The Laws of War

The Laws of War

Mini Teaser: Stopping torture and changing the policies of the Bush administration may not be enough. With a whole new type of terrorist bred from extraordinary rendition and torture, the last eight years may well prove inescapable.

by Author(s): Raymond Bonner

Matthew Alexander and John Bruning, How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (New York: Free Press, 2008), 304 pp., $26.00.

David Cole, Justice at War: The Men and Ideas that Shaped America's War on Terror (New York: New York Review of Books, 2008), 176 pp., $14.95.

Karen Greenberg, The Least Worst Place: Guantanamo's First 100 Days (New York: Oxford University Press, 2009), 288 pp., $27.95.

Eric Lichtblau, Bush's Law: The Remaking of American Justice (New York: Pantheon, 2008), 384 pp., $26.95.

Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 400 pp., $27.50.


WITH AN order to close Guantánamo, the Obama administration has acted quickly to move away from the Bush administration's policies in what it called the "war on terror." But much more needs to be done to undo the damage to America's reputation abroad-not just in the Muslim world-and to lessen the chances of starting another chapter in the erosion of America's civil liberties. And not all measures will be difficult. For starters, President Barack Obama should follow the lead of Britain's Gordon Brown, who, upon becoming prime minister, stopped using the phrase "war on terror."

The concept of a "war on terror," was "misleading and mistaken," the British foreign secretary, David Miliband, wrote in the Guardian recently. Calling for a "war on terror," he went on, "implied that the correct response was primarily military. . . . We must respond to terrorism by championing the rule of law, not subordinating it. . . ."

The Bush administration's simplistic jargon did suborn the rule of law and allowed for abuses-extraordinary rendition, torture, indefinite detention, wholesale FBI interviews of Arabs and Muslims in America, "preventive detention." What will be difficult is to truly rehabilitate America. It will be a long, slow, arduous healing process.


TO UNDERSTAND the atrocities and what it might take to redeem ourselves, one must first understand how they came about, who the players were, and what schemes and legal circumlocution laid the groundwork for the misdeeds to follow. The "war on terror" begat a "war council," self-described and self-selected. It was headed by Vice President Dick Cheney's legal counsel, David Addington, a former CIA lawyer, who, along with his boss, believed that the presidency had been severely weakened by the reforms following Watergate and Vietnam. The others were Alberto Gonzales, White House counsel, and then attorney general; Timothy Flanigan, a lawyer on the White House counsel's staff who had been part of the team that probed Bill Clinton's sexual escapades; William Haynes, Pentagon general counsel; and John Yoo, the erudite graduate of Harvard University and Yale Law School who served in the Justice Department as a legal adviser to the administration. After the deluge of books that have recounted in detail the abuses by the Bush administration in its "war on terror," The Dark Side by Jane Mayer is the best account of how this elite cabal pulled it off.1 They were "like a high-school clique," Mayer writes-an archconservative elite, playing squash and racquetball together and going on clandestine trips. They operated in extreme secrecy, hiding their work and thoughts from any other officials they thought might disagree with them, on the law or policy.

Fourteen days after 9/11, Yoo and Addington concluded that since the country was at "war," President Bush, as commander in chief, could do virtually whatever he deemed necessary. And so it all began. As Mayer recounts, Yoo was at one point asked whether any law existed that could stop the president from "crushing the testicles of [a] person's child" to get the parent to talk. "No treaty" could do so, Yoo responded, with careful legalese. He became increasingly obtuse when pressed to make a definitive judgment on whether any law could stop the president.

Relying heavily on Yoo's legal analysis, and Cheney/Addington's political views and clout, the Bush administration would abandon treaties to which America had long adhered, and which provided legitimacy and weight to its moral voice in the world. Under President Ronald Reagan, for instance, the United States had led in the drafting and ratification of the treaty against torture, formally called the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under George W. Bush, the United States ignored it, redefining torture and using the euphemism "enhanced interrogation techniques." More disturbingly, the Bush administration jettisoned the Geneva Conventions, an international undertaking to mitigate the barbarity of war. The treaty has numerous provisions regulating the treatment and interrogation of prisoners. The administration wanted no-holds-barred interrogations. Yoo argued that the United States could ignore the treaty.

"It will take fifty years . . . to undo the damage that he did to the place," a senior Justice Department lawyer told New York Times reporter Eric Lichtblau about Yoo.

In response to Yoo's memoranda on the Geneva Conventions, the State Department's legal counsel, William Howard Taft IV, a moderate Republican, argued that Yoo's reasoning was "seriously flawed." Taft added in a memo to Yoo, "In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions." Fearing that it would be "toxic to our foreign policy" if countries knew that the United States exempted itself from the treaty, Taft wanted Yoo's memo classified, Karen Greenberg, the executive director of NYU's Center on Law and Security, writes in her book on Guantánamo. Of course, Bush and Rumsfeld stated publicly that the United States was not bound by the Geneva Conventions, so the damage was already done. Thus, there seems little, if any, justification for not declassifying the memos now.

And this should be a next step in Obama's tenure: ordering the declassification of all the memoranda that Yoo and others wrote pertaining to rendition, torture, Guantánamo, Abu Ghraib and so on. A smart lawyer or researcher on Obama's staff would be able to come up with a fairly comprehensive list of the documents that should be declassified just by reading several of the books under review here: The Dark Side; Bush's Law by Lichtblau; and Justice at War: The Men and Ideas that Shaped America's War on Terror by David Cole, a law professor at Georgetown University.


BUT THE damage goes further than finding work-arounds for the Geneva Conventions. When Yoo, et al, were not justifying "enhanced interrogation techniques" they were legally blessing domestic spying. By law, the CIA and the National Security Agency (NSA) are forbidden from spying on Americans. The NSA can collect data from overseas transmissions, but not those in the United States. Twenty-three days after 9/11, President Bush radically reversed that policy. He signed off on an eavesdropping operation, which, Lichtblau writes, was "so sensitive that even many of the country's senior national security officials, men and women with the highest security clearances in his administration, knew nothing about it." Not even the NSA's own lawyers were permitted to see the legal opinions justifying the operation at their own agency. (Tick another box for documents to be declassified.)

Two years later, when concerns about the program were bubbling even among conservatives in the administration, Jack Goldsmith, who had replaced Yoo at the Office of Legal Counsel, drafted another memorandum reviewing the legality of the program. It remains classified.

Efforts by individuals who believe they were tapped under the program to find out if they were eavesdropped upon were successfully resisted by the Bush administration. It would not even reveal how many individuals were wiretapped-but it was "up to five hundred Americans at a time," Lichtblau believes.

The Justice Department's Office of Professional Responsibility began an inquiry into whether the eavesdropping program violated legal or ethical guidelines. It was stopped. "Who shut down the investigation, and how high did it go?" Lichtblau asks. It is a question for the Obama administration to answer if they hope to move on from yet another Bush-administration black mark.

Lichtblau and his colleague at the New York Times, James Risen, broke the story of the secret NSA wiretapping, and Lichtblau's account here of how they got the story, why the New York Times held it for a year (evoking harsh criticism) and the efforts of the Bush administration to keep it from ever seeing print is a fascinating read. (Lichtblau is a colleague at the Times, but I have not worked in the Washington bureau since he arrived at the paper, and recall only having met him once.)


WHAT WE find is that along with those who were outwardly complicit in the administration's program, any number of unwitting accomplices were swept up in the post-9/11 moment of national pride and fears for the nation's security. The Times's publication of the NSA story stands in stark contrast to reporting in the weeks and months following 9/11. During that period, many, if not most, American journalists were far too willing to accept whatever the administration said. "We in the media were no doubt swept up in that same national mood of fear and outrage," Lichtblau writes.

Essay Types: Book Review