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War by Other MeansAn Insider's Account of the War on Terror
By John Yoo
Grove Atlantic, Inc.Copyright © 2006 John Yoo
All right reserved.
Chapter OneOn September 11, 2001, I switched on the TV in my Justice
Department office at the Robert F. Kennedy Building in time to see the second plane, United Airlines flight 175, fly into the World Trade Center tower. Then American Airlines flight 77 hit the Pentagon. Later I learned that my friend Barbara Olson, wife of Solicitor General Ted Olson, had been on it. Rumors of attempted attacks on the White House, the Capitol, the Supreme Court, and the State Department flew around our offices even as the phone lines to the Defense Department and the White House stopped working.
That morning official Washington, D.C. evacuated in the face of a foreign attack for the first time since the British invasion in the War of 1812. I and a skeletal staff of the Office of Legal Counsel (OLC) stayed behind. That night, our country's leaders had to decide whether the United States was at war. FBI officials were already making significant headway in identifying the hijackers, and it soon became apparent even in the hectic aftermath of the attacks that several were al Qaeda operatives. Headed by Osama bin Laden, al Qaeda, which means "the base" in Arabic, had carried out deadly terrorist attacks against Americans for several years, including the bombing of two American embassies in Africa and the USS Cole in Yemen, and had failed atother, even more deadly, attempts. 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. Critics of the Bush administration's terrorism policies believe that terrorism is a crime. They say that terrorism, even attacks as destructive as those on 9/11, by definition cannot justify war, because we are not fighting another nation. Former Clinton Justice Department official and Harvard law professor Philip Heymann states that "war has always required a conflict between nation states." Former senator and presidential candidate Gary Hart and historian Joyce Appleby put the view nicely: "The 'war on terror' is more a metaphor than a fact. Terrorism is a method, not an ideology; terrorists are criminals, not warriors." Yale professor Bruce Ackerman begins a recent book by declaring: "'War on terror' is, on its face, a preposterous expression," and devotes his first chapter to arguing that "this is not a war." If 9/11 did not trigger a war, as these critics contend, then the United States is limited to fighting al Qaeda with the law enforcement and the criminal justice system, with all of their protections and delays. Lawyers for captured al Qaeda operatives argued before the Supreme Court that it was illegal to detain them. Either the government should charge them with crimes, give them lawyers, and begin a jury trial, or it should let them go. Former Clinton Attorney General Janet Reno filed a brief in support of a petition to release accused al Qaeda agent Jose Padilla on the ground that law enforcement "tools available now provide the Executive Branch with broad authority and flexibility to respond effectively to terrorist threats within our borders," and that no resort to war was needed. This position would dangerously return us to the more comforting certainties of the pre-September 11 world. For decades, the United States had dealt with terrorism primarily as a crime subject to the law enforcement and the criminal justice systems. In response to previous al Qaeda attacks, the United States dispatched FBI agents to investigate the "crime scene" and tried to apprehend terrorist "suspects." Federal prosecutors succeeded in putting a few of them on trial in federal court in New York. Ironically, the federal judge issued rulings on the 1993 World Trade Center bombing just weeks before the hijacked planes crashed into the towers. Efforts to capture or kill al Qaeda leader Osama bin Laden throughout the 1990s were shelved, out of concerns that the Justice Department did not have enough evidence to satisfy the legal standard for a criminal arrest. A return to this state of affairs would be a huge mistake. Bipartisan studies of the failings that led up to 9/11 refer to the inadequacy of the criminal justice approach to deal effectively with an ideologically motivated military organization like al Qaeda. 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. We are faced with the difficult task of adapting those rules for the unprecedented appearance on the world stage of an enemy that, while not a nation, can inflict violence at a level once only in the hands of nations. To make wise policy choices, it is essential to understand the difference between, and the appropriate uses of, war as opposed to criminal prosecution. War is too important to be the subject of partisan politics. Here is how we at the Justice Department sat down to think about September 11. On that clear, sunny day, four coordinated attacks had taken place in rapid succession, aimed at critical buildings at the heart of our national financial system and our nation's capital. The terrorists who hijacked these airplanes in some ways had conventional military objectives-to decapitate America's political, military, and economic headquarters. They failed at the first, partially achieved the second (the American Airlines flight from Dulles Airport to Los Angeles struck a recently modernized and reinforced section of the Pentagon, resulting in far lower casualties and destruction than it would have otherwise inflicted), and succeeded at the third. The attacks killed more people than the Japanese Navy had killed at Pearl Harbor-approximately three thousand, with thousands more injured. They also disrupted air traffic and communications, closed the national stock exchanges for days, and caused billions of dollars in damage. The attackers wore no uniforms, carried no arms openly, and did not operate as part of regular military units. Instead, Mohammed Atta and his eighteen fellow hijackers disguised themselves as civilians, used civilian aircraft as weapons, and launched their attacks by surprise from within our borders. Deliberately targeting and killing civilians is deeply immoral, violating the core principle of the law of war-that combatants are only to target each other and must attempt to minimize harm to innocent civilians. The attacks were both vicious and skillful. Al Qaeda's operatives infiltrated past our immigration and border controls, operated within our borders for years, and gained the skills needed to fly airplanes into buildings at schools in the United States without ever being detected by American intelligence or law enforcement. They simultaneously hi- jacked four aircraft within minutes of each other, and succeeded in hitting three of their targets with devastating effect. Even though they were going to their certain deaths, the hijackers maintained operational security for months, if not years, and managed to take the United States completely by surprise. Without any conventional armed forces or the military resources of a nation-state, al Qaeda inflicted a level of destruction on the United States that only a few nations would have been capable of achieving. Evil doesn't necessarily mean stupid or incompetent. If a nation-state had carried out the same attacks on the same targets, there would have been no question about whether a state of war would have existed. If, during the Cold War, the Soviet Union had sent KGB agents to drive airplanes through American skyscrapers, the United States would have retaliated, our nation would have gone on a war footing, and our mutual self-defense agreements with other countries would have come into play. Why should status as an international terrorist organization rather than a nation-state make a difference as to whether we are at war?
Who We Fight
The most singular and defining characteristic of the hijackers to a lawyer, the one that makes them unprecedented in our history, is that they fight on behalf of no nation. They launched their attacks on behalf of a network of Islamic radicals who have dedicated themselves to a terror jihad against the West. Many were from Saudi Arabia, one of the United States' closest and oldest allies in the Middle East. While al Qaeda did not immediately claim responsibility for the attacks, American intelligence became certain of its responsibility. Videotape later captured in Afghanistan showed al Qaeda leaders discussing their planning and goals for the operation. While al Qaeda was not a household word before the September 11 attacks, the United States had suffered repeated attacks at its hands. These include the suicide bombing of the USS Cole in 2000, the bombing of American embassies in Kenya and Tanzania in 1998, the attack on a U.S. military housing complex in Saudi Arabia in 1996, and the bombing of the World Trade Center in 1993. Only good intelligence and law enforcement work, helpful allies, and luck had frustrated planned attacks on American airliners over the Pacific Ocean, at Los Angeles airport during the millennium, and at various American embassies and personnel in Europe and Asia. Public information about the group remains incomplete, but there is much agreement on its basic features and goals. Al Qaeda is a network of terrorists who wish to engineer fundamental political and social change in the Middle East. Some members, including bin Laden, are veterans of the successful resistance to the Soviet occupation of Afghanistan. With the help of Saudi funding, the Reagan administration helped train and arm mujahadeen resistance fighters from many different Arab countries to defeat the Soviets. When the war ended, some of these fighters banded together with the aim of overthrowing Arab regimes at home. They seethed at the rise of the Christian West, the decline of the Islamic caliphate-which had once stretched from India to Spain-the presence of American troops in the holy land of Saudi Arabia, and at current Arab regimes, which they saw as corrupt and untrue to fundamentalist Islamic principles. It is as important to understand al Qaeda's ideology as it was to know the worldview of our communist opponents in the Cold War. Al Qaeda members view recent history as a Manichaean struggle between Islam and the West. To them, the United States is the cause of the conflicts and reverses suffered by the Islamic world. Over the long term, al Qaeda thinkers believe America must be forced to withdraw from the Middle East and that U.S. citizens must be converted to Islam. Attacking the United States also serves the near-term objective of undermining its Arab allies in Egypt, Saudi Arabia, and Jordan and replacing them with a fundamentalist Islamic caliphate. "Our fight against these governments is not separate from our fight against" the United States, bin Laden says. Publicity is another goal. Showing the United States to be weak and vulnerable helps al Qaeda to gain new recruits and destabilize secular governments in predominantly Islamic parts of the world. While other Islamic terrorist groups have focused on Israel, for bin Laden and his followers the United States is "the head of the snake." Al Qaeda had announced its goals at least as early as 1996, when bin Laden issued a fatwa-an interpretation of Islamic law-calling on Muslims to drive American troops out of the Middle East. Two years later, bin Laden and his number two, Egyptian doctor Ayman al Zawahiri, declared war against all Americans, saying that it was "the individual duty for every Muslim who can do it in any country in which it is possible to do it" to kill an American. In an ABC interview shortly thereafter, bin Laden said that "the worst thieves in the world today and the worst terrorists are the Americans. Nothing could stop you except perhaps retaliation in kind." The question was never whether al Qaeda wanted to attack the United States and kill its citizens. The question was only if it had the wherewithal to carry out its threats. In 2001, al Qaeda had several sources of support. Most directly, it had the shelter of the Taliban in Afghanistan. The Taliban, in turn, received support from Pakistan's military and intelligence services. Al Qaeda gave the Taliban money and a core of loyal fighters; in exchange al Qaeda got a training base and a safe harbor from which to operate. In 2001 as well as today al Qaeda receives its financial support from private and religious charities and individuals, mainly based in Saudi Arabia. It draws its manpower from the pool of disaffected, alienated, or unemployed young men bitter over the Arab world's poverty and decline. It appeals to their fundamental religious beliefs in a time of unsettling change wrought by globalization and social upheaval. Al Qaeda benefits from our technological age, in which small guerrilla bands, aided by the spread into the global public domain of virulent technologies-chemical, biological, and nuclear-can wreak destruction such as no small group has ever been able to before. Al Qaeda's terrorist campaign against the United States and its allies continues to this day. It is believed to have been responsible for, or connected with, numerous terrorist incidents following September 11, including the December 2001 attempt by Richard Reid to ignite a shoe bomb on a transatlantic flight from Paris to Boston, an April 2002 explosion at a synagogue in Djerba, an October 2002 explosion on a French oil tanker off the Yemeni coast, a series of bombs on the Indonesian resort island of Bali that same month, and two attacks on Israeli targets in Kenya in November 2002. Al Qaeda apparently carried out the bombings of the Madrid train stations in 2004 that led to the withdrawal of Spanish troops from Iraq, and its operatives are behind some of the attacks on American troops currently in Iraq supporting that country's new government. It may also have been behind the London bombings on July 7, 2005. Al Qaeda operates in an unconventional and, as strategic analysts like to say, asymmetric manner. Its operatives do not wear uniforms, nor do they form conventional units or force structures. Rather, their personnel, material, and leadership are organized in covert cells. Al Qaeda has no interest in meeting American armed forces on the battlefield, but resorts to surprise attacks, primarily on civilian targets, using unconventional weapons and tactics. Victory for al Qaeda does not mean defeating the enemy's forces and negotiating a political settlement, but demoralizing the enemy's society and coercing it to act in ways that al Qaeda prefers. Another factor that distinguishes the conflict with al Qaeda from previous wars is jurisdiction, an issue that crops up whenever lawyers become involved. In earlier modern American conflicts, hostilities took place on a foreign battlefield. The United States home front was largely safe between two oceans. Today the battlefield may be anywhere. Possessing no territory, population, or regular armed units, al Qaeda depends on the covert use of global transportation and commercial channels to move its men and resources across borders undetected. This erases the traditional boundaries between the battlefield and the home front.
Why War The United States has faced violence from non-state actors before. We have used the criminal justice system to handle pirates, domestic terror groups, the Mafia, and drug cartels. But there is a line, however indistinct, between crime and war. In war, nations use special powers to prevent future attacks on their citizens and territory, not to punish past conduct. Law enforcement tries to solve crimes that have occurred in the past. Our military and intelligence agents seek to stop deadly foreign attacks that may happen in the future. The difference in purpose dictates different tools. The FBI and the DEA-not the U.S. armed forces-have prime responsibility for interdicting drug smuggling (although the military sometimes plays a supporting role). They seek to disrupt the operations of drug cartels with traditional tools of law enforcement: interviewing witnesses, collecting physical evidence, and carrying out surveillance. An investigation usually occurs only after a crime has occurred. Deadly force may be used only if necessary to defend the law enforcement agent's life, or another's, against an imminent attack. (Continues...)
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Table of Contents
2 THE GENEVA CONVENTIONS,
4 THE PATRIOT ACT,
5 THE NSA AND WIRETAPPING,
6 GUANTANAMO BAY,
8 MILITARY COMMISSIONS,