Interview with John Yoo on the Treatment of Detainees

Interview with John Yoo on the Treatment of Detainees

By Fareed Zakaria GPS - February 7, 2010

ZAKARIA: John Yoo -- you will remember the name, I imagine -- he was the Justice Department lawyer who wrote the so-called "torture memos" during the Bush administration. Those were the legal justifications that allowed what some regarded as torture and other controversial treatments of detainees at Guantanamo Bay and beyond.

After leaving the Bush administration in 2003, Yoo returned to his post as a professor of law at the University of California at Berkeley, perhaps a lonely place for a conservative with that resume. Yoo has just published a book called "Crisis and Command," and he joins me now.


ZAKARIA: Let me understand what you see as the limits to presidential action, because one of the points you make is that you don't believe that we should worry about the Geneva Conventions when dealing with members of Al Qaida, because they are technically not subject to the Geneva Convention because they're not soldiers.

But if they're not subject to the Geneva Conventions, should we -- I mean, are there any limits to what we can do to people? Do you as an American believe that American officials, people acting in the name of the American government, soldiers, CIA operators, need to abide by any limits in dealing with people they capture?

YOO: Well, I think you've got two very tough questions in there. One is, what should the legal rules be? And then, what should we do or the government or the country do as a matter of policy?

I think as a matter of the legal system, I don't think the Geneva Conventions, written in 1949, ever anticipated, as you said, fighting a non-nation state that doesn't have territory, population, cities, or chooses to obey the laws of war themselves. It's just the people who wrote the Geneva Conventions could never anticipate that kind of occurrence where you'd have that kind of group that could wield the violence that only nation-states used to be able to.

ZAKARIA: Fine. But if we're not going to adhere to the Geneva Convention, does that mean we can just do anything we want? We can gouge out the eyes of these people...

YOO: No.

ZAKARIA: ... we can put -- you know, we can...

YOO: Not at all. Not at all.

ZAKARIA: Well, then what is the theoretical basis, what is the legal basis for saying we should adhere to some standard? How you -- you can't just make up the standards that...


YOO: No, no, I think -- I think one thing you look at is the practice of tradition by states, they practice, American practice. Our practice has been to treat people humanely...

ZAKARIA: But our practice has been to sign the Geneva Conventions since 1949.

YOO: Yeah. We follow Geneva Conventions...

ZAKARIA: So if that's -- if that's the precedent, we should be following the Geneva Conventions.

YOO: Well, I think we follow Geneva Conventions...

ZAKARIA: If not, then what is the -- what is the -- what is the framework? What I'm wondering is, how as an American soldier or official, what framework of law are you giving him if you say, "Well, the Geneva Conventions don't apply." Does it mean you can kind of just do whatever you want?

YOO: Well, I think we treat them in the ways that are consistent with the ways Americans have acted in wartime throughout our history, so...

ZAKARIA: Which is the Geneva Convention.

YOO: But there was -- before 1949, there were no Geneva Conventions.

ZAKARIA: So you're saying do it the way we did it before 1949?

YOO: In terms of practice. I mean, Americans and their armed forces have treated the enemy humanely throughout much of its history and have tried to. And, in fact, the reasons we have laws of war and we have the principle of humane treatment...


ZAKARIA: But we codified those by -- by signing the Geneva Convention in '49 and have adhered to it since then.

YOO: Yeah.

ZAKARIA: So why not say that's the practice...

YOO: You could -- oh...

ZAKARIA: ... that's the settled practice?

YOO: Don't get me wrong. I think one could say that. I think one could say, "We should follow it as much as we can, consistent with this new kind of enemy."

I'll give you an example. The Geneva Conventions essentially require that all the detainees be put in an open barrack, which would be quite inconsistent with the nature of Al Qaida. Unfortunately, you have to put them in individualized cells. That would not be following Geneva to the letter, right, but you could try to be as consistent with it as possible. And so I think that's what I would think we would do as Americans. But I don't think -- and I think what you're asking for is, I don't think there's a legal requirement that you're compelled to do that. I think, actually, a lot of the confusion in the foreign policy community, in the United States and other countries is that for the first time we've confronted this kind of enemy, and we're actually trying to develop a regime of legal rules that actually apply to them.

And I think it's -- it might be asking too much, actually, of our leaders to have something right off the shelf on September 12th or September 12th, 2002, that tells you exactly how to deal with all the problems that are posed by Al Qaida-style terrorism for the first time.

ZAKARIA: This is a big -- this is an important point in your book...

YOO: Yes, of course.

ZAKARIA: ... that this is -- this is a new kind of war, this is different, this is -- we've never had to deal with this before. And I'm struck by the parochialism of the way -- of the way in which you look at this, because, actually, terrorism is not that new. The British were dealing with terrorism for the last 50 years. The Spanish have lived with Basque terrorism for decades. I mean, frankly, there were anarchist periods in the 1890s that affected most of the countries of Europe and the United States. McKinley was shot by an anarchist. You know, in the 1930s, there were people blowing up buildings.

The idea that terrorism is somehow this kind of completely new phenomenon on the globe -- world stage that requires the suspension of the Constitution just seems very ahistorical and uniquely American, as if 9/11 is the only act that can be described as a terrorist attack in the last 100 years.

YOO: Well, first of all, I'm not certainly talking about the suspension of the Constitution. I don't think that it's, you know, anything goes, as it were.

But I do want to say, I think that the 9/11 attacks were different and unique in the American experience. That may be parochial to say it's unique in the American experience, but because of that, the American system never had to confront and think through these problems, which I completely agree with you, Fareed, have been a source of much discussion and struggle in other countries. I think of...

ZAKARIA: Which are also constitutional democracies.

YOO: Yes. Yes, I think mostly Great Britain and Israel, in particular, had to think through many of these problems that the United States only started to confront in 2001.

But to me what's different is that we had to think about, how do we fit that into our system? And that's really where it gets back to the book, because the book is really about, how do past presidents really confront for the first time these kind of unprecedented questions that arise in war that previous presidents never had to deal with?

And you can say, what we should do is go to the Supreme Court or we should go to Congress. The experience with our greatest presidents has been they took the charge to deal with it themselves first. And if Congress and the Supreme Court can catch up or keep up, that's great, but if they had to act on their own, they would do so.

ZAKARIA: And that is in large measure, it seems to me, the justification that you have for what -- what the Bush administration did, which, is if you look at Lincoln, if you look at FDR, they acted during war. And I think implicitly -- and certainly for a non-lawyer -- it seems to me what you're saying is, you could have argued what they were doing was unconstitutional. Certainly Lincoln's suspension of habeas corpus, certainly some of the actions of FDR, but that history sort of vindicates them. It's not really a constitutional judgment. It's that, in the end, history vindicated them because there was -- you know, there was these emergency exigencies.

YOO: I think that's a fair reading. One is that history may look at things very differently than at the time. The thing I do also want to point out is there was enormous criticism or reaction to all of these presidents when they took these steps, and in some ways, the system -- the political system, Congress, the president, the whole network of commentators, observers, active public citizens can also respond and in many ways counterbalance or check those presidents when they disagree with them, in some ways much more fierce in past conflicts than what we've seen in the last 10 years in this country.

ZAKARIA: But, of course, in many of those cases, history did not vindicate them. FDR's internment of the Japanese-Americans was a classic case of essentially extra-constitutional exercise of presidential authority, which history looks upon shamefully.

YOO: Yeah, I agree.

ZAKARIA: I mean, so the fact that -- that other people have done it in the past is not necessarily going to vindicate everything that -- that you suggested...

YOO: Quite right.

ZAKARIA: ... that Bush do or that Bush did.

YOO: Well, let me also say, you know, having this kind of power in the presidents is no guarantee that presidents will exercise it wisely. We have had presidents who have made terrible decisions, wrong decisions. You mentioned internment. You could also look at Richard Nixon, who wiretapped his political enemies under the claim of national security.

I think there's a -- at the fundamental -- and I really -- this is where I really struggle with it in the book and going through these different presidents to figure out what they did that was right and wrong is, I mean, is it really worth in the Constitution and our system to have the ability for presidents to act energetically and quickly and swiftly when there's also the cost that you will have mistakes by people like in Nixon or the mistakes the FDR engaged in?

And in balance, at the end, I think it's worth it. But I'm not -- I don't ever want to be read to say that having this kind of unilateral presidential power is always a positive, that's always used for good. It can just as well be used for bad.


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