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War By Other Means By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, October 24, 2006


Professor John Yoo (UC/Berkeley) has written the most important and convincing book yet about the Bush Administration’s legal response to the attacks of September 11, 2001, and America’s ensuing war against their al Qaeda perpetrators: War by Other Means: An Insider's Account of the War on Terror.

Two factors contributed to Yoo’s accomplishment.

First, his impeccable professional credentials: summa cum laude, Harvard; law review, Yale; law clerk, United States Court of Appeals for the District of Columbia Circuit (Judge Silberman); law clerk, Supreme Court of the United States (Justice Thomas); general counsel, Senate Judiciary Committee; professor of law, Berkeley.

Second, serendipitously, Professor Yoo was in the eye of the hurricane at the Justice Department’s Office of Legal Counsel (DOJ’s “lawyers’ lawyer”) on September 11, 2001.

That a lawyer of Yoo’s ability was exactly where he could do the most good, at the precise moment of what may prove to be our nation’s time of greatest peril, is something for which all Americans should be grateful.

In Professor Yoo’s “insider’s account of the war on terror,” he has given us unarguably cogent proof of the nature of that war, and convincing reasons why the Bush Administration, with considerable input from Yoo himself, responded as it did to the events of September 11, 2001.

Since that time, I and many others have deplored the characterization of our struggle with al Qaeda’s Islamic terrorism as a “war on terrorism” (a phrase Yoo understandably uses, given the context in which he writes).  Our quarrel has been twofold: with the term “terrorism,” because that word describes not enemies who are actors, but rather a certain type of malignant conduct; and with the term “war” because that word has been devalued by exploitative political gimmickry in such failed “wars” as the ones on poverty and drugs.

Worse, the devaluation of the concept “war” has allowed too many Americans—especially liberals, and others opposed to fighting Islamic terrorism—to conflate, or at least to confuse, fighting a shooting war against a shadowy enemy with punishing criminals in courts of law.

If this perilous distinction is not understood—and even now it does not appear to be, as witness the recently enacted Military Commissions Act of 2006, which gives some Bill of Rights protections to enemy combatants held at Guantanamo—our efforts against the Islamic terrorists will inevitably be weakened if not thwarted.  As Yoo writes, “Uncertainty about whether September 11 started a war is at the root of most of the confusion about the United States’ strategy in the war on terrorism.” (My emphasis.)

He could not be more correct.  As the author writes, “[i]f 9/11 did not trigger a war . . . then the United States is limited to fighting al Qaeda with . . . law enforcement and the criminal justice system, with all of their protections and delays.”  On the other hand, “[i]f 9/11 started a war between the United States and al Qaeda, the United States can employ its war powers to kill enemy operatives and their leaders, detain them without trial until the end of the conflict, interrogate them without lawyers or Miranda protections, and try them without civilian juries.”

Now, however, with extensive discussion in Yoo’s new book of the nature of war (Chapter 1 and elsewhere, e.g., Chapter 3 on assassination), there is no longer any excuse to misunderstand the difference between fighting a war and punishing criminals. Nor is there any excuse to ignore what that misunderstanding has already cost us—let alone what it can cost us—to treat Islamic terrorists not as war-fighters, but as criminal defendants.

The two major topics in War by Other Means derive from this fundamental and critical “war-fighters versus criminal defendants” distinction.  One topic is detention (Chapter 6)/trial (Chapter 8).  The other, intelligence gathering (Chapter 2, treatment of captives; Chapter 4, the Patriot Act; Chapter 5, surveillance; Chapter 7, interrogation).

Unfortunately, the Islamic “terrorist-as-criminal” school consists of many lawyers, judges, politicians, and academics, some of whom were ranking members of earlier administrations, especially that of William J. Clinton.  These individuals, together with an abetting mainstream media, mischaracterized al Qaeda bombings of the U.S.S. Cole in Yemeni waters, the American embassies in Kenya and Tanzania, the Khobar Towers in Saudi Arabia, and the World Trade Center in New York City, as criminal acts perpetrated by garden-variety criminals.

Characterized that way, terrorist bombers, like the Mafia, were, and would continue to be, treated as criminals—entitled to probable cause warrants, Miranda warnings, speedy trial by jury, access to government exculpatory and other evidence, compulsory process, presumption of innocence, proof beyond a reasonable doubt, appeals, habeas corpus, and more.

Accordingly, Yoo’s foundational premise is that beyond any doubt (and beyond evasion by those who refuse to accept the inconvenient truth), al Qaeda started a war with the United States, its men and women are war-fighters, and since September 11, 2001, if not sooner, America has been at war with them and they with us.

The al Qaeda terrorist hijackers had conventional military objectives, one target being the Pentagon.  More people died on 9/11 than at Pearl Harbor.  The death and destruction from unprecedented domestic violence was on a scale that only a nation-state could impose.  The attacks, clearly planned as military operations, were executed by a foreign organization, not a domestic one.  Only a forward- looking military response could be fruitful to prevent further attacks, as compared to a law enforcement, criminal law backward-looking approach seeking to punish al Qaeda for past behavior.

As Yoo writes, “On September 18 [2001], Congress enacted an Authorization for Use of Military Force (AUMF)—if not a declaration of war in name, a declaration of war in purpose.”  Indeed, although the Hamdi case ruled that American citizens detained as enemy combatants should have access to lawyers and a fair hearing to determine their status, the Court recognized that the United States was at war.  Even NATO, in its offer to help, recognized that al Qaeda’s attack constituted war.

An interesting corollary of our being at war is what Yoo discusses in his Chapter 3, Assassination—again a policy and activity that must be assessed with the war/criminal justice distinction firmly in mind.

Not surprisingly, when American forces in Iraq killed the Hussein brothers, Uday and Qusay, an Associated Press writer characterized their deaths as a “political assassination.”  Yoo’s correct response: “These criticisms rest on profound misconceptions of the nature of the war on terrorism and the rules of warfare.  Because we are at war with al Qaeda, we can certainly use force to conduct hostilities against the enemy’s leaders.  This does not violate any American law—constitutional, congressional, or presidential—or any ratified treaty.  Killing the enemy is what warfare is about.” (My emphasis.) 

Yoo goes on to explain in detail why it is legitimate to target enemy leaders—indeed, necessary. (I can add from personal experience in Eighth United States Army (Korea) military intelligence, just after the armistice, that we tried to keep track of enemy commanders at army, corps, and division level for a variety of purposes and to serve the needs of various agencies.)

It necessarily follows that if our military can kill the enemy, either wholesale in pitched battles, in small unit actions, or through targeted assassinations, they can be detained.  While no serious person quarrels with that proposition, there has been considerable disagreement about the nature and duration of that detention.

The poster site for that argument has been the United States base at Guantanamo Bay, Cuba.

Yoo’s chapter (6) on Guantanamo, and the status of those detained there, is a thorough explanation of who the detainees are: non-citizen, non-resident aliens, “captured . . . outside the United States, such as al Qaeda and Taliban fighters caught in operations abroad.”

According to the Supreme Court (Justice Clarence Thomas cast the critical fifth vote), these detainees are “enemy combatants.”  As such, they are not covered by the Geneva Conventions (unless we voluntarily elect to treat them so); they are not prisoners of war; they need not be tried by military commissions or in any other forum; and they can be held until cessation of hostilities.  Their only “right” regarding their detainee/enemy combatant status is a bare-bones proceeding in which they can challenge that status.

In this chapter Yoo goes far beyond a discussion of these points, ranging into such areas as the Supreme Court’s unprecedented intrusion into military detention policies, the Court measuring those policies with a constitutional yardstick, and Congress’s partially successful attempt to get the Court out of micromanagement of war.  In the end, Yoo makes it clear that in the detention cases, the Court has made itself a third partner in the management of war, along with the President and Congress—much to the detriment of the core constitutional principle of separation of  powers, and the conduct of the current war in particular.

Because of all the media attention that has been given to the detention issues arising out of the Guantanamo facility, there has been confusion about the relationship of enemy combatants to military commission trials.  Again, enemy combatants (if they can’t show they don’t fit that classification, and so aren’t released) can be held indefinitely.  During that time, they need not be tried for violating the law or war, or anything else.  But they can be.  They can be put before a military commission.

Soon after September 11, 2001, President Bush ordered the creation of those commissions, for which there was overwhelming historical, constitutional, and legal support.  While Yoo’s Chapter 8 deals with this subject, it has been somewhat taken over by events of the past few weeks.

At the end of its 2005-2006 term, the Supreme Court invalidated the President’s military commissions, purportedly because their structure and rules did not comport with those previously enacted by Congress for military trials.  According to Yoo:

What the justices did would have been unthinkable in prior military conflicts: intervening in the military decisions of the President and Congress.  They replaced his wartime judgment and Congress’s support with their own speculation that open trials would not run intelligence risks.  Their decision to impose specific rules and override political judgments about military necessity mistakes war—inherently unpredictable, and where our government must act quickly and sometimes secretly to protect national security—for the familiarity of the criminal justice system. (My emphasis.)

In what I and many others believe was a misguided and politically correct effort to remedy the Court’s evisceration of the President’s military tribunals and placate a vociferous segment of domestic and international opinion, Congress passed and Mr. Bush signed the Military Commissions Act in October 2006.  While it contains far too many aspects of the criminal justice system (http://www.henrymarkholzer.citymax.com/terrorism.html), it is far better than no commissions at all.  Yoo’s Exhibit “A” for the tactic of keeping enemy combatants out of the criminal justice system is the Moussaoui trial—circus is a better word—where the proceedings would have continued for another five years had Moussaoui not eventually pleaded guilty.

Moreover, the mere existence of military commissions to try enemy combatants like Khalid Sheik Mohammed (the 9/11 mastermind), who are charged with violating the laws of war and face a potential death sentence, could well operate as a lever to obtain actionable intelligence.

Yoo makes the point, as have many others, that because the war with al Qaeda is asymmetrical, having no state actor, fixed formations, or clear geographical boundaries (as was the case in World War II, and even Korea and Vietnam), we will be unable to defeat the terrorists in fixed battles, or by occupying their homeland.  We will defeat them, if at all, only by attrition—and to do that we need intelligence: order of battle (where they are, who their leaders are), technical intelligence (what their material resources are), plans and operation (what they’ll do next), and much more.

We can obtain a great deal of this needed intelligence from those we capture.  But apparently not without winning a public relations battle first.

Among the rallying cries of those who would hobble America’s response to the al Qaeda threat, especially in obtaining intelligence, perhaps the loudest and most shrill has been that the United States is violating the Geneva Conventions.  As Yoo proves, nothing could be further from the truth.  It is a legal fact that the Geneva Conventions do not govern our conflict with al Qaeda.  It is a legal fact that its fighters are not entitled to any of the Conventions’ protections.

For one thing, “[t]he Geneva Conventions are treaties that apply only to international armed conflicts between the ‘high contracting parties’ that have signed them.  Al Qaeda is not a nation-state.  It has never signed the Geneva Conventions.”

And for al Qaeda fighters to be entitled to POW status under the Geneva Conventions, even if they did apply, they would have to be a regular military force—that is, obey the laws of war (e.g., not targeting civilians), carry their arms openly, wear identifiable uniforms, and serve under responsible command.  Yoo provides other reasons why the Geneva Conventions do not apply to al Qaeda and why its fighters are not entitled to POW status, all of them conclusive.

Another target of those who seek to undermine, if not eliminate, our response to al Qaeda has been the Patriot Act.  Entire books have been written about the Act, but Yoo’s explanation of it in a single chapter is masterful.  He acknowledges that the Act is “the most vilified and misunderstood piece of legislation to come out of the war on terrorism.” Much of what Yoo writes in this chapter is more technical than the information found in other chapters, but no less important.

Most valuable is Yoo’s discussion of the Foreign Intelligence Surveillance Act (FISA)of 1978, the Foreign Intelligence Surveillance Court (FISC), and their relationship to the Constitution’s Fourth Amendment, and thus to the Patriot Act, in a world that today is technologically far different from the world of 1978 some three decades ago.

In his explanation of how the Patriot Act tore down the wall separating intelligence from law enforcement, Yoo is much too modest about his contribution to ending a practice that, in no small measure, may have been responsible for al Qaeda’s success on September 11th.  (One quibble: It is in this chapter that Yoo observes “The ACLU keeps the government honest . . .” There are those, this reviewer among them, who believe that the ACLU’s agenda is to cripple the United States in its war with Islamic terrorists while wearing the sheep’s clothing of a “civil liberties” organization, which is a characterization Yoo frequently uses for the ACLU and its ilk.)

Although War by Other Means repeatedly delivers on its subtitle, “An Insider’s Account of the War on Terror,” there is no more dramatic example than his reporting of a FISA appeal.  “Along with the Reno [Clinton] Justice Department, the FISC judges supported a barrier between law enforcement and intelligence.  They would not quietly see their handiwork undone.  In the first major test of FISA applications under the Patriot Act, the FISC judges tried to erect an elaborate set of requirements and limitations to replace the Wall [which the Act had eliminated].

So the Justice Department appealed to a special appellate court of three judges appointed by then-Chief Justice William Rehnquist.  Yoo’s storytelling of that appeal—describing the judges (one of whom Yoo had clerked for), solicitor general Ted Olson’s brilliant strategy and three-hour argument, and even the audience—is riveting, as the author exposes the workings of a little known but powerful court. The questions that come before it can profoundly affect the security of the United States and its citizens.

The outcome was what Yoo and his colleagues had sought. According to Yoo,

To stop the threat from terrorism, the court observed,“arresting and prosecuting terrorists, agents of, or spies for a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity.”  The court said that the FISC had no authority to prevent criminal investigators and intelligence agencies from discussing FISA surveillance, and that FISA had not sought to limit the use of foreign intelligence in criminal arrests of foreign spies.  The court also found that the FISC had ignored Congress’s plain intent in passing the Patriot Act to pull down the Wall, which they believed endangered the safety of the country.  “A standard which punishes . . . cooperation,” the judges wrote, “could well be thought dangerous to national security.”

FISA, of course, implicates important Fourth Amendment issues and thus, at its heart, is the issue of search warrants.  However, as we learned not long ago from The New York Times, the Bush Administration has conducted surveillance without warrants.  Despite the hysterical wailing of the ACLU and its media cohort (much of it for effect, as well as to raise money), Yoo proves conclusively that the administration’s wireless surveillance program is constitutional and otherwise legal no matter what yardstick is applied.  Presidential power is rooted in the Constitution’s Article II (chief executive and commander in chief), Congress’s power is rooted in Article I (Authorization for Use of Military Force), and exercised together to engage in warrantless surveillance, these powers are undeniable.

The fact is that FISA is an anachronism in today’s war on terrorism, and its judicial process too cumbersome to respond to the exigencies our military and intelligence agencies confront today.  Indeed, FISA once again reflects the criminal law approach to war—an approach that can cripple our self-defense unless it is eliminated, root and branch, from our thinking and conduct as America fights for its very survival.

While searches and surveillance are two ways to obtain the intelligence that is essential for us to successfully fight the Islamic terrorists, they are not the only ways.  A time-tested, indeed an indispensable method, is through interrogation—a process that has provided a fertile field for America’s critics, and engendered among her leaders soul-searching, deal-making, and unacceptable compromises.

Before getting to what the author has to say about this subject in his Chapter 7, I want to digress slightly about my personal experience in the mid-1950s when I served in Korea.

I had occasion, through interpreters, to interrogate a small number of North Korean soldiers and civilians, as well as Chinese Communist soldiers, although “interrogator” was not my principal MOS (Military Occupational Specialty).

Because the situation on the ground in Korea at that time was static, the armistice having gone into effect slightly less than two years earlier, the North Koreans we held were either military defectors and civilian refugees (perhaps agents) or persons kidnapped north of the DMZ by the South Koreans and others working with them.  The Chinese soldiers were universally defectors.

I mention this because there was no evident unwillingness by the “detainees” to withhold information, even by the civilians who had been kidnapped.  However, it was obvious to me that the South Koreans and Nationalist Chinese with whom we worked would have had no compunction about doing whatever was necessary to obtain information they wanted.

At the time (I was twenty-two), I wondered what I would do under similar circumstances. But I never had to find out.

Now, however, because of the outcry from many well-intentioned people—and many others not so well-intentioned—the issue of “interrogation,” with its subset of questions about torture, has hit all of us squarely in our values.

Essentially, there are three camps.

At one pole, there are those who believe enemy combatants are entitled to the full array of criminal defendant rights, including Miranda warnings, and should not experience coercion or duress.

The opposite pole is occupied by those who are willing to do almost anything necessary (perhaps short of savage torture) to obtain the information they want, no matter the consequences—and not just in the exceptional case of a ticking time bomb.

The middle ground is held by those who, on the one hand, understand the essential need for strategic and tactical intelligence, but on the other have some humane feelings for even enemy combatants.  It is this middle ground that has recently proved so difficult to resolve.  (We’ll put aside “torture,” which, whatever it means, most everyone eschews—although Yoo discusses it at length.)

Yoo reports what most American now know: “harsh” interrogation well short of torture has cracked some very bad people, and has probably saved many lives and even another 9/11-type attack on our homeland.  While American law prohibits “torture,” it does allow coercive interrogation.

The author answers critics of even coercive interrogation by making a point I made in an article entitled “In Defense of Torture.”  Yoo writes: “The most convincing evidence that coercive interrogation works [i.e., obtains actionable intelligence that facilitates our defense] in certain circumstances comes from the fight against al Qaeda.”

Yoo cites exposure of the plot to destroy a dozen American airlines over the Pacific, and obtaining information about “how 9/11 was carried out . . . the entire command structure of al Qaeda, its processes and organization, and how operations are planned, approved and executed.  These leaders discussed the gaps that allowed them to penetrate American security, and the types of attacks they sought to carry out.  Interrogation also yielded the names of other al Qaeda agents diverted from 9/11 to future operations.  Interrogation of [Khalid Sheik Mohammed] produced the names of two al Qaeda pilots in addition to Moussaoui slated for a second wave of attacks in the United States, and led to Jose Padilla [the would-be “dirty bomber].  (My emphasis.)  Many more examples can be cited.

But Yoo makes his point emphatically with just these—and asks a question that all Americans must answer: “Al Qaeda has a record of follow-up attacks, has sent more operators to the United States since 9/11, and has actively sought weapons of mass destruction—nuclear, chemical, and biological.  Is a second attack an acceptable price to pay for rejecting coercive interrogation?”  (My emphasis.)

The obvious answer is “no.” But even coercive interrogation will probably not obtain the information we want from enemy combatants.  That’s because the so-called McCain Amendment, passed at the end of 2005, prohibits “cruel, inhuman, and degrading treatment” by both the military and intelligence agencies—limiting interrogation methods to those that are provided in the Army Field Manual.

If the kind of thinking prevails that went into the McCain Amendment, into the criminal law protections now found in the Military Commissions Act, and into the Supreme Court’s enemy combatant-friendly decisions, lawyers, judges, and politicians will have disarmed America against the Islamic terrorists.

But if that awful day never comes, among those we’ll have to thank is Professor John Yoo.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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