; and John Yoo, professor of law at the University of California at Berkeley.

Before the break, Michael Hirsh of Newsweek, John Yoo, was talking about a legacy of confusion that he says you and other lawyers left behind at the Justice Department.

Prof. YOO: Yeah, I appreciate the chance to respond to those remarks, which are supposed to be coming from someone who's supposed to be a neutral observer in all this, and it's striking what he said to me. One, there's no confusion that this is a war. What I saying is that the caller, Itzak, I think, was confusing war and criminal models. I don't think there's any confusion in the administration this is a war. I don't think there's any confusion that torture is illegal. I don't think there's any confusion that the Geneva Conventions apply in the war in Iraq, and they prohibit torture and things--most things, short of torture.

I think it's also clear legally the Geneva Conventions do not apply to the war against al-Qaeda. And if you have a legal reason why they do, I would be curious to hear what it is. I think it is a hard question, though, what you can do or should do short of torture, coercive interrogation, more than asking questions.

And the last thing I'm confused about is I still have not heard what people think we should do when we capture Abu Zubaydah, Khalid Sheik Mohammed or Ramzi bin al-Shibh, the planners of the 9/11 attacks. And I'm not talking about torturing them, but I'm saying: Can we do anything short that goes beyond questioning? And is it really the case that the supporters of the McCain amendments or the people who are supposed to be the objective journalists here think we are limited only to asking them questions. I think it's incumbent on the critics at least to explain what they would do in that kind of very difficult circumstance. It's not a hypothetical anymore. Unfortunately, that's the kind of decisions our president and the Cabinet members have to face because of the 9/11 attacks.

CONAN: General Hoar, a supporter of the amendment, what would you do?

Gen. HOAR: Well, I think that the problem, first of all, is always timeliness. And this is the problem that the French faced in Algeria and which is what drove them to terrorism as a matter of policy. I think that if you don't have to deal with the issue of what's going to happen in the next hour or two hours of a person that you've taken captive that may have immediate intelligence information about some impending terrorist attack, it clearly means that it takes an extensive period of time in which the interrogation can go forward until information is provided.

CONAN: But in that other circumstance, the so-called ticking bomb scenario, you would say methods beyond the Army Field Manual would be called for?

Gen. HOAR: I don't think you can. I think that's a slippery slope, and I think it goes to the heart of who we are and what it is we stand for. And the French found this over time in Algeria, that it corrupted their army and it took the president of France, who happened to have been a retired military officer, de Gaulle, to say, `We have to stop this,' and he faced a revolt from the army as a result of this. This business of using these extralegal means has a corrosive effect on everybody that it touches.

CONAN: Principle vs. pragmatism, Michael Hirsh. Is that what we're talking about here?

Mr. HIRSH: Yeah, and a correct balance between the two. I mean, first, I would just say that the Army Field Manual does allow some very touch questioning techniques. McCain is not proposing that these be eliminated; in fact, he's leaving that open to be negotiated. All he wants is clarity stated in the Army Field Manual so that there's a common standard of behavior for all soldiers.

And I would just say, you know, partly in response to Mr. Yoo, one of the things we've heard, those of us who've been to Iraq who've reported on this intensively, is that there is no clarity on who is a bad guy, who is al-Qaeda and who is not. And Mr. Yoo has tried to maintain that there's, you know, a clear, bright distinction between those covered by Geneva and those not, including al-Qaeda. But in Iraq, the very problem that Captain Fishback and others have talked about is that everyone is treated in the same way. So you've had a migration of these techniques that began as attempts to deal with a select few, like Abu Zubaydah...

CONAN: Well, the corruption that General Hoar is talking about...

Mr. HIRSH: Right, right. Corruption.

CONAN: ...but Professor Yoo would say that that is illegal under the Geneva Conventions.

Prof. YOO: Yes.

Mr. HIRSH: But the administration has never clarified what the status is of many of these non-uniformed combatants, which is mostly what we're dealing with now in Iraq, you know, `persons under control,' as the Army called them, very often. Many of them were abused because there was simply no clarity about Geneva or no. And there still isn't, as Captain Fishback has said.

CONAN: All right. I'm afraid we're going to have to leave it there. We could go on all day. Michael Hirsh, thanks very much, senior editor at Newsweek magazine.

John Yoo, professor of law at the University of California at Berkeley, thank you again for joining us today.

Prof. YOO: Thank you.

CONAN: And, General Joseph Hoar, a retired former commander in chief of the United States Central Command, joined us by phone from his home in Del Mar, California.

Thank you, as well.

Gen. HOAR: Thank you.

CONAN: And when we come back, Senator Barack Obama.

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