Gabor RonaInternational Legal Director
Torture architect Prof. John Yoo had an op-ed in the Wall Street Journal the other day, following the conviction of former Guantanamo detainee Ahmed Ghalaini on terrorism charges in a federal court. Yoo's jumping on the "don't try 'em, just detain 'em" bandwagon, using a web of false claims to support his position. Here they are.
1. John Yoo says:For nearly two years, the Obama administration has persisted in treating al Qaeda operatives as garden-variety suspects entitled to all the constitutional rights of Americans, rather than as enemy combatants intent on committing the war crime of killing innocent civilians.
The truth:Prof. Yoo seems to have forgotten that the Obama administration operates a facility at Guantanamo, a special place for non-Americans to be detained and military commissions, a set of special procedures under which non-Americans are tried. The reason Guantanamo and military commissions exist is precisely to avoid providing certain individuals with "all the constitutional rights of Americans." The problem with both Prof. Yoo's characterization and the administration's policies is that both fail to distinguish between those individuals properly detained and tried under the law of armed conflict, and those whose detention and trial the law of armed conflict does not cover. Not all persons suspected of terrorist ties, or even al Qaeda ties, are "enemy combatants." Detention and trial of many such individuals falls under the criminal law, enforceable in our federal courts.
2. John Yoo says:But civilian trials risk our nation's most vital intelligence secrets. That's because the Constitution allows criminal defendants to demand that the government turn over all of its information on them and explain how it was acquired.
The truth:I wonder if he deliberately chose his words very carefully here, and is trying to mislead (yes, and the Constitution also "allows criminal defendants to demand" that they be given medals for committing crimes, but that doesn't mean the Constitution requires it to be done) or is simply unaware of all the various times courts have successfully protected sensitive information in terrorism cases, including through the Classified Information Procedures Act? (See for, example, Human Rights First's comprehensive studies of terrorism cases in federal courts, here and here.)
3. John Yoo says:That's what happened when federal prosecutors tried the plotters of the 1993 World Trade Center bombing in civilian court. Al Qaeda learned which individuals the U.S. suspected of being in its organization, so it had an enormous intelligence advantage in planning future plots.
The truth:The Constitution did not require the release of any such information. In this case, the government simply did not seek easily available protections for the information.
4. John Yoo says:Worse yet, the imperatives of law enforcement distract soldiers and intelligence agents from their primary war-fighting mission. We don't want our soldiers pausing on hostile battlefields to read detainees Miranda warnings, take down witness statements, and collect evidence in plastic baggies. They should remain focused on finding and killing al Qaeda terrorists. The very point of war, as opposed to law enforcement, is to use force, guided by intelligence, to prevent the enemy from carrying out future attacks. Every second our forces spend gathering evidence for trial is time taken away from carrying out their mission, protecting their personnel, and returning safely.
The truth:Where to begin?A. Prof. Yoo seems to think that war has not changed in the last couple of generations, that it's only about "finding and killing" the enemy on a battlefield. But the "war against terrorism" is not fought only on a "battlefield." It is fought by using a broad spectrum of tools: military, law enforcement, diplomacy, intelligence gathering, targeted sanctions, etc. War and law enforcement are not mutually exclusive. That's why we had Nuremberg. That's why we have a War Crimes Act. In war, there is permissible violence and impermissible violence. That's the point of having Geneva Conventions, which, by the way, have existed for 150 years and are another detail that Prof. Yoo treats as a mere speed bump on the road to untrammeled executive power. Where impermissible violence occurs (e.g., acts of terrorism), the perpetrators must not only be removed from the battlefield like enemy combatants who fight lawfully, but also held accountable. In America, we do that by charging them with crimes and putting them on trial.
B. Speaking of "finding and killing terrorists," what about detention? Perhaps Prof. Yoo is unaware that it is a war crime of the first dimension to declare that no prisoners will be taken, let alone to kill civilians who are not fighters (though they may also be members of al Qaeda) or to kill anyone who surrenders or is otherwise rendered "hors de combat?" Perhaps Prof. Yoo is also unaware that U.S. forces, in fact, don't kill every suspected insurgent or sympathizer. In Afghanistan, for example, they detain quite a few. Because this is not The Crusades. And thus, the U.S. military, in both Afghanistan and Guantanamo, holds hearings in which evidence is presented against detainees. And they preserve evidence for prosecution, too. This does not detract from their mission. It is their mission.
C. And they don't, and are not required to, read Miranda rights to an enemy during a "battle" on a "battlefield." In addition, whatever statements the detainee makes under those circumstances are likely to be admissible in federal criminal courts under well recognized exceptions to the Miranda requirement.
5. John Yoo says:The Obama administration should drop the idea of trials altogether and simply continue to detain al Qaeda members until the war is over. Detention is not a problem to be wished away. Rather, it is a solution for more effectively collecting the intelligence that will win the war.
The truth:So now that Prof. Yoo has come around to detention after arguing just previously that the mission is simply to "find and kill," let's see which is the better mode for intel gathering: detention without charge until the end of the war, which in this case, looks like forever, or detention pursuant to criminal charge. In a criminal case, the government can, and often does, use its leverage over charges and sentencing to gain information. Indeed, "turning" lower-level operatives in order to get important intel on leadership is a hallmark of the criminal justice system and has been used just as successfully in terrorism cases as in combating drug, gambling, prostitution enterprises. On the other hand, if a captive thinks he will die in captivity because this war will never end, or will simply be released at the end of hostilities should it ever end, what incentive is there to spill the beans?
6. John Yoo says:The administration apparently has an irresistible impulse to sacrifice effective security policies in order to appease international and domestic elite opinion.
The truth:No, Prof. Yoo, the administration has an irresistible impulse, unlike many of its detractors, to put security above politics. It recognizes that people like you will hurl insults like "soft on terrorism" even though prosecution is every bit, if not more, effective for intel gathering and incapacitation than is mere detention. You use loaded words like "appease" to channel Neville Chamberlainish reactions and "elite" to denigrate people who are knowledgeable about security issues. Such elites include military leaders like Gen. Petreus who just last week, at the NATO Summit, reminded that it is critical for us to live our values not only because Americans have fought for generations to protect them, but also because failure to do so will "bite you in the backside." The fact is that the purpose of compliance with international law is not to "appease" anyone, it is to discourage the enemy from profiting from our abandonment of the rules, to enable other States for whom the rule of law is important to cooperate with us in fighting terrorism, and perhaps most of all, to not allow the likes of al Qaeda to cause us to abandon our long-held, tried and true values.