A Review of Torture
A Frank Interview with John Yoo
Interview Conducted by John DiPippa

John Yoo is a law professor at the Boalt Hall School of Law at the University of California, Berkeley. A key contributor to the USA Patriot Act, Yoo previously worked in the U.S. Justice Department’s Office of Legal Counsel, assisting the Attorney General in his function as legal advisor to the U.S. president and all the executive branch agencies from 2001 to 2003.


FRANK: You’ve written in your book, “The Powers of War and Peace,” that the Constitution doesn’t have a single way to make or declare war, and that these powers are dependent on the political interaction of the branches of government. Describe how you think this process works.

Yoo: The Constitution doesn’t establish this one legal process for making war, with prescribed steps taken by each branch in a certain order, like it does for passing a statute. Under our Constitution, the war powers are divided between the legislative and executive branches, but with no procedural description for how they cooperate. While no branch has an absolute veto, one branch can use its powers to frustrate the other. For example, at a minimum, Congress has the power of purse. But it also has power to control the size and shape of the military, and most importantly to “declare War;”1 while the president has the all-important “Commander in Chief” power.

FRANK: Your position focuses on government “practice.” But the conventional approach among academics is that government practice is at odds with the constitutional vision, which they perceive as Congress having more war-making power. How do you reconcile the two?

Yoo: People who are critical of government practice in this area generally do not resort to the “original understanding” of the Constitution. If you look at the original understanding more closely, there’s no evidence that foreign policy should be run the same way as domestic policy. The conventional wisdom of going to war in academia is essentially that the domestic process for enacting a statute should also be the process for foreign affairs, in that Congress should decide when we go to war. I don’t think this is the case, since there’s this odd distribution of the war powers in the Constitution. If the constitutional framers wanted to have a system where Congress is the sole authority to use force, they would have stated it explicitly, like in other provisions of the Constitution. In Article I, Section 10 of the Constitution, for example, states are explicitly prohibited from going to war, except when attacked. So why didn’t the framers just say the same thing about Congress’ ability to make war? The framers purposefully provided each branch tools to defend itself from the other.

FRANK: Historically, when presidents initiated conflict, they typically went to Congress for authorization. And so it became a collaboration. One of the criticisms of your work is that it favors a unilateral
authority — the president — resulting in a go-it-alone attitude.
Is this a fair criticism?

Yoo: Yes, it is. But my argument is that funding and control over the size of the military is a complete check on the president’s war powers. And this check was at its strongest before 1945, because the United States had no standing military. In 1945, after America created this huge military complex primarily designed to undertake offensive operations, it somewhat undermined Congress’ ability to check the president’s power. But today, war is so expensive that the president still has to ask Congress for money to fund the operation. President Clinton still had to ask for funding during the air campaign in Kosovo.

Another change is the political dynamic where members of Congress don’t want to vote on war. I noticed while working on Iraq war issues that members of Congress didn’t want to vote on the Iraq war authorization one way or the other, because no matter what they did, it was going to be unpopular with a large number of people. For politicians interested in re-election, that’s the last kind of bill they want to vote on. Therefore, all the responsibility is left with the president.

FRANK: Doesn’t the Cold War change of having a large standing army work against the original understanding of what you say are “complete” checks among the branches? Because, without a standing army, then Congress really does have that complete check — so any conflict the president initiates is by definition “short term.” A large standing army makes any armed conflict the president initiates potentially longer term. Doesn’t that argue for a more structural approach to the Constitution?

Yoo: Well, I guess. But, while there was a fundamental change in the country’s national security posture after 1945, I don’t think that means we interpret the Constitution differently. Rather, I think Congress has to be more creative or take a stronger stand, especially through appropriation means. Congress still decides if they will fund these wars, as they have with Afghanistan and Iraq — even though they’re “short term.” Congress should base its decisions to check the president’s wartime power on the merits of the war.

FRANK: Do you think the War Powers Resolution is constitutional?3

Yoo: No, it’s unconstitutional in that one branch of government is trying to dictate the constitutional process for making war. I actually think it’s the worst possible solution, because Congress, when it passed the resolution, was simply trying to avoid responsibility. Even people who are critical of presidential war-making think the resolution has been a disaster. It’s a piece of legislation with all the post-Watergate reforms, where statutes try to institutionalize the separation of powers. Most of these reforms, including the War Powers Resolution and the Foreign Intelligence Surveillance Act (FISA),4 don’t work for that very reason.

FRANK: Explain why FISA didn’t work? Because, again, conventional wisdom is that it worked fine and continues to work well.

Yoo: The 9/11 Commission Report also identified that it doesn’t work. In fact, the problems with FISA were well known throughout the 1990s. First, FISA doesn’t allow law enforcement and intelligence agencies to collaborate and share data, creating a “wall” between the two, which doesn’t make sense when terrorist groups can operate within the United States. Additionally, I think the deeper problem with FISA is that it tries to impose a law-enforcement mentality about surveillance on foreign affairs and national security.

It’s evident why the National Security Agency (NSA) wanted to engage in the warrantless surveillance program after Sept. 11, 2001.5 Al-Qaeda leaders abroad and operatives in this country would have communicated through some kind of phone call or e-mail from Afghanistan to the United States. But their phone numbers, or even the identities of the leaders, weren’t known. And FISA not only doesn’t allow for a general survey of streams of communication, but it also requires the phone number and name of each person, both of which don’t work in the age of terrorism. From a national security perspective, every phone call going in and out of Afghanistan following 9/11 needed to be monitored, because that’s where Osama bin Laden was initially hiding.

FRANK: One of the criticisms that former colleague Jack Goldsmith raises is that the Bush administration, pursuant to legal advice received from your office (Office of Legal Council at the U.S. Department of Justice), pursued a go-it-alone strategy. Yet, many of the problems you described with FISA would probably have been solved by going to Congress and collaborating with them. Goldsmith doesn’t seem to be criticizing the ends, but the means by which you pursued them.

Yoo: I think it’s a mistake to say that the administration deliberately didn’t want to work with Congress. Looking at the example of the NSA warrantless surveillance program, it wasn’t that the executive branch was conducting that program without congressional approval because it wanted to make a point. Instead, describing our methods before Congress in a public hearing would have the effect of “tipping off” al-Qaeda and other opponents of the United States.

FRANK: But on that point, it seems that people using e-mail, even terrorists, are sophisticated enough to know that someone might be paying attention to their communication.

Yoo: You would think so, but the government was still intercepting communications from al-Qaeda after 9/11. Although it sounds like common sense, they still may not have been aware of our abilities to monitor e-mails. To give another example, people for many years thought encrypted cell phone communications were almost unbreakable. And, during the World Trade Center bombing trials, it was leaked that the United States could prove Osama bin Laden was the person who ordered those attacks, because we had intercepted his cell phone calls. Al-Qaeda subsequently stopped using cell phones within 24 hours, and they haven’t used them since. So, al-Qaeda is also monitoring us. The president needs to be able to decide if the information is valuable enough to forego
telling Congress.

FRANK: Let me ask you about your work on what have become known as the “torture memos.”6 First, do you advocate the legality of torture?

Yoo: Let me be clear: I do not advocate torture. What I do say is that the Unites States should be permitted in certain emergency circumstances to interrogate people beyond what we do in the criminal justice system.

FRANK: We’ll explore later exactly what those circumstances allow. But first, I want to ask you about Goldsmith’s criticism of the memos, saying they “rested on severely damaged legal foundations… sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president.” I assume you disagree with
that characterization.

Yoo: Yes, I do.

FRANK: But why is Goldsmith, who was a friend of yours, so removed from his characterization?

Yoo: I think he has the view that Congress has complete control over wartime policy, again, because of the “declare War” clause. And, if you have that view, which most academics have, you would reject the premise of the memos, which focused on presidential wartime prerogatives.

FRANK: But isn’t Goldsmith’s position more nuanced? He seems to be saying, even though I think what was approved was legitimate and constitutional, the language was so broad that it also allowed other things that clearly go beyond the legitimate to fall within that language?

Yoo: Part of it is the luxury of hindsight. He wrote those statements after the policy decisions were made — after it was clear what the government was and was not going to do. After 9/11, we were in a very different situation. The government hadn’t decided which interrogation methods to follow or the exact kind of surveillance to use. So the government asked us in the Office of Legal Council to assess the scope of their authority before they made any policy decision. But it was only after the policy decisions were made that we could examine if we went too far originally in thinking about what options weren’t necessary.

FRANK: So you agree that you might have gone too far in
your reasoning?

Yoo: No, let me put it a different way. The reason the memos came about was because we captured the No. 3 official in al-Qaeda, Abu Zubaida. Abu Zubaida was in charge of al-Qaeda’s planning and possessed critical intelligence. Consequently, the government asked us what type of interrogation methods they can use based on what the congressional anti-torture statute bars.7 In the case of Abu Zubaida, we were fortunate that the interrogation methods used didn’t require us to come into conflict against any statute. But what if the interrogation methods didn’t work? While hindsight can show you errors in one direction, they also can show you errors in the other — when you might have failed because of a lack of action. We needed to look at all the options.

FRANK: Is the anti-torture statute constitutional?

Yoo: Yes, I think it is — except in a case of extreme emergency. What if the president thinks he will violate a law, but he thinks that violation is necessary to save the country from attack? In my mind, that was the question Lincoln faced at the beginning of the Civil War — he raised an army and paid money from the Treasury without congressional approval. While explaining his action to Congress, he said, “By general law, life
and limb must be protected; yet often a limb must be amputated to
save a life.”

I think a president should have some flexibility if he honestly believes it’s necessary to save the country from an attack. Lincoln was of the mind that this extraordinary power was actually part of his powers as president. And, I like to think that that power is within the Constitution.

FRANK: It’s not unusual for presidents to take extraordinary measures, claiming that the situation warranted those measures to be taken. But isn’t it true that presidents who’ve used this approach have often gotten it wrong? Why should we have any confidence that current or future presidents will have any better record when claiming the need to take extraordinary measures?

Yoo: I think the chances of a mistake are always present. And historically in wartime, we’ve had terrible situations where civil liberties were violated, that in hindsight look unnecessary. However, we’ve also had mistakes go the other way; the “wall” we discussed earlier being a good example. It was constructed to protect our civil liberties. But if that “wall” hadn’t been there, the security of the country would have been enhanced and — possibly — could have led to the prevention of the 9/11 attacks. So, it’s also possible to go too far in this tradeoff between national security and civil liberties to the point where the country is weakened.