The Law of War in the War on Terrorism: A Council on Foreign Relations Debate

JEFFREY TOOBIN: Welcome to the Council. My name is Jeff Toobin. I am moderating today. This session is on the record, and it is also being broadcast live on the Council's website.

Let me explain a little bit about the format today. It's a little more formal than usual. Oh, first of all, more importantly, could everyone please turn off all their cell phones and electronic devices? Musical accompaniment? Today is actually a debate. The format is going to be—Ken is going to go first with an eight-minute opening statement, then John will give an eight-minute opening statement, five minutes for rebuttals; then the three of us will talk about the subject for a while and then open it up to your questions.

Our subject today is "The Law of War in the War on Terrorism," and you have extensive introductions of our two guests. And I'll just say that John Yoo is a professor at Bolt Hall, Berkeley, the law school at the University of California at Berkeley. And he was one of the principal architects of the legal side of the war on terror during his service in the Justice Department following 9/11. And Ken Roth is the executive director of Human Rights Watch. And with that, Ken, you're on.

KENNETH ROTH: OK. Well, it's a pleasure to be here. It seems somewhat odd, and perhaps maybe sad, that we have to be debating today whether our government should be using tools like torture and inhumane treatment in combating terrorism, but that's the reality. That's where we are. So let's take the question seriously.

I'd like to begin just by describing what I think this debate is not about. It is not about whether the United States faces a serious terrorist threat, a serious threat to its security. It obviously does in the form of al Qaeda, an organization that is bent on doing as much destruction as possible to the American people. It's also not about whether we should try to prevent terrorism as opposed to just retrospectively prosecute terrorists. Obviously, our government has a duty to try to protect us and to play a preventive role. What it is about, in my view, is whether, in addressing the serious threat of al Qaeda, our nation should follow the laws and the values underlying those laws that have been built up over the last 60 years in the face of many other security threats.

Our focus, as I mentioned, is interrogation. And let me just begin by describing kind of briefly—I'll give you a brief outline of what the relevant law is in my view. And here the law, frankly, reflects longstanding American values. There are various international treaties that have been adopted—the Geneva Conventions, the Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment, the International Covenant on Civil and Political Rights.

All of these treaties are then codified in U.S. law, and in relevant part they add up to three things: One, you can never torture. That is to say, you can never intentionally inflict extreme or serious harm, whether physical or mental; serious physical or mental injury. Second, you can never engage in what is known legally as cruel, inhuman, or degrading treatment. Now this is a technical term, but for our purposes, I think it's sufficient to say that if the Constitution doesn't allow the police at the local precincts to do something to you, international law doesn't let U.S. forces overseas do the same thing. That's the way the Senate has interpreted that particular provision. So things like stripping people naked, subjecting them to attack dogs, depriving them of sleep for long periods, subjecting them to painful stress positions, none of those can be done. And third rule is there are no exceptions, even in the face of a public emergency threatening the life of the nation.

Now these rules are reflected, among other places, in the field manual that the U.S. Army uses to govern its intelligence interrogations. And these manuals have been developed by professionals who are facing quite severe security threats to their own troops in the field. And what this manual has said is, basically, one, it's illegal to ever use these techniques. Two, they don't work; you're much better off establishing rapport with an interrogatee—tricking him, fooling him, but not beating him up, not putting him in a stress position, not depriving him of lengthy periods of sleep. And finally, they refuse the use of these techniques because it is dangerous for our own troops, in the words of [former Secretary of State] Colin Powell. It undermines the protection for our troops that we depend on should they be captured by enemy forces. Or to put it in the terms of [Democratic Senator] Joseph Biden [of Delaware], we respect the Geneva Conventions because we want to protect my own son should he be in battle.

Now unfortunately, since 9/11, the Bush administration has decided to set this wisdom aside. A fairly small group of political appointees have rejected the advice of Colin Powell, the State Department, the National Security Council, the vast majority of career military officers—indeed, even the Central Intelligence Agency—and instead have put forward a fairly radical theory that the president and his agents are above the law in time of war.

A group of overly clever lawyers have figured out how to circumvent essentially every legal barrier and military tradition that has stood in the way of unfettered presidential latitude. For them, the enemy is not just al Qaeda; the enemy is the law. Despite a long tradition of government under the law, they felt that America was safer with the government unbound by the law. And unfortunately, this was not just an academic exercise at some university. This theory, this radical theory, had dramatic real-world consequences. It has invited the epidemic of abuse that plagues us to this day, and it has proven to be profoundly counterproductive.

The key elements of this radical theory were, first, that the president has so-called "commander-in-chief authority," even to order torture, despite the U.S. constitutional scheme of checks and balances. They found that there is nothing preventing the president from ordering torture or, frankly, any other form of abuse.

Second, these lawyers deliberately confused the fairly narrow rules governing who gets to be a prisoner of war with the much broader forms of protection under the Geneva Conventions and basically said there are no Geneva Convention protections for al Qaeda or Taliban suspects picked up in Afghanistan; essentially ripping up the rulebook as far as military interrogators were concerned, telling them that the decades-old rules in the Army interrogation manual didn't apply.

Third, they took terms that had long-standing meaning and simply reinterpreted. So torture suddenly wasn't torture unless it involved pain equivalent to the loss of a major bodily organ. So, you know, ripping out fingernails, cutting off ears, that's not torture because that doesn't involve the loss of a major bodily organ. Similarly, they took the prohibition on cruel, inhuman, and degrading treatment and they imposed this very odd geographical restriction on it. They said, well, we may not be able to use these methods against Americans—we don't even use them against foreigners in the United States—but foreigners overseas, fair game. In fact, the United States has become the only government in the world that claims the power to use cruel, inhuman, and degrading treatment against a broad range of people—basically, anyone outside of the United States who is not an American.

So our senior officials actually authorized techniques that were blatantly illegal; things like stripping people naked, setting attack dogs to threaten their genitals, putting them in painful stress positions and the like—even water boring, one of the clearest form of torture, which is [inaudible] somebody in water until they think they're going to drown, and then, frankly, they sometimes do. All of these techniques were actually approved by senior authorities despite decades of clear law prohibiting them.

Then, when predictably people died because of these techniques, were they prosecuted? No. There were two deaths in custody in December 2002 which the Army medical examiners themselves found to be homicides. But rather than prosecuting those responsible, they were simply shipped to [the] Abu Ghraib [prision] to continue their methods. And then—surprise, surprise—the methods continued.

Finally, when all of this blew up, rather than authorizing an independent investigation, the Bush administration launched a series of self-investigations, most of which were designed to have military officers look down the chain of command, not up, and operate with the assumption that any order given was, by definition, lawful. What this adds up to is a blatant violation of what [U.S. Supreme Court] Justice [Sandra Day] O'Connor has said should be a dictum governing all of government, and that is the rule that a state of war is not a blank check for the president when it comes to our fundamental rights. Now Americans—

TOOBIN: You have run the red light.

ROTH: OK, let me just wrap up, then.

TOOBIN: OK.

ROTH: Americans are rightly proud that our government is one of law, not of men. I think history has shown that—the wisdom of a government of checks and balances. But the Bush administration has cast these laws and traditions aside and, frankly, for what? It has not made us safer.

Instead, we are stuck with detainees who can't be prosecuted for fear that their torture will be revealed in court. We find that we have undermined the very law on human rights that helps explain what's wrong with terrorism. The U.S. has lost its moral authority to promote human rights in the countries that, because of their authoritarianism, are breeding terrorists. And indeed, we have provided a gift to terrorist recruiters since they are building on the revenge against the United States to fill their ranks with the next round of terrorists. So the bottom line is we have undermined our law, undermined our traditions, and undermined our safety. Frankly, it's time to recognize this folly and change course.

TOOBIN: John.

JOHN CHOON YOO: Can you hear me? Well, I'd like to thank the Council for inviting me to speak. And I have to apologize; I'm not that familiar with the debate format. So I'm going to try more to explain some of the administration's thinking rather than answer all of Ken's points point by point, but I'm sure we'll have enough time to do that.

I do want to say, though—just to make three things clear. First, the administration, as far as I'm aware, never ordered torture. And there have been a lot of commission investigations, and none of them have found any, you know, deliberate words that people engage in torture or engage in the things we see in Abu Ghraib, which I think everybody agrees on are terrible acts. The second thing—and I'll get this more in the substance of my comments—is, I think it's quite clear the Geneva Conventions do not apply to al Qaeda, and I didn't hear Ken actually explain why he thinks they do apply to al Qaeda.

The third thing is, I think much of what Ken said strikes me very much as a conspiracy theory about the Bush administration or smart political people who had some evil plan at the beginning of the administration to use 9/11 to make dramatic changes in the law. And I think that obscures the fact that a lot of what the administration did is long-standing policy of the government, particularly the view that the Geneva Conventions do not apply to terrorists, and that there are very legitimate legal positions on both sides of these questions. And I'm not claiming that I'm absolutely correct on these, but I think there are good arguments on both sides, and that an administration that was confronted with a war has to make a choice about what policies to pursue.

So first let me say, I think a lot of the confusion that arises in the debate about the war on terrorism and the laws of war is fundamentally confusion about whether September 11th itself was an attack and whether we are at war. And I think that's why people sometimes in the media or the public press ask, Why don't captured terrorists have lawyers, why don't they have Miranda warnings [that inform a suspect of his or her legal rights], why aren't they getting trials by jury, why aren't they eventually being sentenced if the United States is going to detain them?

And let me just say, that is fundamentally a criminal-justice system thinking about terrorism, and that is the approach that we used as a government—a government run by presidents of both parties—brought to terrorism up through—till September 10th. And I think that that policy, while it had some successes, in the long run in the aggregate failed. And what September 11th caused the administration to do is to think about the war against al Qaeda as fundamentally a war, a military conflict.

And just to explain—quickly explain why I think that, or why in the administration thinks that, is the only difference, I think, between September 11th [and] a real war would be the identity of the enemy. So substitute the Soviet Union in the place of the al Qaeda terrorist network and suppose they had carried out the September 11th attacks in exactly the same way. Would we have any doubt that we would have been at war with the Soviet Union? And so why should the fact that the al Qaeda terrorist network changed—carried out the 9/11 attacks change the legal system that we should apply to the war on terrorism?

And certainly, we can discuss more—in more detail whether people think it is really a time of war. But accepting it's a war, that doesn't mean that there is one frame—and I think that's where I really do disagree with Ken—that there is one framework that must be applied to the war on terrorism, to the status of terrorists who are caught and captured in the war on terrorism.

I think there is a universe of enemy combatants that we fight in the war on terrorism. Some of them are prisoners of war under the Geneva Conventions because they fight on behalf of nation-states that have signed the Geneva Conventions and they obey the laws of war. Unfortunately, there is a group of other combatants who are illegal or unlawful combatants like al Qaeda, who does not fight on behalf of a nation-state that has signed the Geneva Conventions; the Geneva Conventions are a treaty, and they apply [it] between the states that have signed them. Furthermore, al Qaeda violates all the standards of the laws of war in the way they fight: they disguise themselves as civilians, they launch surprise attacks deliberately on civilians, they are not aiming at military targets alone. They are trying to blur the line between civilians and combatants, which is the very point of the laws of war.

So if you accept that they are illegal combatants—and this has been a consistent American position since at least 1977 because there was a gap identified in the Geneva Conventions, and countries and the ICRC [International Committee of the Red Cross] got together and drafted a new treaty called the protocol, First Protocol to the Geneva Conventions, in [inaudible] to extend prisoner of war treatment to terrorists and people who fought on behalf of resistance groups. And President Reagan, on behalf of the United States, refused to submit the treaty to the Senate in 1987, so the United States did not agree to that treaty. And the core reason, public explanation for that, was because the United States did not believe that terrorists should be given prisoner of war treatment.

And that makes an important difference, and it didn't have to do with interrogation. I think the primary question that arose for the government involving the Geneva question was, How do you detain terrorists? The Geneva Convention requires that terrorists—I mean, I'm sorry, that POWs [prisoners of war] be housed in open barracks. And I think for very good reasons, the military wanted to know whether they could be detained in individualized cells. Given that many individual terrorists wanted to continue fighting, wanted to kill other terrorists or their guards, they could not safely be held in barracks. And that's what prompted the question of whether the Geneva Convention applied or not.

But whether the Geneva Convention applies or not, there is an important difference in terms of interrogation, and let me turn to that now. The Geneva Conventions place very strict restrictions on the way the detainees can be interrogated, and those Geneva Conventions do apply in Iraq. They do not apply, as I said, to the war against al Qaeda. And the Geneva Conventions require that no person receive any favorable or disfavorable treatment based upon the way they choose to answer or not answer questions.

This is a much higher standard than the standard that even applies in our criminal justice system. So if you think about it, you could not, for example, offer plea bargains to people who cooperated with the government. You could not offer going to a less secure and more minimum security type facility in exchange for cooperation. And in fact, it's quite the case that it also permits policy-makers to make a judgment about interrogation methods that go beyond simple questioning.

No one is saying that the administration ordered torture. Well, maybe some people are. I don't think the administration ordered torture. I never saw that happen, and the administration has publicly said it did not. But I think what the administration wanted to know is, what is torture, for purposes of figuring out what you're not allowed to do. Because once the Geneva Conventions do not apply, there is a policy space for more coercive methods, which might be a lot less than what Ken is talking about.

Suppose one were to use methods that would be akin to what our soldiers go through in basic training. All right, would that be torture? I don't think that would be torture. It would certainly be beyond what the Geneva Convention standard is. And I think we ought to have a discussion and a debate about whether those methods actually work or are productive, because I don't know. I mean, Ken seems to know. I don't know whether those methods are effective or not. I don't know whether the administration or military intelligence agencies have gotten useful actionable intelligence, but there are things to balance there. On the one hand, in this kind of war, where the enemy doesn't have regular armed forces, it doesn't have population, it doesn't have cities, doesn't have territory, intelligence gained form captured terrorists is probably the best, if not the only, way to stop future terrorist attacks on the United States. And I think the administration needs to balance that against some of the costs that would arise from or through coercive interrogations, many of which Ken identified.

I'm not confident, and I don't feel as a lawyer that it's my—that I have any special expertise in telling policy-makers or you all which way the government ought to balance those factors, but those are the factors that have to be balanced. And I think it is—I don't think it is the case that the law compels a certain result. I think the law allows us—allows our congressmen and allows our representatives—to make that choice and to make that balance, but it doesn't already decide it for us. That's—that's—

TOOBIN: Oh, OK.

YOO: I'm going stay within the time. [Laughter]

TOOBIN: OK. Ken, are you ready to go?

ROTH: Yes. Frankly, John's argument is a good illustration of the problem because what John has just done is made an argument for why al Qaeda detainees should not be considered prisoners or war, and then he has jumped from that argument to the claim that therefore the Geneva Conventions don't apply. Those are two completely different things.

Let's posit that the al Qaeda detainees are not prisoners of war. Certainly Human Rights Watch takes that position. Still, the Geneva Conventions, by their very terms, apply to any combatants or, frankly, others as well, who are picked up in the territory of the state where the conflict is taking place. And for these purposes, we're talking about Afghanistan. So anyone picked up in Afghanistan in the context of a war is, by definition, subject to the protections of the Geneva Conventions. [Inaudible] not the heightened special protections of the prisoner of war that John just described. So the rule that you—you know, you can't have any adverse consequence to somebody who doesn't answer the question, that's a prisoner of war rule. That doesn't apply. But the other Geneva Convention rules do apply. And what are those rules? You can't torture. You can't subject them to cruel, inhuman, or degrading treatment—just the things that were done.

That's why this matters. That's why the deliberate effort to pretend that the Geneva Conventions are nothing more than the prisoner of war rules is so, so deeply dangerous.

Now let's for a moment there say—let's assume that John is right. Let's throw the Geneva Conventions out the window. Let's rip them up the way [Defense Secretary Donald] Rumsfeld did at [the U.S.] Guantanamo [Bay detention center]. Does that still mean you can use torture and inhumane treatment? No, because the other law that John didn't talk about at all is human rights law. And there are separate treaties—the Convention Against Torture that I mentioned, the International Covenant on Civil and Political Rights—that say that—forget the war; even if there is no war, even if there are no Geneva Conventions, you still can't torture and you still can't use cruel, inhuman, or degrading treatment.

And indeed, what's striking about the torture memos, when you read them, is they completely ignore this separate body of law, this body of law that has been implemented by the U.S. Senate. And they make clear that these prohibitions are absolute, unexceptional prohibitions.

Now why does this matter? First of all, you know, John raised the pragmatism question. Do we know whether this kind of torture works or not? Well, I'm not an expert on this, but I rely on the experts in the U.S. military who drafted the Army interrogation manual who said that they don't work, that their tradition even in the face of acute security threats are that you don't use these kinds of techniques because somebody being tortured is going to say whatever he thinks is going to stop the torture. He's not going to provide reliable information.

But more to the point, this has been a disaster for the protection of American troops. Nobody believes that al Qaeda is going to offer us any reciprocity. Obviously, if al Qaeda gets their hands on any American, you know, you've got to feel very badly for that American. But you can't ignore the rules in this war and then hope to count on them in the next war. And who knows what the next war is going to be? U.S. versus Iran, U.S. versus China over Taiwan—I mean, there are lots of possibilities. I can assure you, there will come a time when there will be a war and the adversary will be a government that Washington will want to invoke the Geneva Conventions with to try to protect our service members. And what that government can say—they can say, "What are you talking about? What Geneva Conventions? Weren't those thrown out by the Bush administration in its dealings with the Taliban and al Qaeda?" You can't ignore rules and then hope to have those rules protect you down the road.

So this has been a disaster for American service people, it's been a disaster for American standing in the world and, frankly, it's been a disaster for our efforts [to] convince the world that they should be embracing a human rights approach to the problems of the world rather than the antithesis: the approach of terrorism.

YOO: Let me just make three quick points. The human rights community—and I think Ken has ably stated it—has views that the Geneva Conventions apply to everything. So he's quite right, and I don't mean to mischaracterize his argument. So the Geneva Convention III, which applies to POWs, if that doesn't apply to someone, the Geneva Conventions still apply. That would be Geneva Convention IV, which applies to civilians. So under this approach, if I have it right, al Qaeda terrorists, since they are not POWs because they don't fight on behalf of a nation-state that signed the Geneva Conventions, are civilians, and so would have to be tried in the criminal justice system, which is the approach we used through—till September 10th.

I don't think that's what the Geneva Conventions require. I think that before the Geneva Conventions, there was this category known as illegal combatants, which had been recognized by the Supreme Court. And I think after the Geneva Conventions, which do not explicitly discuss illegal combatants, that category continues. The only thing that makes a difference is that, on September 11th, we confronted a class of illegal combatants that for the first time was able to wage violence on the scale that only used to be in the hands of nation-states. And I think, again, it's very important that the United States did not sign the First Protocol, which embodies this understanding. The United States objected to this idea that if you're not a POW you're either going to be a POW or a civilian. The United States did object to this idea and this theory.

Two, Ken is quite right. There are international treaties. There is human rights law. But I think it's also important to keep in mind how exactly the United States decided to adhere to that law. So the United States did sign a torture convention, but when the Congress decided to implement that convention, it only passed a criminal statute forbidding torture outside the United States. It did not pass any law that prohibited cruel, inhumane, or degrading treatment, which is a much broader and much more ambiguous category than torture.

You know, and I think—you know, it's unfortunate that we have to ask these kinds of questions about exactly what do these terms mean. Unfortunately, that's sometimes what lawyers have to do. It would be nice if we lived in a world where—without terrorism, without the 9/11 attacks, we didn't have to ask these questions, but we've had to. And so the Congress never passed a criminal statute implementing this other body of law that Ken's talking about. And so I think that's an important consideration.

The third thing, about whether it works. You know, you could say—I mean, some people think it works. [Director of Central Intelligence] Porter Goss testified before the Intelligence Committee that he thinks coercive interrogation does work and has led to valuable intelligence. I don't know. I mean, I don't have access to why he says that and I don't think Ken does either, but there is a difference of opinion there.

The question about whether it undermines protections for United States troops, I think it's—I think it's good Ken did recognize that, you know, al Qaeda certainly has no interest in applying the Geneva Conventions. All they seem to do is behead the prisoners that they do capture. And I think it's important—you could say, well, it could undermine the protection for U.S. troops in the future. You know, in most major conflicts, United States POWs have not received Geneva Convention treatment, since 1945.

And the question is, if the United States is very clear about the distinctions it's drawing—that it will provide Geneva Convention treatment to regular armed forces who obey the laws of war and obey the Geneva Conventions as in Iraq, and we'll declare the Geneva Conventions apply in those kinds of conflicts, but it will not apply to people who violate the laws of war—that creates an incentive to obey the Geneva Conventions on the part of our enemies. Think about it the other way. If you were a member of al Qaeda, right, and you believe the Geneva Conventions apply to everybody no matter what you do, you have no incentive to obey the laws of war at all.

TOOBIN: Ken, John said something that was actually very similar to something [commander of the Guantanamo detention center Major] General [Geoffrey D.] Miller said to me when I interviewed him down at Guantanamo. He said, "What we do here is work on a system of positive reinforcement." If you cooperate you get better treatment, you get better food. They built an entire new camp, camp four, for the prisoners who were more cooperative. That may be outside the rules for the treatment of prisoners of war. You're not supposed to do that. Was that OK to interrogate in that way?

ROTH: Well, again, you couldn't do that for prisoners of war, you're absolutely right. But that in no sense violates the prohibition of torture or cruel, inhumane, or degrading treatment. And so if you—and I differ with John in that.

He says today either you're a prisoner of war or you're a civilian. That's not, we view the Geneva Conventions because there is a separate provision, Common Article III, of all the Geneva Conventions, which specifically applies to people who are not POWs, who are combatants for irregular or guerrilla forces, and this is something the U.S. has ratified. And so there clearly is this long tradition that people who are combatants who, by the terms of the Geneva Convention, cannot be subjected to torture or cruel, inhuman, or degrading treatment. So, you know, the very technical rules that you can't give any favorable treatment to somebody who is a POW just doesn't apply to these other people, but the rules against torture and inhuman treatment clearly do.

TOOBIN: I guess—and, John, I wanted to ask you—there is a connection drawn between the memos that you and others wrote and a certain loosening of the rules and what happened in Abu Ghraib. Do you completely reject any connection between the two?

YOO: Well, you know, let me say, just if you look at the chronology of it, they're not linked. And the memos about the Geneva Conventions and then the torture convention occur in early 2002, and I think the press—and you and your colleagues have been very effective in getting my former colleagues to leak all this data and information now—but apparently we captured Abu—we captured the top three leaders of al Qaeda, aside from Osama bin Laden and Dr. [Ayman] Zawahiri.

So let's put a face on this. United States captures the number three, four, and five people in al Qaeda, people who structurally are supposed to know all the operational plans of al Qaeda. I'm just trying to answer your question in the context of how this question came up. And they have been trained to resist American interrogation techniques, and I don't think anyone argues that that is not true either. Nothing was working. I think there are press reports that now indicate that there was no information that was coming through normal interrogation techniques from the interrogation of captured al Qaeda personnel. So that's how the question came up. Is there a space under the law to pursue something more coercive than simply asking people questions in a room?

Now Abu Ghraib and the Iraq invasion happened months and months after all of that, and there was no idea at the time in my understanding that the work that was done on terrorist leaders would have any application outside that small group of people. Now there is this kind of narrative that, well, it leached over into Iraq, or there was a culture or atmosphere of abuse that was created. You know, all I can say is that if you look at the different commission reports that have been done on this—and Ken is quite right, there is no independent commission, but there have been commission reports done by people like [former CIA Director James] Schlesinger and [former Defense Secretary Harold] Brown and generals and admirals. There have been a lot of different reviews of what happened, and none of them have found that this atmosphere led to orders and commands that there be these kind of interrogation techniques used in Iraq.

In fact, at the beginning of the Iraq war, the administration was very clear that the Geneva Conventions applied. So the very strict standards you're talking about—no positive or negative treatment in response to questioning—was the rule that was applied under the Geneva Convention. And in fact, what I think you see in the commission reports is that people went beyond their orders or beyond their authorization. That's going to happen whenever you have a large—that's not to excuse it, but I'm just saying, it happens whenever you have a large institution with hundreds of thousands of people over in a place like Iraq where you're under fire and there is a war going on. People sometimes violate the rules.

TOOBIN: So is it fair to blame the policy-makers for what John and others assert is, you know, a few rogue military officers in Abu Ghraib?

ROTH: It absolutely is. This is so much not just an issue of a few bad apples at the bottom of the barrel. And if you look at, you know, why is it that—and it's not simply Abu Ghraib. I mean, I actually think Abu Ghraib is a bit of a diversion because the sexual deprivations there. In fact, who knew—you know, in a sense it's so much beyond the pale that it's difficult to attribute that to higher authorities.

But let's look at, you know, the 28 people who died in U.S. custody interrogation. You know, look at the systematic abuse that have come out of Guantanamo, out of [the jail at the] Bagram [air base] in Afghanistan, out of various detention centers in Iraq, and what you find is that an atmosphere and environment was created at the top. It was created by, you know, this crazy theory that the president has commander-in-chief authority to order torture. It was created by the actual orders from Rumsfeld that flout basic provisions. You know, when he orders that stress positioning can be used, that sleep deprivation can be used, that people can be stripped naked and be subjected to dogs, when he doesn't pursue the homicides in custody that take place, but simply ship the people off to Abu Ghraib. There's been a series of, you know, what appropriately are policy decisions at the top. Yes, indeed, that creates an environment when it is entirely predictable that this kind of abuse will occur.

TOOBIN: Do you want to respond to that or do you feel like you have already?

YOO: I mean, I can. I mean, I've already—

TOOBIN: Sure, go ahead. [Inaudible] It seems that's the kind of thing you should be able to respond to.

YOO: Well, first, I'm glad you agree that the Abu Ghraib—maybe I am going to use this debate format. [Laughter] I am glad you agree that the Abu Ghraib [laughter]--Abu Ghraib, you know, abuses were not the result of any direct orders or authorizations. I really do think that's the case, and I think you think that's the case.

But whether [you] argue these are technical or legal arguments about the commander-in-chief power can override congressional statutes in wartime, which I think is a very legitimate question [and] it's one that's been debated long throughout history. Just to give some examples, President [Abraham] Lincoln, at the beginning of the Civil War, like President [Franklin D.] Roosevelt in the lead-up to World War II, like the Kosovo war, which was the first war waged in violation of the War Powers Resolution [of 1973]. I mean, there's—this is a legitimate debate, whether the commander-in-chief power and Congress, when the powers conflict, which one prevails during wartime, especially when it comes to tactics.

But to say that that argument in those memos, which were highly classified once upon a time, reached down to where somehow it affected what people are doing on the ground and in Guantanamo Bay or Bagram or Abu Ghraib, I think that's just supposition. That's just speculation. And you can—I find this a very hard argument to argue. It's very difficult to argue when people say culture and atmosphere arguments, because you don't have to prove any change of causation. You just say it's an atmospheric thing. And he could be right. I don't think he is, but how can I disprove him? Because it's this abstract, ethereal thing that caused all these people to commit these violations.

I think it is important to look to what Rumsfeld did. So, independently of everything that happened with the al Qaeda operatives that were captured, who did have the plans about attacking the United States—so, independently of that [inaudible] I think, at Abu Ghraib—I'm sorry, at Guantanamo Bay—asks if it's possible to use more coercive interrogation techniques. So he sends up this different, separate independent request up the chain of command, up to Secretary Rumsfeld, who puts together this big working group of all these lawyers and policy-makers in the Defense Department, and they do come up with a list of things.

They all have to be personally authorized by the secretary of defense. I mean, Ken is right; the military does consider that it would be possible to use stress positions, sleep manipulation, and so on. I don't think they authorize [laughter] use of attack dogs, but they all require the personal approval of the secretary of defense in any individual case where they needed to be used. And my understanding is that they were only approved for maybe one or two people. I mean, I think the studies, so far, show that Rumsfeld did not approve the use of these techniques in any systematic or broad way.

I actually think the way the working group and the way the DOD [Department of Defense] handled the matter was actually they way we want our government to work, where there was a very broad study done of all these techniques and, ultimately, the policy-makers said, "This is something we're gonna reserve for very extraordinary circumstances; even if the law permits us to do it, we are not gonna use it broadly. And only when the secretary of defense personally approves it will we do it."

ROTH: But that's my point. In other words, let's say Rumsfeld never actually approved it. But you have a law that says you can never, ever use these techniques, and then the secretary of defense signs off on something that says, "Well, actually, you can use these techniques as long as I say so." That sends a signal. It sends a signal that the rules are no longer applicable. It's the same kind of signal that was sent when they said the Geneva Conventions don't apply, because suddenly this interrogation manual, that had served the Army well for decades, is thrown out the window. You know, you've got the interrogators, who are suddenly un-tethered by the rules of professionalism in which they had been trained. And yes, in that environment, in that stressful environment, it shouldn't be surprising that abuse is not just occasionally happening; abuse is epidemic. I mean, it's just happening in every single major detention facility that we see where terrorist suspects are being held. So, you know, how can you conclude anything but that the senior policy-makers had created an environment in which this kind of abuse has flourished?

YOO: Look, can I say one more thing?

TOOBIN: Please.

YOO: I mean, and these are just—I don't have the report in front of me, but I, unfortunately, think it is the case that abuses happen in every war. I'm not saying this is an excuse, but this is just a fact. And, according to the Schlesinger commission report, the actual rate of reported abuses in this conflict is lower than any previous conflict the United States has fought since 1945. I think it is something that, because of human rights groups and because of human rights law, we are more sensitive [to] and pay more attention to it.

But I also don't think that we can create an environment of zero abuse either, which is what you seem to be calling for. It's just, unfortunately, not possible. We have a military justice system. We have a system to engage an investigation and correction of these abuses, and I think it's working, and it should be allowed to continue to work. But, you know, to make the argument that this all happened because, again, of study—you know, sometimes abstract studies, I hate to say—but, you know, studies that were done at the Justice Department amongst policy-makers, led to [a] more higher rate of abuse then has occurred in previous wars I don't think is true.

TOOBIN: John, before we open it up to questions, let me just change the topic a little bit to Guantanamo itself. Guantanamo was a place for people who were seized in the Afghanistan side of the war on terror, so not in any sort of war-type setting; they were Taliban, there were al Qaeda, at least theoretically. And when I went there, when others went there, people said, "Well, they're going be held until the war is over, the war on terrorism." That sounds like it could be a long time. What should be done with those people?

YOO: You know, I think you have actually asked the most difficult legal policy question in the whole war on terrorism, actually—when the war is over—because a lot of these—it is quite true; a lot of these powers are justified by the fact that we're at war. And if the war on terrorism is a persistent social problem like the war on drugs, then are we facing a world where these extraordinary powers will, you know, come into play permanently?

And I don't think that's the case. I think all these folks do get released legally when the war with al Qaeda is over. I think we are at war with a specific entity, not a social problem. We're not at war with every terrorist group in the world. Terrorism is a tactic; it's not an enemy in and of itself. So, the question is: When do we know we've beaten al Qaeda? And just because it's a long, maybe a long time, doesn't mean that it's impossible. You know, we just—in the United States, we have been fortunate to fight very short wars, but that has not been necessarily the case in other parts of the world.

So the question would be: When do we know that the war with al Qaeda is over sufficient that these individuals would be released back to the custody of their home governments? I mean, one other thing to keep in mind is, when the war is over, that doesn't necessarily mean they all go free. They get returned to their home governments and their home governments can decide whether they want to charge them with some kind of crime and so on.

And so, you know, what do you do with a group that you can't sign a peace treaty with, right? You could say I could sign a peace treaty with Osama bin Laden tomorrow. It's probable that he couldn't get the rest of the members of al Qaeda to obey it. And that, I think, would only arise—I mean, peace would only really arise when sufficient personnel and assets of al Qaeda have been destroyed or captured so that they cannot wage another September 11th-style attack. I mean, that would be the standard I would use. But, you're quite right in asking the question because no court, the government—you know, no official government agency has identified when this point will occur.

TOOBIN: Ken, if I can just ask you a similar question. I mean, what should be done with the people in Guantanamo? I mean, do they all get, you know, public defenders and file writs of habeas corpus and bring them in to the Southern District of New York? Or what's the appropriate thing to do?

ROTH: Well, first of all, to answer that question, you essentially have to divide it into two parts, because it's one answer for the Taliban detainees and another answer for the al Qaeda detainees.

The Taliban detainees were the regular members of the Afghan armed forces, and therefore should have been granted POW status. Now, if you just read the Third Geneva Convention, it says once you are the regular member of the armed forces, you are POWs, period. Now, John and the Bush administration take the view that, no, you're supposed to read in certain other requirements; that, you know, they have [to] bear arms openly and wear uniforms and respect the rules of law. That's not written into the Geneva Conventions. Those are rules governing irregular forces like al Qaeda, which al Qaeda fails. They're not the rules for the regular armed forces. So the Taliban detainees are POWs and they should have already been sent home when the war with the Afghan government is over with, and then it's up to the Afghan government what to do with them.

Now, as for the al Qaeda detainees, they don't qualify for POW status. They haven't been given the hearing that they should have been given to make that determination, but let's leave that aside.

Now what's interesting is the Bush administration then resorts to customary law, saying, under customary law, we can hold these people until the conflict is over with. Now what's interesting is the way they pick and choose among customs. You know, that's one aspect of customary international law. Of course, another aspect that they want to ignore is the part that says you can never torture people and you can never subject them to cruel, inhuman, degrading treatment. That's also part of customary international law, but they don't want to talk about that kind of stuff. So you know, there's a certain selectivity here.

Now, what would be the best thing to do? By far the best thing, in terms of getting rid of this huge PR [public relations] problem that the U.S. has because it looks like it's just arbitrarily detaining people forever—the best thing, by far, would be to prosecute them. Why aren't they being prosecuted? Well, really, for two reasons: One is, it's extremely difficult to show that any prosecution is not based—

TOOBIN: You mean like a criminal prosecution?

ROTH: No, a military prosecution.

TOOBIN: Oh, OK.

ROTH: Here, I differ with John. You don't have to bring them into a civilian court. If they were combatants, even illegal combatants, you can subject them to a court martial. Unfortunately, the Bush administration doesn't want to use the well-respected courts martial of the U.S. government. Instead, it's created this brand-new thing, a military commission, which doesn't have the independence or the authority of courts martial because, you know, to summarize it—we've had a separate session here at the Council on this—but to summarize, the military commissions have Rumsfeld or his surrogates serving as prosecutor, judge, appellate judge, and executioner. And—surprise, surprise—people don't find that procedure fair.

Even if they were put before a full-fledged court martial with full due process, they would still have the problem that you can't prosecute somebody on the basis of their statements or evidence derived from their statements when their statements were secured by torture or inhumane treatment. And the U.S. government has created a huge problem for itself by disregarding these rules on humane treatment. It has essentially rendered these people un-prosecutable, and now it doesn't know what to do with them.

TOOBIN: Can we turn to questions? Now if I could ask you to stand, state your name and affiliation, and speak into the microphone, please.

QUESTIONER: My name is Allan Gerson. I practice international law in

Washington. I wonder if I might ask the participants, especially Ken, to enlarge the debate somewhat: Ken, you stated at the end of your prepared remarks, or your original remarks—you quoted Justice O'Connor, who said that a state of war is not a blank check for our government. Well, if it's not a blank check, what sort of a check is it? And I suppose the preceding question to that is, do you accept that she's correct; that, in fact, there is a state of war against, to be specific, al Qaeda, against those who fought on behalf of al Qaeda, and against those who helped finance al Qaeda?

For example, there are a number of civil suits that are now pending in U.S. courts in New York against the alleged financiers of terrorism, and those suits are being conducted on behalf of the families of the victims of 9/11. And they contend that there is a state of war—because there was a state of war that ordinary civil rights, civil procedural safeguards ought to be denied and to the defendants. The defendants say the opposite. So the question is, is there a state of war and what does it mean?

ROTH: Well, this is a complicated question, and let me answer it in terms of what the consequences are of calling something a war or not. And there are really two relevant consequences here. One is, in a war, you get to shoot to kill the combatants on the other side. You don't even have to try to arrest them. You see them walking down the street, you can kill them. Second, as we've discussed, you can detain them and hold them until the end of the war without a requirement that they be criminally charged or tried. So, those are the real consequences of calling something a war.

Now, there's no question that there is a war against al Qaeda in Afghanistan that continues to this day. And so there, you know, you've got to recognize that [inaudible] of an armed conflict because shooting at each other, you know.

The question is: Should we treat al Qaeda suspects picked up elsewhere, away from a traditional battlefield, as if there is a war going on? And the reason I would be reluctant to do that in any country that has a functioning legal system is because you essentially are creating a gigantic loophole for some of the most basic criminal-justice protections that we all count on in our day-to-day lives. And this is not something that is just, you know, an abstract thing, because we have two people in the United States, [Jose] Padilla and [Ali Saleh Kahlah] al-Marri, who have been thrown in jail, declared enemy combatants unilaterally with no real showing of anything before an independent court initially, and they are being held until the end of the war against terrorism, which may never come.

The same thing could happen to any of us. If you buy this idea of a global war against terrorism, even apart from a traditional battlefield, you could be picked up tomorrow because somebody in the Bush administration has decided to call you an enemy combatant, and that's it. No more rights, no nothing. And, indeed, they don't have to arrest you. They could shoot you on the way home. That's what it means to be an enemy combatant. We should be extremely reluctant to adopt those rules apart from the traditional battlefield.

TOOBIN: John.

YOO: Just to make a small observation, as I think Ken's response to your question shows—I think the failure to come to grips with what al Qaeda is, which is, it is not a nation state. And the way you express yourself about geography, and people you pick up in the battlefield, does not apply to al Qaeda. Al Qaeda does not have territory, populations, or cities. And what September 11th has showed is they don't have regular armed forces, either. They operate by blending into the civilian population and using our open channels of finance and communication against us to launch attacks.

And I think, in that answer, you can see that there's a different kind of framework. And human rights groups are very effective at promoting it, but it's still very much still rooted in the pre-9/11 world, where the war was geographically limited and was between nation-states. And we do have a set of rules that apply and we saw [them] applied in Iraq, but al Qaeda just does not fit that. I think it's problematic—and we could, as a matter of policy—I think it's problematic to try to shoehorn this completely new phenomenon into these old categories.

Let me just make other observation. I don't think it's true that the president can order Americans just to be shot on the street because he thinks you're enemy combatants. You're right; there are two Americans who have been picked up and have been held as enemy combatants. The president personally authorized, right, because within the administration the rules require that the president personally authorize the detention of any American or anyone within the United States as an enemy combatant, and that person gets habeas corpus reviewed. The United States did not challenge that. In fact, it conceded that habeas corpus review would apply so the federal courts can review whether someone properly is detained as an enemy combatant. And lastly, the Supreme Court last summer did say that American citizens who fight on the side of the enemy can be detained as enemy combatants without charge in a criminal case, so long as judicial review allows a habeas corpus petition.

TOOBIN: Let's have some more—

ROTH: If I could just clarify just for a moment. What the Supreme Court ruled on was an American who was picked up in Afghanistan—that's Hamdi [inaudible].

YOO: [Inaudible] administration refused to try to target Osama Bin Laden because it thought it was—it could not do so under the criminal justice rules. So I quite agree. I think what we are doing is opening up all these possibilities because the previous system did not work until September 11—through September 11.

ROTH: Again, if I kind of open my remarks, this is not an issue about whether military force is appropriately used to combat al Qaeda. Of course it's appropriate to use military force. There is no human rights argument against the invasion of Afghanistan. I don't even know anyone who opposed the invasion of Afghanistan. Clearly, military force is appropriate in those circumstances. That doesn't mean, though, that you throw out the rules that are supposed to govern the use of military force. Those are the Geneva Conventions.

But even if you know the Geneva Conventions—again, we're in this business of picking and choosing what customary international law is. Yes, there is customary international law that allows you to kill enemy combatants, it allows you to detain them. It also, if you look at the [inaudible] of foreign-relations law of the United States, customary international law also prevents, even in time of war, the use of torture and inhumane treatment. These are not just policy options that can be considered. There are still legal restraints, both customary, and frankly, treaty, that prohibit these techniques. And to say, "Oh, you know, we'll just, as a matter of policy kind of waive these different options, that's where you end up with the result that we have today where you have the Bush administration saying, "Oh, we'll treat people humanely, so long as it's not militarily a problem."

That basically is blind. And, you know, surprise, surprise, in those circumstances you do get extensive mistreatment, whereas if you didn't pretend this is all a policy option, but if you recognize the legal restraints that exist even in time of war, we would not be facing this epidemic of abuse.

ROTH: Yes, sir.

QUESTIONER: Thank you. Joel Motley [inaudible] Motley. John, Ken cited something fairly specific about the Geneva Convention that meets the level of a prisoner of war, but seemed to comprehend people who were combatants. Now, I don't quite understand the basis for your rejection of that citation. Do you just have a different sight in the law, or do you read it differently?

YOO: Unfortunately, now you're really drawing me into the subtleties of the legal difficult—differences that we have [inaudible].

QUESTIONER: It doesn't seem to me subtle. It's either that or it's not.

YOO: Here's how I would explain it. Before the Geneva Conventions, there had always been this category of unlawful combatants, and the Supreme Court as recently as the 1940s issues a decision that talked about that and recognized that. So the Geneva Conventions, it's actually very similar to the problems we have in interpreting domestic law. So the Geneva Conventions come in, they put in this structure that Ken's talking about. You have POWs, which is Geneva Convention III, you have civilians under Geneva Convention IV, and what Ken's talking about is, I believe, is that there is within Geneva Convention IV, if you are a civilian but you aren't an ambassador, you are conducting hostilities, you can be treated differently than a normal civilian would because you're fighting. So that would be something like the resistance people we've seen in the Saddam fedayeen during the [inaudible] because they didn't seem to be attached to the regular armed forces. They didn't wear uniforms, but they continued to fight. So that would be that part.

The question is: Did the Geneva Conventions, as a legal matter, wipe out this long tradition of illegal combatants that had existed before the Geneva Conventions? The Geneva Conventions in their text don't say anything about it one way or another. So, I think there's a good legal argument under customary international law that that category still exists, and I think that's what motivated the Reagan administration to resist the First Protocol in 1977. Because the first protocol really did make clear that if you were in this other category, you weren't fighting on behalf of a state, you weren't a civilian, but you were in this legal combatant category, you would get POW protection under certain conditions, and the Reagan administration rejected it. And it quite clearly said because it would give protection to terrorists that would treat them similar to people in the armed forces, honorable warriors who obey the laws of war. So, unfortunately that is still the legal argument. I don't know if that's exactly what the administration thinks, but it's certainly what I think.

ROTH: I've got to step in here. I can't just [inaudible]. A few times John has referred to what it is the First Additional Protocol to the Geneva Conventions. This is a 1977 protocol that has been adopted by many governments of the world, but the U.S. rejected it, and the reason it rejected it, is because it didn't want to give prisoner of war status, the Cadillac treatment to rebel forces, irregular forces. Nobody is arguing for Cadillac treatment for al Qaeda. The issue is whether an unprivileged combatant nonetheless gets the protection of the regular Geneva Conventions, the protection against torture and inhumane treatment. And there, there are basically two legal arguments why they should. One is that this fourth Geneva Convention that John refers to, which basically says in its beginning, this is for everybody picked up in the battlefield who isn't a POW. So it's not just for civilians, it's for combatants, unprivileged combatants, as well. They get basically humane treatment. Similarly, there is a section of the Geneva Conventions, article three in each of the four conventions, which basically have to do with conflicts between governments and irregular or rebel groups. By definition, these irregular groups are not POWs because they're not part of the governmental armed force, and that's what [is] often called the convention within the convention. Common Article Three says explicitly no torture, no cruel, inhuman, or degrading treatment. So, forget the Cadillac treatment. No one is arguing POW status for al Qaeda. Still, you get protection from torture and inhumane treatment, and that is this middle ground that you are referring to, that Jonathan, you're just not accepting, is there. It's plainly there in black and white in the Geneva Convention.

YOO: Let me make some things clear. First, there is a non-torture standard. You don't even have to rely on the Geneva Conventions for them, because they come through the Convention Against Torture. And the administration has not said that the Convention Against Torture does not apply to al Qaeda. So, even if the Geneva Conventions apply or not, that's the [inaudible]. I don't agree with your reading of Common Article Three. Common Article Three sets out a standard that is below the POW standard, but it is a certain standard, and the text of it says, "in [a] conflict not of an international character," right? And so the question is [whether] war with al Qaeda [is] a conflict of an international character or not. Clearly, that provision was originally written to deal with civil wars, wars where the government was fighting people within its own territory, were not wars between nation-states, which were covered by Geneva itself. This is, I think, what happened in 9/11. We for the first time confronted an enemy that was not a nation-state, but could wage war at the level of nation-state, and so falls outside of Common Article Three. We could adopt Common Article Three and I think that's what the president did in his January 2002 decision, [which] was basically [to] apply those principles as a matter of policy to the al Qaeda members who were captured. But the Geneva Convention Common Article Three does not by its own text apply to that.

TOOBIN: Yes, sir.

QUESTIONER: Roman Martinez. I'm not a lawyer. This is to Ken. Ken, an al Qaeda operative has just been captured, and hidden there is information that a nuclear device is going to go off in 24 hours in a major American city. Is there a human rights argument to try to do everything to protect hundreds of thousands of lives?

ROTH: What you're stating is the usual ticking-bomb theory, which is [the] sort of scenario that most people would put forward to justify [inaudible] exceptional torture. And there are several problems with trying to base policy on that metaphor. First of all, you never know what that terrorist knows. What you're assuming here is you know he knows where the bomb is going to go off in 24 hours, you never know that. So what you have instead is a bunch of people in this room, and you're looking around and saying, "Who's the terrorist and who might know something," and there's frankly no way to know what's inside people's minds.