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NEWS DIGEST 2008.05.01 - date
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Washington Post --

July 17, 2008

ADMINISTRATION WANTED LOYALIST AS JUSTICE DEPT. LEGAL ADVISER
Top Officials Sought to Defend Interrogation Practices

by Carrie Johnson

http://www.washingtonpost.com/wp-dyn/content/
article/2008/07/16/AR2008071602563.html

Then-Attorney General John D. Ashcroft offered the White House a list of five
candidates to lead the Justice Department Office of Legal Counsel in early 2003,
but top administration officials summarily rejected them in favor of installing
a loyalist who would provide the legal footing needed to continue coercive
interrogation techniques and broadly interpret executive power, according to two
former administration officials.

In an angry phone call hours after Ashcroft's list reached the White House,
President Bush's chief of staff, Andrew H. Card Jr., quickly dismissed the
candidates, all Republican lawyers with impeccable credentials, the sources
said. He and White House counsel Alberto R. Gonzales insisted that Ashcroft
promote John Yoo, a onetime OLC deputy who had worked closely with Gonzales and
vice presidential adviser David S. Addington to draft memos supporting a
controversial warrantless wiretapping plan and detainee questioning techniques.

Ashcroft's refusal created a tense standoff and was the only time in the
attorney general's tenure that Bush was called upon to resolve a personnel
dispute, the sources said.

The process led the White House team to introduce a compromise choice -- Jack L.
Goldsmith, a Defense Department lawyer then on leave from a teaching post at the
University of Chicago Law School.

But Goldsmith's tenure did not proceed as White House aides had expected. He
went on to challenge the administration, rescinding or rewriting several of
Yoo's most sensitive memos after unearthing what he called numerous flaws.

The previously unreported disagreement between Ashcroft and the White House
underscores the critical role that the once-obscure Office of Legal Counsel came
to play in the administration's efforts to devise a strategy to bolster its
treatment of terrorism suspects after the attacks of Sept. 11, 2001. White House
spokesman Tony Fratto had no comment yesterday.

It also offers new insight into Ashcroft's frustrations in dealing with hard-
line administration officials as they tried to use the Justice Department to
defend controversial interrogation practices. Once seen by many as an extremist,
Ashcroft, who left his post in 2005, is coming to be viewed as a voice of
moderation on some of the most sensitive national security issues the nation
faced after Sept. 11.

He is expected to address the incident today at a House Judiciary Committee
hearing, the fifth in a series of explorations by Chairman John Conyers Jr. (D-
Mich.) into the underpinnings of the government's legal strategy for fighting
terrorism.

In the spring of 2003, after Office of Legal Counsel chief Jay S. Bybee departed
for a seat on a California appeals court, Ashcroft offered as possible
replacements the names of Paul D. Clement, who later became the administration's
chief representative to the Supreme Court, and Brett M. Kavanaugh, who now sits
on a federal appeals court in the District. Kavanaugh was then serving as a top
aide to Gonzales.

He also recommended Adam G. Ciongoli, a onetime Supreme Court law clerk who
counseled Ashcroft; M. Edward Whelan III, a longtime OLC deputy with Republican
ties; and Daniel Levin, who went on to serve as acting chief of OLC and a legal
adviser to the National Security Council.

But two sources who spoke on the condition of anonymity said that Card called to
reject the names shortly after the list arrived at the White House.

"The message was that there was only one candidate they wanted, and that was
John Yoo," one source said.

Through a White House liaison, Ashcroft told Bush that Yoo was unacceptable.
Former Justice officials have said that the attorney general resented Yoo's
close relationship with Addington and their consultations on sensitive legal
advice.

Card and Gonzales "were absolutely determined to have a guy who was going to
tell them what they wanted to hear," said the other source.

The compromise selection of Goldsmith soon proved problematic when he took issue
with Yoo's opinions. Last year, he published an inside account of his stormy
tenure at Justice and his disagreements with administration officials.

Since leaving office, Ashcroft, who now leads the Ashcroft Group, a consulting
firm, has been tight-lipped about national security issues and internal disputes
that occurred during his government service.

One famous episode that eventually broke into public view was a March 2004
showdown in which Gonzales and Card visited Ashcroft while he was in the
hospital, in an apparent attempt to persuade him to reauthorize a warrantless
eavesdropping program over the objections of others at Justice. The strong-arm
tactics prompted resignation threats from Ashcroft, deputy James B. Comey, FBI
Director Robert S. Mueller III and others.

Former Justice officials have spoken openly about disagreements with Yoo. They
say he routinely avoided the chain of command at the department and held secret
meetings with a small war council of lawyers who advocated for expansive
presidential powers.

After he was passed over for the top job at OLC, Yoo left Justice in the summer
of 2003. But he has staunchly defended his judgments on vexing questions that
developed in the aftermath of terrorist strikes.

Yoo drafted secret legal briefs supporting the warrantless wiretapping program
and the use of such strategies as sleep deprivation and simulated drowning in
questioning terrorism suspects. The documents since have been likened to a
"golden shield" that essentially offered legal immunity to contractors, CIA
agents and others who interrogated prisoners in Iraq, Afghanistan and at the
U.S. detention facility at Guantanamo Bay, Cuba.

*


New York Times --

June 27, 2007
COMPARING TODAY'S TACTICS WITH THOSE USED IN THE PAST
by Scott Shane

http://www.nytimes.com/2007/06/27/washington/27assess.html

WASHINGTON, June 26 -- When the Central Intelligence Agency took a nervous look
at its past in 1973, one potential illegal act officials identified was the
treatment of a KGB officer named Yuri Nosenko. After fleeing to the United
States in 1964, Mr. Nosenko was held in a makeshift jail for three years and
subjected to tough questioning to determine whether he was a genuine defector or
a plant.

A CIA document released Tuesday said officials "became increasingly concerned
with the illegality of the agency's position in handling a defector under these
conditions for such a long period of time." So Mr. Nosenko was moved to a more
comfortable safe house, given friendlier treatment and felt "no bitterness"
about his experience after he resettled with a new wife, said the 1973
memorandum recounting the case.

In an era when secret CIA detentions have become a mainstay of the news, the
comparison is hard to avoid. Since 2002, the agency has jailed nearly 100
suspected terrorists overseas and subjected some of them to far harsher
interrogations than Mr. Nosenko's. The program is not seen as an agency lapse,
and instead has been vigorously defended by CIA officials and President Bush.

Comparisons between different historical eras are always tricky. With an
incomplete account of CIA misdeeds in its first quarter century from the so-
called family jewels, released this week with many redactions, and a presumably
even more incomplete knowledge of the spy agencies' actions since 2001, such a
comparison is inevitably flawed.

But it is also irresistible. And it raises a provocative question: do the
actions of the intelligence agencies in the era of Al Qaeda, which include
domestic eavesdropping without warrants, secret detentions and interrogations
arguably bordering on torture, already match or even eclipse those of the
Vietnam War period?

At both times, Americans faced a hostile global ideology -- communism then,
violent Islamic jihadism today -- and feared cells hidden in their midst. In the
face of such a threat, it may be no surprise that secret agencies, wielding
powerful technology and with the formidable backing of a president, sometimes
come into conflict with democratic ideals.

On Tuesday, the CIA director, Gen. Michael V. Hayden, tried to pre-empt such
comparisons in a message to agency employees that was part cheerleading and part
explanation of why the agency had finally released the documents, first
requested in 1992 under the Freedom of Information Act by the National Security
Archive at George Washington University.

"We will find in the press coverage of today's release reminders of some things
the CIA should not have done," General Hayden wrote. But he added: "I firmly
believe that the improved system of intelligence oversight that came out of the
1970s gives the CIA a far stronger place in our democratic system. What we do
now to protect Americans we do within a powerful framework of law and review."

Some cold war activities exposed over the years went beyond those detailed in
the 700 pages of documents released Tuesday, including failed plots to
assassinate foreign leaders and mind-control experiments on unwitting Americans
and foreign agents. Still, independent historians of the agency did not see the
sharp contrast between past and present that General Hayden described.

"We don't know everything that's going on today," said David M. Barrett, a
political scientist at Villanova University. "But it seems to me there's already
enough evidence to conclude that things are not so different today."

Mr. Barrett, the author of a 2005 book on the CIA and Congress in the 1940s and
1950s, said the notion that the CIA was once lawless but now meticulously
followed the law was simply wrong.

He said Lawrence Houston, the agency's general counsel for its first 26 years,
"signed off on a lot of things that were of questionable legality." And while
the agency now has far more lawyers, they too have approved actions that some
independent legal experts consider illegal or improper, he said, including
kidnapping terrorists in foreign countries and using the simulated drowning
technique called waterboarding.

James Bamford, whose books on American intelligence cover the period from the
Korean War to the Iraq war, took a similar view. Mr. Bamford said the scale of
the National Security Agency's interception of phone calls and e-mail messages
of Americans and others in the United States in recent years -- which prompted a
lawsuit from the American Civil Liberties Union in which Mr. Bamford is a
plaintiff -- almost certainly dwarfs the electronic surveillance and the review
of mail carried out by the NSA and the CIA in the 1960s.

If the collection details government spying on Vietnam War protesters, it has a
contemporary echo in the Pentagon's admission that a database called Talon
improperly recorded the activities of Iraq war protesters, he said.

"These documents are supposed to show the worst of the worst back then," Mr.
Bamford said. "But what's going on today makes the family jewels pale by
comparison."

The controversial activities of the campaign against terrorism took place
despite the changes enacted after the scandals of the 1970s.

The Bush administration chose to bypass the Foreign Intelligence Surveillance
Court, created in 1978 to oversee eavesdropping on American soil. The Senate and
House Intelligence Committees, created to make sure past abuses would never be
repeated, did little to rein in the NSA wiretapping program or to set limits on
interrogation practices until news reports set off a furor.

On the other hand, the recent surveillance activities appear so far to have been
aimed at mostly people believed to pose a terrorist threat, not a political
threat. So far there is no evidence of anything comparable, for example, to the
FBI's relentless pursuit and harassment of the Rev. Dr. Martin Luther King Jr.
or the political abuses of Watergate.

"I think there's a lower threshold today for activities that impinge on our
privacy and civil liberties," said Amy Zegart, author of the coming book "Spying
Blind: The FBI, the CIA and the Origins of 9/11."

But she added the caveat that the full story might not be known for decades,
quoting a line about the William J. Casey, CIA director under President Ronald
Reagan: "The old joke was that Casey wouldn't tell you your coat was on fire
unless you asked."

*


New York Times --

June 22, 2008

EDITORS' NOTE

by The New York Times

http://www.nytimes.com/2008/06/22/washington/web22ksmnote.html

The Central Intelligence Agency asked The New York Times not to publish the name
of Deuce Martinez, an interrogator who questioned Khalid Shaikh Mohammed and
other high-level Al Qaeda prisoners, saying that to identify Mr. Martinez would
invade his privacy and put him at risk of retaliation from terrorists or
harassment from critics of the agency.

After discussion with agency officials and a lawyer for Mr. Martinez, the
newspaper declined the request, noting that Mr. Martinez had never worked under
cover and that others involved in the campaign against Al Qaeda have been named
in news stories and books. The editors judged that the name was necessary for
the credibility and completeness of the article.

The Times's policy is to withhold the name of a news subject only very rarely,
most often in the case of victims of sexual assault or intelligence officers
operating under cover.

Mr. Martinez, a career analyst at the agency until his retirement a few years
ago, did not directly participate in waterboarding or other harsh interrogation
methods that critics describe as torture and, in fact, turned down an offer to
be trained in such tactics.

The newspaper seriously considered the requests from Mr. Martinez and the
agency. But in view of the experience of other government employees who have
been named publicly in books and published articles or who have themselves
chosen to go public, the newspaper made the decision to print the name.

*


New York Times --

June 22, 2008
INSIDE A 9/11 MASTERMIND'S INTERROGATION
by Scott Shane

http://www.nytimes.com/2008/06/22/washington/22ksm.html

WASHINGTON -- In a makeshift prison in the north of Poland, Al Qaeda's engineer
of mass murder faced off against his Central Intelligence Agency interrogator.
It was 18 months after the 9/11 attacks, and the invasion of Iraq was giving
Muslim extremists new motives for havoc. If anyone knew about the next plot, it
was Khalid Shaikh Mohammed.

The interrogator, Deuce Martinez, a soft-spoken analyst who spoke no Arabic, had
turned down a CIA offer to be trained in waterboarding. He chose to leave the
infliction of pain and panic to others, the gung-ho paramilitary types whom the
more cerebral interrogators called "knuckledraggers."

Mr. Martinez came in after the rough stuff, the ultimate good cop with the
classic skills: an unimposing presence, inexhaustible patience and a willingness
to listen to the gripes and musings of a pitiless killer in rambling, imperfect
English. He achieved a rapport with Mr. Mohammed that astonished his fellow CIA
officers.

A canny opponent, Mr. Mohammed mixed disinformation and braggadocio with details
of plots, past and planned. Eventually, he grew loquacious. "They'd have long
talks about religion," comparing notes on Islam and Mr. Martinez's Catholicism,
one CIA officer recalled. And, the officer added, there was one other detail no
one could have predicted: "He wrote poems to Deuce's wife."

Mr. Martinez, who by then had interrogated at least three other high-level
prisoners, would bring Mr. Mohammed snacks, usually dates. He would listen to
Mr. Mohammed's despair over the likelihood that he would never see his children
again and to his catalog of complaints about his accommodations.

"He wanted a view," the CIA officer recalled.

The story of Mr. Martinez's role in the CIA's interrogation program, including
his contribution to the first capture of a major figure in Al Qaeda, provides
the closest look to date beneath the blanket of secrecy that hides the program
from terrorists and from critics who accuse the agency of torture.

Beyond the interrogator's successes, this account includes new details on the
campaign against Al Qaeda, including the text message that led to Mr. Mohammed's
capture, the reason the CIA believed his claim that he was the murderer of the
Wall Street Journal reporter Daniel Pearl and the separate teams at the CIA's
secret prisons of those who meted out the agony and those who asked the
questions.

In the Hollywood cliche of Fox's "24," a torturer shouts questions at a bound
terrorist while inflicting excruciating pain. The CIA program worked
differently. A paramilitary team put on the pressure, using cold temperatures,
sleeplessness, pain and fear to force a prisoner to talk. When the prisoner
signaled assent, the tormenters stepped aside. After a break that could be a day
or even longer, Mr. Martinez or another interrogator took up the questioning.

Mr. Martinez's success at building a rapport with the most ruthless of
terrorists goes to the heart of the interrogation debate. Did it suggest that
traditional methods alone might have obtained the same information or more? Or
did Mr. Mohammed talk so expansively because he feared more of the brutal
treatment he had already endured?

A definitive answer is unlikely under the Bush administration, which has
insisted in court that not a single page of 7,000 documents on the program can
be made public. The CIA declined to provide information for this article, in
part, a spokesman said, because the agency did not want to interfere with the
military trials planned for Mr. Mohammed and four other Qaeda suspects at
Guantanamo Bay, Cuba.

The two dozen current and former American and foreign intelligence officials
interviewed for this article offered a tantalizing but incomplete description of
the CIA detention program. Most would speak of the highly classified program
only on the condition of anonymity.

Mr. Martinez declined to be interviewed; his role was described by colleagues.
Gen. Michael V. Hayden, director of the CIA, and a lawyer representing Mr.
Martinez asked that he not be named in this article, saying that the former
interrogator believed that the use of his name would invade his privacy and
might jeopardize his safety. The New York Times, noting that Mr. Martinez had
never worked undercover and that others involved in the campaign against Al
Qaeda have been named in news articles and books, declined the request. (An
editors' note on this issue has been posted on The Times's Web site.)

The very fact that Mr. Martinez, a career narcotics analyst who did not speak
the terrorists' native languages and had no interrogation experience, would end
up as a crucial player captures the ad-hoc nature of the program. Officials
acknowledge that it was cobbled together under enormous pressure in 2002 by an
agency nearly devoid of expertise in detention and interrogation.

"I asked, 'What are we going to do with these guys when we get them?' " recalled
A. B. Krongard, the No. 3 official at the CIA from March 2001 until 2004. "I
said, 'We've never run a prison. We don't have the languages. We don't have the
interrogators.' "

In its scramble, the agency made the momentous decision to use harsh methods the
United States had long condemned. With little research or reflection, it
borrowed its techniques from an American military training program modeled on
the torture repertories of the Soviet Union and other cold-war adversaries, a
lineage that would come to haunt the agency.

It located its overseas jails based largely on which foreign intelligence
officials were most accommodating and rushed to move the prisoners when word of
locations leaked. Seeking a longer-term solution, the CIA spent millions to
build a high-security prison in a remote desert location, according to two
former intelligence officials. The prison, whose existence has never been
disclosed, was completed -- and then apparently abandoned unused -- when
President Bush decided in 2006 to move all the prisoners to Guantanamo.

By then, whether it was a result of a fear of waterboarding, the patient trust-
building mastered by Mr. Martinez or the demoralizing effects of isolation, Mr.
Mohammed and some other prisoners had become quite compliant. In fact, according
to several officials, they had become a sort of terrorist focus group, advising
their captors on their fellow extremists' goals, ideology and tradecraft.

Asked, for example, how he would smuggle explosives into the United States, Mr.
Mohammed told C.I.A officers that he might send a shipping container from Japan
loaded with personal computers, half of them packed with bomb materials,
according to a foreign official briefed on the episode.

"It was to understand the mind of a terrorist -- how a terrorist would do
certain things," the foreign official said of the discussions of hypothetical
attacks. Thus did the architect of 9/11 become, in effect, a counterterrorism
adviser to the American government he professed to despise.

A Break in Pakistan

When Mr. Martinez flew to Pakistan early in 2002, he was joining an increasingly
desperate campaign to catch and question anyone who might know the plans for the
next terrorist attack.

Months had passed since Sept. 11, 2001, without a single senior Qaeda figure
being taken alive. Intelligence agencies were alarmed by the eavesdropping
"chatter" about threats. But without a high-level terrorist in custody, the
government had few sources to warn of plots in progress.

Then, in February 2002, the CIA station in Islamabad, Pakistan, learned that Abu
Zubaydah, Al Qaeda's logistics specialist, was in Lahore or Faisalabad,
Pakistani cities 80 miles apart with a combined population of more than 10
million. The hunt for the terrorist's electronic trail grew intensive.

Armed with Abu Zubaydah's cellphone number, eavesdropping specialists deployed
what some called the "magic box," an electronic scanner that could track any
switched-on mobile phone and give its approximate location. But Abu Zubaydah was
careful about security: he turned his phone on only briefly to collect messages,
not long enough for his trackers to get a fix on his whereabouts.

That was when Mr. Martinez arrived, beginning what would be an unlikely
engagement with the world's worst terrorists.

The son of a CIA technician who worked on the agency's secret communications and
eventually became a senior executive, Mr. Martinez grew up in Virginia, majored
in political science at James Madison University and went directly into the CIA
training program not long before his father retired. He wound up in the agency's
Counternarcotics Center, learning to sift masses of phone numbers, travel
records, credit card transactions and more to search for people.

"Deuce had a reputation as one of those eggheads who could sit down with a lot
of data and make sense out of it," said one former CIA officer who knew him
well. In the agency's great cultural divide, he was a stay-at-home analyst, not
an "operator," one of the glamorous spies who recruited foreign agents overseas.
His tool was the computer, and until the earthquake of 9/11 his expertise was
drug cartels, not terrorist networks.

After the attacks, officials recognized that tracking drug lords was not so
different from searching for terrorist masterminds, and Mr. Martinez was among a
half dozen or so narcotics analysts moved to the Counterterrorist Center to
become "targeting officers" in the hunt for Al Qaeda.

Colleagues say Mr. Martinez, then 36, threw himself into the new work with a
passion. On a wall at the American Embassy in Islamabad, he posted a large,
blank piece of paper. He wrote Abu Zubaydah's phone number at the center. Then,
over a week or so, he and others added more and more linked phone numbers from
the eavesdropping files of the National Security Agency and Pakistani
intelligence. They excluded known institutions like mosques and shops and
gradually built a map of the network of contacts around Abu Zubaydah.

"It was a spider's web," said one person who saw the telephone chart.
"Aesthetically it was quite pretty."

Using the numbers, and premises linked to them, Mr. Martinez and his colleagues
sought to identify Abu Zubaydah's most likely hide-outs. They could not reduce
the list to fewer than 14 addresses in Lahore and Faisalabad, which they put
under surveillance. At 2 a.m. on March 28, 2002, teams led by Pakistan's Punjab
Elite Force, with Americans waiting outside, hit the locations all at once.

One of the SWAT teams found Abu Zubaydah, protected by Syrian and Egyptian
bodyguards, at a handsome house on Canal Road in Faisalabad. It held bomb-making
equipment and a safe loaded with $100,000 in cash, according to a terrorism
consultant briefed on the event. Photographs of the raid reviewed by The Times
last month showed Abu Zubaydah, a cleanshaven 30-year-old Palestinian, shot
three times during the raid, lying face down in the back of a Toyota pickup
before he was taken to a hospital.

At first, Abu Zubaydah fell in and out of consciousness, emerging occasionally
to speak incoherently -- once, evidently imagining himself in a restaurant,
ordering a glass of red wine, a CIA official said. The agency, desperate to keep
him alive, flew in a Johns Hopkins Hospital surgeon to consult. Within a few
days, Abu Zubaydah was flown to Thailand, to the first of the "black sites," the
agency's interrogation facilities for major Qaeda figures.

Thailand, which had long faced Muslim insurgents in its south, became the first
choice because CIA officers had a very close relationship with their
counterparts in Bangkok, according to one American intelligence official. At
first, the official said, "they didn't even tell the prime minister."

Inside a 'Black Site'

It was at the Thai jail, not far from Bangkok, that Mr. Martinez first tried his
hand at interrogation on Abu Zubaydah, who refused to speak Arabic with his
captors but spoke passable English. It was also there, as previously reported,
that the CIA would first try physical pressure to get information, including the
near-drowning of waterboarding. The methods came from the military's SERE
training program, for Survival, Evasion, Resistance and Escape, which many of
the CIA's paramilitary officers had themselves completed. A small version of
SERE had long operated at the CIA's Virginia training site, known as The Farm.

Senior Federal Bureau of Investigation officials thought such methods
unnecessary and unwise. Their agents got Abu Zubaydah talking without the use of
force, and he revealed the central role of Mr. Mohammed in the 9/11 plot. They
correctly predicted that harsh methods would darken the reputation of the United
States and complicate future prosecutions. Many CIA officials, too, had their
doubts, and the agency used contract employees with military experience for much
of the work.

Some CIA officers were torn, believing the harsh treatment could be effective.
Some said that only later did they understand the political cost of embracing
methods the country had long shunned.

John C. Kiriakou, a former CIA counterterrorism officer who was the first to
question Abu Zubaydah, expressed such conflicted views when he spoke publicly to
ABC News and other news organizations late last year. In a December interview
with The Times, before being cautioned by the CIA not to discuss classified
matters, Mr. Kiriakou, who was not present for the waterboarding but read the
resulting intelligence reports, said he had been told that Abu Zubaydah became
compliant after 35 seconds of the water treatment.

"It was like flipping a switch," Mr. Kiriakou said of the shift from resistance
to cooperation. He said he thought such "desperate measures" were justified in
the "desperate time" in 2002 when another attack seemed imminent. But on
reflection, he said, he had concluded that waterboarding was torture and should
not be permitted. "We Americans are better than that," he said.

With Abu Zubaydah's case, the pattern was set. With a new prisoner, the
interrogators, like Mr. Martinez, would open the questioning. In about two-
thirds of cases, CIA officials have said, no coercion was used.

If officers believed the prisoner was holding out, paramilitary officers who had
undergone a crash course in the new techniques, but who generally knew little
about Al Qaeda, would move in to manhandle the prisoner. Aware that they were on
tenuous legal ground, agency officials at headquarters insisted on approving
each new step -- a night without sleep, a session of waterboarding, even a
"belly slap" -- in an exchange of encrypted messages. A doctor or medic was
always on hand.

The tough treatment would halt as soon as the prisoner expressed a desire to
talk. Then the interrogator would be brought in.

Interrogation became Mr. Martinez's new forte, first with Abu Zubaydah; then
with Ramzi bin al-Shibh, the Yemeni who was said to have been an intermediary
between the 9/11 hijackers and Qaeda leaders, caught in September 2002; and then
with Abd al-Rahim al-Nashiri, the Saudi accused of planning the bombing of the
American destroyer Cole in 2000, who was caught in November 2002.

Mr. bin al-Shibh quickly cooperated; Mr. Nashiri resisted and was subjected to
waterboarding, intelligence officials have said. C.I.A superiors offered Mr.
Martinez and some other analysts the chance to be "certified" in what the CIA
euphemistically called "enhanced interrogation methods."

Mr. Martinez declined, as did several other CIA officers. He did not condemn the
tough methods, colleagues said, but he was learning that his talents lay
elsewhere.

Another Suspect Is Seized

The hunt for Khalid Shaikh Mohammed involved the entire American intelligence
establishment, with its billion-dollar arrays of spy satellites and global
eavesdropping net. But his capture came down to a simple text message sent from
an informant who had slipped into the bathroom of a house in Rawalpindi, near
the Pakistani capital, Islamabad.

"I am with K.S.M.," the message said, according to an intelligence officer
briefed on the episode.

The capture team waited a few hours before going in on the night of March 1,
2003, to blur the connection to the informant, a walk-in attracted by the offer
of a $25 million reward. The informant, described by one American who met him as
"a little guy who looked like a farmer," would later get a face-to-face thank
you from George J. Tenet, then the CIA director, at the American Embassy in Abu
Dhabi, intelligence officials say, and he was resettled with his reward money
under a new identity in the United States.

Within days, Mr. Mohammed was flown to Afghanistan and then on to Poland, where
the most important of the CIA's black sites had been established. The secret
base near Szymany Airport, about 100 miles north of Warsaw, would become a
second home to Mr. Martinez during the dozens of hours he spent with Mr.
Mohammed.

Poland was picked because there were no local cultural and religious ties to Al
Qaeda, making infiltration or attack by sympathizers unlikely, one CIA officer
said. Most important, Polish intelligence officials were eager to cooperate.

"Poland is the 51st state," one former CIA official recalls James L. Pavitt,
then director of the agency's clandestine service, declaring. "Americans have no
idea."

Mr. Mohammed met his captors at first with cocky defiance, telling one veteran
CIA officer, a former Pakistan station chief, that he would talk only when he
got to New York and was assigned a lawyer -- the experience of his nephew and
partner in terrorism, Ramzi Yousef, after Mr. Yousef's arrest in 1995.

But the rules had changed, and the tough treatment began shortly after Mr.
Mohammed was delivered to Poland. By several accounts, he proved especially
resistant, chanting from the Koran, doling out innocuous information or offering
obvious fabrications. The Times reported last year that the intensity of his
treatment -- various harsh techniques, including waterboarding, used about 100
times over a period of two weeks -- prompted worries that officers might have
crossed the boundary into illegal torture.

His cooperation came in fits and starts, and interrogators said they believed at
times that he gave them disinformation. But he talked most freely to Mr.
Martinez.

An obvious chasm separated these enemies -- the interrogator and the prisoner.
But Mr. Martinez shared a few attributes with his adversary that he could
exploit as he sought his secrets. They were close in age, approaching 40; they
had attended public universities in the American South (Mr. Mohammed had studied
engineering at North Carolina A&T); they were both religious; and they were both
fathers.

Mr. Mohammed, according to one former CIA officer briefed on the sessions,
"would go through these emotional cycles."

"He'd be chatty, almost friendly," the officer added. "He liked to debate. He
got to the stage where he'd draw parallels between Christianity and Islam and
say, 'Can't we get along?' "

By this account, Mr. Martinez would reply to the man who had overseen the
killing of nearly 3,000 people: "Isn't it a little late for that?"

At other times, the CIA officer said, Mr. Mohammed would grow depressed,
complaining about being separated from his family and ranting about his cell or
his food -- a common theme for other prisoners, including Abu Zubaydah, who
protested when the flavor of his Ensure nutrition drink was changed.

Sometimes Mr. Mohammed wrote letters to the Red Cross or to President Bush with
his demands; the letters went to CIA psychologists for analysis.

And there were the poetic tributes to Mr. Martinez's wife, scribbled in Mr.
Mohammed's ungrammatical English and intended as a show of respect for his
interrogator, according to a colleague who heard Mr. Martinez's account.

But as time passed, Mr. Mohammed provided more and more detail on Al Qaeda's
structure, its past plots and its aspirations. When he sometimes sought to
mislead, interrogators often took his claims immediately to other Qaeda
prisoners at the Polish compound to verify the information.

The intelligence riches ultimately gleaned from Mr. Mohammed were reflected in
the report of the national 9/11 commission, whose footnotes credit his
interrogations 60 times for facts about Al Qaeda and its plotting -- while also
occasionally noting assertions by him that were "not credible."

The interrogations the commission cited began just 11 days after Mr. Mohammed's
capture and ended just days before the commission's report was published in
mid-2004. Together they amount to a detailed history of Mr. Mohammed's
initiation into terrorism along with his nephew, Mr. Yousef; his plotting of
mayhem from Bosnia to the Philippines; and his alliance with Osama bin Laden, to
whom the egotistical Mr. Mohammed was reluctant to defer.

Mr. Mohammed also claimed a role in a long list of completed and thwarted
attacks. Human rights advocates have questioned some of Mr. Mohammed's claims,
including the beheading of Mr. Pearl, the Wall Street Journal reporter,
suggesting that they may have been false statements made to stop torture.

But Mr. Martinez told colleagues that Mr. Mohammed volunteered out of the blue
that he was the man who killed Mr. Pearl. The CIA at first was skeptical,
according to two former agency officials. Intelligence analysts eventually were
convinced, however, in part because Mr. Mohammed pointed out to Mr. Martinez
details of the hand and arm of the masked killer in a videotape of the murder
that appeared to show it was him.

"He was a leader," said a foreign counterterrorism official briefed on the
episode. "He wanted to demonstrate to his people how ruthless he could be."

Divergent Paths

On June 5, Mr. Mohammed made a theatrical return to the public eye at his
Guantanamo Bay arraignment, with a long, graying beard and a defiant insistence
that the American military commission could do no more to him than give him his
wish: execution and martyrdom.

His interrogator has moved on, too. Like many other CIA officers in the
post-9/11 security boom, Mr. Martinez left the agency for more lucrative work
with government contractors.

His life today is quiet by comparison with the secret interrogations of 2002 and
2003. But Mr. Martinez has not turned away entirely from his old world. He now
works for Mitchell & Jessen Associates, a consulting company run by former
military psychologists who advised the CIA on the use of harsh tactics in the
secret program.

And his new employer sent Mr. Martinez right back to the agency. For now, the
unlikely interrogator of the man perhaps most responsible for the horrors of
9/11 teaches other CIA analysts the arcane art of tracking terrorists.

[ This article has been revised to reflect the following correction:

Correction: June 25, 2008

A chart on Sunday with the continuation of a front-page article about the CIA's
secret interrogation program misidentified the Pakistan cities where two major
Al Qaeda figures, Abu Zubaydah and Khalid Shaikh Mohammed, were captured. As the
article correctly noted, Mr. Zubaydah was captured in Faisalabad, not
Rawalpindi, and Mr. Mohammed was captured in Rawalpindi, not Karachi. The chart
also misstated the year of Mr. Mohammed's capture. As the article also correctly
noted, he was captured in March 2003, not 2002.

The chart also overstated what is known about the location where the two men
were held en route from a prison in Poland to Guantanamo Bay, Cuba. While it is
possible that the location may have been in the Middle East, that information
has not been confirmed. ]

*


The Times (UK) --

June 6, 2008

I WANT TO BE A MARTYR, KHALID SHEIKH MOHAMMED TELLS GUANTANAMO TRIBUNAL

by Tim Reid

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article4076206.ece

Washington -- The man accused of masterminding the September 11 attacks told a
US military court yesterday that he would welcome the death sentence and
martyrdom, when he made his first public appearance since his arrest in Pakistan
five years ago.

Looking old and sporting thick military-issue glasses, a long bushy grey beard
and a cream tunic and turban, Khalid Sheikh Mohammed, 43, cheerfully chanted
verses from the Koran. He accused President Bush of being a murderous crusader
and defiantly rejected the help of defence lawyers during his keenly anticipated
appearance before a war crimes tribunal at Guantanamo Bay.

Mr Mohammed and his four alleged co-conspirators each face death if convicted of
war crimes including murder, conspiracy, attacking civilians and terrorism by
hijacking planes to attack American landmarks. The murder charges involve the
deaths of 2,973 people at the World Trade Centre, the Pentagon and in a field in
Pennsylvania where passengers forced down their aircraft.

Mr Mohammed looked noticeably thinner than at the time of his capture in the
northern Pakistani city of Quetta in March 2003. His appearance was in stark
contrast to the still photograph that the US showed the world - taken moments
after he had been roused from sleep and arrested - of an overweight, unshaven
and slovenly man with dishevelled hair and a vest.

All US law was evil, he said, and he accused the authorities of extracting his
confession by force. The CIA has admitted that Mr Mohammed was subjected to the
highly controversial interrogation technique known as waterboarding - simulated
drowning that human rights goups have described as torture. "All of this has
been taken under torturing," he said. "You know that very well."

He spent much of the first day of his trial grinning and chatting with his four
co-defendants. They included Ramzi Binalshibh, who is said to have been the main
intermediary between the 19 hijackers and Osama bin Laden, the al-Qaeda leader,
and Waleed bin Attash, who is accused of selecting and training some of the
September 11 terrorists. He lost a leg in Afghanistan in 1997, appeared frail
yesterday and sat on a pillow.

Asked by the judge, Marine Colonel Ralph Kohlmann, if he was satisfied with the
US military lawyer appointed to defend him, Mr Mohammed said that he believed
only in the law of God. "My shield is Allah most high," he said in heavily
accented English learnt while studying mechanical engineering in North Carolina
in the mid-1980s. He added that his religion forbade him from accepting a lawyer
from the US and that he wanted to represent himself.

The judge warned him that he faced execution if convicted of masterminding the
attacks. Mr Mohammed replied: "Yes, that is what I wish. I wish to be martyred.
I will, God willing, have this, by you."

According to a transcript of a military hearing held at the US Naval base in
Cuba last year, Mr Mohammed boasted not only of conceiving, planning and
masterminding the September 11 attacks, but of leading a string of other
spectacular atrocities, including the bombing of a Bali nightclub in 2002. He
also claimed that he personally killed the Wall Street Journal reporter Daniel
Pearl - abducted and decapitated in Karachi in early 2002 - "with my blessed
right hand". At the same hearing he again alleged that he had been tortured.

"It's an inquisition. It's not a trial," Mr Mohammed said, his voice rising.
"After torturing they transfer us to inquisition land in Guantanamo."

The five accused entered the specially constructed courtroom yesterday without
leg chains or handcuffs. A chain protruding through the floor was linked to
shackles in case any of the defendants needed to be restrained. Sixty
journalists sat behind a soundproof glass wall and heard proceedings with a 20-
second delay so that the judge could cut off the audio when "classified"
information was being discussed.

Mr Mohammed was placed in secret CIA prisons after his capture and held without
charge, a period during which the CIA says that he was waterboarded. The US
military refuses to concede that the technique amounts to torture, and Mr Bush
himself has said that Mr Mohammed was subjected to harsh techniques which do not
constitute torture. Mr Mohammed was transferred to Guantanamo Bay, along with a
group of other "high-level" detainees, in 2006.

His court appearance provides the sternest test yet for President Bush's
controversial tribunal system, which has been beset by legal setbacks and
internal blunders and has been decried by international observers. Since Mr Bush
announced the plan for military commissions in November 2001, no case has gone
to trial. Both Barack Obama and John McCain, this year's presidential
candidates, have said that they want to close Guantanamo Bay. Mr Obama opposes
the tribunals; Mr McCain supports them.

In June 2006 the US Supreme Court effectively ruled that the military tribunals
were illegal under US law and the Geneva Conventions. The Bush Administration
resurrected them by getting the Military Commissions Act passed by Congress in
December 2006, which allowed, among other requirements, a right of appeal.

Yet that legislation is also due to be contested at the US Supreme Court. The
law still allows as admissable confessions obtained through harsh
interrogations, as long as they took place before 2006, and if the military
judge finds the evidence "reliable" and "in the interests of justice". The
military commission rules also allow the prosecution to withhold classified
sources and methods of interrogation from defence lawyers.

*


Toronto Globe and Mail --

June 2, 2008

CELIL, GUANTANAMO BAY AND THE REJECTED REFUGEES
Ottawa got cold feet about taking Uyghurs

by Omar El Akkad

http://www.theglobeandmail.com/servlet/story/LAC.20080602.CELIL02/
TPStory/National/?pageRequested=all

OTTAWA -- Languishing behind prison walls somewhere in China, Huseyin Celil may
never know how much impact he has had on the continuing plight of a group of his
brethren held in a controversial prison on the other side of the planet.

The Globe and Mail has learned that the Canadian government came very close to
accepting as refugees a group of Uyghur prisoners from Guantanamo Bay - men who
were captured by bounty hunters in Pakistan six years ago, handed over to
American soldiers, shipped off to Guantanamo and then almost immediately found
to have done nothing wrong.

But Ottawa pulled back at the last minute, in large part, sources say, because
of fears of what would happen to Mr. Celil, also a member of China's Uyghur
minority, if the transfer went ahead - Beijing has lobbied furiously to keep any
nation from accepting the Guantanamo Bay detainees.

Interviews with government and legal sources, as well as documents obtained
under the Access to Information Act, show the political negotiations that went
on behind the scenes, as the U.S. desperately tried to get rid of men it now
admits pose no threat. Those men might well be Canadian residents today if it
weren't for another imprisoned Canadian whose release Ottawa is unable to
secure.

POLITICAL FAVOURS

In 2002, a few months after the U.S. invaded Afghanistan, bounty hunters across
the region were rounding up anyone they could hand over to the American
military, usually for a handsome sum - an arrangement the military frequently
accepted.

Among those men were a group of almost two dozen Uyghur men captured in
Pakistan. The Uyghurs are a Muslim minority group in northwest China. Since
Sept. 11, 2001, Beijing has used the war on terrorism as leverage in its
continuing crackdown on the Uyghurs, some of whom have fought fiercely for
independence from China.

The men were handed over to the U.S. military for about $5,000 a head, and
eventually flown to the newly established detention facility in Guantanamo Bay.

It quickly became clear to U.S. officials that, if the Uyghurs harboured hatred
against any government, it was that of China, not the United States. The men
denied allegations of wrongdoing, and it wasn't long before then-secretary of
state Colin Powell was looking for a country to take the prisoners.

"The U.S. recognized very early on that these men were captured by mistake,'
said J. Wells Dixon, an attorney with the New York-based Center for
Constitutional Rights, who represents some of the Uyghurs.

Although some of the detainees were cleared for release from Guantanamo Bay as
early as 2003, it was not until 2006 that any of them actually left the naval
base.

The timing of the men's release was coincidental at best. Some of the prisoners,
who had earlier been declared "no longer enemy combatants," had filed court
cases arguing the U.S. could no longer detain them. A U.S. court of appeal was
set to hear arguments in the case on May 8, 2006. Three days before the hearing
was scheduled, the five men were released from the base and flown to Albania.
The court case was dismissed, and Washington avoided a ruling on whether what
was happening in Guantanamo was legal.

Albania, which has no Uyghur community to speak of, was far from an ideal
location for the men. Indeed, the U.S. had quietly (and unsuccessfully) lobbied
about 100 countries to take the prisoners. Among those countries was Canada, a
place the prisoners' lawyers had hoped would agree to take them in. Albania was
the lone outlier among those countries, and not for purely benevolent reasons.

"It appears to us that they were sent to Albania because Albania owed the U.S. a
political favour," said Mr. Dixon. "Albania wants very much to become a part of
the European Union. ... As soon as [the Uyghurs] were sent to Albania, it was
shortly thereafter that the U.S. announced support for Albania's efforts to join
the European Union."

It is also believed that the U.S. paid millions of dollars as part of the
transfer agreement.

But the factors were not the same with other countries. Many did not want to
take men who were in any way associated with the controversial detention
facility. Many questioned why Washington wouldn't allow the men to settle in the
U.S. (something that would have had serious political and legal implications on
the already controversial Guantanamo Bay facility).

But perhaps the most significant factor in the widespread refusal to accept the
men had to do with Beijing's lobbying. The Chinese government made it clear that
it considers any such transfers to be violations of international law, and wants
the men instead sent to China. But the U.S. has refused to send the men back
because of the likelihood they would be tortured. In an ironic twist, the U.S.
was now put in a position where it had to protect men it once accused of heinous
crimes from potentially heinous treatment.

Judging by how many nations refused to take the prisoners, China's lobbying
appears to have been at least partly successful. But in Ottawa, Beijing's
position carried even more weight.

CRACKING UNDER PRESSURE

On May 18, 2006, a U.S. delegation met with senior political staff at the
Department of Foreign Affairs, Citizen and Immigration Canada, the Canada Border
Services Agency, the Department of Justice and the Prime Minister's Office. The
purpose of the high-level meeting was to discuss the Uyghurs.

It was not the first time the U.S. had asked for Canada's help. Washington had
sent specific requests about the Uyghurs to Foreign Affairs, CIC and the Privy
Council office in October, November and December of 2005.

Documents obtained under the Access to Information and Privacy Act show that
Canadian officials at the May meeting indicated the prisoners would likely be
inadmissible under Canadian immigration law, but did not make a firm decision.

"There has been no decision by the Government of Canada as to whether to
formally discourage or encourage the US from making formal referrals for
resettlement pursuant to the Canada-US Safe Third Country Agreement," a briefing
note reads.

Under the agreement, anyone seeking refugee protection must make a claim in the
first country they arrive in - be it the U.S. or Canada - unless they qualify
for an exception. The situation may be more complicated in the case of
Guantanamo Bay, a place that Washington has gone to great lengths to treat as a
separate entity from the U.S.

"[The Department of Foreign Affairs] will need to consider the bilateral and
multilateral implications" of any transfer, the briefing note reads.

Government officials were instructed not to talk about the potential transfer.
Officials were to say that privacy legislation prohibits them from discussing
specific immigration or refugee applications, but that "Canada has an active
immigration and refugee program. Individual resettlement requests are assessed
on a case-by-case basis."

Around the same time that Washington and Ottawa were discussing a potential
transfer, Mr. Celil was travelling to Uzbekistan on his newly acquired Canadian
passport to visit his wife's family. While applying for a visa extension in
March, he was arrested. On June 26, despite initially denying any knowledge of
the case, Uzbek officials informed their Canadian counterparts that Mr. Celil
had been handed off to Beijing.

Almost immediately, Ottawa worked to release the detained Canadian, taking his
case up at the highest level with even the Prime Minister involved. Among the
myriad consular cases, this one was a priority, and that meant stopping anything
that could make Mr. Celil's situation worse. The transfer of Uyghurs from
Guantanamo Bay, once a very real possibility, was pulled off the table.

"My impression is that there was reluctance on the part of the Canadian
government to do anything to further complicate their discussions with the
Chinese government about Huseyin Celil," Mr. Dixon said. "In other words, that
there was concern that if Canada accepted the Uyghur prisoners from Gitmo that
that would anger the Chinese and it would potentially complicate efforts by the
Canadian government to get Huseyin Celil released."

A source in Ottawa confirmed that Canada came very close to accepting the Uyghur
prisoners, but ultimately backed off, in large part because of fears about how
such a move would affect Mr. Celil's condition in China.

But if the refusal to accept the Uyghurs as refugees was meant to make the Celil
negotiations go more smoothly, it failed. In April of 2007, Mr. Celil was
sentenced to life in prison for terrorism offences - offences he strongly denies
and Canadian officials said they've seen no evidence of. Mr. Celil has had no
access to Canadian consular officials. Beijing refuses to accept his Canadian
citizenship.

NOWHERE TO TURN

Today, both Mr. Celil and the Guantanamo Bay Uyghurs have little reason to be
optimistic. Both remain in controversial prisons. Despite being declared a non-
threat, the Uyghurs are kept in Camp Six, the highest-security detention
facility in Guantanamo, where inmates are isolated for 22 hours a day. Mr. Celil
is believed to be in a prison in northwest China, but his family is no longer
certain of his exact location.

In a way, both governments responsible for the detention of the Uyghurs and Mr.
Celil have not changed their positions. Beijing has made it clear that it will
not budge in Mr. Celil's case. And fearing that further protest may affect other
aspects of the China-Canada relationship, Ottawa has toned down its efforts to
bring the imprisoned Canadian home.

Washington, too, has not changed its position. The U.S. continues to lobby its
allies to take the Uyghurs, who make up a significant portion of the 70 or so
men that the U.S. deems not a security threat. Since all three remaining
presidential candidates have indicated their desire to close the facility, the
U.S. is desperate to get as many of those 70 as it can out of Guantanamo Bay.

"My impression is that if Canada announced that it would take the Uyghurs on
Monday, they'd be in Canada on Friday," Mr. Dixon said.

*


Associated Press --

May 29, 2008

GITMO JUDGE REMOVED FROM CANADIAN'S CASE

by Michael Melia

http://ap.google.com/article/ALeqM5jQp3OP3yaZ8tKCAs1IPszbngGHxwD90VKM500

SAN JUAN, Puerto Rico (AP) -- A U.S. military judge at Guantanamo Bay who once
acknowledged facing Pentagon criticism over one of his rulings was dismissed
Thursday from the case of a Canadian detainee, a defense lawyer said.

Army Col. Peter Brownback had presided over the tribunal's proceedings against
Toronto-born Omar Khadr since last year.

The chief judge for the Guantanamo tribunals, Marine Col. Ralph Kohlmann,
dismissed Brownback and appointed a new judge for Khadr's case without
explanation, defense lawyer Navy Lt. Cmdr. William Kuebler said.

In November, Brownback said in court that Defense Department officials "didn't
like" a ruling that dismissed the charges over a lack of jurisdiction. That
decision was overturned on appeal.

Khadr's case has been on track to be one of the first to trial at the U.S. Navy
base in southeast Cuba. Khadr, the son of an alleged al-Qaida financier, was
captured in Afghanistan at age 15 and accused of throwing a grenade that killed
a U.S. Special Forces soldier.

Military prosecutors have been pressing Brownback to set a trial date, but he
has repeatedly directed them first to satisfy defense requests for access to
potential evidence. At a hearing earlier this month, he threatened to suspend
the proceedings altogether unless the detention center provided records of
Khadr's confinement.

Kuebler said he believes the U.S. military is anxious for the trial to start
before political pressure leads Canada to demand Khadr's repatriation.

A spokesman for the Pentagon office in charge of the tribunals did not
immediately respond to a request for comment.

*


New York Times --

May 20, 2008

REPORT DETAILS COMPLAINTS OVER INTERROGATIONS

By Eric Lichtblau and Scott Shane

http://www.nytimes.com/2008/05/21/washington/20cnd-detain.html

WASHINGTON -- FBI agents complained repeatedly, beginning in 2002, about the
harsh interrogation tactics that military and FBI interrogators were using in
questioning terrorism suspects, like making them do dog tricks and parade in the
nude in front of female soldiers, but their complaints appear to have had little
effect, according to an exhaustive report released Tuesday by the Justice
Department's inspector general.

The report describes major and repeated clashes between FBI agents and their
counterparts over the rough methods being used on detainees in Guantanamo Bay,
Afghanistan and Iraq -- some of which, according to the inspector general, may
have violated the Defense Department's own policies at the time.

It also provides new insight into the intense debates at senior levels of the
Justice Department, the Defense Department and the National Security Council
over what should and should not be allowed -- a debate in which the Defense
Department prevailed.

The inspector general found that in a few instances, FBI agents participated in
interrogations using pressure tactics that would not have been permitted inside
the United States. But the "vast majority" of agents followed the bureau's legal
guidelines and "separated themselves" from harsh treatment.

For instance, FBI agents expressed "strong concerns" about the abusive treatment
by the FBI in 2002 of Abu Zubaydah, a senior Al Qaeda figure, leading to tense
discussions between senior officials at the two agencies over how such important
prisoners should be handled.

Still, the bureau "had not provided sufficient guidance to its agents on how to
respond when confronted with military interrogators who used interrogation
techniques that were not permitted by the FBI," and that fueled confusion and
dissension, the report said.

"In sum, while our report concluded that the FBI could have provided clearer
guidance earlier, and while the FBI and DoJ could have pressed harder for
resolution of FBI concerns about detainee treatment, we believe the FBI should
be credited for its conduct and professionalism in detainee interrogations in
the military zones in Afghanistan," in Iraq and at Guantanamo Bay, the report
said. DoJ refers to the Justice Department, the bureau's parent agency.

Jameel Jaffer, who tracks detainee issues for the American Civil Liberties
Union, took a more critical stance. "The report confirms that senior FBI
officials knew as early as 2002 that other agencies were using abusive
interrogation methods," Mr. Jaffer said. "The report shows unequivocally,
however, that the FBI's leadership failed to act aggressively to end the abuse."

He said the report documents "a failure of leadership" at the bureau, and "only
underscores the pressing need for an independent and comprehensive investigation
of prisoner abuse."

The report said that several senior Justice Department Criminal Division
officials raised concerns with the National Security Council in 2003 about the
military's treatment of detainees, but saw no changes as a result of their
complaints.

John Ashcroft, the former attorney general, declined to be interviewed by the
inspector general's office of the department he had headed, an unusual refusal
and one that hampered investigators' attempts to learn of discussions inside the
council, the report said.

A Pentagon spokesman had no immediate comment on the report.

The inspector general's office started its investigation in late 2004, following
widespread public attention to the question of detainee treatment spurred by
graphic photographs of prisoners at the Abu Ghraib prison in Iraq.

The American Civil Liberties Union, through a lawsuit, also unearthed numerous
internal e-mail messages from the bureau about agents' complaints of rough
interrogation tactics at Guantanamo Bay, which proved central in the Justice
Department's review.

The investigation examined about a half-million documents and included surveys
of 1,000 FBI agents regarding their experiences with interrogation tactics by
military and FBI interrogators, as well as interviews with hundreds of other
bureau personnel, officials said. The investigation centered on the accounts of
what the agents witnessed in the treatment of prisoners at Guantanamo Bay, in
Iraq and in Afghanistan, and how those complaints were handled. The Justice
Department's inspector general does not have jurisdiction over the Pentagon.

The bulk of the report was completed last year, but its public release by the
inspector general was bottled up for months because of concerns from the Defense
Department about the disclosure of sensitive information centering on
interrogation tactics. The final report from the inspector general, unlike some
earlier terrorism investigations, was released with relatively few blacked-out
sections.

The bureau stationed agents at Guantanamo Bay and other military detention sites
to assist in the questioning of detainees taken into custody after the terror
attacks of Sept. 11, 2001, but the rough tactics by military interrogators soon
became a major source of friction between the bureau and sister agencies. Agents
complained to superiors beginning in 2002 that the tactics they had seen in use
yielded little actual intelligence, prevented them from establishing a rapport
with detainees through more traditional means of questioning, and might violate
bureau policy or American law.

One bureau memorandum spoke of "torture techniques" used by military
interrogators. Agents described seeing things like inmates handcuffed in a fetal
position for up to 24 hours, left to defecate on themselves, intimidated by
dogs, made to wear women's underwear and subjected to strobe lights and extreme
heat and cold.

Ultimately, the bureau ordered its agents not to participate in or remain
present when such tactics were used. But that directive was not formalized until
May 2004, and it governed only the bureau's own agents. Robert S. Mueller III,
director of the FBI, told Congress that he was not made aware of his agents'
concerns until 2004.

Democrats in Congress have been anxiously awaiting the findings from the
inspector general as they seek to push for answers from the Bush administration
about how interrogation policies were developed. Representative Jerrold Nadler,
the New York Democrat who leads a House Judiciary subcommittee on the
Constitution and civil right, told reporters on Monday, in advance of the
report's release, that he sensed a "a reluctance to confront senior
administration officials" about interrogation policies from the bureau and
elsewhere. He said the report should help answer key questions about how
policies were executed.

*


Miami Herald --

May 17, 2008

JUDGE DELAYS WAR-CRIMES TRIAL FOR SUPREME COURT

by Carol Rosenberg

http://www.miamiherald.com/guantanamo/story/536585.html

A military commissions judge Friday postponed the scheduled trial of Osama bin
Laden's driver until after the U.S. Supreme Court has decided another key
detainee case.

Navy Capt. Keith Allred said delaying the start of Salim Hamdan's trial until
July 21 "avoids the potential embarrassment, waste of resources and prejudice to
the accused that would" result were the Bush administration to lose the Supreme
Court case.

"Moreover, the accused has been in confinement for six years and another month
wait will not prejudice any party to the case," Allred wrote.

The decision also provided a window for Hamdan to undergo a mental health
evaluation.

Prosecutors had argued against such an evaluation. But Allred ordered it in
response to defense lawyers' claims that Hamdan has descended into a deep
depression resulting from conditions across six years at the prison camps in
southeast Cuba, which make it impossible for him to assist in his defense.

A California psychiatrist, who treats U.S. veterans, evaluated the driver for
about 100 hours and found he suffers post traumatic stress and is at risk of
suicide because of his conditions of confinement.

Allred ordered that an independent panel of mental health experts examine
Hamdan. If they find he is not competent, Allred said they should decide whether
"more recreation and transfer to a less isolative facility" might improve his
mental health.

In contrast to years of neat grooming and attentiveness, Hamdan turned up
disheveled at his April proceedings and said he would boycott his trial. He and
Allred then chatted in court for about 40 minutes, and Allred found him "witty,
thoughtful, apologetic."

Still the judge wrote that he was "uncertain about the actual state of the
accused's mental health."

Prison camp commanders have unwaveringly maintained that suspected terrorists
confined at the camps are treated humanely and that Hamdan is sane and hasn't
suffered unduly in captivity.

Hamdan is held alone in a steel and concrete cell. His meals are delivered
through a slot in the door. He can see other captives only through the open slot
if they happen to be passing by on their way to recreation cells or showers.

Hamdan has been victorious in challenging the conditions of his captivity
before.

A federal court judge suspended his earlier war crimes trial and ordered him
moved to the general population, resulting in a 2006 U.S. Supreme Court
showdown, which overturned the Bush administration's original plans for war-
crimes tribunal.

Congress then established the current commissions system, the first U.S. war
crimes tribunals since World War II.

But Hamdan's lawyers say his emotional health has deteriorated with each
supposed victory, and that what look like victories from the outside feel like
losses to him.

For example, his lawyers said, guards take away many items when there is a
suggestion he might be suicidal and his tan prison camp uniform is replaced by a
rough "suicide smock" made of thick, tear-proof polyester.

Meanwhile, military lawyers for five Guantanamo captives accused of conspiring
in the Sept. 11, 2001, terrorist attacks filed a motion to have the charges
dismissed, claiming Pentagon meddling in the decision to prosecute them.

The motion on behalf of Khalid Sheik Mohammed and four other captives who had
been held by the CIA argues that the Air Force general who oversees the military
commissions process, Thomas Hartmann, had pressured prosecutors to bring the
charges, a grave ethical violation under military law.

Last week, Allred barred Hartmann from participating in Hamdan's trial because
of similar claims against him.

The decision in the 9/11 cases will be made by a different military judge,
Marine Col. Ralph Kohlmann, who chief of the military commissions.

*


Miami Herald --

May 13, 2008

FIVE 9/11 TERROR SUSPECTS FACE DEATH PENALTY
Khalid Sheik Mohammed and four others have been charged by a Pentagon official
with conspiring in the Sept. 11 attacks.

by Carol Rosenberg

http://www.miamiherald.com/news/nation/story/530744.html

A Pentagon official has formally approved death penalty charges against reputed
9/11 mastermind Khalid Sheik Mohammed and four other men for allegedly
conspiring in the Sept. 11 attacks, according to the charge sheet obtained
Monday night by The Miami Herald.

Military Commissions officials e-mailed the approved charge sheets to defense
lawyers in Washington, D.C., after the close of business Monday -- confirming
plans for the first war court prosecution seeking execution as the ultimate
penalty.

That means that, absent defense requests for delay, the men could make their
first appearance at the war court in June.

A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, declined to release the charges
publicly. "When we have something to announce, we will," he said in an e-mail
Monday evening.

But according to the document obtained by The Herald, a Bush appointee named
Susan Crawford approved the charges on Friday, authorizing a common, complex
capital trial for the five men. She deleted from the charge sheet the
prosecution of a Saudi captive at Guantanamo, Mohammed al Qahtani, who had been
initially included in the group.

Now, the five are accused of conspiring to kill 2,973 people by financing,
directing and organizing the 9/11 suicide missions. In all, 19 suicide bombers
hijacked four airliners nearly seven years ago and crashed them into the World
Trade Center, the Pentagon and a Pennsylvania field.

Crawford's signature, and the delivery of translated versions of the 93-page
charge sheet to the accused, triggers a statutory speedy trial clock that
requires the men be brought before a military judge within 30 days.

"It's still a death case -- that is correct," said Navy Capt. Prescott Prince,
the appointed defense counsel for Mohammed, or KSM.

He scorned the stealthy, after-hours delivery as "arrogant."

All five men had never seen an attorney before this year, and are held in top-
secret isolation at Guantanamo in a special prison camp for former CIA-held
detainees.

They had been interrogated for years in secret CIA custody. Then, in September
2006, President Bush ordered their transfer to the U.S. Navy base for trial.

They are Mohammed, who allegedly organized the 9/11 attacks for Osama bin Laden;
Mohammed's nephew, Ammar al Baluchi; Ramzi bin al Shibh, who allegedly organized
the Sept. 11 suicide squads; and alleged co-conspirators Walid Bin Attash and
Mustafa al Hawsawi.

No full-blown trial is expected before the end of the Bush administration, in
part because legal experts expect protracted pre-trial challenges in this case
in particular because it may rely on classified evidence. The CIA has confirmed
that Mohammed was subjected to waterboarding -- simulated drowning -- during his
secret interrogations.

Moreover, Baluchi's attorney, Navy Lt. Cmdr. Brian Mizer, said Monday night he
was filing a motion to dismiss the charges on grounds of "unlawful command
influence."

Last week, a Navy judge disqualified the legal adviser for military commissions,
Brig. Gen. Thomas Hartmann, from oversight of the trial of Osama bin Laden's
driver in a similar motion that argued the general has not been neutral in the
process.

"These charges are dead on arrival," Mizer said.

Qahtani, the Saudi detainee whom Crawford struck from an earlier, proposed
charge sheet, had at one point been thought by U.S. intelligence to be the so-
called 20th Hijacker -- the man who didn't get to the United States in time to
join the other 19 terrorists in the suicide attacks.

U.S. immigration officers at Orlando airport had refused Qahtani entry into the
country in the summer of 2001. After his capture in the war-on-terror and
transfer to Cuba, then--Defense Secretary Donald Rumsfeld approved a special
military interrogation regime for Qahtani.

According to a leaked copy of his November-December 2002 interrogation log, U.S.
interrogators used sleep deprivation, left him naked or strapped to an
intravenous drip without bathroom breaks to get him to confess. They also told
him to bark like a dog.

Later, he got a lawyer, Gitanjali Gutierrez of the New York Center for
Constitutional Rights, who said he recanted his confession.

Monday night, Gutierrez said the Crawford's decision to strike her client's name
from the charge sheet was a vindication.

"The dismissal of Qahtani's charges affirm that everything he said at Guantanamo
was extracted through torture -- or the threat of torture," she said.

His treatment at the Pentagon's war on terror detention center was "so well
documented and unconscionable," she said, "that he is unprosecutable and should
be return to the custody of Saudi Arabia."

*


Esquire --

May 13, 2008

IS JOHN YOO A MONSTER?

The president asked John Yoo to define torture. He did it. Are Yoo's "torture
memos" one of the most heinous mistakes in American history -- or could he have
been right?

by John H. Richardson

http://www.esquire.com/features/john-yoo-0608

He is the young Justice Department lawyer -- thirty-four at the time -- who
wrote the Bush administration's first decisions on prisoner detention,
interrogation, habeas corpus, military commissions, and the Geneva Conventions.
He is the man who defined torture as pain equivalent to "death or organ
failure," who said that the president could crush the testicles of a child to
make his father talk, who picked the lock on Pandora's box and unleashed the
demons of Abu Ghraib. He's been accused of war crimes and compared to the Nazi
lawyers who justified Hitler. Many good Americans would like to see him fired,
shamed, even imprisoned. But in his classroom at Berkeley School of Law, John
Yoo is a charming and patient teacher, popular with students and cordial to all.
He's wearing an elegant blue suit offset by a shiny silver tie. His face is more
like a shield than a face, expressionless and almost perfectly round, but his
voice is relaxed and warm. At this moment, he's trying to get his students to
define war. "So Judge Tatel says it's not so hard to say what a war is --
casualties. What else?"

"Aircraft flying everywhere."

"There were no wars before Kitty Hawk?"

"Ships sailing around."

"So maybe the use of armed forces. But in the 1980s the U.S. bombed Libya. It
lasted an hour, less than a hundred people were killed. Would that meet your
standard for a war?"

No, the student says.

"How about use of troops? The U.S. sent troops to Somalia, primarily to reduce
civilian casualties. Is that a war?"

"I don't think so."

The questions keep coming until the student hits overload. "There are scholars
who spend their lives studying this!"

Yoo chuckles. "Unfortunately including myself."

It seems grotesque, doesn't it? To sit in a comfortable classroom as the future
lawyers of America clack away on their laptops, parsing definitions with the man
whose legal mind turned America into a torturing nation?

Jose Padilla's lawyers certainly think so. "We are talking about the torture of
an American citizen in an American prison by American officials," one of them
told me, indignation rising fresh in his voice. Padilla is the former Chicago
gang member who was arrested in O'Hare Airport in May 2002 as he returned from
terrorist training camps in the Middle East with plans -- or so the government
believed -- to explode a "dirty" nuclear bomb in the United States. After he was
convicted on more general terrorism-conspiracy charges, his lawyers took the
extraordinary step of filing a lawsuit against the junior-level lawyer they saw
as the first link in the chain. "Defendant Yoo prepared the Torture Memos," they
said, referring to several Justice Department opinions, including a memo that
was signed on August 1, 2002, and withdrawn in shame two years later. "He knew
the Torture Memos would be transmitted to senior government officials, including
officials at the White House and Department of Defense, and would be relied upon
by military and intelligence officers in formulating and implementing programs
of confinement and interrogation for suspected 'enemy combatants.' "Yoo also
wrote the memo that put the "enemy combatant" label on Padilla. As a result, the
lawsuit claims, Padilla was held without charges for three years and eight
months, completely alone under twenty-four-hour camera surveillance, with his
windows blacked out and no clock or radio or TV to help him mark time. Sometimes
the lights were left on for days, sometimes he was left in the dark for days,
sometimes the cell was extremely hot, sometimes extremely cold. His sleep was
constantly interrupted and he was threatened with death and given disorienting
drugs and shackled and forced into stress positions for hours at a time.
Whenever he was moved, he wore a blindfold and noise-canceling headphones to
reinforce his isolation and helplessness. After a few years of this intentional
effort to break his will and destroy his mind, Padilla was given to "involuntary
twitching and self-inflicted scratch wounds" and his jailers often observed him
weeping in his cell, so broken and passive that he had become "like a piece of
furniture."

Padilla's claims have not been proven. Some of them, like the accusations of
death threats and use of drugs, go beyond even Yoo's liberal interpretation of
interrogation laws. But they remind us of what we have done and what we will
continue to do. Consider the fight over Michael Mukasey's nomination for
attorney general, when Mukasey refused to call waterboarding torture. He said he
didn't want to put the CIA officers who made these judgments in the heat of
battle "in personal legal jeopardy." It seemed so ridiculous, right out of 1984.
The Khmer Rouge used waterboarding. We prosecuted Japanese generals for doing
it. But Mukasey was confirmed anyway, and four months later President Bush
vetoed a law that banned waterboarding. Consider also that courts and Congress
have endorsed many of Yoo's opinions, including the use of military commissions
and the extended detention without criminal charges of "enemy combatants" who
are American citizens.

And consider this -- we still can't even agree on the basic question that Yoo is
asking his law class today, which turns out to be not a quibble or a
technicality but the very first question that landed on his desk on the
afternoon of September 11, 2001:

Is this a war? How can the president respond? Can he use the Army? Will he need
congressional approval? Is this a war?

"It's like pornography," one student says. "You know it when you see it."

It's just semantics, says another. "When there's something as powerful as war,
we don't want the president to just go ahead."

But why not? Yoo asks.

"Because we like checks and balances and we like the Constitution?"

"So you're worried about one person making mistakes. War is so dangerous, the
stakes are so high, you wouldn't want one person making that decision?"

"That's why it's so important to have checks and balances," the student agrees.
"Otherwise the president could run wild. Like we have today, with the powers of
an unchecked president -- I call that running wild."

"So you're worried about errors," Yoo answers, perfectly calm. "That's certainly
the case with Iraq. We overestimated the benefits and underestimated the costs."

But now the hour is up and the students gather their papers -- and Yoo still
keeps shooting out last-minute questions. "Is the president really prone to
error more than the other branches? Isn't that also true of Congress? If you
require Congress to give preapproval for every conflict, what is the cost? Why
didn't Truman ask for a declaration of war in Korea, even though Congress would
have given him one?"

These are hard questions. Most of us shrug them off and judge Yoo and Bush
through the lens of Abu Ghraib and Guantanamo. But Yoo didn't shrug them off. He
put them at the center of his thinking. As a consequence, he is being hauled
before Congress in May and will be forever defined by the abuses of the Bush
administration.

From his office, he has a million-dollar view of San Francisco and the Golden
Gate Bridge. There are law books everywhere. His screen saver is a picture of
his wife. His iPhone screen saver is a picture of his wife too, which helps take
the edge off all the hate calls. On the floor, there's a shopping bag from a
local hippie institution called Amoeba Music. On the wall, a framed goodbye card
from the Department of Justice. "Thank you for your excellent service to
America," John Ashcroft wrote. "We are stronger and safer because of you."

He turns out to have lots of unexpected quirks. He's pro-choice. He thinks flag
burning is a legitimate form of free speech. He thinks the government is
"wasting a lot of resources" in the war on drugs. He thinks the phrase "war on
terror" is misleading political rhetoric. He's cowriting an article that makes a
conservative case for gay marriage. "Our argument is, the state should just stay
out of these things, because it doesn't hurt anybody." And he's definitely
alarmed by the more theocratic Republicans. "When Mike Huckabee says he wants to
amend the Constitution so that it's consistent with God's law, that scares the
bejesus out of me."

We go for a stroll down Telegraph Avenue, and he's a bit disappointed there
aren't more tie-dyed renegades. "Usually this is the land time forgot."

"Do you often come here to mock the hippies?"

"I don't come here specifically for that. I try to multitask."

The hippies might be worn out from protesting, he says. Two weeks ago, the
Berkeley City Council called the local Marine recruiters "unwelcome intruders"
and it turned into a huge controversy, with Republicans threatening to cut
millions in city funds and thousands of protesters massing outside City Hall
with signs that said "Waterboarding is Torture" and "Take a Stand Agaisnt
Torture." "I think the city was nuts," Yoo says. "You can be against the war,
but to be against the armed forces? It's crazy."

"People aren't always as coherent as you'd like them to be."

"It shows you what a strange place this is."

"Or how unpopular the war is."

"It's the level of anger that really shocks me," he says.

"I'm surprised that you're surprised," I say.

The anger is often directed at him. Protesters in Guantanamo orange have
disrupted his class and dogged him in public forums. I talked to another
Berkeley law professor who refuses to attend faculty meetings with him. "Until
he atones," he said, "I don't want to be in the same room with him." But Yoo
shrugs it all off. He likes living among liberals, he says. "Liberals from the
sixties do a great job of creating all the comforts of life -- gourmet food,
specialty jams, the best environmentally conscious waters."


We stop in at Amoeba Music and he cruises the sci-fi shelves -- he's a fan of
Ghost in the Shell, the anime that inspired The Matrix. Usually he buys
classical music, but his taste in pop runs to anthemic bands like the Who and
U2. "Nothing too esoteric. I don't have any fancy tastes in pop music."

He seems very pleased that the entire record store smells like marijuana.
"That's what Berkeley smells like!"

At Steve's Korean B.B.Q., Yoo talks about his parents. They were teenagers
during the Korean War, a serious pair who both became doctors and moved to the
U. S. out of gratitude and a love of democracy. "They saw the United States as
saving their country, and I agree with them," he says. "It did save their
country. And then it let people in. It was extraordinarily generous. I wouldn't
be here if it wasn't for the generosity of the United States."

He grew up in the elite Main Line area of Philadelphia and went to a prep school
where he wore a suit and tie and learned Greek and Latin. He seems to have been
a natural-born conservative, attracted even as a teenager to Ronald Reagan's
message of anticommunism, low taxes, and small government, values that resonated
with the immigrant dream of personal freedom. But he was never angry or
righteous about it. "He was completely open and tolerant of everyone," says
Gordon Getter, a prep-school classmate. "He had a genuine sense of humor," says
Thomas Schwartz, one of his professors at Harvard. "He would argue and people
would get mad at him, but he never seemed to take it personally."

He was also exceptionally brilliant, Schwartz says. "These were extraordinary
students, and John was a star among them."

As an undergraduate in the history department, Yoo developed a deep interest in
presidential power. His senior thesis was about Eisenhower's plan to share
nuclear weapons with the other members of NATO. The example of Truman in Korea
was never far from his mind -- with North Korean troops sweeping south, Truman
rushed U. S. troops to war without pausing for a congressional debate and tried
to seize the steel companies to guarantee arms production.

But when Yoo arrived at Yale Law School, everyone seemed to agree that Congress
was the dominant policymaker and should approve every war. It was the standard
liberal position in the wake of Vietnam, but Yoo saw Vietnam through the lens of
Korea, imagining how life would have been for his parents under the savage
dictatorship of Kim Il Sung. His preference for Truman's lonely fortitude only
deepened when he became a clerk for Laurence Silberman, one of the leading
champions of the "unitary executive" theory of expansive presidential powers. In
free moments around the courthouse, Silberman painted Congress as a flock of
tiny men with tiny ropes intent on binding the president down -- annoying in
peace but dangerous in war.

Over the next few years, Yoo alternated between stints as a professor at
Berkeley and jobs in Washington, first with Justice Clarence Thomas and next
with Senator Orrin Hatch. Though he disagreed with them on basic issues like
abortion and the attempt to remove Clinton from office, he was drawn to their
lonely integrity. Hatch was "one of the few guys in the Senate who really would
go to the mat on principle," he says. He also picked up another crucial lesson
during the Whitewater investigation, when Senate committee members would demand
documents and President Clinton refused to provide them, each side insisting
that the Constitution supported its position. "But they worked out deals," Yoo
says. "The system is almost designed for them to come into conflict, and they
work out a deal. So that had a big effect on me."

Back at Berkeley, he started putting it all into a book. As the first chapters
hit the legal journals, he became a star on the lecture circuit, a young hotshot
with a provocative theory. His basic idea was that the Constitution has tons of
rules on how to pass legislation but almost nothing on war. So the president
takes action and Congress fights back, an improvisation with one partner
leading, and that is the way it was meant to be -- the real reason Truman didn't
ask Congress for an authorization before going into Korea, the reason Clinton
continued to bomb the Serbs in defiance of the War Powers Act, the reason Bush
has resisted every attempt by Congress to restrict his war policies.

Yoo's analysis hinges on the Declare War Clause. Most scholars -- most people --
believe it was intended to give Congress power to decide whether to go to war
and that the founders saw this as an essential bulwark against tyranny. Yoo
makes a case that it was really meant as a formal recognition of wars already
under way, and the founders intended the real bulwark against tyranny to be
Congress's power of the purse. "Several times every year, Congress has a chance
to vote on funding the Iraq war," he keeps telling me. "It's an amazing power --
if 51 percent of them refuse to vote for it, the war is over."

Abraham Lincoln is Yoo's best argument. Congress had already passed a statute
laying out an explicit legal procedure for freeing slaves, but Lincoln ignored
the law and freed the slaves under his "unilateral executive authority in
wartime as commander in chief to take measures necessary to win a war," as Yoo
puts it. Lincoln used the same grounds to suspend habeas corpus, a right the
Constitution explicitly grants to Congress. If you really believe that Yoo is
all wrong and the unitary-executive theory completely false, you kind of have to
say Lincoln behaved like a tyrant.

Jonathan Freiman, Jose Padilla's attorney, bristles when I run Yoo's arguments
down for him. "The Supreme Court has said every time it's been asked since 9/11,
a state of war is not a blank check. The Constitution applies."

But Congress and the Supreme Court also accepted the military commissions and
the enemy-combatant designation and even the indefinite detention of an American
citizen named Yaser Hamdi, Yoo would say.

Freiman concedes the point. But Hamdi was arrested in a foreign country in the
zone of combat, he says. "That's a pretty small category, a battlefield in a
foreign country. It's not a category that encompasses Padilla."

But that's exactly the problem. Padilla was arrested a few months after his
associates killed three thousand people in New York City. So where is this
battlefield?

It's a dangerous question, Freiman says. "The argument that the entire United
States has become a battlefield by virtue of those heinous attacks on 9/11 is
just an argument to make the Constitution completely optional, an argument to
extend presidential power to the level of monarchy -- to every inch of life in
this country."

For the next two hours, he pounds Yoo from every possible angle: They already
had Padilla under arrest and could have held him under charges like conspiracy
or levying war. But they wanted to interrogate him and they wanted to use harsh
methods, so they just made up their own rules. This was the natural result of
rejecting the Geneva Conventions instead of treating Al Qaeda members as
ordinary war criminals. "Before 9/11, you're either a criminal or a soldier.
What the government said was, We want a third category where the black shade is
drawn, where there are no protections whatsoever, where there is no law."

Freiman is particularly passionate when he rips into the torture memo itself.
Did I know that the Justice Department was now investigating how it ever came to
be written? Did I know that the man who took over Yoo's department withdrew it,
calling it "deeply flawed, sloppily reasoned, overbroad, and incautious in
asserting extraordinary constitutional authorities on behalf of the president?"
What Yoo should have done was look at the Eighth Amendment, which forbids cruel
and unusual punishment. He should have considered international treaties against
torture and cruelty and civil rights along with a host of domestic laws and
statutes. But Yoo wasn't acting as an honest lawyer, he says. As the Padilla
lawsuit states, he was "a key member of a small, secretive group of executive
officials who exerted tremendous influence over antiterrorism policy and who
were known as the 'War Council.' " So he bent the law to justify a course of
action he was already determined to take.

Freiman is especially scornful about the "necessity argument," as legal
philosophers call it -- the idea that the president can take extraordinary
actions in an emergency to protect the nation, that the information in Padilla's
head was worth cracking it open. "That's the argument that every despotic regime
in every corner of the globe has been making for sixty years," he says.
"Necessity, national security. The Nazis invoked necessity too. The question is,
How do you deal with those threats? Are you bound by human rights, or are you
not?"

This is why Freiman filed Padilla's lawsuit against Yoo. To redraw that line, he
says, to recover our sense of justice and decency, to salvage the idealism that
once shone so bright, America must pass judgment on John Yoo.


So let's go back to that moment in the heat of battle. The way Yoo tells the
story, he was sitting at his desk at the Justice Department when the first plane
hit the World Trade Center. He had only been working there two months, hired to
answer the White House's questions on foreign-policy laws at a time when the
biggest legal issue before him was a treaty about polar bears. When the order
came to evacuate Washington and people began heading out into the streets,
someone from the attorney general's office told him to stick around.

Soon the questions came:

Is this a war?

Do we need to declare war?

Can we scramble planes?

And again: Is this a war?

There was no obvious precedent. Yoo considered the level of violence and the
source, thousands of civilians killed in coordinated attacks by a foreign enemy
intent on crippling our government. He considered the Civil War, when people
asked if it was a war or a rebellion and if Southerners should be treated as
traitors or members of a foreign nation. He considered our history of warfare
against nonstate groups like Indians and pirates. He considered the level of
military response that might be likely, because a military response itself would
imply a state of war. He may have considered his friend Barbara Olson, dead on
one of the planes. He found himself returning to this thought:

If a nation had done it, would we have any doubt it was a war?

So yes, it was a war. That's the decision he made while the buildings were still
burning.

He stayed till two or three in the morning and when he left Justice and crossed
the Fourteenth Street Bridge, the Pentagon was still burning. He saw the flames
reaching up so high they lit the sky. But he didn't sleep because his phone kept
ringing, each call another variation on the theme: Can we use force? What
standards would guide the use of force? Is this a war?

Everyone reviewed his war memo. Ashcroft signed off. And Congress passed the
Authorization to Use Military Force with only one opposing vote. If this was the
first mistake in the war on terror, as many now believe, it was a mistake the
nation made together.

The decision on military commissions came next and seemed like a no-brainer, Yoo
says. We had always used military commissions in wartime because they were less
cumbersome and many civilian laws (like stalking and assault) made no sense in a
war context. It also seemed like a good idea to keep the prison camps distant
from U. S. soil, both for safety and to insulate them from those same domestic
laws.

The Geneva Conventions issue came up in December 2001. In retrospect it may seem
obvious that any departure from Geneva was a policy mistake, the first step down
the slippery slope, but Yoo points out that President Reagan explicitly refused
to extend Geneva rights to terrorists in 1987. There were also technical
problems, such as Geneva requirements that POWs be held in barracks instead of
prisons, which didn't seem a practical approach to enemies who didn't wear
uniforms and deliberately killed civilians, war criminals by definition. The
Taliban was a tougher issue because Afghanistan had something closer to regular-
army units and had signed the Geneva Conventions, but Yoo argued that
Afghanistan was a failed state, so its signature didn't mean anything -- which
even he admits was pushing it. The point was, they weren't massing orderly
brigades to attack the United States. They gave safe haven to terrorists. With
Colin Powell pushing back, Bush finally decided to deny Geneva rights to Al
Qaeda but to extend them to the Taliban -- a necessary improvisation, Yoo says,
a recognition that something new had entered the world.

The interrogation question came up only briefly, Yoo insists. In one meeting he
attended in the White House Situation Room, someone worried that under Geneva,
"we would only be able to ask Osama bin Laden loud questions, and nothing more."
But this was all just an academic exercise until late March 2002, when the CIA
captured Al Qaeda's chief of operations, a man named Abu Zubaydah. They
approached Yoo and said they had solid reasons to believe that Zubaydah knew the
names of hundreds of terrorists and the details of attack plans that could
include nuclear weapons. On top of that, Zubaydah was an expert in interrogation
and how to resist interrogation . If it wasn't exactly the famous "ticking bomb"
scenario come to life, where you are certain there is a bomb and certain your
captive knows where it is, it was close enough. Yoo insists that nobody ever
proposed crossing the line into outright torture and that he personally
considers torture repugnant and unjustified under any conditions. But they did
believe that this was a strange new kind of war, where the front lines were
inside the heads of men like Padilla and Abu Zubaydah. So, what about things
like isolation, prolonged interrogation, forced exercise, and limited sleep?
Where was the line, exactly?

"How long did it take to come up with an answer?"

"I don't remember."

"Weeks? Months?"

"Probably weeks."

The Eighth Amendment did not apply, Yoo decided. It forbade cruel and unusual
punishment, but punishment came only after a criminal conviction. His critics
savage him for not considering American laws against coerced confessions and
police brutality, but Yoo points out that the memo only applies to noncitizens
"outside the United States." They say he should have considered our treaty
obligations under the United Nations Convention Against Torture, which also
forbids "cruel, inhuman, or degrading treatment," but Yoo believed that treaties
were only binding when Congress passed statutes translating them into domestic
law, a position recently affirmed by the Supreme Court. That meant the binding
law was the antitorture statute Congress passed in 1994 in the wake of the
convention, a statute that forbade "severe" physical pain and "prolonged mental
harm." So these were the critical questions:

How do you define "severe pain"? How do you define "prolonged mental harm"?

Some say this is where he should have balked. "Torture violates the very premise
of the legal system itself, that there is something irreducible and inviolable
about every person," says Yoo's fellow Berkeley law professor

Robert H. Cole. "You can't write a memo about it the way you would write about
snowmobiling in Yosemite." At the very least, they say, Yoo should have warned
of the moral danger the question posed to the essence of America.

Yoo says he shared those concerns. He says he thought he was writing a memo for
exceptional cases, for the highly trained specialists of the CIA. "I never
thought it would be a good idea for the Army to do it, to put it in the hands of
eighteen-year-old kids. But it would be inappropriate if I had that worry and it
changed the way I interpreted the law."

So he buckled down to one of the world's most thankless jobs, defining the
limits of acceptable pain. He knew it would be easy to draw a vague standard
that sounded good and then give the CIA a meaningful wink. But that wouldn't be
fair to the officers in the field.

He wanted to draw a clear line.

The problem was, the Justice Department had never prosecuted anyone under the
antitorture statute, so there were no judicial opinions to guide him.
Dictionaries defined severe as "extreme" and "hard to endure." Yoo studied all
the international precedents he could find, including the judgment of the
European Court of Human Rights in Ireland v. the United Kingdom, which found
that the use of hoods, continuous loud noise, sleep deprivation, reduced diet,
and a stress position called "wall-standing" were all cruel and degrading but
not torture.

So where was the line?

He got the crucial phrasing about organ failure and death from a U. S. law
concerning health care.

I can't let this pass. "John, you're a very engaging guy. I like you. I can't
picture you writing that phrase, 'organ failure or death.'"

"It's the phrase Congress used," he says.

"But health care and interrogation are wildly different subjects."

"That's a fair criticism. But it's still the closest you can get to any
definition of that phrase at all."

"But this isn't legal theory anymore. It's going to have a body count."

"It's a difficult issue, I admit. It's the use of violence. It's unpleasant. I
don't disagree with that."

"You could have drawn the line in a different place."

"I really tried to distinguish between law and policy," he insists. Despite
Yoo's shocking language defining severe pain as "equivalent to" organ failure or
death, he points out that the memo clearly defines as torture mock executions,
threats of imminent death, and beatings. He also says it's unfair for people to
confuse the war crimes of Abu Ghraib with the aggressive interrogations he
authorized. His memo also includes a long list of examples of acts that various
courts have found to be torture, page after page of severe beatings and electric
shocks and even one case where guards shackled a man to a bed, placed a towel
over his face, and poured water down his nose -- a nearly exact description of
waterboarding, "which people ignore because they focus on that one sentence,"
Yoo says. "So if you read the whole opinion, I don't think of it as a license to
do anything you want to."


It's true, the list is there, the cautionary intent clear. I've never seen it
mentioned by any of his critics. But so is Yoo's pet theory about the
president's unlimited war powers in an emergency, the passage that would, at
least in theory, justify crushing testicles: "Congress may no more regulate the
President's ability to detain and interrogate enemy combatants than it may
regulate his ability to direct troop movements in the field." This is the
section that drives people crazy. When the new head of the Justice Department's
Office of Legal Counsel officially withdrew the memo, he singled it out for its
"unusual lack of care and sobriety," its "cursory and one-sided legal
arguments." No matter what Lincoln or Truman did, they say, Yoo never should
have tried to make presidential lawbreaking legal. But Yoo insists that suicide
terrorism in the age of nuclear weapons is precisely the kind of situation he
anticipated in his law-school theory, the reason the founders left the
president's war powers vague.

"But at the same time," I say, "you know that by writing that opinion, by using
those words, you're opening the gates."

"I agree," he answers. "The language is not pleasing, it's not politically savvy
-- I didn't see that as my job."

"And you didn't have any moral qualms?"

He looks me right in the eye. "I think there are some moral questions. But the
other side of the moral question is the lives you might save. I have a hard time
believing any responsible American president would have said, 'No, absolutely
not, do not ask him any more questions, give him a lawyer.' I don't think Al
Gore would have said that."

But those harsh interrogation techniques migrated straight to Iraq. What about
that?

"That was definitely not permitted under the decision-making level I was at,"
Yoo says. "It was clearly not. The Geneva Conventions fully applied in Iraq."

And the memo he wrote that was made public this spring, which justified harsh
interrogation techniques for military interrogators?

That worried him, he says. But it only applied to interrogators of Al Qaeda
prisoners in Guantanamo, and Yoo says that he expressed his concerns to
officials "at high levels of the Department of Justice, the White House, and the
Department of Defense."

Is it possible that partisan loyalty blinded him to the dangers of putting all
that power into the hands of a president so reckless and extreme, the worst
combination of cowboy machismo with this radical theory of executive power?

"I can see why people have that view, but I just don't think this is the product
of people who have this radical worldview."

"But Cheney was primed. He said we would have to go to the dark side."

Yoo doesn't say anything for a moment, then answers in his usual measured tone.
"In World War II, we interned people, tens of thousands of citizens. We tried
citizens who were enemy spies under military commissions which had no procedures
at all. We let the Air Force kill hundreds of thousands of civilians in
firebombing runs in Europe. We dropped a nuclear weapon on Japan. Waterboarding
we think is torture, but it happened to three people. The scale of magnitude is
different."

"But if the war goes on forever, we've created a torture state."

"We've done it three times," he repeats.

"The White House launched an elective war against a country based on false
premises."

"They made a mistake."

"But your theory puts the power in the hands of a person who then can invade the
wrong country."

"Who can make a mistake. The Constitution can't protect against bad decisions,"
he insists. "What the framers were really worried about was not that the
president would make a mistake, but that the president would become a dictator,
and I really don't think Bush has become that."

And looking back? Does he still think it was the right decision?

"I still think I would have done the same -- with Abu Zubaydah. But I didn't
want the military to use these methods. My advice was not taken on that."

Yoo left the Justice Department in May of 2003, just after Mission Accomplished,
three months before Major General Geoffrey Miller was sent to Iraq to "Gitmoize"
Abu Ghraib.

So what is severe pain? We asked John Yoo, and he drew the line for us, and now
he is tainted in our eyes, rendered unclean by his contact with the unspeakable.
The broken figure of Jose Padilla and the horrors of Abu Ghraib will loom behind
him forever. "I got a call from the L.A. Times asking me if he was a war
criminal," says his old Harvard professor sadly. "All my friends see him in that
light." But if you read the thousands of essays and books and blogs that rage
against him, you will find very few that give a satisfactory answer to the
question Yoo was asked. How would you define severe pain? If thousands of lives
are at stake and time is of the essence? Would you allow sleep manipulation?
Heat and cold? Isolation? Hunger? I asked Jose Padilla's lawyer three times.
Where would you draw the line, Mr. Freiman? He dodged it twice. The third time
he said outright, "I'm not going to draw that line for you. But I'll tell you
where I would have looked -- I would have first looked at the Constitution to
see what was permissible, then I would have looked at the Geneva Conventions. .
. ."

So we still don't have an answer to the question. Some people take comfort in
the argument that torture never works. Others say that only an imminent threat
to the existence of the nation would justify it. Some say that torture should
always be against the law as long as we remember that some laws are meant to be
broken, a camp that includes John McCain and Judge Richard Posner in his recent
book, Not a Suicide Pact: The Constitution in a Time of National Emergency: "In
national emergencies most soldiers and other security personnel are willing to
do what the situation demands and leave their legal liabilities to be sorted out
later. They live for such emergencies, and are selected for courage."

Was that Yoo's real mistake? Saying it out loud?

I ask him the question nobody in the Bush administration wants to answer. "Is
waterboarding torture?"

He doesn't hesitate. "It's on the line. It doesn't cause long-term or permanent
pain, but it does cause intense pain. It seems to meet the requirements of the
statute in some ways -- but not all. So it seems to me that in very limited
circumstances, you can use it."

Is what was done to Jose Padilla morally wrong?

"I really cannot talk about that, however much I would like to, because of the
litigation brought by Padilla against me," Yoo says. "But perhaps I can say that
the memos only applied to captured Al Qaeda and Taliban leaders held outside the
United States. They would not apply to an American citizen or permanent resident
alien held anywhere in the world, or to anyone held within the United States."

He has other regrets. "I could have tried to press harder on what the Army
should have done," he says. But he won't back down on the rest. He'd write the
torture memos the same today, he told me. Alone among Bush administration
officials, he does not run from what he has done. He writes editorials and
participates in as many as forty public forums a year. In Los Angeles, I even
saw him debate a professor of queer theory, an absurd spectacle. "No man is
above the law," she said, wanting it to be simple. "This is a question of tragic
choices," he answered, insisting it is not.

Not that anyone is listening. Yoo has become the focus of national anger about
every excess in the war on terrorism, and minds are made up. But dismissing him
as a monster just means that we don't have to think about why he did what he
did. Grant him his good intentions, entertain the possibility that he did it to
save lives, recognize the honor in his refusal to hide, and his story becomes a
cautionary tale about the incremental steps that can lead a nation to disaster.

Back in his class, the ghosts return. "Let's turn to Hamdi v. Rumsfeld on page
172," he says.

The students open their books.

"Did you all do Mathews in civil procedure? Remember, it was a case about
terminating welfare benefits, and it was all a question of balancing different
interests. So what is Hamdi's interest?"

"To not be detained -- liberty."

"And what is government's interest?"

"To wage war."

Pages rustle, the sound of leaves blowing across graves.



*


Esquire --

May 12, 2008

JOHN YOO: IN HIS OWN WORDS

Go inside John H. Richardson's transcript of his interviews with John Yoo,
author of "The Torture Memo."

by John H. Richardson

http://www.esquire.com/features/john-yoo

John Yoo is a professor of constitutional law at the University of California-
Berkeley. He is also the main author of what has come to be known as "The
Torture Memo," the long-sealed internal White House document that defined
precisely which aggressive techniques could be legally employed by CIA
interrogators against suspected terrorists.

Earlier this year, Yoo sat down with Esquire author John H. Richardson for a
series of lengthy interviews about the memo and about how Yoo -- a scholar by
trade, a libertarian by temperament -- came to be the man behind it. Some of his
words appeared in Richardson's June 2008 profile, "Is This Man a Monster?" Here
we present his words in their entirety.

A note on the format: Because Richardson did not record many of his questions,
they have been left out of this document. For the most part, we believe, this
does not detract from the clarity or intent of Yoo's responses. Where this is
not the case, we have added clarifying statements in brackets.

---


I was born in Korea, emigrated at 3 months, and lived in southern New Jersey and
Philadelphia. I went to Episcopal Academy in Philadelphia for middle school and
high school. It was founded the same year as the Constitution was written, 1789.
I wore a little suit and learned Latin and Greek. Then I went to Harvard.

My folks were doctors. They wanted economic opportunity -- Korea in the 1960s
was still mostly an agricultural economy. They didn't want to live under a
military dictatorship. They wanted to live in a democracy. But I don't know if
they were politically active. Once they were here they weren't politically
active. I don't think either of them has ever given money to a political
campaign. They vote -- they're very proud, as lots of immigrants are, to vote --
but they're not particularly Democrat or Republican.

I played soccer, tennis. By no means was I a jock. In terms of activities, at
the school I went to sports are mandatory. I worked on the school paper. I did
lots of stuff. Played chess, did tutoring. Didn't do school government at all.
And our school didn't have political organizations, as far as I know -- we
didn't have a Republican or Democrats club.

I followed politics. I can remember Nixon resigning. I can remember the Vietnam
War ending. I think I became politically aware under Carter and Reagan. I wasn't
one of these kids that worked on political campaigns.

I was very conscious of Reagan. I very much agreed with the policies he ran on.
Being Korean, I think it was natural to support the candidate that was most
anti-communist. But I also thought -- I wasn't a property owner or making income
or anything, but the message of lower taxes and smaller government made sense to
me.

Certainly my parents were anti-communists. They were refugees during the Korean
War, they saw terrible things that North Korea did. The North went all the way
down, everybody really suffered and blamed it on North Korea, which I think is
reasonable. So they were very anti-communist because of that.

Otherwise they were fairly libertarian, which is not uncommon for immigrants
either. They don't want government interfering very much in the decisions they
make and the choices they make in life. Certainly I think Korea is much more of
an authoritarian country, and you come to the United States because it offers
you a personal freedom that is not so common abroad. I never sat down with them
and talked extensively about it, I just get that sense.

I have a younger brother who has a Ph.D. in biology. Now he's in the
biotechnology industry. He's two years younger than me.

Harvard. American history.

I don't know, I was just interested in it. Harvard doesn't give you a lot of
guidance and the school I went to had a lot of emphasis on history. I took Latin
and Greek, I was interested in classics.

I did very well in high school, obviously, to get into Harvard. I was at the top
of the class. It was the only way you could get into Harvard.

The things I did in college were mostly about foreign policy. My area was
diplomatic history, the history of U.S. foreign relations. So I took a lot of
courses in that area and wrote my thesis on U.S.-European relations in the 1950s
and 1960s. My thesis advisors were in that area, too.

It's not a very popular area in history these days. It used to be a big deal. If
you think, in pre-1960s it was diplomatic and political history and now it's
social and cultural history. Part of it was probably, again, being from Korea,
sort of interested in -- the United States came to Korea and stopped an
invasion. It was a generous act on the part of the country. Objectively, if it
weren't for the United States, the whole peninsula would be communist right now
and living under the most appalling conditions.

At Harvard, I joined the school paper, the Harvard Crimson. Started writing for
the editorial page. I guess I wouldn't have thought of myself as conservative as
opposed to just being Republican. I guess Harvard is such a liberal place that
just being Republican set me apart. I guess that's how you could say I became
politically active, writing op-eds about the events of the day and taking a
conservative approach to them. But I would never -- I didn't come to it because
I was a member of the Harvard Republicans, which I wasn't, or through a very
extensive reading of political philosophy. I didn't read Leo Strauss when I was
12 years old. I just had very basic conservative or Republican instincts.

In college, I took political science, political philosophy, American history,
had exposure to more systematic thinking on both sides of all these questions.
Certainly the performance of the Democrats in the '80s didn't change my mind.
Remember Mondale running? Dukakis running? Dukakis and Bush ran in my senior
year of college, so I didn't see anything to change my mind.

Mentors then? Thomas Schwartz, a professor at Vanderbilt in History. Brian
Ballow, History in Virginia now. They were junior professors then, didn't get
tenure. I took courses from them about American foreign relations, American
government, politics from 1900 on. They were very rigorous. A lot of the events
we studied still had contemporary resonance, like the Vietnam War and the civil
rights movement. In those classes they were very demanding. You had to speak up
and say what you think to defend your position.

In the Schwartz class we studied intervention in Korea, the Berlin airlift, the
Cuban missile crisis, Vietnam. The loss of China. A lot of these questions still
had a lot of politically controversial -- they would call on you to state your
point of view and defend it.

Yeah, I think so. Even by the early '80s most people thought the Vietnam War was
a bad war and that we should have gotten out and should have gotten out earlier,
that Johnson and Nixon had been terrible presidents for getting us involved. I
thought by the early '80s it had become clear what had happened in Vietnam after
the U.S. had left, what had happened in Cambodia and Laos -- I wasn't part of
the generation that fought about Vietnam, I was in the generation after that --
so I remember the argument was, Yes, it was militarily difficult and the United
States took a lot of casualties, but look at the terrible things that happened
after the United States pulled out. And you look at the Korean War, in Korea
that didn't happen, the United States didn't pull out of Korea and you didn't
have what happened in Southeast Asia afterwards. And by the '80s South Korea had
become an industrialized country and was becoming a democracy. So to me I sort
of went, Well, is the conventional story about Vietnam really true?

But you're still talking about questions that are politically hot button issues.

I don't know. In Vietnam there was a lot of loss of life, suppression of civil
liberties -- they're still a communist dictatorship. You're right, they're
trying to imitate China. But to me, when I look at the terrible things that are
happening in Korea today and have been happening since the Korean War, if North
Korea had taken over the entire peninsula, that would happen to a lot more
people. You never would have had the success in South Korea that you see today.
There's a striking photo from space of Korea at nighttime and it's all lights,
and a completely black gap where North Korea is.

Iran-Contra? I remember that very clearly, watching the hearings on TV, I guess
in the summer of '87. The other thing I remember very clearly from that period
was watching the Bork hearings. It was sort of towards then that I became more
interested in constitutional law, or just law, rather than just history or
politics.

I had never read a book about constitutional law. The Constitution just appeared
in my history courses, primarily about the Civil War. I just remember Bork, with
his qualifications, and all the things he'd done. The hearings seemed -- I
thought he was mistreated by the Senate. I was very struck by that.

But I also remember the Iran Contra affair, and I do remember being very
disappointed in Reagan saying he didn't remember authorizing it, but he must
have authorized it. I still think what Congress did was perfectly constitutional
-- they cut off funding for the Contras and Congress has complete control of the
purse and the president can't try to funnel money to the Contras in violation of
that statute, so I thought that was perfectly legitimate by the Congress.
Somebody in the administration definitely violated the law. Even after all the
investigations no one seems to know if Reagan understood what he was doing or
knew, but I think they violated the law.

I've never actually agreed with the views of the president's constitutional
defenders on Iran-Contra, although they are not many. Mr. Benson today expressed
the view I have: Congress has lots of powers. They don't use them often, but
they have the complete power of funding.

I wasn't a cultural conservative in the sense that I went to college and didn't
like the liberal culture of the day. I was definitely in dissent of the
conventional politics of a college campus in the 1980s. Every now and then I
would see people protesting this or that, and I thought, You're at Harvard with
all this opportunity all around you -- you're wasting it by protesting. It
seemed to me a waste of time. There was so much stuff you could do there. I
think it was South African divestment then. It wasn't that I agreed with
apartheid at all, but to spend all that time protesting it just seemed to me a
waste of the limited time you had. You're lucky enough to be there.

I know other conservatives think college is too much drinking, too much smoking.
That certainly wasn't me at all. I don't think I've changed my basic political
views much since then. When it comes to domestic social policy, I'm basically a
libertarian. I don't want Huckabee to tell us what our morality should be. I
feel Reagan was much more conservative on foreign policy or the economy but not
on welfare rates or abortion.

In the op-eds I've written since I left the administration I've been quite
critical of some of their social policies. I thought the gay rights amendment
was ridiculous and I wrote a pretty long op-ed attacking it. I just don't think
the federal government should be deciding whether gay people can be married or
not. And I don't think the Constitution should be telling us whether gay people
should be married or not. I think the states should decide, like they decide all
kinds of questions about families. As a voter I would vote for gay marriage. I
also wrote an op-ed about abortion. I said I don't think the federal government
should decide it, I think the states should decide it, and if it was voted on in
California I would vote for abortion rights.

I think originally the Constitution permitted slavery -- it was up to each state
to decide. Lincoln was actually very active on social policy in terms of the
Homestead Act and land-grant policy, but I pretty much agree with Lincoln that
each state could decide but Congress could prevent its spread to the
territories, and that as the president he could prevent the country from coming
apart, he could prevent secession -- and unless you have a robust view of
presidential power, I don't see how else you get there. There are many people
who are criticizing presidential power. I think they'd have a hard time
explaining the Emancipation Proclamation or the steps Lincoln took the stop
secession.

I never thought about that! That's the difference between a constitutional
lawyer and a political scientist. A political scientist will talk about
maintaining coalitions and mobilizing. As a constitutional law person, I say it
makes sense because the president can decide how to fight the war, and if the
slaves are property and he sets them free, they become a support in the war.

In college I wrote my thesis on sharing nuclear weapons with the Europeans in
the 1950s and '60s. It was a fairly specialized piece of presidential history --
I visited the presidential libraries, interviewed significant national security
officials. Interviewed McGeorge Bundy, actually.

Eisenhower wanted to give nuclear weapons to the Germans, only ten years after
the end of the war. He thought nuclear weapons were just weapons, and we gave
them guns and tanks. Johnson finally killed it in 1965 or '66. It was a proposal
that failed. A lot of people write about things that succeed, so I wrote about a
thing that failed and why it failed.

I think the tradition in diplomatic history was to focus on the executive
branch. Conventional histories then didn't look much at Congress. There was a
funny story the Harvard Crimson did about me a few years ago: Even as an
undergraduate John Yoo focuses on the president for his thesis. But that was
just the standard approach.

It was a history class. I was trying to figure out why -- it was such a crazy
idea. They wanted to give nuclear weapons to all the countries of NATO. I used
it as a lens to understand American and European relations.

I was reading a history about nuclear strategy and there was a footnote about
this, and I thought, This seems very strange. I found that there had been one
book about it, a long time ago, so I did my thesis on it.

I think it's fair to say that a lot of the histories I worked on were
presidency-focused. And it still is today. You read about Vietnam and it's all
about Johnson and Nixon. You don't read a lot about Congress. The tradition of
foreign policy inquiry is all about the president. So law school seemed odd,
because I get to law school, and the people who teach international law and
foreign affairs are constantly talking about Congress, like in class today:
Congress has a right to declare war. And if you study what happens in history,
it's all about the president, and Congress are these isolationist bastards you
have to convince to do the right thing. I'm very much influenced by the
criticism of the isolationist influence before World War II. And it seemed very
strange to hear "Congress did this" and "Congress did that," and if you had a
background in history, Congress never has done that.

I agree with one of the other students who said, "But that's just Congress not
choosing to do it." He was very cynical about Congress. Congress just doesn't
want to take responsibility for anything. That's the difference between politics
and law. The law says Congress has this power. They haven't used it since the
Vietnam War, but the Constitution doesn't force them to do it either. It becomes
a question about politics. I have a lot of respect for the Congress, but they
clearly want it both ways. They want to not take responsibility for the war, but
they want to fund it. So if it goes well they say "We funded it."

I meet the girl I marry as a junior. She's on the Harvard newspaper too, that's
where we met. Else Arnett. She did politics. The Harvard Crimson covers the New
Hampshire primary so that's what she did. Her father was Peter Arnett, the
famous Vietnam War correspondent. I had no idea who that was. I didn't really
follow that. She's very pretty and she's smart and we got along extremely well.
We both were history majors, both worked on the paper.

Other than that, I don't think I had any unusual social life. But I didn't join
a fraternity. Spent a lot of time studying.

Else's actually a New Zealand citizen, so she can't vote, but she'd probably
vote Democratic. Definitely not a conservative.

A little bit. But we don't argue that much any more 'cause we would argue all
the time. It's not fun to be married to someone where you argue all the time.

I don't feel like I have very conventional political views. Like, I don't think
of myself as a social conservative.

I gave a lot of thought to becoming a journalist. I was an intern at the Wall
Street Journal under Al Hunt in the summer between college and law school. I
gave that a lot of thought. It was very exciting. I had a great time. But there
was something -- no offense, but there was something about journalism that was
very ephemeral. You write the story and then it's gone and nobody remembers it.
The WSJ was the pinnacle of a journalism career and I saw a lot of people who
were frustrated, trying to write books, to do other things than be daily
newspaper reporter. It wasn't the life I wanted. It seemed like a young person's
game. My wife became a daily journalist and was one for ten years, at the Knight
Ridder papers -- Knight Ridder Florida papers, the KR Washington bureau, the San
Jose Mercury News. But it was tough. You have to be willing to travel. You have
no predictable schedule. I liked it, I think I was a good writer, but it wasn't
right for me.

I certainly end up working for a lot of them. Their constitutional views are
mostly consistent with mine, but I have very different views on how I would vote
on policy. I really think of myself as a libertarian at heart. To me the
constitution is a combination of libertarianism on most social questions and a
very vigorous government when it comes to national security -- whereas I often
think of many on the left as the exact opposite, they want a very vigorous
government on social issues and very narrow, circumscribed government on foreign
affairs. I have the opposite. In wartime, you want a strong government and a
vigorous president, but on a daily basis I would rather have much broader
rights.

But I still think they needed national standards on certain issues. To me the
government struck that balance for a long time: you did have a government that
was small most of the time and it would balloon out during crisis and then it
would shrink back. I thought that was a pretty good system. I think it was
really the New Deal and World War II that changed it: we have a standing army
and a permanent welfare state.

It's constitutional, but I don't think it's what the framers had in mind. I
think they thought we'd have primarily a defensive military. That gets back to
my point about the powers of Congress. Congress has created this. Not just a
permanent military, but an offensive military. It's not designed to protect the
borders, it's designed to invade other countries. I don't think its
unconstitutional because the Constitution says Congress can create the military.
But it would have been very surprising to the framers to see this established
military of this size.

I was not very good at science. I was never interested in medicine.

I'm sure they would have been happy if I had become a physician but I was never
interested.

It doesn't sort of fit the profiles you read about: people who argue about
politics at the dinner table from the time they're five. I definitely didn't
have that.

I was never intent on becoming an official. Or becoming a law professor, even. I
guess when I was in college I also read some books about the Supreme Court. I
read about justices and courts and thought that was interesting. It was amazing
to me that we had this system where just a few number of people got to make a
decision that affected everybody in the country and there was no election. I
think I read The Brethren. Nine people got to decide abortion, got to decide
criminal procedure, and there was never an election.

I went to Yale with the idea of becoming a professor at some point. I think it
goes to being worried about the ephemeral nature of journalism. Attracted to the
freedom of it -- the freedom of deciding what you wanted to write on -- and law
was practical. My advisors said you shouldn't go to grad school in history,
nobody gets jobs anymore. So it was a combination of what I liked and something
practical.

I just thought it was extraordinary that they're unelected and they get to make
these kinds of decisions, whereas you read that in other countries and most
other topics of American history you have an election to decide these kinds of
questions. It was eye-opening.

In history classes you read about the Marshall court, the Dred Scott, Brown
versus Board of Education, so it appears every now and then but you don't take
courses consistently about the Supreme Court. So reading these books I won't say
convinced me to go to law school, but I saw that and I said, Look,
constitutional law in this country is extremely important. It's so powerful
that, expressed in the Supreme Court, it can actually block what the majority of
the people want. So I thought that I could go to law school and still have
intellectual content. It wouldn't be just going to work for a law school. There
were still some important questions.

So I went to law school and combined foreign affairs, history and constitutional
law. They happen to come together in war powers, treaties, the stuff I write
about.

I can't say it's always a good thing. I think part of wanting to study it is how
what a difference -- you live in a democracy but you have this system where five
people, not nine people, five people on the supreme court can block them. As a
scholar there -- judicial review exists, but there is no doubt the Supreme Court
has the power to refuse to enforce federal laws. But I'm not sure whether that's
a good thing. It seems to me on many issues it's not. On the abortion question,
for example, even though I agree with the policy that Roe v. Wade reaches, it
doesn't seem to me that it's healthy for democracy to have the Supreme Court
impose a solution on the whole country.

You're quite right. I'm more ambivalent about whether it's a good idea for the
courts to -- and I certainly think the courts have gone too far in all these
issues they've taken over.

I didn't go to law school because I wanted to get the court to reverse Roe v.
Wade. I didn't go with a vision of some sort of activism. I went because I was
interested in clerking and maybe becoming a professor or being practical and
having an option to practice law.

Oh, yeah. Certainly in college I wrote a thesis about power. I took a lot of
courses in constitutional law. I was definitely interested in power. That's
definitely true.

I don't know.

I don't have that. I don't think it comes out of some traumatic experience in
childhood.

I definitely respected my parents. I certainly hope today I didn't give you the
impression in class that I think the system is a good thing because it's there.
What I try to press the students to do is ask, well, why is it like this? What
values does it advance and what does it cost? It's a tradeoff.

There are people who think -- I think this is much more common before Vietnam --
there are people who trust the president. If the president thinks this is a good
thing, we should do it. They'll reach the right decision. I don't think of it
that way. But I do ask in my writing, which system led to better outcomes? But I
don't think that just because we have a president, that means that he or she is
always right.

I don't -- I mean, the thing that really attracted me about this foreign affairs
and war powers issue -- you get to school, and I think it does go back to this
transition from law school. In college you read about national security and
presidents and how they reach their decisions, and you get to law school and you
have a lot of academics, probably most of them, that think the Congress is the
dominant policy-making party, that the Congress should have approved every war.
That was certainly the view at Yale and it's certainly the view now. So you have
this huge separation between the professors and the way the world worked. So I
started my academic career on, Well, one of these two things is not right. So
really the start of my academic work, which really I started thinking about in
law school, is: how can the Constitution be read to support the way we've been
doing things for a long time, rather than reach the conclusion that everything
is unconstitutional? But I was always interested in foreign affairs from
college, and this just happens to be where foreign affairs and constitutional
law intersect. At the time, it was not a popular field in constitutional law.

In '92, '93, when I get out of law school, it's the end of the Cold War, people
don't think we're going to have war anymore, and war powers are not a popular
area to go into. I don't know if I'm a contrarian but that made me even more
encouraged to write about it. Now that we're free of Vietnam -- the war powers
issue was so tied up with whether you thought the Vietnam War was a good idea or
not -- by the '90s, that had fallen away so you could write about it
objectively. And having a Democratic president -- it had always been Democrats
controlled Congress and Republicans controlled the presidency -- so you had that
alignment of partisan politics on the constitutional question. So I thought, Now
that we don't have that, you could write about it more, sort of figure out the
right answer now.

It seemed to me the theory was so different than the practice that made it worth
writing about. I looked into it, and there was really no one really writing on
the side of the executive branch in the academy, thinking why did we have the
system we had.

I try to -- for example, the Kosovo war I didn't think made sense as a matter of
policy, but I think it's constitutional. I actually wrote an op-ed at the time:
What happened to all those people who used to attack Reagan and Bush for their
"unconstitutional" wars? I said, Here's Kosovo, I'm not certain why its a war
that makes sense, but I certainly think that President Clinton can authorize it.
So I try to keep those separate.

One thing I've been critical of: The student in class said, well, the
Constitution isn't working right, the Congress doesn't use this power, so we
should get the courts to step in or change the way we read the Constitution to
force Congress to do it. To me that's mistaking the Constitution and policy.
Just because Congress chooses not to doesn't mean you ought to read the
Constitution differently.

I think they are institutionally spineless. I worked on the Iraq resolution as a
member of the executive branch, and the one feeling I remember getting when I
was on the Hill explaining it was they just didn't want to vote on it. I think
Congress didn't want to take responsibility. The executive branch was pushing
them to make that choice, whether to authorize the war in Iraq or not, but most
members of Congress, if they had their druthers, would have preferred never to
vote at all. But I don't think that's a defect in the Constitution. I think
that's just the politicians we're electing to Congress these days. There were
other times when Congress was the branch that wanted to go to war the most and
it was the presidents that didn't want to. I wouldn't have read the Constitution
the other way to balance that out.

There's this movement towards what is called originalism: The Constitution's
text means what it meant to the people in 1789. I had sympathies with that, one,
because I'd been trained in college to do history, so I thought that kind of
approach made history relevant, so I could do the kind of research that was
important and relevant. I think that people who are critical of the Rehnquist
court still think history is important, but they think of it as a starting
point. But I certainly thought the use of history, properly done, was a way to
prevent the courts from just deciding to do what they liked.

I didn't think about this in college, but once I got to law school and started
seeing the different theories of constitutional interpretation, some of them
struck me as completely interested in expanding the power of the courts. And I
thought originalism was a limit on how far a court could go in deciding
something. There had to be some kind of limit on what the constitutional text
could actually do. Otherwise the courts would have power over every social
question in the country.

A lot of conservatives are very much shaped by their view on Roe. I didn't
think, "If I follow this approach, then Roe v. Wade is wrong." It's certainly
not what I had in mind. It was more -- I had an affinity for history. That's why
we write a Constitution down, to try and fix its meaning. Otherwise we could
have had an unwritten one like the British constitution.

Trying to understand the roots. Because English history is the precursor to
American constitutional thought, and also, particularly in these areas -- in
where there just aren't that many judicial decisions -- there's less authority.
So the questions are much more wide open. That was something I thought I could
add. Most of the writing about war powers had been about the Philadelphia
Convention, which I thought was a kind of narrow thing to look at. So yeah, I
wanted to expand the lens back to see where, for example, the phrase "commander
in chief" came from.

Certainly a trend in historical literature, legal literature, takes that view;
the book Imperial Presidency is very much like that. Maybe this is when you're
writing about a subject and everyone else is saying one thing, then it's more
interesting to look at the other account, which really hasn't been written about
at all. From a political history perspective, the presidency is enormously
powerful today and it's grown in power over the decades and really accelerated
since the 1930s. But if you read these accounts -- limiting the presidency,
fighting executive power -- you'd never know that ever happened. I think some of
these readings try to read the presidency with no account of what's happened
historically. The difference between these academic theories and the way the
government actually works are so at odds, so I decided to write on the other
side of it. I think that's the unexamined question.

I started in '93. I didn't go into government first, so that's what I started
working on when I first started teaching.

That's certainly true. I didn't write about it with that in mind. I started
writing it in '93. Who would have thought I'd be in the job I was in eight years
later? But there's also a tradition that these jobs are held by executive branch
lawyers, not so much by academics. So I think the views I had ended up being
consistent with what the Justice Department had said about presidential power
for decades. But certainly, I had written about it as an academic and I had to
figure out what to actually do once I was in the government.

I was primarily a student, so I was reading basic law, constitutional law,
different theories. I didn't have time or a chance to really start developing it
until I actually went into teaching. Even in law school I read a lot about
constitutional history and the framers and what they thought. I did spend a lot
of time on that. And foreign affairs issues -- classes on foreign affairs power.
I took a whole course on the subject we're doing this week in class.

When I was in law school, the two big things that happened were the Persian Gulf
War and the Thomas confirmation hearings. It seemed to me that during the Iraq
war -- only the week before the war did Congress grant authorization to
President Bush, and I think it was only by three or four votes in the Senate. So
for most of that war, in the lead-up, the president was doing it on his own
power. My thought at the time was, at least if you look at practice, presidents
have long done this. My view was he didn't need the Congress's authorization.

The Thomas hearings, I definitely sympathized with Thomas. It seemed like Bork,
another example where a guy is qualified and he's getting screwed over by
Congress. I really disagreed with what happened to him in the Senate. So that
was my second year in law school.

And actually my view on that has changed since then. But at the time, I was more
of the view that if you're qualified for the job, then Congress should just
confirm you if you're qualified, not if it would vote the same way the judge
would vote if they were in his position. I also did not like the way Anita Hill
was used against him and the way that sexual politics became an issue.

Now I have the view -- I definitely think now that politics are fair game. It's
okay to question judges about what their ideological views are, or their
political views. But then, being 24 years old, it seemed like what the Senate
was doing, as it did to Bork, was over the top. And I still think that you can
have -- that you should rigorously ask questions, but I think some of the things
they did went beyond that, like asking what kind videos Bork was watching, or
Anita Hill. That was dragging the appointments process through the mud.

I'm not angry. I do think the academy is primarily liberal in orientation. I
think if you're conservative in the academy, you are definitely in the minority.
You have to be something of a contrarian to have those views. It's certainly not
a way to win a popularity contest or to become the head of the ABA or the dean
of a major law school.

I wouldn't accept that I became conservative out of some perverse pleasure in
disagreeing with people. I think what was surprising to me was that I was
conservative and I saw what seemed to me a bias against conservatives or
disrespect for conservative views. Certainly in college and law school I saw a
lot of that. You certainly see it in the city of Berkeley. It's going to be a
zoo tomorrow in the city council because they're having this huge fight about
the Marine recruiting center. The city council sent a letter to the Marines
saying, You are not welcome in Berkeley -- please get out.

Certainly being a conservative in this town, you're a very, very small minority.

You're right: There is an oppositional tone or approach to what I'm writing.
Certainly in the war powers I'm writing against what most professors think. I
won't say it's pleasurable to be like that. But I do find interesting
intellectual questions are overlooked if there's a sort of widely held consensus
that causes you not to think about things carefully. But I would probably be
very bored writing papers that said, Yes, Congress has the power to declare war
and they should decide. Just to ratify the conventional wisdom is not
interesting to me. I do in my academic work try to think of things that are
unusual, that someone hasn't said before. But it's not pleasurable by any means.
To be a conservative in academia you have to be ready to take a certain amount
of crap. Not a certain amount. A lot of crap.

Yeah, you have to be willing to do that -- so I think conservatives have a
higher tolerance for that than a lot of other people do.

I definitely don't have a taste for it. My wife has often said, It would
certainly be a lot more easier if you had more conventional mainstream views --
life would be easier. It's true. I don't argue with her about that. She doesn't
ask me to scale back but she says it certainly would be nice if our life were
quieter.

We really don't argue about politics. She definitely has different political
views than I do. It doesn't seem strange to me to be married to someone who is a
liberal. But maybe that seems weird to other people. I'm married to a liberal
and most of my friends are liberal. Most of my colleagues are liberals. I like
liberals. I don't think they're evil or stupid or bad-intentioned people. It's
just that I disagree with what they think. I enjoy the company of liberals.

There are people who need to swing in the opposite direction from everybody
else, who love to get up in class and say stuff because it's the most
iconoclastic view. I may have that same outcome or that same role, but I don't
do it to be different. I think it's more interesting to look at problems in ways
that people overlooked. I think that's what professors are supposed to do.
That's a reason why I wanted to be a professor: because I liked looking at
things differently than other people. So around the time of Reagan, younger
people maybe thought it was cool to be Republican because you're in opposition
to the generation before you, which was primarily liberal. Maybe that has
something to do with it. If you're a young person for Reagan, that might seem to
be the more radical thing to do. And the generation of new ideas from 1980 on
have really come out of the conservative and Republican party, more so than the
Democratic party. The idea of rethinking accepted wisdom was definitely
something I was attracted to.

It's true. You could make a mistake. The job of being a professor and the job of
being a government official are different. And the war was different. The war in
Iraq, I think, doesn't require any new thinking in terms of the rules of the
game -- it was sort of a conventional war between two nations. I think it was
9/11 that was different, and then you would want to rethink things.

To just do the same old thing: I guess I don't think of conservatism in that
way. That's traditionalism. I don't think of conservatism as sort of idol-
worshipping tradition. There's value to tradition, but if there's something
that's new -- like a new kind of war -- you have to ask if this is the right way
to do things.

Yes, I joined Silberman, Law Review. I was articles editor, not editor-in-chief.
Teaching fellow and all that kind of stuff. I think there was this kind of
sorting. I was a member of the Federalist Society, a conservative law
association. Silberman is one of the best-known conservative judges. D.C.
circuit, the second-most-powerful court in the country.

Then I went to work here. After my first year here I went to work for Thomas.
Interviewed when I was clerking for Silberman. Didn't get it. I was here, he
remembered me, offered me a job, I took a year off, went to work there. While I
was there the Republicans took over Congress for the first time since the '50s,
so I was excited about that and I wanted to stay another year. Stayed and worked
for Congress. Came back in '96. I worked for Orrin Hatch as the general counsel
of the Judiciary Committee. Yes, I've worked for the most notorious
conservatives: Thomas, Hatch, Ashcroft. There's no one left. [laughs]

Silberman probably is. I got along extremely well with Thomas, Silberman, and
Hatch. I wouldn't say I was buddies with Ashcroft. But I got along very well
with them and worked on stuff for them that if I was voting, I wouldn't have
voted for.

When I worked for Hatch, I worked on the flag-burning amendment. Personally, I
think flag-burning is acceptable political speech and Congress ought not to
prohibit it, but I was his lawyer and his agent, so I did my best to drive that
through. I thought that was my job.

I know I was never in full agreement on every issue. Clerking for a judge,
you're not allowed to say. Under Hatch, the biggest thing I worked on was flag-
burning. Another thing I worked on was partial-birth abortion. I was the general
counsel of the committee when the PBA bill first tried to get through Congress.
I think it failed and only went through years later. My view is, I'm pro
abortion rights. But I worked on the hearings and the committee reports and the
constitutional analysis on the part of the judiciary committee on why Congress
could ban partial birth abortions. I thought constitutionally it could. I didn't
think it should.

Maybe it's not fair, maybe it's easier to write it ["anti-war left"] that way.
In some of the things I write I try to use a shorthand. Obviously there are all
sorts of liberals. On the other hand, I'm primarily responding to liberal
intellectuals and I do think in liberals in the academy it's more like, "I've
never met a Republican, I've never met an anti-abortion person." It's that
attitude in the academy.

When I wrote that, I was actually trying to narrow category, as opposed to the
left. Originally it just said "the left," and I said, No, there are people on
the left -- some, not a lot, like Hitchens -- who thought the Iraq War was okay,
so I better say "anti-war left" or it seems pejorative.

First, I had enormous respect for him [Hatch] as a person. Thought he was very
brave man. Again, sometimes for being contrarian. He defended Thomas in the
hearings, taking unpopular views. He was very much a leader of the opposition to
abortion and the opposition to affirmative action. He used to get all kinds of
crap. That's another thing about the people I worked for: They were all people
who were at various times incredibly criticized by the public. Hatch, Thomas,
Silberman: I admired the way they've gone through it. So maybe working for them
made me less worried about doing things that might be criticized publicly.

I thought Hatch was a guy who -- one of the few guys in the Senate who really
would go to the mat on principle. A lot of the guys I watched liked being part
of the club. They weren't interested in taking strong stands on principle. They
cut deals. Bob Dole was the nominee for president and he was very much like
that. He likes to cut legislative deals. Hatch was kind of a maverick in the
Senate. He wasn't part of the legislative deal. He much more stands on principle
than making deals. I admired him for that. It may not make him as effective a
legislator, but on the constitutional issues -- he was the leader of the party
on those issues.

Anti-affirmative action. I much more see the other side on it, too, but I did
agree with him on that.

I just noticed, watching the Senate, there just aren't that many people who are
willing to fight all the way to the mat on principle, and he was a guy who was
willing to do it.

It's a tradeoff. You're right. You won't want all one or the other.

I did. I was proud to work for him because I respected that. I respect
Democratic senators who follow principles, too. I thought Ted Kennedy was an
effective senator. I don't probably agree with him on anything but I thought he
was an effective senator.

What really attracted me to Hatch was his devotion to principle. Intellectual
integrity.

The art of the deal. You read biographies of congressional politics, those are
the heroes. You're right, this multivolume bio of Johnson is like that. The
Master of the Senate. It's really interesting.

It's not my thing, but I learned about it. It's real retail politics, and I
really loved the chance to work there because I felt it was the only way I would
ever learn how Congress really works. Courts, you can read the opinions. There
are a lot of books about how the presidency works. But in law school they don't
teach you how Congress works. I always say I learned more in that one year than
I think I did in three years of law school. There's no way to learn how Congress
works except to do it. I really got an education.

If I stayed longer, I would have had to give up my professorship. Hatch used to
ask me, "You teach five hours a week? And you prepare for each class an hour? By
my count you work ten hours a week. How can you give all this up? So you can
work ten hours a week for more than I can pay you?" He thought I was going back
to being lazy. But I didn't want to do it as a career. Executive branch, too,
there are people who go work in a law firm when they're out of power and wait to
get back. I wanted to learn how things work.

I actually had one class in the fall of '05 when these protesters just burst in.
They brought a newspaper reporter with them. They were three people and wore
orange jumpsuits and they just started screaming and yelling and causing a
ruckus. The students got kind of freaked out. One of the students tried to grab
one of the protesters and push him out. The students booed and stuff. I had to
cancel class. I didn't want the students actually having a fight.

I always tell people I'm the West Berlin of the Cold War. Any time the Russians
wanted to do something to the us, they would press on West Berlin. West Berlin
was the sore toe of the West. So I'm the only person here, it seems like, in the
entire East Bay, who worked in the Bush administration. So whenever there's some
protest about Iraq the protesters like to make a little pit stop by my class and
raise a ruckus. So the following year they did that, but somehow they knew they
were coming this time, so the campus police actually prevented them from getting
into the classroom. This was the fall of '06. But you could still hear them
outside the class.

The way I think of it, you let them win if it actually causes them to cancel
class or do anything different. Some professors, when there's a thing like that,
they spend the class talking about the first amendment or something, but I just
taught the class I was planning to teach.

I guess it's possible but it didn't cross my mind. It would be ironic, because
they're supposedly pacifists.

All the memos leaked in the summer of 2004.

Yeah, there were protests saying I should resign, I shouldn't be teaching at a
university. I think they said something very, uh, snarky at the time, along the
lines of, "I guess you're not doing a good job of teaching the law because you
haven't taught them anything about academic freedom." This is Berkeley: every
spring there's a protest about something or other. That spring it just happened
to be me.

Now they're protesting -- I was going to take you by there: the protesters in
the trees. The tree people. The protesting class is so busy. Tonight they're
going to go wild about the Marine recruiting station. It's on the evening news
now. It's crazy. The protesters mainly spend their time preserving the oak trees
across the street. Last year we had a really good football team for part of the
season. It was number two in the country, then almost was number one. The
football stadium has to be increased commensurate with a real top-ten football
program. They want to cut down trees around the stadium to make it bigger, so
these protesters have been living in the trees for the last year, and they won't
come down. They use pulleys to bring stuff up and down and jump from tree to
tree. I suppose those are the kind of people who are usually protesting me, so
they're busy with other things right now.

Yeah. I don't find public demonstrations comical, but I do find this permanent
class of protesters, who go from issue to issue an act like the 1960s never
ended, comical. For example, that the University of California, one of the most
liberal universities of the world, is this evil monster institution on a par
with corporations and the military, just seems comical to me. It's silly. Also,
the university was going to plant three trees for each one they cut down, but
no: Each tree is an individual life. If that view prevailed, the country never
would have been developed in the first place.

Yeah, that goes back to being a conservative in a very liberal place. I've been
protested before about other issues. The initiative that banned affirmative
action: I did a big forum right when I got back from the Senate. There was a big
protest about that. Of all the things I've seen here, that was the biggest
moment of student unrest I've seen, taking away affirmative action. So it
certainly comes with the territory in Berkeley. There are protests about
everything. Whether I take it personally: it's obviously personal because it's
directed at me. They have the right to free speech, the right to disagreement. I
don't get very touchy about people criticizing me in print. I think that's
perfectly fair. But I think people cross the line when they start trying to
prevent me from teaching class.

I try to teach the class very straight. They all know what my view on war powers
is, I assume. But I try not to teach it as if my view is the answer.

Yeah, if you're an academic you should be impressed by the fact that people are
often wrong and there are all these great scholars and politicians who were
utterly wrong who, at the time, people thought were right.

No. You couldn't be good at the job if you didn't think otherwise, because if
you thought you were right all the time -- you have to have a sense of doubt to
be good at figuring out the right answer. If you construct a theory and you
don't criticize it --

I enjoy arguing with the students in class. There are some professors who are
much more, "This is the theory." It's more of a transmission from the professor
to the students. I didn't like that when I was a student. I don't think I ever
had a conservative professor. I think I had one or two in a big lecture class.
But certainly not in law school. So I didn't like professors' judgments
ideologically driven in class. So I try to teach in opposition to that by asking
questions. Like yesterday, when they said, "Presidents are running wild." I say,
What do you mean by running wild?

I like that, that's what makes teaching fun for me.

One thing: I think it's primarily for public relations. That's why I wrote those
op-eds. Usually, when you're a lawyer facing a lawsuit, you just say "shut the
hell up." That's legally safe advice. So my lawyer -- I had to retain a lawyer
who could actually meet in L.A. if he's available -- he didn't really want me to
do it at first, but I said, Look, this is about PR. They're counting on the fact
that you're going to tell me not to say anything. They'll just get a burst of
publicity for a lawsuit and that will be it. No one ever writes a story when the
case is dismissed. So I wrote two op-eds, one for the Philadelphia Inquirer and
one for the WSJ. It did get my back up in the sense that it's financially
worrisome -- in the sense that they want money, but you have to spend money to
hire your own lawyers. I think it's just another way to try to attack the Bush
administration's terrorism policies but they haven't been able to win. Just
today the administration won another one in Congress: the NSA wiretapping
statute. The big fight was over the telecom company immunities. The Senate just
voted to give them that immunity. My point is the litigation system is being
used as a way to do an end-run around the Senate and the Congress. So that
ticked me off. You've had a fair debate on the merits. You've had it, and
abusing the litigation system to make these accusations --

Oh no, oh no. Actually, I think the abortion movement was more successful when
they turned away from the courts. Their big success in the last 20 years was
partial birth abortion, which they didn't try to do with the courts. That's very
different from what's going on with terrorism: trying to use the court system to
change the policies of the country because you just aren't getting a majority in
Congress.

I wrote something about the Iraq War from this perspective. The November
elections, the funding cutoff. Well, Congress is going to have, several times
every year, a chance to vote on funding the Iraq War. Congress can choose to cut
it off by doing nothing. It's an amazing power. If 51 percent of the members of
the House -- they just don't have to vote. The reason they're not doing it is
they recognize the political reality, which is that 51 percent of the public
doesn't want them to withdraw precipitously. But don't pretend it's the Bush
administration that's doing it.

They could be better at it if they wanted, if they wanted to do a staged
withdrawal. I think there's 250,000 troops now in Iraq. They could say, "We're
only going to fund 200 for six months, and then only 150,000." Funding power is
how Congress controls the entire administrative state. I used to do it. When I
was working for Hatch, we used to use the funding power all the time to control
the agencies. They could do it with the military, too, if they wanted to. I
think it's just a political will problem rather than a matter of implementation.

No, what I object to is trying to do it through the court system. I really think
it's this struggle between the president and Congress. I don't have any problems
with Congress funding cutoffs, passing the MCA, not confirming generals, holding
oversight hearings, all the things they do. But I think it wasn't intended at
the beginning, if you lose then just go to the court and sue the government to
say the Iraq War is unconstitutional, or sue the telecom companies. I think that
-- obviously, whenever you do judicial review, it blocks what the majority wants
-- but I don't think, based on my reading, that the court system was intended to
mediate disputes between the two branches about war.

If people have objections to the conduct of the war, take over the Congress and
pass a law. Cut off the funds. I have no problem with the way Vietnam ended. The
Democrats had a majority and they passed a funding cutoff.

Courts don't represent anybody. Once they're on the bench they're unaccountable.
You want people like that there when you're defending individual constitutional
rights, but war is abroad against foreign enemies. I don't think the people who
wrote the Constitution thought the courts should have any role in that.

I just thought, from a policy perspective, why the intervention in Kosovo made
no sense. No national interest. I would have thought the same thing about
Somalia. Haiti and Grenada, since they're in the Caribbean, the U.S. has a
greater stake in what happens. I just didn't see the case for intervention in
Kosovo. I thought it was constitutional.

In terms of the national interest, the U.S. has always wanted to make sure that
the Caribbean, Central America, all of Latin America -- making sure communism
didn't spread to Grenada. But I agree, it's a tiny little island.

If that was the case, if it was meant to divert attention, I don't think that
would be a proper use.

Congress can take measures. I think what you're arguing about is it turned out
to be very popular. In my sense, the political system works. If it hadn't been
popular -- like the Iraq War: members of congress are starting to oppose it.

But in terms of overthrowing sovereign countries, we do it and continue to do
it. A lot of other countries criticize it but they've done it too. In 1956, the
British and the French attacked Egypt. I didn't hear anybody screaming about the
UN charter then. Unfortunately, the world is -- scholars call it international
anarchy. There's no supranational government that can actually enforce anything,
so the U.S. -- this is going to be partly the subject of the next book I write
-- the U.S. is in the position the British were in in the 19th century: to try
to maintain a certain amount of order in the world. And part of that might mean
the use of force.

To me, it's all about tradeoffs. You can say, we'll never invade a sovereign
country. Then you have Rwanda. A million people were killed. Probably 5,000 U.S.
troops could have stopped the whole thing. So you can have the strict rule that
the U.S. will never attack a sovereign country except in self-defense, but
there's a cost to it. Ever since World War II there's been a consensus that the
U.S. had to do that.

I always try to separate between legally and policy. Legally it's
constitutional. If Congress has given the president the armed forces, he can use
force abroad and Congress can stop him with the power of the purse.

Kosovo even, which had no ground troops, they still had to get an appropriation
before. Because it was so expensive. Grenada, that wasn't the case.

As a matter of policy, I have to say, I don't know the full back story. Some
accounts said it was to distract attention from what was happening in Beirut,
right after the bombing of the Marine barracks. I don't know. I would think that
it would be a bad policy if presidents were choosing to have war abroad based on
domestic --

On the other hand, I think the system can correct for that. I think there was a
marginal gain to be had to prevent it from becoming Marxist. A show of
resistance to Cuba, which was still trying to export communism. Part of a
broader tough stand by a Republican president against Cuba.

I have to say, though, I don't think of myself as having any special knowledge.
Or about Iraq. I think it was definitely constitutional. Nobody ever asked me in
the government whether it was a good idea. I certainly criticized the
reconstruction strategy -- I gave this big speech at AEI and wrote an op-ed in
the L.A. Times saying we should let the country fall apart and keep it in three
pieces, just guarantee its external security and let them fight it out. The way
I read it was, if all the money and lives we've been spending since the invasion
is to keep a country together that doesn't want to be together --

So everyone wants to focus on the things I support the administration on, but
when I'm critical, no one mentions it.

The stuff I worked on was the legal stuff. So I never went to a meeting or even
remember discussing with anyone about the merits. I thought the president could
use force in Iraq. It was definitely constitutional once Congress passed a law
authorizing the president to use force in Iraq.

There were two laws, one on 9/11, one on Iraq specifically. I worked on both of
them.

So, ready to go to lunch?

[The CIA] doesn't ever want to be hung out to dry again by the politicians. What
they do is they come up with a proposal for something like interrogation, for
limited strikes, for targeted kinds of things. They want to have a sign-off by
all the elected leadership. It's not like Bush and Cheney and Rumsfeld and Rice
are sitting around a room and thinking, Oh, let's do these ten things we've been
waiting to do for years. There was an attack on the country, a pretty
devastating attack, and I think the intelligence agencies come up with these
proposals. But they're not going to do them unless they get the sign-off of the
political leaders, and that includes not just the president but Congress. And
now, as more details are coming out, and yeah, they did brief Congress on what
they were doing with interrogation and surveillance. So the agency and the
military are much more -- maybe they're just much more politically savvy, or
they've learned from what happened in the '70s not to assume that political
leaders are going to stand by them.

No, and now the CIA has this huge bureaucracy. I don't think they even had a
general counsel in the '50s but now they have a general counsel's office that
has over a hundred lawyers.

Oh, yeah. My point is that there wasn't these policies, these interrogation
policies.

Of all the things I worked on, the initial ideas or proposals came from -- came
from career people, people who served there as part of the permanent
bureaucracy. None of them, as far as I know, were political appointees hanging
around saying, Yeah, let's do these things.

It's the difference between law and policy. Legally, they're not owed any of
those rights in the Geneva Convention. As a matter of policy, the government can
choose to give it to them if they want. What they're doing is giving them a
mixture. They're giving them some rights but not the full amount.

That's certainly true. You could say you should apply the Geneva Conventions to
everyone all the time, that otherwise you undermine the conventions globally. Or
you could say that if you don't give the rights to people who disobey the rules,
there's no incentive for anyone to obey the rules. If you're a prisoner of war
under the Geneva Convention, you cannot be held in a cell -- so what you're
saying now is not that you should apply the Conventions as they're written, but
do something like them. That's actually an important difference.

They [Nazi Germany] were a nation state. They mistreated their citizens, but in
the fighting they were pretty scrupulous about obeying the rules of war, at
least in the war against the West.

I resist the idea that the Bush administration is saying there are no rules. I
think what they are doing is the executive branch is going to set the rules.
That we're in a new war and we're going to set the war. That's what the country
as a whole has been doing for six years now, developing a new set of rules. What
I don't think is the right answer is that the court should do it. The MCA is
perfectly reasonable.

Yeah, I think that's the wrong way to do it. That's why in the end what Congress
passed was written by the administration. I think a majority of Congress did not
want to vote down what the administration was doing. I think it was unfortunate
the court stepped in like that. It never has during any previous war. A lot of
these questions were also brought up in the Civil War. You had citizens fighting
against us, you had lots of saboteurs, you had military detentions by the
thousands, the writ of habeas corpus was actually suspended, and even in those
situations the Supreme Court waited until after it was over before it started to
intervene.

It seems to me that in wartime, all these decisions are usually made by the
military and the president. To me it seemed especially in this new kind of war,
some were saying maybe you could apply some of the rules but not all the rules,
but there had to be a rethinking of what the rules are going to be. It seems to
me you want the president and the military to make those decisions. Especially
when it's right at the beginning, when you did not have a very good sense of
what al Qaeda was, what it was like, how powerful it was. It seems to me that
the branch of the government that is best able to respond to that kind of
situation is the executive branch -- that's why it exists. You have a lot of
Monday-morning quarterbacks who say you should have followed Geneva Conventions,
or you should have allowed appeals to civilian courts, or you should have just
used the criminal courts. You can make those kind of judgments after the fact
because you haven't had a terrorist attack. So I think the decisions made in the
early years were skewed towards stopping an attack and worrying about the
details when you stop the attacks -- and that's what we're doing now.

You're talking about Iraq now. I always wonder what would have happened if we
had not invaded Iraq. Would there be a lot more consensus on the war on terror?

I think a lot of the concerns you're talking about have only risen because the
Iraq War went badly. But suppose we had just contained Hussein. I think there
still is fairly broad popular support for the war on terrorism, but would you be
seeing judicial interventions?

I worked on the two bills authorizing war. People in Congress were just, like,
Tell us what you want. They would have passed anything. I think we were trying
to be somewhat careful not to ask for more than we needed. On al Qaeda I think
there was a high level of consensus that it was the right thing to do. Maybe I'm
wrong. But I think it was the Iraq War that did it.

I tried. It's ["war on terror"] become the shorthand for the war against al
Qaeda.

I understand the administration did it for public rhetoric to rally the country
after 9/11, but I think it was a mistake. Because I don't think -- well,
certainly the war in Iraq and the war in Afghanistan are separate. It may be now
that al Qaeda operates in Iraq, but at the beginning of the war, the war against
Iraq is a war against a nation state, completely separate from the war against
al Qaeda. I think there was this big confusion that is created when you say it's
a war on terror because it does suggest we are fighting this endless war and
we're fighting everybody in the war who could be a terrorist. I don't think
that's what it is. I don't think we can fight a war based on people who use
terror tactics.

Obviously I can see that. I don't know whether that was deliberate. I think -- I
wasn't involved with that. I don't really know why they chose to make those
claims. I think I have a broader view, or wider, about the use of force abroad,
so I don't think we needed to claim that al Qaeda was linked to Iraq in order to
have the grounds to attack Iraq. But I agree: I think it was a mistake to do
that. And it may have been a mistake to invade Iraq at all, strategically.

This actually goes back to the thing about the agents. I met with some of the
people at the agencies and the military, and I don't like them getting hung out
either, so that's, I think, one of the reasons I try to do all the writing and
speaking I do. These people asked me for my professional judgment about what
they were doing and I thought what they wanted to do was legal. I do not respect
people who then, having done that, run off and hide and don't defend what they
said. If they did things based on the legal judgment I had, I ought to defend
it. They're not the lawyers. I was. So I feel like if you're a doctor and you
have a diagnosis of someone, you should be able to explain publicly the
diagnosis. I feel some people in the Bush administration have sold out CIA
agents or military officers.

It's more like they go through spokesmen.

I think Ashcroft should have stood up publicly for what he believed in. In
Washington obviously there's always a lot of wish to get away from the
controversy, but I don't think it does a service to the ones who actually do the
fighting.

I think he [Mukasey] was saying, "Look, I may have this view, but I'm not going
to go back and judge what they were told in 2001 or 2002." That's essentially
what happened in the Church Commission. They were saying, "We didn't know they
were rogues." The leadership had plausible deniability and all of this. I think
a lot more often the Agency was working under the authorization of the president
at the time. So when it came up: "Never happened." I don't think that's the way
the country should treat people who actually risk their lives. I think it's far
more important than protecting the position of some higher office.

You would know more about the agents of the '60s and '70s. [Interviewer John H.
Richardson's father was a high-ranking CIA officer.] Some of them willingly fell
on their swords, but we don't live in an age --

And Congress and the courts don't give them any respect today. So when you're
talking to your friend who is an agent, he's right to have that view because the
government is not going to support --

The people knew what was being done. They may not know the exact methods, but
Eisenhower knew they were trying to derail the Iranian Revolution. So one big
difference is the whole deal of national security and protecting the country has
become bureaucratized. There are so many lawyers.

You can say that it's hard to get the cost and benefits right, but wartime -- I
mean, wartime is when you would expect and want your government to do that.
Think about the Manhattan Project. They spent billions of dollars -- I think the
biggest public works program ever -- on a technology that no one knew worked
because Albert Einstein and some physicists thought it might work. That's the
kind of things wartime drives you to do. In peacetime you can be much more risk-
averse, but in wartime you have to take chances because the stakes are so high.
But we live in a risk-averse society. We want a lot of government regulation and
we want to use lawsuits to correct for accidents, and maybe it's not possible
for the U.S. to wage effectively a long-term intelligence war as it did during
the Cold War under the kind of changed society we have now. Maybe that's what I
didn't take account of. Because I was reading the law and the precedents in the
books from World War II, which was the last time there were big cases about
this, which said that you could detain members of the enemy without appeal to
courts, and we have a political culture now when we think that everybody has the
right to their day in court. It's clear that I could have misjudged the change
in the political culture. How could I write a legal opinion that could actually
predict that? I think that's what happened. I think in World War II the system
was willing to give the presidency and the military a lot more freedom and
leeway to run the war, and now we want to have more oversight by the court and
we want to have more intervention by Congress.

Well, I mean, I don't -- I mean, I would say -- World War II: We interned
people, hundreds of thousands of citizens, we let FDR subject citizens who were
enemy spies to military commissions which had no procedures at all, we let the
Air Force kill hundreds of thousands of civilians in firebombing runs in Europe,
dropped a nuclear weapon on Japan, did a lot more things than have happened to
terrorists. We may disagree, but I think we did a lot worse things with regard
to civilian populations that we were fighting than we have in the war on
terrorism. Waterboarding we think is torture, but it happened to three people.
The scale of magnitude is different.

Or Hiroshima.

I think it's driven -- when we're at war we expect our military to do what's
necessary.

But I don't think we've done it very often. We've done it three times.

Congress knew it. They don't want to have a public hearing, but the Agency I'm
sure briefed Congress about all this stuff. The thing you're trying to balance
is open government, but you don't want to release information that's going to
help the enemy. So we have covert action. We can't have Congress authorize every
covert action. So you have to create a system where you brief Congress in
secret, and that provides your checks and balances. I think that's what happened
here. I actually think the administration tried to involve Congress as much as
it could, consistent with protecting secrets from being released to the enemy.

There's no doubt that became an issue after, but it wasn't the reason for the
establishment of the commissions. But obviously you had to address the issue
about the evidence rules once it became an issue. But the idea that they did it
systematically, that it's all interwoven, connected, planned --

What happened was these issues came up, driven by the conflict. Because of that,
they had to make decisions. Of course, they may decide consistently in one
direction versus another, but I don't think there was any kind of grand plan. So
I would think that if we had never captured -- Abu Zubaydah was the first guy,
the one captured in the spring of 2002, he's the one who prompts the thinking
about interrogation because he was the number-three guy and he's an
interrogation expert himself -- if that hadn't happened, I don't think we ever
would have been thinking about it. It wouldn't have come up.

Not that I know of. As I came across it, it was because of capturing this guy
that it happened. I mean, there might have been people in the government who
were thinking about it, but I never heard about it before or knew about it. I
think the other people captured in Afghanistan and other places -- Pakistan --
before Zubaydah, I don't think anything in the way of aggressive methods were
used. As far as I know.

That's the overarching -- it was very reactive. I think events dictated that
decision. The only unifying idea is that the executive branch should make these
decisions, not the Congress. Certainly not the courts. There's a famous Lincoln
quote about this: "I cannot claim to control events -- events control me." I
think that's the case with terrorism since 9/11. That's why you see decisions
that are not consistent. John Walker Lindh being tried in court and Hamdi not
being tried in court, Moussaoui being tried in court and Jose Padilla not being
tried in court. I think they made ad hoc decisions weighting all the factors,
but they didn't have an overall plan so you don't get consistent results. You
could have said no one will get criminal trials or they'll all get criminal
trials. I'm sure it's the case in lots of wars: improvisation on the fly.

There's a law that passed in 2006 saying the Army could only use the methods of
the field manual, so when that passed my understanding is they had limitations
on -- but it didn't apply to the agencies. I think what the law does is the CIA
and the military are bound by the same rules now.

Yeah, I don't know why that's happening. It seems kind of strange.

Legally it makes sense to me that this would happen, if that's what people want.
The president can also veto it. But I think it doesn't, it doesn't, it doesn't
-- I don't feel like it's a rebuke in terms of what we did in 2002 when none of
these laws existed. I think it's in some ways a good thing if the president and
Congress reach agreement on what we're going to do. Six years ago there were no
statutes at all, except for the torture statute. There was no list of any
interrogation methods that were approved or disapproved. So I think in terms of
the way the war powers work, eventually this would happen. I don't know -- I
also don't think that if Congress had passed this law six years ago, they would
have passed this one. I feel this is the kind of law you can pass once you feel
the emergency is passing. In the few months after 9/11, you're not worried as
much as you were then about an imminent attack. If you have the time to use non-
coercive measures -- it takes months and months -- this makes sense. But I don't
think Congress would have passed this law after 9/11. I was there. I think this
reflects some level of success in stopping al Qaeda. People think the threat has
gone down.

That's what critics think. I don't think that was what it was. I mean, I don't
feel like I panicked. Certainly people could have that view of things. There
were also people who wanted to go farther. Some people wanted to suspend habeas
corpus [for the nation as a whole]. I think we were being much more measured
than we were given credit for.

Yes. I remember it coming up during the debates. It also might have been
perverse -- if you're going to do this, you better --

I remember seeing it in the papers at the time and thinking there's no way we're
going to suspend habeas. So I don't think it's a rebuke, I think it's just sort
of natural. The other thing is, suppose the war had gone badly in the last few
years rather than going well, in terms of stopping attacks and cells. Then I
think this kind of law wouldn't pass.

Yeah, because the administration could have said all the stuff they've already
said. They could have said, "We've used these techniques. We've used them on
three people. Nobody else." If they had said that in 2004, they would have been
in much better shape. You look at the other big issue I worked on, the
wiretapping issue, that's what they did. They said, "This is what we're doing.
These are the results."

The thing is, they have a hard problem that they don't want to tell the other
side what they're doing.

I don't know about conspiratorial, but definitely secretive. And the secretive
thing is part of the strong executive and contempt for Democrats. And that has
made people very suspicious of their motives.

They could be more forthcoming and it would be okay. For example, on the NSA
wiretapping issue, the Senate basically two days ago signed off on what they
wanted, almost completely. And I think that was because they were much more
forthright. And interrogation -- I think that's part of why I got so much
attention: because they weren't saying anything.

Even though the wiretapping happened to a lot more people. The interrogation
happened to three people.

Yeah [Three were waterboarded, but many were interrogated "aggressively"]. I
mean, they weren't supposed to. Not from where I was sitting.

Yeah, I don't know why or how that happened. You know, I'm not in charge of
implementation. But that was definitely not permitted under the decision-making
level I was at. It was clearly not.

[[Abroad in Berkeley, on Telegraph Road]]

This is the land time forgot.

I do come down here. Every time I do I make a point of mocking them. I don't
come here specifically for that. I try to multitask. Usually the streets are
filled on both sides with people like these -- you're seeing all kinds of anti-
government, anti-Bush, anti-war, peace-sign, tie-dyed -- I'm sorry it's --

I know. I think its because it's a three-day weekend.

There's a lot of things I like about it. Especially there's this libertarian
aspect. And used CDs and DVDs, books. I like that part of it

I love Amoeba Records.

No, this is the original one.

I buy some pop stuff. Who do I listen to the most? Probably the Who. U2, I
guess. I'm sorry, I can't say Britney Spears. But nothing too esoteric, either.
I think it's just what sounds good. I don't have any fancy tastes in pop music.

[[At Moe's Bookstore. Subject: A nine-volume set of Lincoln's writings, $75.]]

This is official set, too. This is the set that's the standardized one that all
the scholars use. Wow. I'm very lucky. This is a find.

[[Near the Marine recruiting center]]

Did you go by? Did you go by and watch? Was it the night they were doing it?

You picked a week where there was such a confluence of events. We arranged it
all for you to make it interesting.

I think the city was nuts. How could they be against -- certainly anyone can be
for or against the war, but to be against the armed forces? It's crazy.

I can see it for the random Berkeley citizen protester, but not the professional
politicians. That shows you what a strange place this is.

Maybe it's not unusual, because there were other times in American history when
people were upset about things, but the level of anger -- You were saying people
might feel they don't have an outlet for it, but that's really striking to me,
the amount of --

There's People's Park over there, but it's kind of boring. There's nothing going
on, just homeless people.

Being in Berkeley, you get used to being criticized for being conservative. So
that kind of reaction doesn't really affect the way I think through problems.

I don't take it seriously enough, maybe. I think sometimes here you don't see
responsible discussion of both sides of the issue because its so left-wing. I
hadn't thought of it. On the other hand, I'm on a faculty where that's all we
do: argue, and give and take. Maybe here in a place like Berkeley, with the city
council, the Marines, nobody's really arguing to persuade anyone. It's all
symbolic. Do you want coffee?

It's funny, there's things I like about living here. There's no tract houses,
the protections for the environment are great, the food is great. Liberals from
the '60s do a great job of creating all the comforts of life -- gourmet food,
specialty jams, the best environmentally conscious waters.

Yes, I like living amongst liberals. I enjoy their company. I'm a conservative
but I don't want to live with them all the time.

People like Richard Hofstadter -- he wrote a book about the anti-intellectualism
of conservatives. There's this suspicion of universities. I have a couple of
friends who are very capable and smart but they could never imagine themselves
being professors because they think of universities as very left wing. It used
to be, back in the '60s, the universities were bastions of conservatism.

I find it a little comic that students here would protest this university, one
of the most liberal universities of the college.

Exactly! I have no cadre of students occupying my choice of buildings.

Although, you know, the Republican caucus is the biggest student club on campus.
There was a front-page article in the WSJ about it. I went and spoke to them a
couple of years ago and they were raucous and boisterous -- they were the
rebellious ones. It was exactly the reverse of the '60s.

Particularly in law, I think it would be unfair if you don't present the other
side. I think if you're conservative you have to be even more careful that way,
because there's less of them and people are going through every thing you write
for mistakes to criticize. I try to be pretty careful.

I was just trying to say, This is what I honestly think.

I was thinking about what you said about how Korea's like a little diamond
pressured between China and Japan. People always say to me, "What are you doing
in Berkeley?" Nietzsche said what doesn't kill you makes you stronger. Maybe
living in this environment, surrounded by people who are critical or don't
agree, makes me tougher, so I don't worry so much whether the view I have would
win some opinion poll than just getting it out -- not worrying about whether
it's a popular view. That's definitely a thing from being this one-man
conservative island in this big liberal sea.

I don't have any of that. I went to a school that was Episcopalian, but I'm
Presbyterian. Don't go to church all that much. On holidays. But the school I
went to was a religious school, so I had a class on the New Testament, read the
whole Bible. But when Huckabee says something like if you wanted to amend the
Constitution so that it was consistent with god's law? That scared the bejeezus
out of me. We never want to have that. So I really don't want religious beliefs
to influence how we interpret the law.

I don't know about the environment. I'm not sure I want to reduce energy
production to reduce global warming. It's all a bunch of tradeoffs. I'm writing
an article with [Berkeley law professor Jesse] Choper. We're writing an article
saying gay marriage is conservative. Our argument is the state should just stay
out of these things because it doesn't hurt anybody.

Not in the article, but I think the government is wasting a lot of resources in
the war on drugs. It's not been successful, it's like what we saw in
prohibition, so just as a matter of social policy I would sort of dial it back.

I think so. Domestically I want as small a state as possible. I don't think we
should have expansive welfare programs, either. Very small taxes, very small
role for the government.

Wrong. I think the New Deal didn't do anything to end the Depression. It
ameliorated it a little bit, but in some ways it made the Depression worse.

But the question is, Was it worse before the New Deal than it is now? Everyone
wants to live in a country where there's no one living on the streets, but has
federal intervention really solved it?

That's true, but I wonder whether social groups do it better?

[[Formal interview resumes]]

The person who was much more interested in the powers of the presidency was
Silberman. He wrote the opinion in the Morrison v. Olson case about the
independent counsel in the DC Circuit which got overruled by the Supreme Court.
That's one of the most important opinions about the unitary executive by any
judge. That had more of an influence on me than Thomas or Hatch. Thomas, when I
worked for him, the powers of the presidency didn't come up. Thomas has always
been more interested in race issues and federalism, the powers of the states
versus the federal government. Hatch, you're right, there was always this issue
of the executive versus the Congress, because of the various investigations
Congress was doing into the Clinton Administration. I worked on the Whitewater
Committee in the Senate because Hatch was on the committee. But after I had done
that it influenced me on how to work the problems out, because when I was
working in the Senate both sides would make their claims about whether the
Clinton administration had to turn over some documents or not. And both the
president and the Senate had conflicting constitutional views about their own
power. The Senate would say they needed to have every document and the
presidency would say they have a right to withhold information as part of their
core functions. And they would work out a deal, and I was one of the people who
had to work out that deal. That definitely influenced what I think of how you
solve all these disputes, war powers or separation of powers. The president and
Congress certainly can have disagreements about how much power they have and
they come into conflict -- and the system is almost designed for them to come
into conflict -- and they work out a deal. So Hatch had a big effect on me in
seeing how it was actually done.

Hatch had been on record from the '70s and '80s as being supportive of
presidential power. So he wanted to have a vigorous oversight role but he also
wanted to respect the powers of the presidency. So I worked for someone who was
more inclined to compromise than other senators.

The idea that we would have gone to court back then to work out those
confrontations -- that seemed at odds with how the presidency and Congress
worked these things out. That's why I think these terrorism cases are so
unusual: because the court really is coming out and playing a very aggressive
role and that's really unusual -- historically unprecedented. {!!!}

It wasn't when I was clerking for him -- a few years before. It was one of the
defining moments of the unitary executive. There were a number of cases in the
early '80s -- Gramm-Rudman-Hollings budget reduction act, a legislative veto.
The third was the independent counsel law: He's independent because he can't be
fired by the president unless he commits a crime. That power of the president to
fire anyone in the executive branch is seen as the way he controls the executive
branch. By preventing the removal of the independent counsel, you effectively
create this person outside the control of the president who has executive power,
because he's a prosecutor and an investigator. This didn't involve Iran-Contra
but it's definitely in the background. And Ted Olson was a government official,
actually in the office I worked in, and he had given advice to some government
officer to withhold documents from Congress, so Congress demanded he be
investigated and prosecuted. So an independent counsel was chosen, and that case
became the big case about the unitary executive.

They lost. Silberman wrote the opinion saying the independent counsel was
inconsistent with the unitary executive. And the Supreme Court reversed him
seven to one. This was an issue Silberman stood for. He was the champion of the
unitary executive. I studied the opinion.

You should certainly call him. He's a big figure in Washington Republican
circles -- deputy attorney general, ambassador, lots of influential speeches. I
think I learned a lot from him about how the powers of the government actually
work in practice.

One thing I learned from him is this power to fire, to remove, which doesn't
seem that important when you read about it in law school. Talking to him, I
realized how important it was -- there's nothing in the Constitution that says
anybody has to follow the president's orders. What if you're the secretary of
state and you just say, No, I'm not going to do it. The only thing the president
can ultimately do to make people do what he wants them to do is to fire them and
replace them with someone who will follow. So I got from him that the unitary
executive theory is based around this power to remove, which doesn't seem that
important.

I wanted to try to make sure the Republicans in the Senate were trying to press
for investigations of Whitewater and the associated scandals and not act in a
way that was inconsistent with Republican views of presidential power from the
Reagan years. One example is executive privilege. I think the courts have
recognized and agree that the executive branch can withhold some kinds of
information from Congress that have to do with national security, military
secrets, and foreign affairs. There's a general right to keep confidential
discussions over policy, but that can be overridden if there's a criminal
investigation. So when I was working on the demands by the Senate on the Clinton
Administration, I wanted to be very careful that this had to do with the things
Clinton had done before he was president. This wasn't about what his decisions
as a president were. "We want to know why you bombed that factory in Sudan": To
me that was covered by presidential privilege. But to cover up sexual things
that happened 20 years ago, that's not presidential action. To me, there were
plenty of Republicans who didn't care: "We want to get Clinton and we'll use the
maximum powers of Congress." To a lot of people that distinction doesn't matter,
but to me it was important.

Thomas made me aware of civil rights. Also the power of the courts. He is a very
common-sense guy. He takes with a grain of salt the views of experts. Because
his view is that one of the many things that black people suffer from is these
1960s, fancy social-science theories that didn't work, like urban planning,
affirmative action. And they've been more counterproductive than productive
because the experts in the ivory tower think they can predict the future. So
he's much more, I think Thomas is much more -- thinks that things don't turn out
the way we planned, the world is harder to change than you think, and so on. But
it wasn't really about the presidency. Hatch, it was much more practical
training in how the legislature and the presidency work out disputes, how they
get along on a day-to-day basis.

And Hatch was the same way I was: He didn't want to do anything to foreclose
what he thought was a vigorous president. At the same time he wanted to
investigate things he did before he was president. In a way, I think he was
protecting the presidency. Because he thought, If presidential power expands to
include those things, then you really undermine -- people aren't going to
respect the president at all.

Certainly there was this whole industry of people outside the Congress, all
these Clinton-haters, who were making a career out of attacking Clinton, but I
thought it was a legitimate subject for investigation. The president and his
advisors were trying to cover up financial misconduct or sexual harassment. I
think Congress is allowed to ask about that. For example, I think Congress is
fully allowed to ask about interrogation procedures. That's one of their roles.
They should have oversight. It can be crippling, obviously, to the executive if
Congress goes forward guns blazing in its oversight powers, but I don't think
there's anything unconstitutional about it.

Certainly for Hatch it wasn't vindictive. I can't speak for everyone who worked
in the Senate. Hatch thought there were things that could be wrong here.

Clinton certainly didn't make it easy. Same as the Bush administration. Knowing
what you know now about what they had done, if they had been much more open and
forthcoming coming out of the gate, it would have been better for everybody.

But I will say this: I wasn't in favor of impeachment. I don't think what
Clinton did rose to the level of what impeachment is really for. I think if
people in Congress wanted to impeach President Bush they could, not because he
committed a crime but because they think he's a bad president.

That was the phrase ["high crimes and misdemeanors"] that came from Britain, and
the British used to, under that phrase, remove people just because they screwed
up a war.

There are great examples. Allegedly these were the same standards of
impeachments when they impeached a minister because the British suffered a
setback in the war with the Dutch. It wasn't a crime, but you were a bad leader.
But it has to be something of significance to the state. Clinton, what he did
didn't seem to rise to that level.

It's only five years. I was here for one year, went to Thomas and Hatch, came
back. I was here from '96 to '01, so five years.

The war powers thing I did in '93 before I went to Thomas and Hatch. Did that
the very first year I was here -- the two chapters at the front. The other stuff
I did in the five years. The book would have come out in 2001 if I hadn't gone
to the government.

Spent '04 updating it for the war on terrorism and the things that happened in
the war on terror. And the conclusion. It came out in '05. The terrorism book I
wrote in '05 and it came out in '06.

No, I actually -- a lot of the chapters first appeared as articles in legal
journals from '96 to 2000. It was all in print, if you want to show I thought
these things through before government.

Yeah, no president is going to hire someone for the OLC who thinks that the
Congress is the dominant branch of the presidency. Both Democratic and
Republican administrations. That's one of the things I point out in my terrorism
book. The Clinton Justice Department took some of the same positions. They just
didn't have a war to apply them to. You're not going to be hired to write and
think about executive power if you think that Congress has the authority to
approve everything before the president does it. It would be like deciding to
hire someone at Pepsi who likes Coke.

I think there's a group of scholars, some in law, some in political science, who
had developed a more robust theory of the unitary executive. Most of that
writing is about domestic affairs -- firing the independent counsel. Most of my
writing is about foreign affairs, where there were less people writing. But
there was a constellation of different professors writing somewhat similar
things on other issues.

There were four deputies, and usually one of them was given foreign-affairs
issues, and that's what I was hired specifically to do.

I was doing nothing. One of the things I was doing was reviewing the
implications of the United States signing a treaty about polar bears. Remember,
this was not going to be a foreign affairs administration: It was about tax cuts
and faith-based initiatives. I didn't think I was going to stay very long. I'll
probably go back after a year -- there's not much to keep me occupied.

I got there July of '01. Two months. Started around July 4th.

Immediately people started asking me about my issues. I was at my desk, very
early in the morning, a little after nine. You get the news: the first plane
hit. You're not really sure it was a terrorist attack. But when you see the
second plane hit you know this is human coordination, not random chance.
Washington is evacuated, which probably hasn't happened since 1814, which is an
incredible sight -- people leaving their cars in the highway and walking home.
But I'm told I have to stay behind because of my work on war powers.

My superiors in the Justice Department. There was a career fellow who was sort
of in charge. Someone in the attorney general's office. Then you work on all
these issues. Is this a war? And do we need to declare war? What would it look
like?

People asked me. So I stayed till well after midnight, maybe two or three in the
morning. I don't remember the exact time. When I went home I saw the Pentagon on
fire. Justice is on 9th and Constitution. Went from there to the 14th Street
Bridge and when you get on the bridge you see the Pentagon. It was a dark night
but it was amazing, the flames reaching high into the air so the whole thing is
lit up. I drove right by it to go home. And then I didn't sleep because people
still kept calling me to talk about these things.

Same things: Is this is a war? Can we use the military in response? How can we
use the military?

Yes, that was a question [Can planes be scrambled to shoot down any remaining
hijacked aircraft]. That was earlier: Can we use force?

I must have. I can't tell you what I said. No, I don't think that's actually
public. Can you use force in response? What kind of force? What are the
standards that guide the use of force?

I had read every declaration of war and authorization of war. Writing my war
powers article, I had studied all the examples. If someone decided it was a war,
I could tell you what kind of force you could use and what Congress needed to
do, this kind of thing. In terms of whether it was a war, I thought about it.
I'd also studied the cases from American history of fighting non-states like
Indians, pirates, rebel groups. So, I mean -- like military commissions: I knew
what those were from before 9/11. There were cases about it in the Supreme Court
that people had forgotten. But I had read them. In the office at the OLC,
there's a plaque on the wall that says, This is where the German saboteurs were
tried by a military commission and sentenced to death. Just a small little
plaque on the wall. I asked them what it was and they explained it, but I had
read the case.

I had studied the Civil War a lot. A lot of these issues came up in the Civil
War. Civil War people asked, Is this a war or is it a rebellion? Do we treat
them as a nation, or are they just insurgents? Some of them are citizens -- what
about our own citizens? I had actually read and written an introduction to the
reissuance of an old book, 1864, by the chief military legal advisor to Lincoln,
and he went through early legal issues that had come up in the Civil War. For
some reason it was reissued in 1997 or '98 and someone asked me to write an
introduction. So I read it pretty carefully. So I knew what these things were
before 9/11.

Yeah, I did think it was a war. Some of the things I thought about were the
level of violence. The source. Three thousand people killed by a foreign enemy
that had a purpose that was to affect our foreign policy. It wasn't like crime
in the sense that crime is sporadic. It's not really carried out with the
purpose to change a policy. It's usually carried out for financial gain. It's
persistent and permanent. This was organized use of violence by someone else to
change our policies. So that's the way I thought it through.

I think it is like piracy.

We have wars against pirates. The British had wars against pirates, we had wars
against pirates. We just hadn't had one in a long time. We had a war against the
Barbary pirates.

If a nation had done it, would we have any doubt it was a war? The way I
thought, the only thing that's different from the Soviets attacking us or the
British attacking us is that it's not a nation that did it. If you held
everything else constant, it was really the identity of the opponent. Does that
make the difference? I can see -- there are some people who say, other law
professors, that it is impossible to have a war with anyone other than a nation.
That's when I started thinking about the Indians and the pirates. I think we can
and have had wars with non-nations before. But there's no precedent, no case
before the Supreme Court about it. I tried to show in the book that I didn't
think it was obvious, but you had to think it through, and certainly reasons for
-- people can have reasonable arguments on the other side. And that's the whole
question that, I think, still divides the opponents and the supporters of the
war on terrorism. At least the Supreme Court and the legal arguments. They say
this is fundamentally, one, this is not a war, so you are not allowed to do all
these things, and I think it is a war, so therefore we can use these powers
we've used in war before.

It's different, yeah. It's a harder war because of that. The fact that an
opponent is not a nation makes it much more difficult.

You know, you could have -- think of it this way: If you had gone to Congress,
Congress certainly thought it was a war right away. I don't think they had that
view you expressed. I think there was a lot of political support with the view
that it was a war. I just have a hard time seeing anyone in Congress -- I think
there was one vote against it in the end. But I agree, it's a judgment you make
based I think on common sense because we don't have any modern parallels. The
Israelis and the British and other European countries have had their wars with
terrorist groups, but the United States hadn't. So on that question I think what
you really saw was, What would the reasonable people think? You could say,
"Look, we should slow down, we should be more cautious, we should think through
what this is." I think we did that in the '90s, frankly. We did the other
approach. You can just read the 9/11 Commission report. The Clinton
administration did think this was a serious threat, but they decided to respond
primarily through a law-enforcement approach. Sometimes used military measures
like cruise missiles and kidnapping plans and so on, but they didn't really use
a full military effort.

I think if someone had been in the job that I had that had never done the
research or thought through these problems it would have been instincts, but I
had done a lot of reading and thought about it a lot. I had seen what the
Israelis and British had thought about and what we had done historically.

That's true. The idea that the government could respond with the full range of
war powers, rather than law enforcement.

I don't think so. Because it's not like I had a personal stake in it being a
war. It's not like I wished that 9/11 ever happened.

No, it's -- there's this event and you have to analyze it, and there is no
obvious answer because you can't say the Supreme Court decided already or the
president or Congress had some clear opinion. But I think I tried to break it
down in terms of why would this be a war.

Within the day. Eventually there was an opinion written which is on the Justice
Department website. Then we went to Congress to get their support, which I was
all in favor of. I don't think constitutionally you need it but I think
politically it's a good idea whenever possible. Congress thought it was war,
too. It was a Democratic congress. They could have said, "No way this is a war."

Yeah, I don't think that's true and I don't think Ashcroft has ever actually
said he wasn't involved in a particular decision. I don't think he's ever
actually said that. Because I don't think he could say that. It would be crazy
for me to make any kind of significant decision on the behalf of the attorney
general. These decisions don't mean anything unless the attorney general agrees
with it. And so whether there's a war or not, that's a decision for the attorney
general to make.

The White House has the right to ask OLC questions directly, which other
agencies don't have. So there's a much closer relationship between the White
House and OLC that exists than, say, the Department of Commerce. So there's
always this tension between the AG and the White House counsel and it sort of
gets expressed through that office.

Oh yeah, they [Alberto Gonzales and David Addington] had the right to ask us
questions. But we had to tell the AG we had been contacted, what they asked,
what our initial thinking is. But the AG's office had to approve every piece of
advice we gave them.

I never felt I was pressured to reach any of the decisions we reached. I think
part of that is a lot of the questions were new. No one knew what the right
answer was or not. There's no cases around any of this. So I think people just
want to let OLC see what the answer is. Certainly people debated and disagreed
after we said something, which is appropriate. But no one ever said anything
like that to me.

Yeah, it sounds like it. I don't know exactly what it was they were disagreeing
about. It's hard to say. The book's [Jack Goldsmith's The Terror Presidency] not
that specific about exactly what the dispute is.

Chronologically, military commissions were next. I only worked on that a little
bit. It was primarily carried out by someone else on the staff. But it was a no-
brainer, the fact that we could have military commissions. Then the status of
the Geneva Conventions were next.

No, the Geneva Convention issue comes up around December of 2001 and gets
settled January of 2002 -- that's just the question of whether the Geneva
Conventions apply. This question of cells versus open camps and do you provide
them with all the same things and rights under the Geneva Convention -- that
comes up before there's any issue of interrogation.

Actually, everyone in the government agreed that the Geneva Conventions did not
apply to al Qaeda. The thing we were arguing about was whether it applied to the
Taliban. But no one dissented that Geneva applied to al Qaeda.

I'm talking about the executive branch. Even the State Department did not
disagree. The question was really what policy should we follow, and whether we
should apply it to the Taliban. But I don't remember the State Department
claiming that the Geneva Conventions applied to al Qaeda. In fact, the U.S.
refused to ratify an addition to the Geneva Conventions under President Reagan,
on the ground that they tried to treat terrorists like P.O.W.s under the Geneva
Conventions and the U.S. viewed that as a mistake.

Then -- I don't think I can say exactly when the wiretapping stuff started.
That's just not public still.

Yeah, these were not easy questions. Whether it was a war or not, the question
of whether Geneva Conventions applied to al Qaeda was a straightforward
question, at least to me. The policy question is much more difficult -- whether
they should apply them as a matter of policy.

There's a balance. Is this going to degrade military discipline? Is it going to
give us a bad image versus does it produce gains in security? Is it part of the
message that terrorists are not going to be given the same status as people who
follow the rules? It's a very difficult tradeoff. And then it's harder and
harder because there's the question, If you don't give them full Geneva
Conventions, what are you going to give them? That's a hard question, too. I
think the legal questions are much easier than those fine, hard-grained policy
issues. It think those are very hard questions. It's not my job to say what they
should do.

I would have thought probably close to where we ended up going. We're not going
to obey the Geneva Conventions but we'll be close, consistent with humane
principles. I agree that they should not receive the kind of recognition and
benefits as, say, a solider from a country who followed all the rules of war
would get. But I think it's a very difficult question. And again, people who
have these "obvious" right answers are, I think, misleading people. Or they just
don't see both sides. All these policy questions have a tradeoff of various
things.

So when the interrogation question came up -- I think it's March; it depends on
when Abu Zubaydah was captured. I think the government has now said it was
because of Abu Zubaydah being captured. I don't remember the exact date in the
spring it happened, but that's what provoked that question.

I think that's unfair, first because Goldsmith never issued an opinion of his
own. He's certainly free to criticize. It goes back to unless you've actually
made the hard decision yourself, then you don't really know how you think it
through. Or what you would do. So he says "slapdash opinion," but we have no
idea what he would have done because he left. Second thing is, it went through
the normal process opinions go through in the Justice Department. It was
primarily worked on by career staff people and then went through a process of
editing and review by different offices within the department, no different than
any other.

He [Ashcroft] approved it. And so the idea that it's slapdash or it was
haphazard I don't think was true.

We were under time pressure.

The final version we didn't get done till August. But we would show drafts
before.

They needed to have a sense before it was finalized what the basic outlines are.

I don't remember. Probably weeks.

If you had the luxury of time, you'd spend years on this, without a doubt.

Again, there's no -- this statute for criminalized torture, there's no judicial
opinions that determine that statute and the department had never prosecuted
anyone under it. So the usual sources -- and it doesn't actually specify things
which are not torture, it just has vague standards --

No, we're trying to interpret it. So we went and looked at everything, the
foreign decisions, state law, related federal law, the history of the draft in
this country, history of the Anti-Torture Treaty.

Other people did the initial research and drafting, I did the initial editing
and sent it back for more research or other questions that might occur based on
what was originally in the first draft.

There wasn't a lot of back and forth and people saying, "This is wrong, you need
to delete this." I think that there was no pressure from any other agency from
within the department that the opinion was going too far -- or that it wasn't
going far enough. It was very much hands-off, I think. That doesn't surprise me
considering how sensitive the issue was. People wanted the office, I think, to
take the full responsibility.

Because there was no other -- that's one of the traditional things you do when
you're trying to write a statute: Has Congress ever used this phrase ["death,
organ failure, or permanent damage"] anywhere ever before? I think it was about
health care.

Yeah, so when they rewrote the memo, they made the lines less clear. They
deleted that sentence. But it's not all that different in what it actually says
and what it actually allows.

It's the phrase Congress used. The main criticism, which is certainly fair, is
that statute is so different from this one. How can you borrow the language of
one and include it in the other? On the other hand, that's the closest you can
get to any definition of that phrase at all.

And here's the other thing I was quite conscious of. The other thing I was quite
conscious of was I didn't want the opinion to be vague so that the people who
actually have to carry things out don't have a clear line, because I think that
would be very damaging and unfair to the people who are actually asked to do
these things. The way I read what the department did two years later was they
just made the line blurry again. And you can have the dispute -- you can say, "I
don't think the line you've drawn is in the right place." That's fine. But I
think it's not fair to say -- which I think they did, which -- I feel people say
it's slapdash. I think its not right when they say, "I don't want it to be very
clear." Because that's just people protecting their own backs. So --

I think so. I mean if it's not clear. Now you can say those words are shocking
because they're too clear. But that's why, "Let's see if there's any language
that defines this phrase that we can draw from somewhere else." Because I don't
want to make some vague, beating-around-the-bush standard.

This is unpleasant. Don't interpret what I'm saying as, Oh, I was happy to do
this or eager, or I felt some satisfaction. Mainly because I had read what the
British and the Israelis had gone through -- they had their own struggle with
this issue and they had their own judicial decisions, and I had read all kinds
of articles and books about this issue. I mean, it's a difficult issue. You have
to draw the line. What the government is doing is unpleasant. It's the use of
violence. I don't disagree with that. But I also think that part of the job,
unfortunately, of being a lawyer sometimes is you have to draw those lines. I
think I could have written it in a much more -- we could have written it in a
much more palatable way, but it would have been vague. I could have said --

We could have drawn a different line. Someone could interpret that language
differently, and I would say, "How did you get that definition?" So when you
read the other opinion that came years later, first, it's very hard to tell
where the line is at all; second, its very hard to tell where they got it from.
This one you could say, "Look, here's a line that's very clear. It comes from
this other statute Congress passed. It comes from a different context, but
that's the language Congress used, and if you want to change it, you can change
it."

I really tried to distinguish between law and policy. Here's this language
Congress used in a statute, right? And then there's no definition of it
anywhere, and we know a list of things that violate that statute. In the
opinion, it does provide things which were said to be torture by Congress when
it passed the law, and it did list things which other courts found to be
torture, and other countries -- which people ignore because they just focus on
one sentence. So if you read the whole opinion, I don't think of it as, Here's a
license to, you know, almost do anything you want to. Because the opinion
contains a list of things you can do and things you can't do. For example,
Congress was quite clear when it ratified this treaty and the executive branch
signed it that police brutality doesn't count. So how do you define torture so
that it doesn't include common cases of police brutality, which can be very
violent? So it's a hard thing. The easy thing to do would have been to just
repeat a vague standard that sounded good and then sort of wink to the CIA that
you can go ahead and do whatever you want -- which is somewhat what I feel the
people who came after me did. I'm trying to be honest in an opinion.

That's why you read the rest of it. It tries to illustrate it. It tries to show,
"What does that line actually mean?" And so it contains examples of things that
were found to be a violation. And so -- maybe some ways it's not specific enough
because it didn't say you can do this and you can't do this -- but I think later
on it does that. But you're right, I agree, the language is not pleasing, it's
not politically savvy. I didn't see that as my job.

No [Did Yoo have moral qualms]. But that's the thing. Again, just because the
statute says, that doesn't mean you have to do it. You're right, there's still
the moral question, after you've answered the legal question, whether you should
do it at all.

Here's where I think of it differently: The proposal for interrogation methods
comes from the CIA. It comes from the career people. They want to know if what
they want to do is legal. I just reject the idea -- I mean, I can see why people
have that view. I just don't think it's accurate. I don't think this is the
product of people who have this radical world view -- revolutionize and upset
the accepted order of doing things. I really think this was an example where
circumstance put people in the position of having to make this very difficult
choice. And I think the morality of that was using coercive measures against Abu
Zubaydah to learn what he knew. I think there are some moral questions. It's not
obvious to see where it goes. Do you use interrogation methods against the guy
who is the number-three leader of the terrorist group which has shown that it
could carry out devastating attacks on our country? You could say, one, the
moral question is, Do you use these coercive measures? But the other side of the
moral question is the lives you might save by finding out what he knows. I don't
think people have an obviously right answer to that. From what I've seen the
country is evenly split, or agrees that you should coercively interrogate
someone like that. Or at least they used to think that in the year or two after
9/11.

There's always a slippery slope problem to everything in the law, but I thought
in this case there were enough safeguards and controls on them that it wouldn't
have been abused. And again, this goes to Iraq. If the Iraq War had never
happened and Abu Ghraib never happened, would people be as upset about this?

But I don't think so, because the Constitution can't protect against bad
decisions. There's this illusion that the Constitution is perfect and that
everybody who follows it will be perfect. You know, Congress and the president
make terrible decisions, and have in the past. The way I think of it, you do
have a system that allows people to make mistakes about war. Congress makes
mistakes, too -- the War of 1812 is my big example. But what would happen if you
create a system where you slowed it all down? Where you had a dual-key system,
like in a submarine firing a missile, like in the movies? You would slow it down
so the country can't act quickly. You're going to have costs to that, too.
That's not going to lead to right answers all the time, either. World War II is
a great example of that. Because of Congress, Roosevelt couldn't bring us into
the war in 1940. We had to have Pearl Harbor. I think most people now agree that
was bad. If you look at the people who later became critical of the presidency,
like Schlesinger, they were praising Roosevelt for taking action in defiance of
an isolationist Congress. And then people thought in the modern age you needed
to have this kind of executive. You could have a system that goes to either
extreme and they all have costs and benefits. The thing the framers were really
worried about was not that the president would make a mistake but that the
president would become dictator. I really don't think Bush has become that. No
presidents have raised that threat.

Yeah, all their plans. He's the guy in charge of cells. Zawahiri and bin Laden
are the political leadership. The operational leader is the guy we captured. And
he is the guy who wrote their manual on resistance to interrogation. So any
normal thing we try he would recognize and counter. So you have a choice, if you
want to use interrogation methods that are coercive that you don't think are
going to cause any long-term permanent harm. Are you willing to forego those? I
have a hard time believing an American president would say, No, absolutely not.

I personally don't believe that Gore or any responsible president would say, "No
way, don't ask him any more questions, give him a lawyer." Now, six years later,
we've successfully stopped their attacks, we've broken up their cells, they're
on the run. You could say, "Well, we can take two or three months to interrogate
them." So that's a question: What would they do in that situation?

Yeah, she was a good friend of mine. From before she married Ted [Olson, former
U.S. Solicitor General, appointed by President Bush]. We worked on the Hill
together. When I worked for Hatch, she worked in the House, so we worked on some
issues together. She was tough. She was one of the emerging class of blonde
pundits -- she was there with Ann Coulter and Laura Ingraham, she was on Larry
King a lot and wrote a book. We got along really well. She represented people in
the House. Sometimes we fought about stuff. Sometimes she beat me. I had a lot
of respect for her. Thought she was smart, really talented. We spent time
socially. I really liked her. Very charming.

It's not an easy decision six years later. It was difficult then, it's difficult
now. Another way to ask it is, Knowing everything you know now, would you still
make the same decision? Now we know some the costs we didn't anticipate.

I still think I would have done the same.

*


Miami Herald --

May 10, 2008
WAR COURT JUDGE BARS GENERAL FROM COMMISSIONS CASE
by Carol Rosenberg

http://www.miamiherald.com/campaign08/story/528419.html

WASHINGTON -- In a rebuke, a military judge banned a key Pentagon general from
any role overseeing the Guantanamo war crimes trial of Osama bin Laden's driver,
citing interference.

The judge, Navy Capt. Keith Allred, ordered the Pentagon's General Counsel to
assign a new official to oversee the trial in place of Air Force Brig. Gen.
Thomas W. Hartmann, the Defense Department's legal adviser for military
commissions.

Allred issued the 13-page ruling Friday little more than a week after lawyers
for the driver, Salim Ahmed Hamdan, 36, of Yemen, called witnesses to testify
that during nearly a year as legal adviser Hartmann had pressured for swifter
more numerous prosecutions at the commissions.

Hamdan's trial is presently slated to open June 2 as the first full U.S. war
crimes tribunal since World War II. Whether that schedules still holds is
uncertain.

Allred wrote that he found "substantial doubts" about Hartmann's independence
from Hamdan's prosecutors, in part "based on the length and intensity of the
Legal Adviser's involvement with the prosecution in general, as well the impact
of his actions" in Hamdan's case.

The driver, the Navy captain wrote, should be assured "fair and objective advice
to which he is entitled during the balance of this case."

Hamdan's lawyers had asked the judge to go further, and dismiss the case. Allred
did not.

"It's a pretty powerful repudiation of the role that he [Hartmann] sought to
play in the last 10 months," said Hamdan defense attorney Andrea Prasow, a
civilian member of the team on the Pentagon payroll.

Hartmann had succeeded a more soft-spoken, low-key legal adviser who had
commented sparingly to the public in the role of an adviser who analyzed cases
for senior leadership.

In contrast, Hartmann was a more aggressive player. During hearings at
Guantanamo, he would frequently ring the base from his Pentagon perch, offering
a steady steam of commentary and instructions to prosecutors, defense lawyers,
aides, clerks and, in some instances, reporters.

No detail seemed too small or too large -- from flight schedules and who would
sleep in tents versus trailers to selection of which of the 270 or so detainees
would face trial as war criminals.

In his ruling, Allred also ordered the Defense Department's General Counsel,
currently Daniel J. Dell'Orto, to make sure that Hamdan's trial prosecutors
suffer no "adverse consequence" or "professional embarrassment."

Allred had received written testimony that the Hamdan prosecutors had
complained, through Pentagon channels, about Hartmann's meddling.

The timing of Allred's decision is significant: It comes just weeks after
Hartmann sent to the Pentagon's war court Convening Authority his recommendation
on how to proceed with a complex death-penalty prosecution of six alleged al
Qaeda conspirators in the Sept. 11, 2001, attacks on the Pentagon and World
Trade Center. Chief among the accused is reputed 9/11 mastermind Khalid Sheik
Mohammed.

In light of Allred's ruling, military defense attorneys predicted more
challenges of the independence of the military commissions.

Allred's ruling noted that he was "troubled" by testimony indicating that
Hartmann pick and chose among cases "because of political factors" including
"whether they would capture the imagination of the American people, be sexy or
involve blood on the hands of the accused."

Such reasoning, he said, "suggests that factors other than those pertaining to
the merits of the case were at play."

Hamdan's attorneys took an earlier commissions format to the U.S. Supreme Court
and won a ruling that President Bush exceeded his authority in setting it up;
Congress has since authorized the format, with some modifications.

Hartmann's successor will have the power, among other things, to fund defense
experts, travel and staff for Hamdan's four-attorney legal team, including a
consulting psychiatrist.

Hamdan faces a maximum of life in prison for allegedly providing material
support for terror and being an al Qaeda co-conspirator; prosecutors say while
he may not have known or plotted al Qaeda attacks, he should be found guilty for
driving in al Qaeda leader Osama bin Laden's motor pool and serving as his
sometime bodyguard.

U.S.-allied forces captured Hamdan, a father of two with a fourth-grade
education, in November 2001 in southern Afghanistan, allegedly with two surface-
to-air missiles in his car -- driving toward the Battle for Kandahar.

A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, declined to discuss the ruling,
saying "Defense Department officials" were reviewing it. He did not specify who
was reviewing it, although typically it would be the job of the legal adviser,
meaning Hartmann.

Calls and emails to Hartmann's staff also went unanswered, including an inquiry
on whether and how he might appeal it.

The ruling came a week after Hamdan's Navy lawyer called the Pentagon's Chief
War Court prosecutor as a defense witness in a motion arguing "unlawful command
influence" -- a grave accusation in military circles.

The ex-prosecutor, Air Force Col. Morris Davis, testified that he believed
Hamdan was a war criminal, but that he resigned his post because Hartmann had
pressured prosecutors to rush ahead with other cases even before evidence was
declassified, meaning they would require secret sessions and secret evidence.

Davis testified that he resigned in October after losing a power struggle to
Hartmann over the independence of his office, and feared cases would be brought
with from rough interrogations. The CIA has confirmed that it subjected three
Guantanamo detainees to waterboarding -- simulating drowning to break them -- in
secret custody elsewhere.

Moreover, the deputy defense counsel, Mike Berrigan, testified that Hartmann had
not sufficiently resourced the military attorneys assigned to defend suspected
terrorists with everything from experts to paralegals to space to handle secret
evidence.

Hartmann has been an outspoken advocate of the special war-on-terrorism court,
defending the process as granting alleged terrorists unprecedented rights akin
to U.S. service members at traditional courts-martial.

His opponents have argued that he has not served as an independent intermediary
at the war court, and has acted as proxy prosecutor by having attorneys in his
office, rather the prosecutor's, prepare charge sheets against six Guantanamo
captives accused in the 9/11 conspiracy.

In the latest example of Hartmann's hurry-up leadership style, his staff brought
on-line a $12 million "expeditionary" courtroom on Wednesday -- only to have the
audio, video, then electrical systems fail during arraignment of an alleged al
Qaeda propagandist, Ali Hamza al Bahlul

The judge in that case, Army Col. Peter E. Brownback III, continued with the
formal read of charges in a dimly lit ostensibly state-of-the-art court, with
guards surrounding the accused who had sat passively throughout the morning's
glitch-riddled proceedings.

[ Documents:

* Ruling...

http://media.miamiherald.com/smedia/2008/05/10/10/
Hamdan_Hartmann_Ruling.source.prod_affiliate.56.pdf

* UCI Motion...

http://media.miamiherald.com/smedia/2008/03/28/11/
UCI_Motion_with_Attachments.source.prod_affiliate.56.pdf ]

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