President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
My thanks to John for writing what I think to be an instructive and informative answer to the issues that I raised on the question of how we conducted the war on terror. As he notes at the beginning, I made my remarks from the perspective of someone who thinks that a muscular American policy towards the terrorist threat is not only permissible but strictly necessary.
The hard question is what is the best way in which to take this on. In answering the question, I think that John is right to say that Al-Qaeda is not as a matter of law entitled to the benefits of the Geneva Conventions, or more precisely, that the case that they are is not easy to make. But the question here is whether it is wise for us to adopt something that is much closer to a tit-for-tat strategy in dealing with them, where my instinct is that it is not. I am not worried about how the Chinese will respond in the future, I am worried about the responses around the world and at home toward the United States for what we do. In this regard, I think it is a mistake to calibrate our responses to the behavior of our worst enemy. We should try to do better in this regard than they would ever think of doing, and indeed as best I can tell the recent moves at Guantanamo have followed that insight under both the Bush and the Obama Administrations. Far better that we are proud of what we do, than we try to hide and run from our decisions. Prudence here should dominate.
On the water boarding issue, the evidence continues to be in conflict. But it is not enough to say that we have used it on our own, given that the intensity of the practice is likely to differ across contexts. The Americans on whom the practice is used are likely to have a very different response to the overall situation. That said, as I mentioned, the question of whether torture is justified in some cases by its collateral benefits is a hard one to answer. The usual treaty response is that it is not, once we find out what it is. The Yoo response is to define it more narrowly than the statute will bear—‘organ failure’ is a lot narrower than ‘severe injury’— and then to admit the justification in the case of the top three leaders of Al-Qaeda is to make an important set of concessions to the insistent critics of the practice. What is so hard for me as an outsider to evaluate is the causal claim that the success in stemming terrorism is a direct result of this initiative or of any of the thousands of other steps that were taken to break the back of Al-Qaeda. My sense is that this claim is overblown, only if some of the greatest successes in recent years come long after the practice was largely abandoned, perhaps even from high level sources. So I regard this claim as perhaps tenable, but easily contestable as well.
I notice that John is indeed silent on my last point about how President Bush seriously erred in judgment with his campaign for expanded presidential power. All the information on this point is public, whether it deals with text or practice. In my view, the Bush administration lawyers were wrong on this question. I am not sure whether John thinks the same.