The legal arguments that justified the Bush administration’s undermining of the Geneva Conventions can be traced to John Ashcroft’s Justice Department, where a top deputy to the attorney general drafted them during the months after 9/11. Conservative law professor John Yoo, who has since returned to teaching at the University of California at Berkeley’s Boalt Hall law school, wrote or co-authored crucial memoranda that encouraged the Pentagon and the White House to deny traditional protections to prisoners of war and detainees.
Although the original targets of those legal memos were the Taliban and al-Qaida prisoners in Guantánamo and Afghanistan, administration critics now believe that those same arguments and attitudes promoted tolerance of the brutal, coercive and illegal interrogation methods that recently have been exposed in Iraq.
According to a knowledgeable source, Defense Department Undersecretary for Policy Douglas Feith first sought the assistance of the military’s Judge Advocate General Corps in fashioning policies that evaded or diluted the Geneva protections. But ranking JAG officers, who prided themselves on upholding those traditional human rights safeguards, strongly opposed the changes sought by Feith. He then turned to the Justice Department, where Yoo — then a deputy assistant attorney general in the department’s office of legal counsel — was assigned to formulate arguments to evade the restrictions of the Geneva Conventions.
Yoo is a Republican stalwart who was among the principal authors of the USA PATRIOT Act. His résumé includes clerkships with U.S. Court of Appeals Judge Lawrence Silberman and Supreme Court Justice Clarence Thomas, two of the most ideological jurists on the federal bench. Like so many of the highest appointees in the Justice Department, Yoo is a longtime activist in the right-wing Federalist Society, which has bestowed upon him its Paul Bator award for legal scholarship and teaching. He is a prolific author of papers on such varied topics as the Supreme Court’s Bush vs. Gore decision (which he supported, of course) and the Chemical Weapons Convention (which he strongly opposed). He did not respond to a call seeking comment.
The Bush administration places the highest priority in the war on terrorism on the collection of timely intelligence. Administration policymakers and attorneys feared that function would be severely hampered by the Geneva Conventions and other restrictions on the use of coercive interrogation. To triumph against the terrorists, the administration became increasingly determined to oppose the application of those traditional protections to groups and individuals defined as the enemy in the new global conflict. Once the White House declared Iraq a crucial front in the war on terrorism, it was perhaps inevitable that those safeguards would be abandoned in places like Abu Ghraib.
John Yoo’s key memorandum on the Geneva Conventions, dated Jan. 9, 2002, argued that they should not be applied to prisoners captured in Afghanistan because the Taliban and al-Qaida had systematically violated the laws of war. (He reiterated essentially the same arguments in this paper, published at Berkeley in August 2003.) According to an attorney who has seen the document, it was circulated to Attorney General Ashcroft; White House counsel Alberto Gonzales; David Addington, counsel to Vice President Dick Cheney; and Defense Department general counsel William J. Haynes. Less than three weeks later, Gonzales sent a memo to the president that endorsed Yoo’s arguments and added new conclusions of his own, denigrating the Geneva restrictions on coercive interrogation as “obsolete” and “quaint” in the war on terrorism.
As Newsweek reports in its current issue, the only negative internal response to Yoo’s “bold” departure originated in the State Department, which was unsurprisingly excluded from the policy deliberations. In a memo to Yoo disputing his views, the department’s chief counsel, William Howard Taft IV, warned against “repudiating [U.S.] obligations under the [Geneva] conventions.” Newsweek has already posted the Gonzales memo and used one of Yoo’s memos to illustrate an investigative report, “The Roots of Torture,” in its May 24 edition.
Experts and advocates of human rights law have been appalled by what they regard as the administration’s conscious, secretive determination to open loopholes in traditional American commitments to international legality. Scott Horton, chairman of the Association of the Bar of New York City’s committee on international law, has scrutinized the Bush policies in detail, including Yoo’s memoranda.
“They don’t have a good grasp of the operative law here,” Horton says. “They don’t want to understand it. They want to pick their way around it, like a criminal defense lawyer. That’s not the way a modern state is supposed to comply with its obligations under the Geneva conventions, which require the most scrupulous adherence.”
Echoing Secretary of Defense Donald Rumsfeld, Yoo now insists that the Bush administration treated Iraq as separate and distinct from Guantánamo and Afghanistan, where the Geneva Conventions were held to be inapplicable. While he has acknowledged that the obvious and alleged violations at Abu Ghraib must be investigated and punished, he says it is mere “speculation” to suggest that the methods used to interrogate members of the Taliban and al-Qaida “infected” the Iraqi prisons.
That question — as well as the alleged complicity of top administration officials in the violence and degradation that has disgraced the American military in Iraq and Afghanistan — will be the focus of investigation going forward.