Yoo was a deputy assistant attorney general at the Justice Department's Office of Legal Counsel from 2001 to 2003. A 1992 graduate of Yale Law School, Yoo joined the Federalist Society, a national group of conservative and libertarian lawyers, while still a student. He clerked for U.S. Appeals Court Judge Lawrence H. Silberman, a federal judge much admired by the right, and then for U.S. Supreme Court Justice Clarence Thomas. An expert in war powers, Yoo was the principal author of Justice Department memos giving President Bush extraordinary power to prosecute the global war on terror, ignoring the Geneva Conventions regarding captured terrorist suspects and placing a high bar on what constitutes torture. He tells FRONTLINE that the logic behind these decisions flowed from two basic questions about the 9/11 attacks: Was the U.S. at war? And should Al Qaeda be treated the same as a nation-state? Now a law professor at the University of California, Berkeley, Yoo defends his controversial advice: "The one thing I think we don't want is for the government to be hamstrung in the way it interrogates people who have knowledge of pending attacks on the United States because we have so much disagreement about what those phrases mean that we can't do anything. So I think it's important that the government do figure out what that language means and how to apply it, rather than operating [in] this sort of vague fog of uncertainty." In October 2005, Yoo published a book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. This is the edited transcript of an interview conducted on July 19, 2005.
… What was it like [at the Justice Department on 9/11]?
It was actually strange. It was eerily strange, because usually the Justice Department, like most federal agencies, is usually bustling with activity. But it was completely empty except for the command center, which is a highly secure, protected communication center in the Justice Department where all the people who were working on national security issues went, which was enormously busy there, and then at the FBI across the street. But aside from that, the city was empty to the point where I tried to find some food for dinner -- couldn't find anything to eat in the building except vending machines. There were no restaurants open. There was nowhere to get any food because the entire city had been evacuated.
So you think of a great world capital, busy and bustling, and on that day, actually eerily, it was completely silent and empty. It was really like one of those science fiction movies where someone wakes up and all the people are gone.
Talk to me a little bit about the emotions you felt.
So I think there wasn't really time on that day to really feel emotions, but one thing I remember at the end of the day was [my] drive home. I lived in Virginia, and I drove home over the 14th Street Bridge, which goes right by the Pentagon. And so I went home very late at night, probably 1:00 a.m. or 2:00 a.m. or something like that. And the most remarkable thing was all the lights were off, but the whole skyline was bright because of the flames in the Pentagon. It was like a big bonfire because they hadn't put the flames out yet. And I just remember that scene coming across 14th Street Bridge, which is usually -- that side is usually dark at that hour, and seeing huge flames coming out of the Pentagon, that certainly is [something] I don't think anyone ever expected to see in our lifetime.
What were you working on that day?
Well, the first thing we immediately started thinking about who was responsible, whether this meant the United States was at war. For the people who worked on the pure legal issues, that was the first primary question. Were we a nation at war? What did that mean legally and in terms of the powers of the government? What did that mean legally in terms of relationships with Congress, authorizations from Congress that would be necessary? Would what happen if the United States could immediately figure out where the perpetuators were? Would the United States use force against them?
So a lot of it [was] questions which you wouldn't be surprised that we were thinking about, which would eventually became relevant when the invasion of Afghanistan started. ...
A lot of people I talked to for the purpose of this film and other films say it really felt like something significant had changed, that something really was going to be different in America. Did it feel that way for you?
My academic career is about war powers and so on. There are two kinds of war that the United States fought. There are these kind of total wars where the country mobilizes like World War II, World War I and the Civil War, and everything does change at home as well as abroad. And I didn't think this was going to be a war like that actually, because we weren't facing any sort of threat to the existence of the country posed by another nation like Germany in World War II.
So I actually thought this war would be more like the wars during the Cold War period, where we had a lot of conflicts abroad that the United States was involved in, but throughout we had pretty normal peacetime affairs and legal relations. There was no mobilization of the economy during the Cold War.
And I think, after thinking about it for that first day and looking at all the authorities the federal government had and what Congress could do, I didn't think a lot of them would be necessary, and because once it was discovered or thought that this was really a terrorist plot with the Al Qaeda terrorist network, mobilization would not have been necessary.
But in terms of the emotions, I did have the feeling that we were entering uncharted territory, because before 9/11, terrorism had always been handled as a criminal justice problem, a law enforcement problem. And that's partisan; administrations of both parties treated it that way. So in response to a terrorist attack, our first instinct was to send the FBI out in a way and capture the terrorist and bring them back to the Untied States for a trial.
And one thing on 9/11 I think I immediately realized was that this was going to be a war, and criminal justice and law enforcement ways of thinking about terrorism were not necessarily going to work anymore.
What made you think it was a war? Because obviously there was certainly a presumption on the part of the FBI that they needed to be the ones interrogating people and building cases and getting information that we can bring into a courtroom.
I didn't mean to exclude the FBI or using the trials and prosecutors as a tool, but that wouldn't be the only tool, which it was before 9/11. And the reason for that was because of just the devastation of the attacks. Destroying the Pentagon and destroying the World Trade Centers are not things that criminals do -- that this was a kind of foreign attack for political purposes that we would associate with wartimes. Had this attack had been carried about before 9/11, during the Cold War, by the Soviet Union, in exactly the same way and hit exactly the same targets, would we have any doubt we were at war with the Soviet Union? So why should it matter that it was a terrorist group and not a nation-state that had attacked us on this way for us to decide whether we were at war?
Take me into the first serious meeting that occurred.
I can't say exactly what the subject was, but the meetings were done by phone, because the government was dispersed. The top leadership of the agencies were all sent to secure undisclosed locations, and so the meetings or conferences were initially done by video phone. I don't think it's any great secret that each of the national security agencies have the capability to link to each other at these locations by high speed communication networks, so they have these videoconferences with screens of everybody up on the wall and you're a person sitting there. And so there were those meetings on the first day.
Who were they with? Who was on the call?
The heads of the departments -- not talking about Veterans and Agriculture, but representatives from Justice and Defense and State and the White House and the NSC.
... Do you task yourself or does somebody say to you, "John, go give a good hard think about the constitutional issues that will face the president"?
We get requests for opinions from the attorney general's office and from the White House about these kinds of questions. It's not that we sort of spontaneously figure out what we're going to do. And also other parts of the Department of Justice are tasked with figuring out what eventually becomes the Patriot Act. ...
Are you aware almost right away that Afghanistan will be a theater?
No. I don't think so. People obviously had their educated guesses, but it took I think several days to pin down exactly how those hijackers were linked back to Al Qaeda in Afghanistan.
So once we know that it is Al Qaeda, once we know that it is probably Afghanistan and we're going to go in there, there will be people who up to battle in the field, there will be a tactical need for intelligence, there will be a strategic need for intelligence, what do you do?
Well, first let me say those issues about detaining people, interrogating people don't really come to the fore right away. I think the first big thing we start working on is getting authorization from Congress to conduct the war at all, whatever the war's going to be, even before it's Afghanistan. The White House and Justice Department negotiate with the members of the House and Senate about a statute to authorize a use of military force against anyone connected to the 9/11 attacks. [The] statute doesn't even mention Afghanistan, but it includes Afghanistan as a potential theater just because if you can show that Al Qaeda is based there, has relationships there, then it's sufficient to come within the statute. So that's really the first thing, the first way it comes up.
Is there any controversial element to that?
No. In fact, I don't think so. It's passed by large majorities of the House and Senate. And remember the Senate [at] this time is controlled by Democrats, and so we spent a lot of time negotiating with them about the exact language, but the finished product is a consensus document. The statute says use all necessary means to stop future terrorist attacks and to find those responsible for the past attacks. It's an extremely broad statute, but Congress knew what it was doing. I know that for a fact because we negotiated very closely with them about the wording.
Broader than any ever?
It is broader than previous authorizations because it's not limited to a specific theater, for one. So as you suggested, it doesn't even list Afghanistan. It could move. All right, if Al Qaeda went to Yemen, this statute will allow you also to intervene in Yemen to go after Al Qaeda. It also is not just Al Qaeda; it's anybody who helps or aids Al Qaeda, harbors them or protects them also falls within the authorization to use force. And it says use all necessary means to stop them, which includes certainly the use of force, but things short of the use of force, traditional powers you would have in wartime.
The statute says you can use necessary means to not just get at the people who carried out the 9/11 attacks, but anyone who protects them and supported them. So if a state like Afghanistan had protected and harbored Al Qaeda, which it did, they were [in] Congress's mind when it said you, the president, can use military force against another in response to the 9/11 attacks.
Was Iraq specifically mentioned ever?
No. I have to say this time we were not thinking about Iraq. Everyone during the congressional negotiations was thinking about Afghanistan.
Was writing this your responsibility?
My office and the White House counsel's office jointly worked on the statute. Even before I had gone to the Justice Department, I had read every previous authorization ever written by Congress in wartime, and every declaration of war. That's certainly my field, so I was sort of the natural person to accompany someone from the White House to negotiate these things to make sure the wording was right and that people were thinking about the right things.
You guys were over there working this thing out with Congress, and, as you say, it sails through.
Yeah, the people we negotiated with were [Senate Minority Leader Tom] Daschle's chief counsel and [House Minority Leader Dick] Gephardt's chief counsel and [Senate Majority Leader Trent] Lott's -- the representatives of each of the leaders of the House and Senate of both parties.
There's a lot of gravitas to this at that moment.
Yeah, people sort of realized the historical significance of what they were doing. People realized this was the first time the United States had been attacked since World War II, since Pearl Harbor, and the first time the American mainland had been attacked since the War of 1812, I guess it would have been. So I think people knew they wanted to do something to make sure that the president had the proper authority to really go after the people who conducted the 9/11 attacks. At the same time, they wanted to reassure the public that this was being done in a very deliberate way, that we weren't panicking, that there weren't going to be any kind of wild, unthoughtful responses; that we were going to be very deliberate and take our time figuring out what to do.
Were you leading the thinking, or was the White House leading the thinking and you were responding with answers? In other words, did the president want more than he got?
No, I think it was more that the White House said, "This is what we want to be able to do." And what they would just ask the Justice Department, say: "What is the law on this here? What do we need to have the law say in order to be able to reach that objective?" …
I can see from how that could be the basis for things to begin to flow: Does Geneva apply? Are they enemy combatants? Are they POWs? Are they wearing uniforms, and are they doing unlawful acts to women and children? The logic of it could flow from what you were talking about.
I think a lot of the logic flows from the two [questions] I had to answer right from the beginning: Is it war or not? And then, should they be treated the same as a nation or not? Because I think some people think, well, crime is just one sort of sphere with its own rules, and war is just one sphere and its own rules, and everybody in war gets treated the same. But that's not actually the case. War has different rules for a nation and different rules for people who choose to fight kind of like pirates who are outside the control of a nation.
And in the weeks after 9/11, then we start thinking about what happens when we catch other Al Qaeda members. Do we try them? Do we detain them? Where can we detain them? And those kinds of questions then start to come up or [we] start to think about them. But these are really driven by operational concerns. It wasn't, I think, hypothetical. It wasn't like people in the White House, the Justice Department, just sitting in a room and looking at the ceiling and saying, "Well, what happens if we capture Osama bin Laden?" As you start to prepare for a potential conflict in Afghanistan, you have to figure out what kind of facilities you even need.
So just to give one concrete example, the Geneva Conventions prohibit putting people in cells. The Geneva Conventions roughly look like the prisoner-of-war camp you saw in Hogan's Heroes or Stalag 17. Captured members of the enemy retain their military uniforms and their structure, and they live in barracks as a group, just like they were before they were captured; they just don't get to fight. If the Geneva Conventions applied, you would have to build barracks and let members of Al Qaeda live in groups. And so this is sort of an immediate thing the military needs to know, which is, what kind of facility do we need to build in order to place members of an enemy that we capture?
And it seemed obvious that they would want to put them in cells, because each individual can be so dangerous, not just to guards but to [each] other. The initial question we had to face right away was, do the Geneva Conventions apply? And then that would drive whether they build prison barracks or they build individual cells.
Was this something John Yoo, sitting in a room, said to yourself, "I've got to think this through now"? Or were there meetings where Defense Department guys came and said they were concerned we're going to apply Geneva, and we're going to use the Uniform Code of Military Justice. How does it go?
No, I don't think it's the military comes to us and says, "This is what we're going to do." I think the military comes in and says: "What are the rules? Is this different? Are there different rules that apply?"
In the beginning, there were a lot of people who just wanted to think through whether a different legal system applied or whether a different set of rules applied than would normally apply between nation-states fighting each other. And this is the question the United States had faced before. The last big go-around had been in the late '80s, when the United States decided not to ratify an amendment to the Geneva Conventions, what's called the Protocol Additional [to the] Geneva Convention, which extended prisoner-of-war treatment to non-state organizations. And President Reagan decided not to ratify that treaty. And when they did that, the Reagan administration said it's specifically because this treaty would give protection to terrorists.
But I think it had never been something the military had had to face in any sort of large numbers the way it was going to in Afghanistan. This was a war, but a different kind of war, and we had to think through how the sets of rules that had been developed for big mechanized warfare between nation-states had to be adapted and changed to fit fighting a much different kind of enemy, a non-state actor that doesn't wear uniforms, blends into civilian populations and conducts surprise attacks against civilians.
There was, as you suggest, going back to the Reagan administration, a kind of philosophy, ... a new way that America was beginning to think in the world.
Sort of an American exceptionalism.
Is that would you'd call it?
Yeah, that's sort of what sociologists call it, American exceptionalism, Americans thinking they're different, that the United States is a force for good in the world… There's this idea that go[es] all the way back to the founding of the country.
I say I think certainly when the administration came in, it was more reluctant to get entangled in certain international commitments and international institutions to the same extent the Clinton administration had. So the United States de-signs the International Criminal Court Treaty and statute of limitations. It turns [away from] the ABM [Anti-Ballistic Missile] Treaty, doesn't go forward with Kyoto [Protocol].
I guess I'd say there's more confidence in the United States being able to, on an ad hoc basis, cooperate with individual nations but not wanting to make it permanent.
And that flows to this?
I don't know. I think there certainly were people who probably wanted to attack Afghanistan alone right away, but in fact, the secretary of state gets the approval to build a bigger coalition of countries. And there is a high level of cooperation after 9/11 between United States and other allies. On the other hand, the United States doesn't go to the United Nations to get permission to use force against Afghanistan. It just says unilaterally, "We were attacked, and we're going to defend ourselves." And so maybe that expresses this American exceptionalism a little bit.
So all the things we've talked about -- American exceptionalism as a kind of philosophy certainly is woven into many of the things that are happening. The logical flow from yours and the president's and everybody else's earliest decisions with the Congress about the nature of this conflict and how it was different than going to war with the Soviet Union or a nation-state. There is in this early period of October and November some back-and-forth between the obvious partisans.
Yeah. The first big fight is about the status of the people captured in Afghanistan. And I guess I'd say, if you look at the paper record closely, I think this kind of gets obscured now, but no one disagreed that the members of Al Qaeda were not covered by the Geneva Conventions because the Geneva Conventions are a treaty between nations and Al Qaeda's just not a nation. They don't benefit from a treaty they never sign. In effect, there's this provision in Geneva that says if someone's fighting and they voluntarily agree to follow Geneva, then you have to treat them under Geneva. And certainly Al Qaeda has never done that.
But the main fight was about how to treat the Taliban, because Afghanistan was a nation, and it did sign the Geneva Conventions. That was a real fight, and so a lot of the heat and light you see is really over that secondary question, that has less relevance now, frankly, now that the war of Afghanistan is winding up, is how do you treat the Taliban? They were a nation, but they seem to operate like a mob and in some ways were very intertwined with Al Qaeda.
Articulate for me where you came down.
Well, even though Afghanistan is a party of the Geneva Conventions and the Geneva Conventions applied, even under that system you can lose some of your rights as a prisoner of war, because a prisoner-of-war status is sort of like the gold standard for how someone's treated when they're captured in wartime. If you do certain things when you're fighting, you can lose that and drop down to different status.
So, for example, many of the things the Taliban did, like the operating without uniforms, operating without command structures and the most important one, violating the laws of war themselves -- they don't take prisoners. They committed atrocious war crimes in the fighting in the '90s and since. That all seemed to suggest that if the president decided to, because those are all based on facts, if the president found those facts to be true, he could find that the Taliban has lost their prisoner-of-war status because of the way they conducted themselves in warfare.
Tell me again, why would the president want Geneva not to apply?
Think about what you want to do when you have captured people from the Taliban and Al Qaeda. You want to interrogate them, ask them questions. Hopefully people will cooperate. Think about the barracks environment. It would probably be impossible to get individual members of Al Qaeda or the Taliban to cooperate if they know they have to go back and live in a group environment with some of the most hardened murders and terrorists. They would certainly kill anyone that was trying to cooperate with the government of the United States.
So in part you have to have individual cells just to prevent them from killing each other and trying to kill guards, but also to encourage others to cooperate by telling them we can protect them.
If you're a prisoner of war under the Geneva Conventions, you can only be asked questions and you cannot be treated any differently based on whether you answer them or not. And in a way, it's a much tougher standard than we even apply here at home. So, for example, the Geneva standard would prohibit the government from offering plea bargains to people. So you couldn't say, "If you cooperate, we're not going to try you, and if you cooperate, we'll move you to a better prison with better facilities." Things that are commonly offered in American police houses to get cooperation from suspects are prohibited under the Geneva Conventions.
I think this is an important thing about why the Geneva Conventions don't really work for fighting a non-state terrorist organization. The primary commodity, the primary weapon in this war with such an elusive enemy is information. And the most reliable source of information comes from the people in Al Qaeda you captured. The need for information from individual detainees is not as important in a normal nation-state world, where you can observe the other side's army and you know where their capital is; you know where their territory is. You have satellites and things, reconnaissance where you can determine what's going on with the other side. You can't do that in a war against Al Qaeda because they don't have territory, population or cities. And so the way to stop future terrorist attacks pretty much comes from getting information from them.
Did you think of this?
We had a lot of meetings about the Geneva Convention issue with all the representatives of the relevant agencies that work on national security. There's a lot of give-and-take, and my office's job was to resolve them. So people make policy arguments in those meetings. So, for example, one policy argument made by the military was we have to stick to a Geneva Convention standard; otherwise our soldiers won't be treated well by the enemy.
So there were a lot of disputes between different agencies about whether the Geneva Convention applied, what kind of standards of treatment were afforded to members of Al Qaeda. And my office's job was to resolve them by reading the treaty and reading other laws, and saying, "This is what our legal obligations are." And then what you chose to do as a matter of policy is up to the White House, or it's up the Defense Department, or it's up to the State Department. It's not up to the Justice Department.
What was the uniformed military arguing?
It wasn't exactly clear. I think in part they wanted to make clear we should find that the Geneva Convention applies, at least to the Taliban, and even if it didn't, we should apply Geneva Convention standards as a matter of our own goodwill, even if we're not legally required to.
Why were they making that argument?
Because of this reciprocity claim -- that if you treat their prisoners well, they'll treat our prisoners well when our soldiers are captured. I don't know if that's true. With a terrorist organization, they seem to want to capture prisoners to behead them and execute them on videotape. But that was their main concern. And my view is that that's a perfectly legitimate concern, and they're the experts on figuring out whether that's worth it. I just don't think that was legally required.
My job was only to say what's legally required. It wasn't to say, "Now that you know the job, you should do this as a matter of your discretion." That wasn't our function.
The CIA, what were they arguing for?
I don't know if I can say. But they were certainly present in the discussions and made their views known. ...
And the White House?
Well, I think as you see from the memos, they wanted the maximum flexibility for the president to win the war. And they honestly wanted to know what was the law. But I don't remember the White House coming in and saying, "We have this policy preference," either. But they really did want to say, "What is the law, and how much discretion does it give? How much flexibility does it give to the president?"
And when you're sitting in your perch, you're not thinking in political terms?
Oh, yeah, it's not. We don't really work on the pure foreign policy. I wouldn't say that what we were doing was trying to fit the law in with the "Bush doctrine" or whatever it is. It was more a question of what does the Geneva Convention actually say, and who does it really apply to? And the Bush doctrine, or the Bush administration, [Secretary of Defense Donald] Rumsfeld or [then-Secretary of State Colin] Powell, they can choose to make policy that's far more restrictive on the United States than what the law requires if they want to.
I think the one thing I did notice in a lot of these debates is that a lot of people thought or wanted the law to have already made the choice for them. That's the thing that was very interesting to me. I think people in the public and some members of the military or the agencies, they think that all that should be decided by the law, that the law already tells you exactly how to treat enemy prisoners. And it does when you're fighting another nation-state. What I think made them uncomfortable was the newness of the conflict, the sort of radicalism of this unprecedented enemy.
And to say, "Look, the law doesn't tell you exactly how you have to treat these folks. [It] establish[es] a minimum of humane treatment, but beyond that, it's a matter of your policy choice." The people who fight wars, they like to have sets of very clear rules they like to follow. So I think the fact that the law didn't have the clear answer was surprising.
Were you surprised [at] the extent to which, once you articulated what you thought the law was -- in a world where people need something to hang their hat on --- became the thing a lot of people hung their hat on?
Well, I do think, looking back on it now, it is surprising to me, but shouldn't be, that there's so much importance placed on these memos and these documents. But I think that's because people fixate on the written world and fixate on documents. But yeah, it is surprising to me that these memos have become such a big deal, because essentially what they did is to say, "Look, in this area, where you're dealing with terrorists, they're not parties of the Geneva Convention; you have a lot of policy discretion to decide how you want to treat them and to set new standards if you want."
But it didn't tell you what standards to adopt. And the policy choice to the president could have been "I'm going to follow the Geneva Convention anyway if I want, even though I don't have to." That's really the real decision. But for some reason, because there are these written documents out there, people focus more on that than the actual decision.
[On Feb. 7, 2002, a memo from the president accepted the conclusion to suspend the Geneva Conventions as to Afghanistan. But it noted that the U.S. would continue to "treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principle of Geneva."] … What does that sentence mean to you?
Well, the first thing I was thinking -- we would have been in involved in sort of drafting that kind of order -- but it seems to me that if something is necessary for self-defense, it's permissible to deviate from the principles of Geneva. So I remember the president says that everyone is to be treated humanely and consistent with the principles of Geneva, but there'd have to be some alterations: There's a lot of things that prisoners of war are entitled to which don't make sense if you have dangerous terrorists.
Oh, for example, you're allowed to cook your own food, which would, I assume, would mean you get knives and things like that. You're allowed to have recreation, intellectual pursuits, including scientific research. The idea of the Geneva Conventions is very sort of charming one: Once you're removed from the fighting, you as an honorable warrior don't fight anymore, but you're to be treated with a lot of respect due to your rank and your position as a warrior. And you get a long list of things you would have normally gotten back at home.
But what [Geneva] doesn't take account of [are] people like terrorists, who want to continue fighting even while they're captured. And so the Geneva Conventions don't really take that into account when they came up with the prisoner-of-war status.
So yeah, I think this "military necessity" language has to do with the possibility that you have in your hands a terrorist leader who knows about attacks on the United States, or you have an operative who was about to carry out an attack on the United States or was deeply involved with planning them, and you need to find that information to stop something you're afraid is going to happen in pretty short order.
What's your memory of Guantanamo? Why [send the detainees] there? What were the other choices?
Well, there weren't a lot of good choices, and I think Secretary Rumsfeld called it the "least worst place" or something like that. I think paramount is security. So usually you would set up a prisoner's facility in the theater, but Afghanistan you still have fighting going on; it's an unstable situation, so you want to take people to a place which is secured, easily defended. At the same time, you don't want to bring them into the United States, because you don't want to create another target. You don't want to create a locus for terrorist activity either.
And so an island like Guantanamo is extremely well defended. There is already American military there. It is under -- or it was thought to be under American jurisdiction at the time. It's far away from the front, so it's not going to attract efforts to release people. It's very difficult to escape from, but it's not within the continental United States.
And I think a related issue was whether the federal courts were going to get involved in trying to manage how the facility worked. And so in the past, the Supreme Court had said prison bases outside the United States, the territory of the United States, which house enemy prisoners at war would not be within the jurisdiction of the federal court system.
And that's important because?
Because you don't want to have, I think, the judiciary getting involved while the war is going on in the management of the prison system for the military. So, for example, in previous conflicts, they were at the end of World War II, with hundreds of thousands of enemy prisoners taken and detained. And some of them did bring lawsuits very similar to the ones we see today, saying "Release me now," or "I'm not really a member of the enemy," or "The war's already over." Some of these cases were as late as 1950. And in all these cases, the Supreme Court and the lower courts say: "We're not going to get involved. We're not going to get involved with second-guessing a military decision while they believe they're still necessary for a war."
And one thing you want to be concerned about is having that kind of involvement while war is still going on. I don't think that was the primary reason to pick Guantanamo, but certainly an ancillary reason why Guantanamo was picked.
[Was Guantanamo chosen to remove a legal speed bump in the process?]
No, I don't think about that in terms of why Guantanamo was picked as a location. I don't know who said this to you, but I don't think they were involved with decisions then if they said this was one of the reasons then: "There were all this speed bumps, and we need to evade them by going to Guantanamo." I don't remember that being the primary consideration. I think [Guantanamo] was initially picked because of its location, its security and the fact that you're not attracting terrorist attacks, and it's not a potential weak spot in Afghanistan itself.
And then I think after that, people say in the military: "There's this private place we're going to pick. What are the legal ramifications of that? Is this a place where the federal courts or going to get involved or not?" Is [there] added virtue [in] being a place that in the past had not been a place that federal courts had been involved?
To give you the last time this had happened, between the turnover from the [George H.W.] Bush to Clinton administration, there were these great migrations of Haitian refugees to the United States, and they were stopped, and they were taken to Guantanamo Bay for the reason that if they got into the United States, they would have these rights not to be sent back to Haiti. And so there had been litigation that went all the way to the Supreme Court. In that case, the Supreme Court said, look, making it to Guantanamo Bay is not the same thing as making it to American territory. The federal courts are not going to get involved.
And so I don't think it was an evasion of speed bumps, but Guantanamo, the location just had this added virtue in terms of the legal system.
At what moment do the interrogation methods emerge as a problem?
That doesn't occur until the spring, I think the late spring of 2002. So it comes after the Geneva decision and the Guantanamo Bay decision, and it doesn't rise with regard to the military. It's not the military who's asking. It's the CIA who was asking, because they're the ones who have high-value detainees, people like Abu Zubaida, who's the number-three person in Al Qaeda. According to press reports, the CIA captured him in the spring of 2002. According to press reports, a little after that, they start -- the CIA and associates capture Khalid Sheikh Mohammed and Ramzi bin al-Shibh, who actually planned the 9/11 attacks and are continuing to plan future attacks on the United States.
And from everything we know about the Al Qaeda leadership, these are people who are trained to resist standard Western police interrogation. There's a manual that goes through exactly how to resist and what to say to defeat normal interrogation methods.
So what is your role? What is the CIA asking?
I think the role is, what does the law say that applies to interrogation of enemy aliens with whom we're at war? And the primary statute is the  torture statute. And the question is, what does a statute mean? [It's] never been interpreted by any court, never been interpreted by the federal government. No prosecutions have been brought under it. So it really is a question of first impression. People just wanted to know what does this prohibit, what does it mean, because it has some somewhat vague terms in it. When it says "severe pain or suffering," what does that mean? Can you draw a line as to what things that prohibits, and what things that doesn't prohibit?
And what did you discover in thinking hard about it?
Well, we looked at a lot of sources ranging from what did the Senate think and the executive branch think those words meant when it ratified and adopted the torture convention, which this statute implemented. We looked at the companion provision, which creates a civil cause of action for people who have been victims of torture to sue for money damages from foreign dictators and so on.
We looked at the experiences of other countries, several in Europe. There's several divisions -- one in Europe, one in Israel -- interpreting similar provisions in the interrogation context. Looked at academic commentary, pretty much as much as we could find about what the provision on torture actually meant.
And your analysis?
The basic view is that there are two kinds of torture that are prohibited. One is physical, and one's mental. And physical prohibits severe pain or suffering. The memo that's been leaked has an appendix which lists all the different things that courts have found to rise to that level, and they usually involve extremely brutal things. The things that courts had not examined are things that fall short of physical pain or suffering, things that are just intended to disorient somebody or to prevent them from resisting questioning so much.
Like putting someone in isolation, solitary confinement -- is that torture? That doesn't seem to be torture. Certainly if you carried it out too long, it could constitute severe physical pain. So those were the kind of harder questions, was what is the actual -- I think everybody can agree on some things which are clearly torture which involve physical brutality and sadism. The hard thing is, how far does the line go? Where do you draw the line with things that are not torture?
I have to say, I think that it was entirely a good thing that the government asked this question, because as I said, we fight I guess this new kind of enemy in which intelligence and information is the primary means of protecting a country. And you get that information through questioning captured members of the enemy. And what the government wanted to know was what were the rules that applied to that. I would rather have the government had done it this way and asked first rather than have decided to interrogate people how they felt like and then afterward said, "Oh, make sure this is legal."
A lot of people, of course, read what has become known as the torture memo. [It has been characterized as] very broadly defining what constitutes torture. Is that a fair characterization of it?
I don't think it's overly broad; I think it's pretty broad. But I think that's what Congress did when they passed the statute. Congress did not define any of the terms of the statute, and the way it's been applied so far has been to prohibit terrible things. But I think when you look at its application, the things that fall short of physical abuse -- they talk about things like isolation or having people only sleep for six hours a day or so on. I think those are things most people think are not torture and the statute doesn't seem to prohibit by its language.
Again, I think this is a case where people want the law to provide answers, to dictate with certainty what you are and are allowed to do. But this statute doesn't speak in those kind of clear terms. It just says "severe physical pain or suffering." It doesn't tell you what that phrase means.
And the one thing I think we don't want is for the government to be hamstrung in the way it interrogates people who have knowledge of pending attacks on the United States because we have so much disagreement about what those phrases mean that we can't do anything. So I think it's important that the government do figure out what that language means and how to apply it, rather than operating [in] this sort of vague fog of uncertainty. Certainly because of the nature of those words, people are going to have very different interpretations of them.
And yours were to give the president and his agents as broad an opportunity as possible to do what they needed to do?
I would say that's not the purpose of interpreting the statute. The statute's interpretation might have had that effect. It certainly says there are certain things which are torture which the statute prohibits. And there's a lengthy discussion and opinion of what those are. And unfortunately we see examples of it even that we see in the federal courts. That conduct has given rise to cases that have occurred abroad.
But the reading of the statute in and of itself is not intended to give sort of the broadest possible power to the president. There's a different part of the memo that talks about that more difficult question: What happens if the president, as commander in chief, feels that he needs to go beyond the rules set by the torture statute because he believes that there's an attack about to occur in the United States, and needs to do what is necessary to stop that attack from occurring, which we call the "ticking time bomb" hypothetical?
Well, I think in this area, I think the Justice Department had long thought that Congress cannot limit the commander-in-chief power; that Congress cannot tell the president how to exercise his judgment as commander in chief. An example is the War Powers Resolution. Congress had said, "The president may not use force abroad for longer than 60 days without our permission." The Justice Department and presidents of both parties have long thought that was an unconstitutional infringement on their power. And so we've similarly thought if it came to that, if the president really made this decision, that there are these extraordinary circumstances where the president needs to order interrogation that's in conflict with the congressional regulation, that that regulation will be unconstitutional, too.
Was there much debate inside?
There wasn't so much debate because there weren't people who had fixed positions on what the statute meant. It had never really been read, never really been interpreted by anyone. So I think it was more that people just wanted an answer about what the lines were so that they knew what they were and were not allowed to do as a matter of policy. But there wasn't so much I would characterize [as] debate between different camps. It was a very different kind of exercise, because with Geneva, people had fixed positions already about what it meant or didn't mean. The torture statute wasn't like that; it was very different.
Is it only the law you're reading? Because I'm not a lawyer -- I would want to read about what torture works.
At the Justice Department, I think it's very important not to put in an opinion interpreting a law on what you think the right thing to do is, because I think you don't want to bias the legal advice with these other considerations. Otherwise, I think people will question the validity of the legal advice. They'll say, "Well, the reason they reached that result is that they had certain moral views or certain policy goals they wanted to achieve."
And actually I think at the Justice Department and this office, there's a long tradition of keeping the law and policy separate. The department is there to interpret the law so that people who make policy know the rules of the game, but you're not telling them what plays to call, essentially. ...
I don't feel like lawyers are put on the job to provide moral answers to people when they have to choose what policies to pursue. For example, it's not the Justice Department's job to say: "Here are the things you should do. We have conducted this examination of interrogation techniques worldwide, and these are the 10 that seem to work best. And so go ahead and do those."
So basically what you've done is draw the white line so they don't go over there. And the white line is?
There's this working group report, which is made up of JAGs (judge advocates general] and general counsels and so on. They're the ones who sort of come up with a list of "Here are all the interrogation techniques we know of, and having seen this legal advice from the Justice Department, here's what we think is permitted and is not permitted."
And so they have an appendix that has something like 100, I think, interrogation methods, and then check-offs about which ones are permitted under the Geneva Convention…We wouldn't be involved in that part at all.
Exactly. But it must have made its way back around to you in some way. When you looked at it, were you surprised at the match-up?
Some of the things they were worried about I just thought were surprising [that they] even raised questions. So they had interrogation techniques on there like good cop/bad cop -- like just questioning methods. And a lot of the things they had struck me as not even close to any kind of mind that we would be worried about.
Sort of at the very end of that list there were things that I thought were more difficult. The thing that lawyers don't know, and I don't think lawyers should claim to know, is what's effective or not.
For example, when this issue was handled in Great Britain and Israel, there were a number of interrogation techniques that even those courts thought were close to the line, like prolonged sleep deprivation, long-term isolation and manipulation of food and diet and temperature and so on. And those courts all said if you do any of those things individually, it doesn't rise to the level of torture, but if you did them cumulatively, if you did them too much or too often, or you did them in combination with others, it could rise to a level where you are getting in trouble.
I think some of those things were on there. I just didn't know what was being done at Guantanamo Bay, so I didn't know whether these were things that people thought were even necessary to contemplate, because I guess it suggested there was a high level of resistance by some people at Guantanamo Bay to interrogation and that people had to consider methods that were more aggressive.
We hear about [the alleged "20th hijacker" Mohammed al-]Qahtani and all the things that happened to him -- dogs, nudity.
... I think the important question is how much of that is authorized, and how much of that was ordered, and how much of it was people sort of going off the reservation? But certainly, some of the things that were done to al-Qahtani may have been violations; I'm not exactly sure, because I'm not exactly sure exactly what happened.
First, it's important to know what was authorized, what was military doctrine for interrogation and what was not, and then what cases were people going beyond that authorization and what were not, and whether that suggests you ought to change the rules or not to take into account that might happen. But it's not the case that you could ever fight a perfect war, and that you fight a war where everybody follows the rules, because it's a very difficult, tense situation where people are reacting in split seconds, and they're under enormous stress.
Just to give a domestic analogy, we have cases of prison abuse in this country, severe cases of prison abuse. You see hundreds of cases in our federal court system about claimed prison abuse. And that doesn't necessarily prove that the rules we have for prisons are inadequate or that wardens are ordering the torture of prisoners. It shows that there are cases where people go over the line, and people violate the rules. And so the question is, are the things we're seeing that, or are they something worse? Or are people actually ordering that kind of conduct?
Abu Ghraib happens; a kind of fury is released in our society. Then we see Gitmo. And when this society casts its eye on how this happened, the forces, the ACLU, even the FBI start to come forward and say everybody was operating based on [conclusions] written by this guy named John Yoo. How do you feel about all of that coming your way?
It's always easy to draw attention to one case, so al-Qahtani might be an example, or the cases of Abu Ghraib. And you try to indict the whole system because [of] what could be abuses or people stepping over line.
And I think there's a difference between people going over the line and something that's systematic and ordered to happen as a matter of policy. The questions we should be asking is we're running a huge operation in Iraq and Afghanistan with hundreds of thousands of troops, with thousands of detainees, and to say that one case means that the whole operation is illegal or that because one person might have been physically abused, that means therefore we shouldn't be conducting interrogations at all in the way we have been, I think that's just faulty logic.
It's like saying because there's one car accident we shouldn't have cars. One case does not prove that the whole system doesn't work. But it's human nature to sort of fix your gaze on the one case with pictures and not look at the bigger picture. I think that's one thing.
To put it differently, is it because we had abuses in Abu Ghraib, does that mean the next time we capture, say, the number two person of Al Qaeda, that means we have to ask them the right questions with a lawyer present? What's the alternative? We are facing a very aggressive, determined enemy to which the normal rules don't apply, and they don't follow any rules as far as we can tell.
So what happens when we capture the head of planning of Al Qaeda now? What happens if we happen to capture Osama bin Laden or his second in command, Dr. [Ayman] al-Zawahiri? Are we going to restrict ourselves to reading them the Miranda rights, providing them a lawyer and right to remain silent, and trying them in federal court, despite the fact that they must have knowledge, the names of Al Qaeda operatives who may be in the United States and in Western Europe, and who are planning attacks on the United States? I don't find any reasonable alternative being proposed by critics. And I think it's incumbent in this kind of war that we're still in the middle of, that people who want to pursue a different policy come up with what that policy ought to be.
You hear FBI agents say: You know what? In a practical way, rapport building is better than coercive interrogation. [The rule of law is something] they say they've dedicated their lives to, [and] should be what America is about. Now there's a new set of rules, those generated by you and the Department of Justice. They fly in the face of who we are and what we've done for a long, long time. What's your response to that?
The first thing I would say is that's all policy choice, and I think there's confusion between what's law and what's policy. There's no law that says you have to treat people exactly the same as we've treated prisoners of war for the last 50 years. And we have elections. And if the American people want to have a different standard for treating prisoners, they can elect leaders who want to.
I think it's an illusion to think there are not costs and benefits to all these kinds of decisions. Even if you want to use more coercive interrogation, there's going to be a benefit that you're going to get more information. There's a cost, which you mentioned, just described, which goes to America's reputation in the world, or the extent people are going to cooperate with us in the future and so on. That's what we elect people to do, is to make those choices between cost and benefits about making policy. And that's why we have elections, is to decide whether we approve of the choices that were made. …
In terms of what works or not, I'm not claiming to be an expert. And I think that there are people in our government who are the experts who should make these kind of decisions about what interrogation methods to use, and what works or doesn't work. But, you know, I think in other countries, particularly in Israel for example, they have found I think that coercive interrogation has led to the ability to interdict more suicide bombers. It has allowed them to stop more attacks that would likely have occurred if they had been able to use those kind of methods. …
But, I think those are decisions of policy. And I think all these arguments that people make go to those kinds of considerations of policy. But, that's not -- The law doesn't dictate answer again. It goes to the point I was trying to make earlier, that people want the law to make these choices for them so they don't have to. And I'm afraid in this area, with this kind of unprecedented enemy, they have to make those choices; it's a decision we have to make for the first time.
When people talk about what's the new paradigm for having to deal with them, you just defined it.
I guess I'd say it this way. I think all I'm saying is that we should approach this the way we approach lots of government decisions, which is we ought to ask questions about what works and what doesn't work -- what are the costs and benefits of certain policies? -- and not to pretend that these legal standards already answer that for you, because they don't. They never anticipated something like Al Qaeda. And that's how you figure out how to make laws. Over time you figure out what you want to do as a society; you write a law, and then that puts it into place.
We're in this stage right now where we're trying to figure out what works and doesn't work against this kind of enemy.
Of course the problem is while we're devising it and thinking about it, time has gone by, four years have gone by, and there's a lot of ad hoc filling in the blanks, because what you did was hand them a legal opinion.
I think the one thing I think is quite wrong that critics say is that there was this kind of grand vision that was sort of waiting to be put into place, and that 9/11 kind of provided the opportunity for it.
There is this claim that's made: Well, you should interpret the law strictly, because you know that as it filters down into lower levels of the military intelligence agencies, it will be misinterpreted, or it will lead to more abuse than not. And I think that can't be how you interpret a statute. That goes to administration and management of large bureaucracies and large militaries.
On the other hand, I think that's something that people have to consider when they choose which policy to actually pursue. Again, it seems to me that we have cases of detainee abuse. They occur in every war. The question is, has the military or have our government done enough to prevent that from happening within reason? And it seems to me, even though we have these cases, our government has been trying its best to do that.
One of the people we interviewed said the memos coming out of the Justice Department was not guiding material but essentially cover-your-ass stuff; that it was memos designed for future historians to read or future prosecutors to read. It says the president of the United States and others -- generals and secretary of defense -- were not in violation of the law. What's your response to that?
I just don't think it's true. I think that's said by someone who wasn't there … because a lot of the memos are responses of questions that were asked before any policies were set. I think people in the government realize that this was a different war and an unprecedented conflict, and wanted to know what the rules would be. And you would want the government to do that, or you would want the government before it set policy to ask questions about what the legal standards were, rather than saying, "Here's what we're going to do, and now write something that covers us for the future."
If you look at the memos and the way they're written and the timing of them, they're all done before the choices are made. The decisions about Guantanamo Bay are made before the military picks that location. The Geneva Convention memos are written before the president announces what the policy is going to be on the Geneva Convention and Al Qaeda.
So I just don't buy it. I think it's completely false.
[But do these pieces of legalese allow people to make more muscular decisions?]
Well, that may be, but the laws as they were written and the Constitution that we have gives a president a lot of power in wartime. The president is the commander in chief, and Congress writes statutes to try to give the president discretion to make the policies that will help win the war on terrorism. It goes back to the statute that was passed by Congress right after Sept. 11 that gave the president broad authority to use all necessary means to bring to justice or to stop attacks that would be launched by anyone connected to the Sept. 11 attacks.
After abuses happen, and after people have gone over the line and did things they weren't supposed to, some people want to always attach it to some kind of broad decision that actually led to that.
We haven't talked to anybody who alleges such a thing.
Initially they did. Initially people did say things like that.
Of course. But now what they're saying is absent leadership, absent command.
I think what you see in Abu Ghraib is a vacuum of resources, a vacuum of guidance from superior officers. But that reflects more on whether we went into Iraq with the right number of people or whether we put the right number of resources in the right places. But I think because people fixate on documents and love classified materials, if they're leaked people want to say, "Oh no, these things are responsible," which I really have a hard time believing that they were.
Some people say: "Look, I was operating on the authority that I thought we had, which was a very broad definition of torture. Anything south of that I could get away with."
I find a hard time believing that prison guards in Abu Ghraib were reading or even knew of or [were] aware of [the memos.]
But the things we wrote, it wasn't a policy. Those memos say, "Here's what the legal stands are," but they don't tell you what to do. They don't say, "Here's how you should interrogate somebody."
So let me ask you this. You're a smart guy, worked really hard, a lot of service to the country. How does it feel to be in the center of this particular storm right now? Are you surprised that what you wrote and what you did has become what it's become?
Like you said, I was surprised the things that I worked on had become so open and public. On this other hand, I do think what the department concluded at the time was correct. And so if this controversy requires me to defend them publicly, explain what the law as it was understood at the time meant, then I feel that's my obligation to continue to do that. But I'm certainly not seeking out controversy in any way. But I think there's been a lot of misrepresentation, a lot of misinterpretation, a lot of wild accusations. I'll continue to defend it, and I'll continue to think it was the correct thing to do.