With ‘All Necessary and Appropriate Force’

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John C. Yoo, a law professor at UC Berkeley and a visiting scholar at the American Enterprise Institute, worked from 2001 to 2003 at the Justice Department, where he analyzed the Geneva Convention's applicability to terrorism detainees.

Official Washington has been struck by a paroxysm of leaking. It involves classified memos analyzing how the Geneva Convention, the 1994 Torture Convention and a federal law banning torture apply to captured Al Qaeda and Taliban fighters. Critics suggest that the Bush administration sought to undermine or evade these laws. Sen. Dianne Feinstein (D-Calif.) claimed this week that the analyses appeared “to be an effort to redefine torture and narrow prohibitions against it.”

This is mistaken. As a matter of policy, our nation has established a standard of treatment for captured terrorists. In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention. Detainees receive shelter, food, clothing, healthcare and the right to worship.

This policy is more generous than required. The Geneva Convention does not apply to the war on terrorism. It applies only to conflicts between its signatory nations. Al Qaeda is not a nation; it has not signed the convention; it shows no desire to obey the rules. Its very purpose -- inflicting civilian casualties through surprise attack -- violates the core principle of laws of war to spare innocent civilians and limit fighting to armed forces. Although the convention applies to the Afghanistan conflict, the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war.


It is true that the definition of torture in the memos is narrow, but that follows the choice of Congress. When the Senate approved the international Torture Convention, it defined torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” It defined mental pain or suffering as “prolonged mental harm” caused by threats of physical harm or death to a detainee or a third person, the administration of mind-altering drugs or other procedures “calculated to disrupt profoundly the senses or the personality.” Congress adopted that narrow definition in the 1994 law against torture committed abroad, but it refused to implement another prohibition in the convention -- against “cruel, inhuman or degrading treatment or punishment” -- because it was thought to be vague and undefined.

Physical and mental abuse is clearly illegal. But would limiting a captured terrorist to six hours’ sleep, isolating him, interrogating him for several hours or requiring him to do physical labor constitute “severe physical or mental pain or suffering”? Federal law commands that Al Qaeda and Taliban operatives not be tortured, and the president has ordered that they be treated humanely, but the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station.

Finally, critics allege that the administration wants to evade these laws by relying on the president’s commander-in-chief power. But the 1994 statute isn’t being evaded, because the president’s policy is to treat the detainees humanely. Besides, that statute does not explicitly regulate the president or the military. General criminal laws are usually not interpreted to apply to either, because otherwise they could interfere with the president’s constitutional responsibility to manage wartime operations. If laws against murder or property destruction applied to the military in wartime, for instance, it could not engage in the violence that is a necessary part of war.

But suppose Congress did specifically intend to restrict the president’s authority to interrogate captured terrorists. As commander in chief, the president still bears the responsibility to wage war. To this day, presidents from both political parties have refused to acknowledge the legality of the War Powers Resolution, which requires congressional approval for hostilities of more than 60 days. (President Clinton ignored it during Kosovo.) And in the war on terrorism, Congress has authorized the president to use “all necessary and appropriate force.”

By exploring the boundaries of what is lawful, the administration’s analyses identified how a decision maker could act in an extraordinary situation. For example, suppose that the United States captures a high-level Al Qaeda leader who knows the location of a nuclear weapon in an American city. Congress should not prevent the president from taking necessary measures to elicit its location, just as it should not prohibit him from making other strategic or tactical choices in war. In hearings this week, Sen. Charles E. Schumer (D-N.Y.) recognized that “very few people in this room or in America ... would say that torture should never, ever be used, particularly if thousands of lives are at stake.”

Ultimately, the administration’s policy is consistent with the law. If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration.