Birth of a shadow doctrine: How a small group of lawyers launched a war against international law

From torture to drone strikes, international law is under attack in the U.S. Here's how it all began

Published February 7, 2015 11:30AM (EST)

  (AP/Kevin Lamarque)
(AP/Kevin Lamarque)

Excerpted from “The Assault on International Law.”

When the hijacked airplanes hit the World Trade Towers on 9/11, John Yoo was working in his Justice Department office in Washington, D.C. At the time, he was assigned to one of the most crucial legal departments in the federal government, the Office of Legal Counsel (OLC). Although he was an important lawyer in the administration of President Bush, Yoo himself was not well known outside of a close circle of Washington bureaucrats and policy wonks. He wasn’t famous. But all of that would change very quickly.

Yoo had taken a leave of absence from Berkeley Law School to work for the Bush administration. His academic work had focused on constitutional law and foreign affairs, and he had earned a reputation for being a strong supporter of presidential war powers. According to Yoo, the president of the United States has virtually unlimited power as the constitutionally appointed commander in chief of the armed forces. Although Congress can play some role in times of war, Yoo had insisted in a series of law review articles that this role was secondary at best. In times of crisis, presidential power always trumps congressional deliberation.

Before 9/11, Yoo’s views were mostly of academic interest. His writings had attracted some skepticism among his law school colleagues, but prior to 9/11, his views were hardly part of the wider political discourse. All of that changed dramatically after the planes hit.

1. The Office of Legal Counsel

Within days, the White House was asking the OLC to answer a whole set of crucial legal questions: Could the president order the bombing of al-Qaeda training camps in Afghanistan? What type of congressional authorization was required before the president could use military force? Could the president use preemptive force to stop future terrorist attacks? Could the United States attack not just terrorist organizations but also the foreign states that harbored them? After the OLC answered yes to each of these questions, and President Bush ordered military attacks against al-Qaeda and the Taliban, a second round of no-less important questions were raised about the conduct of the war. Could terrorists be detained by the military, and did the Geneva Conventions apply to them? Could interrogators torture detainees to extract life-saving information about future terrorist attacks?

It was this last question that made Yoo famous. Yoo quickly researched the issue and concluded that it was both legally and morally permissible for interrogators to use coercive interrogation measures—and even outright torture—to induce a detainee to spill information that might save American lives. He drafted a memo that was sent to his superior who was then running the OLC, Jay Bybee, who signed the memo and delivered it to White House Counsel Alberto Gonzalez. The memo was long and extensive and filled with scholarly looking footnotes, but the analysis was troubling and controversial. First, Yoo concluded that although the federal anti-torture statute did not define “severe pain,” a definition might be gleaned from a Medicare provision that allowed emergency medical services for cases of severe pain “capable of producing organ failure or death.” So, according to Yoo, interrogators could inflict as much pain as they wanted on a detainee, so long as it did not cause organ failure or death, and it would not be classified as torture under federal law.

Yoo also argued in another memo that the Geneva Conventions, which prohibit torture during wartime, did not apply to al-Qaeda or Taliban fighters, so long as the president determined that neither group respected the laws of war. This determination was plausible for al-Qaeda but was much more suspect with regard to the Taliban, and in any event, it was unclear why the president could unilaterally make this decision by fiat. Yoo also argued that the United States was not required to follow the Geneva Conventions because Afghanistan was a “failed state”—a legal nonentity under international law. According to Yoo’s argument, the Geneva Conventions embody reciprocal promises between nation-states. Since Afghanistan did not exist anymore, the Conventions were no longer in force between the United States and Afghanistan. With it went the legal protections afford by the Conventions. Or so claimed John Yoo.

After the infamous “torture memo,” more legal research followed. The OLC concluded that al-Qaeda and Taliban fighters could be held indefinitely as enemy combatants and did not deserve POW status. The OLC concluded that the president alone could order captured fighters prosecuted before military commissions and that they could be denied access to federal courts to contest the lawfulness of their detention. Targeted killings, or what critics call assassinations, were approved. The National Security Agency was given the green light to eavesdrop on wiretapped conversations between American citizens and foreigners—even without a warrant—despite the fact that Congress had explicitly passed a law limiting this wiretapping to foreigners.

Much of this legal strategy was hammered out by an informal group of lawyers, nicknamed the “War Council,” who met in the White House. In addition to Yoo, the group included White House Counsel Alberto Gonzalez, who reported directly to Bush, as well as David Addington, the top lawyer for Vice President Dick Cheney, and Defense Department General Counsel William Haynes. The group had no formal status, and its membership was not appointed by President Bush. Its authority stemmed only from the fact that Bush relied heavily on the advice of Gonzalez and Cheney, who were trusted confidants, especially on war matters. Cheney relied on Addington for legal analysis, and Addington listened to Yoo. By most accounts, the legal foundation for the War on Terror was developed by the War Council. Attorney General Ashcroft was noticeably absent from this group, and he apparently resented Yoo’s influence in the War Council. After all, Yoo worked at the Justice Department and was supposed to report to him, not to Gonzalez or Addington.

In 2003, the top position at the OLC opened up after Bybee was nominated for a federal judgeship, and the War Council wanted Yoo promoted to lead the office. But Ashcroft objected and torpedoed the idea, fearing that the OLC, which was ostensibly located in the Justice Department, would effectively now report to Gonzalez and Addington. Ashcroft claimed that Yoo was incompetent, and without Ashcroft’s support, Yoo’s candidacy went nowhere.

So who would lead the OLC? Yoo suggested that his old friend Jack Goldsmith would be perfect for the job. Goldsmith, a young law school professor at the University of Chicago, had been working as a top legal adviser to Haynes at the Pentagon. Goldsmith and Yoo were friends and traveled in similar circles. In the relatively liberal crowd of law school professors, conservative lawyers provide mutual support for their endeavors. They join the Federalist Society in law school, clerk for the same Supreme Court justices (Rehnquist, Scalia, Thomas), and read drafts of each other’s articles. Goldsmith and Yoo were no exception.

Yoo left the Justice Department to return to academia just as Goldsmith was taking over the helm at the OLC in 2003. The controversy surrounding Yoo’s work there was only just beginning, because most of the memos written by Yoo were still confidential or classified.

Goldsmith enjoys an encyclopedic knowledge of constitutional law and its relationship with international law; while plenty of liberals disagree with his scholarship, everyone agrees that he has an impressive command of the law. But when Goldsmith got to the OLC, he was horrified by what he saw. Now that he was on the inside, he suddenly had access to all of the OLC memos written by Yoo and his colleagues since 9/11, only some of which he had seen during his time at the Pentagon. Goldsmith read the entire stack of memos and found them riddled with errors, unsupported conclusions of law, exaggerations, and fallacious arguments. He called the arguments cursory, one-sided, and legally flawed.

What he would do next would ruin his friendship with John Yoo. Goldsmith went to his boss, Attorney General John Ashcroft, and told him that the Yoo torture memo needed to be withdrawn. Although it sounds like a minor bureaucratic change, in fact, it represented a massive rejection of John Yoo and his tenure in government service. And it was also unprecedented. Not only had the OLC never withdrawn such a significant memo during the same administration, but they had never even done it after a change in administrations, when a new political party inevitably brings a new cohort of lawyers with a different ideological perspective on crucial questions of international law. Even then, the culture at the OLC was to respect precedent and the prior work of the department on matters of great significance.

Goldsmith’s withdrawal of the Yoo memo was also something that could not be done quietly. Ashcroft had to inform the White House and every department in the executive branch that they could no longer rely on the legal advice in the torture memo. That meant informing everyone in the Pentagon and the CIA and deployed forces overseas. It meant Ashcroft admitting that the Justice Department had gotten it wrong, something that does not happen often in government. All of this made John Yoo look politically inept at best, legally incompetent at worst. Yoo would later write in his memoirs that Goldsmith and the new OLC lawyers were “too worried about the public perceptions of its work” and that they had caved to political pressure. Addington was furious that Goldsmith was undoing countless hours of legal strategy decided by the War Council.

The next task was to actually rewrite the flawed memos. The new “torture memo” refused to define “severe pain and suffering” and declined to make the ridiculous analogy to the Medicare provision dealing with emergency medical services. Goldsmith also made sure to withdraw John Yoo’s unsupported statements that the president could violate both international law and congressional mandates because the Constitution designates him commander in chief of the armed forces. All of it was gone. What was left was a far more cautious, and subtle, work of legal analysis.

Goldsmith had ruffled so many powerful feathers in his quest to reverse the Yoo mess that he decided to quit and return to teaching law school. He had lasted only nine months as head of OLC and didn’t even have time to finish the new memos. But he set the revision process in motion and, in so doing, stood up to the worst excesses of the Bush administration and its shadowy War Council. He set the law back on track.

This is the standard story of what happened from 2001 to 2004, a crucial time in our nation’s history when the government was formulating its response to terrorism and its posture toward international law. The United States had been attacked and had fought back, but in so doing, the nation’s commitment to the rule of law was severely compromised. However, principled men and women like Goldsmith pulled us back from our darkest impulses; they saved the law itself.

This story, like all good stories, has a hero and a villain and a narrative arc that ties them together. Jack Goldsmith, still reliably conservative, comes across as careful, smart, and courageous for reversing the excesses of the first years of the Bush administration. And his actions were heroic because he sacrificed his relationship with John Yoo and annoyed many in the Justice Department and the White House to do it. Addington practically shook his fists in rage when he learned that Goldsmith was unwilling to issue a ruling that would back up a key anti-terrorism initiative. “The blood of the hundred thousand people who die in the next attack will be on your hands,” Addington reportedly yelled at Goldsmith.

After less than a year, with the important work of righting the ship accomplished, Goldsmith left government service for the ivory towers of academia. Instead of returning to the University of Chicago Law School, he was offered a chair at Harvard Law School, a far more liberal academic environment than Chicago. Although his hiring was controversial and garnered some opposition by Harvard faculty, his supporters defended him on the grounds that Goldsmith was one of the “good guys.” He had gone in to a seriously dysfunctional OLC and cleaned up a legal and ethical mess. He was on the right side.

While Goldsmith was settling into his new office in Cambridge, things were not going so well for Yoo, who was back at Berkeley and readjusting to academic life. But his work in Washington was still haunting him. Ashcroft had agreed to launch an ethics investigation into the torture memos, which was led by a separate division of the Justice Department responsible for investigating the conduct of government lawyers. Liberal critics of the administration were clamoring for Yoo and Bybee to be disbarred, and protestors were lining up outside of Yoo’s lectures at Berkeley calling him a war criminal for being complicit in torture. Yoo was furious that Ashcroft was now pretending that he hadn’t been involved in every step of the process, and Yoo was also bitter that Goldsmith had sold him out. “By refusing to defend its own logic, and pretending to distance himself from it,” according to Yoo, “the administration only succeeded in eroding public support for the war against al Qaeda.”

So the story has all of the essential characters. One villain, one hero, and a critical moment that defines each of them. Yoo learns about the planes crashing into the Towers and instantly resolves to provide the president with the legal superstructure to fight the War on Terror. An idealistic Mr. Goldsmith goes to Washington and confronts the cynical reality that law is polluted by politics. But in the end, idealism wins. The rule of law had been threatened by a Justice Department that was all-too-willing to sacrifice our most cherished values in order to vanquish our enemy; at the last moment, principled individuals stood up for the Law. And, in the end, Goldsmith and others like him saved us from our heart of darkness.

It is a great story, one that has been told in Goldsmith’s memoirs and repeated in hallways across the country from D.C. to California. The only problem is that the story is fundamentally wrong. Not wrong in the sense of being a lie, but wrong in the sense that it paints a completely distorted picture of how the United States drifted so far from international law, and its institutions, since 9/11.

The ballad of Goldsmith and Yoo—hero and villain—focuses our attention on an intramural dispute between two central characters and, in so doing, diverts our attention from the bigger picture. The real story here is not the dispute and the fallout between Goldsmith and Yoo that almost cost Yoo his career, certainly cost the two men their friendship, but allowed Goldsmith to escape DC with his honor and reputation intact. The Goldsmith-Yoo story avoids the larger backdrop that unites both Goldsmith and Yoo and their fellow travelers in a common cause—the devaluing of international law. The debate about torture floats on the surface, but beneath the water lies a much deeper and far more consequential movement to which both Goldsmith and Yoo contributed.

2. The Emergence of the New Realists

International law is under attack in the United States. Although most lawyers—and certainly most law school professors—consider international law to be a central and profoundly important element of our legal system, many conservative lawyers are deeply suspicious of international law and the infringement of American sovereignty that it represents. They want U.S. affairs to be dictated by the American political system and the laws that it produces, not the international legal norms that flow from faraway European cities like Brussels, Geneva, and The Hague.

This book tells the story of how a small group of legal scholars—and by small, I mean fewer than six—have earned a completely outsized influence on the legal discourse in this country. Like the Federalist Society, the conservative group that has wielded outsized influence on American constitutional law, a handful of skeptics about international law have completely upended academic research on international law.

Although many academic arguments have little to no impact on our daily lives, the new skepticism about international law has directly changed American foreign relations since 9/11. That is because these arguments do not stay in the abstract confines of the Ivory Tower. They influence how the State Department conducts diplomacy, how the Defense Department conducts the War on Terror, how the CIA and the NSA spy on foreigners and citizens alike, and how judges craft their opinions. And all of this from just a handful of individuals armed with skeptical arguments about the very idea of international law.

What unites this group is a shared hostility toward international law, a preference for presidential power in the face of global crisis, and a recommendation that the United States withdraw and remain isolated from international legal institutions. Both Yoo and Goldsmith are part of this very small club. To tell the story with them as antagonists against each other is to completely distort the picture. The fact of the matter is that Goldsmith and Yoo are fellow travelers in a crusade against the growing impact of international law on our lives.

To understand this new skepticism about international law, a new character must be introduced into the story: Eric Posner, a prolific professor at the University of Chicago Law School who wrote or cowrote no fewer than five books between 2007 and 2013, in addition to the numerous law review articles and book chapters that make up the rest of his publication list. He also has a reputation for being exceedingly generous with his time, reading drafts for colleagues and offering helpful suggestions and criticisms, a personal characteristic that unfortunately is becoming all too rare among today’s busy professoriate. By all accounts, it is difficult to get the better of Posner when he lectures or debates in public. He speaks in carefully rendered paragraphs that communicate well-worked-out positions with great precision; he is never vague or indecisive. No one has ever accused him of being a lightweight.

Posner’s books all share a common refrain: an underlying skepticism about the scope and legitimacy of international law. Because these theories attack the very foundation of international law, they are far more important—and consequential—than the superficial arguments Yoo made at the OLC and Berkeley. So Posner is, in many respects, the modern father of the new skepticism about international law. The media attention given to Yoo has completely obscured the fact that Posner’s arguments provide the theoretical foundation for the entire movement.

Although he had published books on other subjects, Posner burst onto the international law scene in 2005 when he published "The Limits of International Law" with Jack Goldsmith. The book articulated a restatement of Posner and Goldsmith’s view of international law (which they had published in law review articles prior to 9/11), and it created a ruckus. The insight of "Limits" was pretty succinct: the world community is full of states that act in their own self-interest and essentially ignore international law. When states appear to be following international law, in most instances, their actions are really motivated by self-interest, not by the idea that international law needs to be followed. Much of international law is therefore illusory—it is just self-interested state behavior. And when self-interest conflicts with international law, states have no moral obligation to follow it. They should do what is best for them—the international rules be damned. In many ways, "Limits" was an intellectual manifesto expressing much of the sentiment—and policy— of the Bush administration.

"Limits" was only the beginning. What followed was a new wave of scholarship expressing skepticism about international legal institutions such as the United Nations, a position that was articulated quite forcefully in Eric Posner’s 2009 book, "The Perils of Global Legalism." Posner also teamed up with Adrian Vermeule in "Terror in the Balance" to defend the administration’s aggressive response to the specter of terrorism, including torture. At the same time, other books argued that the president should have virtually unfettered authority to fight the War on Terror and should ignore Congress— and international law—if necessary. John Yoo published the "Powers of War and Peace: The Constitution and Foreign Affairs" after 9/11, while Posner and Vermeule published "The Executive Unbound: After the Madisonian Republic," which both argued, among other things, that only the executive branch has the flexibility to meet the changes of modern security threats like terrorism and Islamic extremism. Posner and Vermeule argued that we now live in a permanent state of exigency.

If it seems as though the same names keep popping up, that is because a very small list of dramatis personae is driving this scholarship. But the characters are having a tremendous influence among Washington elites.

One can immediately see why "Limits" was important, not just for academics but for politicians and policy wonks too. "Limits" articulated a broader theory that expressed the Bush administration’s hostility toward international law that was being exposed by Addington, Yoo, Goldsmith, and Gonzalez. When Yoo argues that the president can ignore Congress, he cites his own articles; when Yoo argues that international law cannot constrain the president, he cites articles written by Goldsmith, Posner, or Vermeule. When Addington and Gonzalez argued that the president needs all available tools to interrogate terrorists, including torture, they did so comforted by the knowledge that scholars like Posner and Vermeule were laying the intellectual foundation for these policies. And when the Bush administration derided international law as a quaint relic of a previous era, they did so out of a belief that states did not have a moral obligation to follow international law when it conflicted with their state interest, a position that was artfully defended by Posner and Goldsmith in their book.

When it comes to law, ideas really matter. Of course, some law school professors write esoteric articles for an expert audience. But academic arguments questioning the validity and scope of international law affect how the U.S. government conducts its business. This is so because these professors do more than just write articles; they also serve as lawyers working for the State Department, the Justice Department’s Office of Legal Counsel, the White House Counsel’s Office, the Defense Department, and the CIA. And even when their arguments are not having this direct effect, their arguments are indirectly influencing policymakers, lawyers, and federal judges who deal with international law. The assault on international law is far broader than John Yoo and a few memos on torture. This multipronged attack influences how the president fights the War on Terror, whether federal judges can “interfere” with the detention or killing of suspected terrorists, and whether victims of human rights abuses can file lawsuits in federal courts. It determines whether international treaties can be enforced in U.S. courts and whether foreigners on death row should have access to consular assistance, just as an international treaty promises. And that is just the tip of the iceberg. When President Bush ordered the creation of CIA black sites in Eastern Europe, he did it because government attorneys said he could. When President Obama ordered the targeted killing of an American citizen in Yemen, he did so only after the Justice Department said it was legal. In short, arguments about international law implicate every corner of our foreign relations, and it is hard to imagine an area of the law with more practical consequences.

The impact of Goldsmith and Posner’s academic arguments in "Limits" explains why the Yoo-as-villain and Goldsmith-as-hero story is a distraction. True, Goldsmith came into the OLC and withdrew the poorly reasoned memos. But when you zoom out and look at the entire spectrum, you see that Yoo and Goldsmith are on the same side, both committed to an intellectual project whose central foundation is executive branch aggrandizement and international law deflation. The movement was incredibly successful between 2000 and 2008, and it permanently transformed the political rhetoric regarding international law in this country. In the United States, compliance with international law needs to be politically defended and explained to the electorate, whereas in Europe, compliance with international law is assumed, and politicians must justify their departure from international law.

Zooming out in this way also demonstrates that the media and the public have been wrong to focus their attention and ire on John Yoo. His return to Berkeley after serving with the OLC was met with unrelenting hysteria. But in reality, Yoo is a bit player whose ideas are having a secondary impact on this debate. It is Posner and Goldsmith—and, to a lesser extent, Vermeule—whose ideas are the driving force behind this movement. They are the ones crafting the ideas that devalue international law and suggest that states can reject it. That is the intellectual foundation upon which Yoo’s more specific policy and legal arguments rest. Unfortunately, the mainstream media (and hence the broader public) has focused its attention on Yoo and has missed the real story. The complex truth is often obscured when sensationalism and slogans get in the way. This book is meant as a corrective, to explain the real story of why international law is under attack in the United States. And while Yoo is a character in this story, the real protagonists are Posner and Goldsmith. Their ideas matter.

Taken together, these lawyers are best described as the New Realists. They are realists about international law because they have infused their understanding of international law with a dose of realpolitik. They are more concerned with how states behave and less concerned with how states ought to behave, and they are skeptical that international law ever forces a state to change its behavior. The first wave of realism came in the 1950s when political scientists who studied international relations expressed a similar skepticism and focused almost exclusively on self-interest and bald power. Some of these realists even used rational choice—the building block of economics—to develop quasi-mathematical models of how states interact with each other. A second wave called neo-realism emerged in 1979 and explained state behavior by appealing to the structural constraints of the mostly anarchic world order. Law was not a big part of either story because it was assumed that there was no world government that could force states to follow international law.

Yoo, Goldsmith, Posner, and Vermeule, as well their kindred spirits in government like Addington, follow in this realist tradition. They believe the study of international law, just like the study of international relations a generation ago, needs to be sprinkled with a heavy dose of realism about the capacity of law to change state behavior. To them, international law has little impact once you divorce it from what states have already decided to do based on their own self-interests. For the New Realists, then, international law isn’t really a distinct field of inquiry at all—it is just a special branch of diplomacy as political scientists understand it. There isn’t anything especially normative about international law.

The New Realism has influenced not only our theoretical understanding of international law but more importantly the actual practice of the U.S. government. That is why I think we ignore this movement at our own peril. The same scholars who invented the New Realism have also applied it and made it come true through their work in the Justice Department, the Pentagon, and the White House. They have influenced policy and policymakers. They changed the way the War on Terror was fought and how the United States interacts with international institutions on a wide number of issues ranging from climate change to the International Criminal Court.

It bears mentioning that I am not arguing that the New Realists have caused the United States to be skeptical toward international law or invented the movement out of whole cloth. The origin of the movement is a much broader and more complex question—one that implicates a deep current of isolationism and exceptionalism at various moments in our nation’s history. There are many reasons for this isolationism and preoccupation with “sovereignty”—all of which are independent of (or at the very least pre-date) the arrival of the New Realists.

So what am I claiming? The New Realists have provided the intellectual foundation for a new skepticism about international law, and they have also succeeded in turning that intellectual vision into a strategic reality, by access to key positions in the U.S. government. They have dressed up the old realisms about international relations (both classical realism and neo-realism) with new clothing—this time, the economic language of rational choice, self-interest, and game theory, and applied it specifically to international law. They have resurrected a distinctively American attitude about international institutions that had their heyday in the 1950s after Hans Morgenthau published "Politics Among Nations," a manifesto that gave birth to the doctrine of political realism and its emphasis on power politics. By becoming the heirs to that tradition, the New Realists have accomplished two things. First, they have imported Morgenthau’s vision—originally about international relations— into the domain of law, which was always supposed to be normative, that is, a field about the way we ought to behave. Second, they took Morgenthau into the political mainstream and audaciously installed his worldview right in the building that ought to be most hostile to it: the Justice Department’s Robert F. Kennedy Building in Washington, D.C.

Excerpted from “The Assault on International Law” by Jens David Ohlin. Copyright © 2015 by Jens David Ohlin. Reprinted by arrangement with Oxford University Press, a division of Oxford University. All rights reserved.

By Jens David Ohlin

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