War by Other Means is a fascinating insider account by the key legal architect of the Bush administration's response to 9/11.
On September 11, 2001, while America reeled from the day's cataclysmic events and the majority of official Washington, D.C.--including most of the Justice Department--struggled through the mother of all traffic jams to leave town, John Yoo and a skeletal staff of the Office of Legal Counsel stayed behind. They quickly found themselves on the phone with the White House. The day's attacks called for a response, but the scope of the president's legal authority to act was unclear.
In a series of memos to the White House, Yoo offered his legal opinions, and in the process had an almost unmatched impact on America's fight against terror�ism. His analysis led to many of the Bush administration's most controversial policies, including detention at Guantanamo Bay, coercive interrogation, military trials for terrorists, preemptive attacks, and the National Security Agency's wire�tapping program. Yoo also played a key role in framing parts of the Patriot Act, and in the Bush administration's decision that the Geneva Conventions are irrele�vant for "illegal enemy combatants."
Like Richard Clarke's Against All Enemies, War by Other Means offers an insider account of the contexts, facts, and personalities behind the War on Terror. In fascinating detail, Yoo also examines specific cases, from John Walker Lindh and Jose Padilla to an American al-Qaeda leader assassinated by a CIA pilotless drone in the deserts of Yemen. And no one is more qualified to write on the legal aspects of the War on Terror than John Yoo.
In a midterm election year, when the controversies over the president's handling of the War on Terror are sure to wage more forcefully than ever before, John Yoo's War by Other Means is set to become one of the fall's most talked about books.
As a former assistant attorney general for the Justice Department's Office of Legal Counsel, Yoo was in the center of the debate over where President Bush's administration draws the line on the torture of detained terrorism suspects. He revisits that and other controversies in the war on terror, from NSA wiretapping to the legal status of "enemy combatants." His response to most criticisms is that al-Qaeda is a new kind of enemy, and the old ways of thinking (e.g., the Geneva Conventions) prevent us from stopping another terrorist strike. The cornerstone of Yoo's argument is his belief that as commander-in-chief, the president has broad powers "to act forcefully and independently to repel serious threats to the nation." Even the formal declaration of war by Congress has become archaic; Yoo argues that America is at war whenever the president decides the military can "do what must be done." Thus, the Supreme Court's June decision rendering the prosecution of Guant�namo detainees by military commissions unconstitutional is, in Yoo's eyes, "a dangerous judicial intention to intervene in wartime policy" that forces the president and Congress to waste time crafting legislation when we could be out fighting terrorists. Unambiguous and combative, Yoo's philosophy is sure to spark further debate. (Oct.)
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September 08, 2006
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Excerpt from War By Other Means by John Yoo
On 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 Penta�gon. 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 De�partment flew around our offices even as the phone lines to the De�fense 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 sig�nificant headway in identifying the hijackers, and it soon became ap�parent 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 at other, 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 poli�cies 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."1 Former senator and presidential candidate Gary Hart and historian Joyce Appleby put the view nicely: "The 'war on terror' is more a meta�phor than a fact. Terrorism is a method, not an ideology; terrorists are criminals, not warriors."2 Yale professor Bruce Ackerman begins a re�cent 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."3
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 de�lays. Lawyers for captured al Qaeda operatives argued before the Su�preme 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.4 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 flexibil�ity to respond effectively to terrorist threats within our borders," and that no resort to war was needed.5
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 investi�gate the "crime scene" and tried to apprehend terrorist "suspects."