X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
I picked up John Yoo’s new book, War by Other Means: An Insider’s Account of the War on Terror, hoping to find a thoughtful appraisal of the Bush administration’s anti-terrorism strategy by one of its legal architects. Instead, I found an ill-tempered outpouring of self-justification, in which the implications of the administration’s strategy go unexamined. Arrayed against Yoo, formerly President George W. Bush’s deputy assistant attorney general, and his kindred spirits were an odd lot of zealots, appeasers, and hypocrites. In the lead were the civil libertarians, law professors, international human rights activists, liberal interest groups, former Clinton administration officials, and, of course, members of the media, who were wont to “rail,” “fume,” “whine,” “scream,” “bemoan,” “exaggerate,” and “overreact” when it came to the administration’s anti-terrorism policies. Next were the weak sisters at the State Department, beholden to international opinion and international law; Old Europe, hypocritically criticizing the United States for its anti-terrorism policies while simultaneously benefiting from them; the International Committee for the Red Cross, with its “political agenda”; and a “politicized” United Nations. Finally, there were our own institutions of government — the Supreme Court, which trampled the constitutional prerogatives of the executive branch in wartime; the cretins at Justice, who disavowed Yoo’s “torture memo” when it became too hot to handle; and the administration itself, which would “run and hide” in the face of “confrontation and questioning of its policies.” Yoo does discuss the administration’s anti-terrorism policies at length — to the point of redundancy — but his discussion is little more than advocacy, and he never confronts the implications of his position. Yoo’s thesis is that terrorism should be treated as “war” rather than “crime,” warranting a military response rather than a law enforcement response. This, of course, is not the only way to respond to terrorism. There have been many successful prosecutions of accused terrorists in the United States and abroad, and well-publicized instances in which law enforcement authorities have prevented terrorist attacks. To his credit, Yoo does not argue that terrorism is necessarily war. Instead, he appears to argue that terrorism should be treated as war to allow the executive branch the ability to exercise war powers and escape the constraints of law enforcement and the criminal justice system: “If 9/11 did not trigger a war, as [the] critics contend, then the United States is limited to fighting al Qaeda with the law enforcement and criminal justice system, with all their protections and delays. . . . [But if] 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. No doubt these measures seem unusual, even draconian, but the rules of war provide nations with their most forceful tools to defend their people from attack. “[I]f terrorism were a criminal problem, we could barely use the military at all, thanks to a law called the Posse Comitatus Act, which prohibits the use of the armed forces to enforce our laws [within the United States] except in times of narrowly defined emergencies.” Yoo goes on to argue that treating terrorism as war rather than crime is justified on the merits, and that it is appropriate to employ the tools of war against terrorists, but Yoo’s suggestion that the administration chose to treat terrorism as war to justify using the tools of war was a revelation to me. Yoo gives no indication that the lawyers in the top echelons of the Justice Department or in the office of White House counsel grasped the profound implications of their choice. WAR ON THE HOME FRONT Treating terrorism as war enables the executive branch to exercise war powers within the United States, “eras[ing]the traditional boundaries between the battlefield and the home front.” Moreover, given the open-ended nature of the “conflict,” the executive branch can claim a need to exercise these war powers at home and abroad for decades — as long as, if not longer than, the Napoleonic Wars or the Thirty Years’ War, to use Yoo’s examples. Finally, treating terrorism as “war” frees the executive branch from our defining system of checks and balances, its actions no longer subject to meaningful judicial review and constrained only by Congress’ power of the purse. Treating terrorism as war thus allows the executive branch to operate with virtually unchecked power. Yoo belittles the concerns this raises for many — “[e]xcessive worry about civil liberties,” he calls it — because, he says, the executive branch is using its power to fight terrorism, not to suppress dissent or smite political foes. It is surely in this spirit that Yoo proposes that Congress consider creating “a new domestic intelligence agency” if the FBI can’t or won’t do the job. In Yoo’s proposal, however, students of history will hear chilling echoes of J. Edgar Hoover, Operation CHAOS, and the infamous Huston plan of the Nixon years. To be sure, there is today no widespread blacklisting of writers and actors, and no wholesale firings of teachers and other civil servants, as there was 50 years ago at the height of the McCarthy era. Nonetheless, the Bush administration was able to use the war metaphor for five years to maintain and consolidate political power, cow congressional opponents, marginalize the courts, devalue the rule of law at home and abroad, and justify a calamitous foreign war. Once admired throughout the world, the United States is now widely hated. Just this month, the administration told the U.S. Court of Appeals in the case of al Marri v. Wright that the recently enacted Military Commissions Act of 2006 allows the government to hold foreigners arrested in the United States indefinitely on suspicion of terrorism, without recourse to civilian courts. Foreigners are often the first targets in wartime, but they are rarely the last. Yoo himself says, “Americans who join our enemies” — even those seized in the United States — “have no greater right to be free from detention when captured than alien enemy combatants.” Yoo complains that “many people have an exaggerated view of the role of law,” and he objects to “raising the Geneva Conventions to a high principle.” Instead, like others before him, Yoo and his colleagues believed that ends justify means. They either failed to appreciate or didn’t care that means can transform ends and turn the country we love into one we can barely recognize.
David H. Remes is a partner in the D.C. office of Covington & Burling. He and his firm represent Yemeni nationals held at Guant�namo and coordinated the amicus briefing in Hamdan v. Rumsfeld .

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.