The Right to Torture, the Right Not Be: Danner vs. Yoo from Mark Danner on Vimeo.

Mr. Harry Kreisler: Okay, so let’s begin today’s session.  Our topic today is “Human Rights, International Law and the War on Terrorism.”  9/11 changed the world and the Bush Administration responded.  One of the most important challenges facing the United States and its foreign policy is to navigate a course in this very different environment, to reshape or think about or contemplate national and international law so as to maintain the integrity of our constitutional system, provide for the common defense, while remaining mindful of our commitment to the fragile but evolving nature of international law and the international human rights regime.

And I can’t think of three better people to explore this.  I’m going to introduce them right before they speak in order.  Tom Farer is going to go first.  I’m going to allow only 20 minutes, 15 to 20 minutes, with a maximum of 20, so after 20 minutes I’ll rise and bring on the next speaker.

And it’s now my pleasure to interview — to interview, sorry, Tom — to introduce Tom Farer.  Among the leading scholars in the field of human rights, Tom Farer is unusual, even unique in having experience, direct operational experience in the security field, both national and international.  Just out of law school he worked for Robert McNamara at the Pentagon.  He trained an African police force and he served in Mogadishu as a legal advisor to the U.N. intervention mission in Somalia.

Tom successfully negotiated the release of hostages held by terrorists in Colombia, served as president of the Inter-American Commission on Human Rights, investigated and exposed the killing fields and torture chambers of Latin American states.  As a private citizen, he uncovered the cover-up of political murder in Guatemala.

Today he is the dean of the Graduate School of International Studies at the University of Denver, president of the Association of Professional Schools of International Affairs, honorary professor of Beijing University, a member of the editorial board of The American Journal of International Law and The Human Rights Quarterly, and on the advisory board of Human Rights Watch, Americas Division.

He’s published more than 11 books and monographs and countless articles which have appeared in such journals as The New York Review, The London Review of Books, The Harvard Columbia Law Reviews, World Politics, International Organization andForeign Affairs and Foreign Policy.  It’s my pleasure to welcome Tom Farer.  [Applause.]

Mr. Tom Farer:  To be honest, my life is about ten times less interesting than Harry has suggested, and I’ll try to demonstrate that in my remarks.  Because knowing that many people here are not at law school or not lawyers, I thought that I should perform the pedestrian, even pedantic task of providing a kind of overview of how different bodies of law, international and national, affect the struggle with terrorism.

Maybe I should say a word about law to start with, because particularly in these times of operatic passions, exploited by sleazy politicians and fanatics, law seems to many people like something largely irrelevant to the struggle, just some lines written in books with cracked spines held in dusty libraries, or else just a rhetoric kind of fig leaf which covers the imperious thrust of rude national interest.

Well, I think nothing could be further from the truth, and I don’t say it because I was trained as a lawyer.  In the first place, it seems to me that the very way we apprehend the world is through words and concepts that are drawn, in fact, from the law.  Self-determination, self-defense, aggression, preemption, terrorism itself, it’s their embodiment and their definition in law, in statutes, in treaties, in the practice of states which has given them something more than the appearance of — than the reality of a gas bag.  They have been given sufficient concrete life so that we can communicate with each other about them, so we think in those terms.  Was the U.S. invasion of Iraq an act of preventive war?  Was it an act of preemptive war?  These words only assume meaning, only assume content through the operation of law over time.

Secondly, international law is the expression — international law is not the work of tree huggers and bleeding hearts, as anyone who has been involved in the negotiation of international agreements, as I did at one point, was involved at one point, knows.  International law is the expression of collective self-interest, national interest, calculated, very deliberately, in periods of relative tranquility.

I was involved in a national security negotiation.  It lasted for weeks.  It involved constant communication with the Secretary of Defense, even with the President on one occasion.  The seriousness with which all of these parties took the negotiation, the sense that important interests were at stake, and the impossibility of arriving at an agreement, which we finally did, without the merging of two conceptions, which happened to coincide in this case, of national self-interest, well, it could never have happened.

International law is the embodiment of national self-interest, but as I said, calculated carefully, in times of relative tranquility, as opposed to extemporized in times of high tension or passion, when you can think much less clearly about national interests.  So to say that law is apart from national interests is to completely misrepresent or misunderstand the nature of international law.

And finally, international law makes concrete and sustained a scheme of cooperation.  That is, the whole operation of the international system which allows goods and services to move across frontiers, to move across oceans, which allow a country like Japan, which couldn’t feed itself for six months, which has no oil, which has no iron, which has no coal, in fact has no resources other than brains and organization and management, to exist comfortably, indeed luxuriously in the world, because it is part of a worldwide scheme of cooperation.  And that worldwide scheme of cooperation is international law.

Now, this system only works effectively on a global scale when all of the major states have essentially compatible interests and are psychologically disposed to appreciate that fact.  And historically, that has never been true before on a global scale.  This is the first time in human history, I would propose, where all of the major powers have a common interest in a single grand scheme of cooperation which is embodied in international law, and which I think is very much in our interest to sustain.

One of the main reasons for the aggressiveness of Japan in the first half of the 20th century was that it was a country without resources, and it could not imagine a world, the world we’re in now, where all you need to do is sell some flat screen televisions and you can go out and buy all the oil and all the food and all the coal and iron you want.  That was not the world of 1900.  It wasn’t the world of 1925.  It is the world of 2005.

If we had more time, and if you want to explore this later on, we could talk about how I support the proposition that for the first time in human history all the leading states have collective interests that are much greater than their — or that they define their national interests in terms of cooperation.

Let me turn, then, to bring us a little — to narrow the focus a little bit — let me turn to the bodies of law that seem to me relevant to any discussion of the struggle against terrorism.  Three of those bodies are bodies of international law and one is the body of national law.  First there is human rights — in no particular order of importance — there’s human rights.  There is the law governing the question of when you can have recourse to force legitimately, which is largely defined by the United Nations charter.  There is the body of law that defines how you can fight, what tactics, what strategies, what weapons, which is usually broadly referred to as international humanitarian law.  So those are the three areas, the three bodies of international law.

Let me say, first, that during the entire 20th century, the United States was the principal national architect of all three bodies of law.  We were the principal architect of the U.N. charter, including its provisions regulating the use of force.  We have been the principal architect of international humanitarian law.  Not the only one, but the principal one.  And we were the principal architect of human rights, particularly of the Universal Declaration of Human Rights from which all of the regional and international conventions like the International Covenant on Civil and Political Rights stem.  There’s a movie out now about Franklin and Eleanor Roosevelt.  Eleanor Roosevelt was the single driving force behind the Universal Declaration of Human Rights.

So we have played a truly honorable and creative role in the creation of the scheme of cooperation which is international law.  And let me just illustrate with one anecdote, but I think it’s a very revealing anecdote.  Two major peace conferences were held in The Hague in 1897 and 1904, convened by that great democrat, the Czar of Russia.  The purpose of these two conferences was to reduce the incidence of war and, when war did occur, to make it less brutal.  One side at these negotiations was led by the United States.  And the position of the United States was — I’m paraphrasing now, the leader of the American delegation — war is an antique.  War is outdated.  There is no reason for countries to fight anymore.  And this was a prelude to proposing compulsory arbitration of disputes.

Who led the other side?  The Germans, of course, and they were completely frank.  The leader of the German delegation said, our greatness consists of the fact that we can mobilize better troops more quickly than any other nation in the world, and we do not propose to yield that advantage.  One might say that there’s been a slightly interesting reversal of position here, but I’ll leave it for others to say that.  I just said one might say that.

Now how, precisely, do these bodies of law bear on the struggle with terrorism?  Let’s take human rights first.  Human rights I see as the bedrock, because human rights operates in time of peace and in time of war, and in time of mixed peace and war, or a status which is uncertain.  It operates universally.  The human rights norms overlap, but they’re broader than the American Bill of Rights.  And as many of you know, they guarantee free speech, free association, due process, freedom of conscience, self-government.

But most of these guarantees which can be found in the various human rights conventions — and we ourselves are a party to two of the most important ones, that is, the Covenant on Political and Civil Rights and the torture convention — most of the guarantees of human rights law are subject to temporary suspension in times of emergency.  That’s true.  And that shows that they were negotiated by hardheaded diplomats and generals and admirals, not by the ACLU.

But there were exceptions.  There are three rights that are not subject to suspension in time of emergency, and that is the right to life, the right not to be tortured or otherwise cruelly treated, and the right not to be punished without due process of law.  Those three cannot be suspended in peace or in war, or in any intermediate status.

All right, that’s one body of law.  Then there’s international humanitarian law, and usually most people think of the Geneva Conventions, although they don’t state all that there is to international humanitarian law, and often they’re thinking of the Geneva Conventions of 1949.  I’d need a whole lecture or maybe two to summarize the humanitarian law of war.  You don’t have the patience.  Harry doesn’t have the patience either.  I don’t even have the desire at the present time.

What I want to do is to summarize what I would draw out as the quintessence, the most essential elements or principles of the humanitarian law of war.  One is the principle of discrimination. That means that in any conflict, you must discriminate between members of the armed forces who are engaged in the conflict, who are fighting, and the civilian population.

To target the civilian population, or to seek a two-fer, you know, if you have two ways of attacking a target from the air and you choose the means that will not only — the military target — which will not only take out the military target, but also kill as many civilians as possible in order to spread terror within the population, which occurred on both sides during the Second World War, as many of us remember, or some of you have read about and probably don’t remember, that is the clearest, the grossest violation of the humanitarian law of war, and it is subject to prosecution in front of the international criminal court.  Not if you’re an American, of course.

The second basic principle of the international humanitarian law is that persons who are no longer involved in the fighting, or weren’t involved to begin with, must not be treated cruelly.  That can be soldiers who were at one point fighting but are now sick or wounded or been taken prisoner, but are no longer engaged in fighting.  So the traditional justification for killing people in war, which was that you are acting in self-defense, is no longer applicable, all right?

And the other is everyone else, that is, the civilians, not all of whom are angels, some of whom might be terrorists, some of whom might themselves have killed civilians.  But there are really two categories, or three.  There are the combatants, there are the combatants who are no longer able to fight, and there are the rest.  As I say, the rest may be subject to various penalties, to prosecution, but they are also subject to certain basic guarantees.

And what are those basic guarantees?  Remember, these two bodies of law, human rights law and the humanitarian law of war have different roots, different origins historically.  And indeed, the humanitarian law of war, the Geneva Conventions, were largely negotiated by officers, by soldiers, and they are incorporated in the military manuals and the codes of military justice of all of the recognized states.  They are definitely not the work of the ACLU.

What are the three core principles, the core limitations in terms of the treatment of persons who are not active combatants?  No summary execution, no cruel and inhuman treatment, no punishment without due process.  In other words, you have two bodies of law with different histories, and each one establishes as its core elements, not subject to suspension, the same basic rights.  That is, no summary execution, no cruel treatment, and no conviction, no punishment without due process.  I think that’s striking.

Now, I don’t have time to talk now about the law governing when you can use force.  I’ll just say in a very summary way that I think the use of force in Afghanistan was within the U.N. charter, it’s clearly legitimate, and was appropriate.  And we could argue about particular targets, but I mean the general decision to have recourse to force after 9/11 against the Taliban, that was justified under international law.  If you want to bring some other criteria to bear to suggest it wasn’t justified, you may, but I’m only talking about international law.  I happen to agree with it as well.

In the case of Iraq, I would say, again in a very summary way, I think it is very hard to justify the invasion of Iraq within the scheme of international law regulating the use of force that evolved after 1945, after the Second World War, and became embedded in the U.N. charter.  That was the view of the legal advisor to the prime minister of the United Kingdom.  It is the view of the overwhelming majority — not all — but the great majority of international lawyers, and I’ll admit it is my view as well, and I’m happy to elaborate on that.

How can I best conclude?  I haven’t said a word about national law.  Obviously, there are various elements of national law that are relevant to this discussion: the Bill of Rights, the independent judiciary, the division of powers between the branches of government.

So I would conclude by saying only this, that of all the claims that have been made by the president presidential Administration with respect to the struggle against terrorism, the one that concerns me most deeply is the claim that the President of the United States, one person — and I don’t care who the President is at any given time — that the President of the United States, one person, exercising his or her powers as Commander in Chief, can do essentially anything, can override legislation, can override determinations of the judiciary, can torture, can seize American citizens and send them to countries which torture for us, perhaps because they have more imaginative torturers than we can generate ourselves.  That one man, one President, in a time of war of indefinite prolongation — by the President’s own statement — can do that.  To take the position that that is possible under the constitutional scheme is, to me, a matter of overwhelming concern and dismay.  Let me close on that point.  Thank you.  [Applause.]

Mr. Kreisler:  So we’re going to pass out some more cards, if anybody wants cards.  If you’ve written a question, they will collect them at the same time.  Clare, would you help?  Thank you.

Our next speaker is John Yoo, who is a professor of law the University of California Boalt School of Law, where he’s taught since 1993.  Professor Yoo clerked for Judge Lawrence H. Silverman of the U.S. Court of Appeals of the District of Columbia Circuit.  He joined the Boalt faculty in 1993 and then clerked for Justice Clarence Thomas of the Supreme Court.  From 2001 to 2003 he served as a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security, and the separation of powers.

Previously he had served as general counsel of the U.S. Senate Judiciary Committee from 1995 to 1996, where he advised on constitutional issues and judicial nominations.  Professor Yoo was an influential participant in the drafting of the legal briefs that defined the President’s power following 9/11.  Professor Yoo has published articles on foreign affairs, national security, and constitutional law in a number of the nation’s leading law journals.  He is the author of War, Peace and the Constitution, to be published by the University of Chicago Press.  Professor Yoo.  [Applause.]

Mr. John Yoo:  Well, I want to say thanks to Harry for inviting me to speak before you and your class, and I’d like to thank the other panelists for participating in the panel at the same time.  I have to apologize.  I’m a little bit under the weather, so at times it may be hard to hear exactly what I’m saying, but I’ll try to speak up.

First let me say I think a fundamental confusion in the war on terrorism, not one that is peculiar to any group or individuals, but I think just is a confusion held by our society and our political system, is whether to treat terrorism as war or crime.  So until 9/11, our political system and certainly the administrations of both parties thought terrorism was a crime.

So we suffered any number of terrorist attacks by the Al Qaeda terrorist organization before September 11^th, and what would we do?  We would send the FBI out to secure the crime scene, try to track down and arrest the terrorists responsible, and bring them back to the United States for trial.  And in fact we did that with some of the terrorist attacks, and there was a trial in the Federal District Court in New York City to hold responsible the people who had carried out, on behalf of Al Qaeda, terrorist attacks on the United States or its possessions or its military forces.

I think what September 11^th did was raise the question whether terrorism ought to be more accurately treated as a war.  And I think, as I’ll explain in the second half of the talk, why that makes a big difference in terms of how you approach questions such as use of force, detention, arrest, whether you have a right to a lawyer, what kinds of proceedings you should get, and so on.

But first let me explain why at least I think that the September 11^th attacks started or initiated a state of war.  In this I don’t think I differ, really, with Tom.  I think Tom’s discussion indicates that he thinks the September 11^th attacks also initiated a state of war.  First, the source of attacks were foreign, not domestic.  So certainly we’ve had terrorist attacks with domestic sources, like the Timothy McVey bombing of the Oklahoma City Federal Building.  We don’t consider that to be war.  We consider that to be, at best, an act of insurrection.  But because the September 11^th attacks were sourced from abroad and were planned and organized from abroad, we might think of that as war.

Second, the purpose of the attacks was political, was to change the policy of the United States in the Middle East and abroad, so we might distinguish the September 11^thattacks from, for example, drug cartels, which certainly are foreign in nature and sometimes resort to the use of force, but which seem to have primarily a financial or pecuniary interest in their actions, and not really a political purpose to their actions.

And then third, and I think most important, is the scale of destruction of the September 11^th attacks.  The September 11^th attacks killed 3,000 American citizens, roughly, and caused billions of dollars in damage.  These are not usually the scales of destruction we associate with criminal acts.  We traditionally think of crime, for example, preventing murder, preventing rape, robbery and so on.  Crime is usually thought of as being a persistent social problem which leads to sporadic harm in society, and which are relatively low in level compared to the kind of destruction and violence we see in war time.

So maybe one way to crystallize this question is to ask if a nation-state had carried out the September 11^th attacks, say the Soviet Union during the Cold War had carried out the September 11^th attacks exactly the same way, with the exact same purpose, would we not think of that as being an act of war, and would we not have considered ourselves to be in a state of war with the Soviet Union?

So the only difference, and I think the thing that causes the confusion in our society, is the identity of the enemy.  And that fact is that the enemy is not a nation-state.  The enemy is a non-state terrorist organization.  And that causes problems for us because it does not have a population, territory, cities, regular armed forces, and so the traditional methods we have used to combat other nation-states in our history, which is the history of the United States in warfare — surveillance, use of regular armed forces in a battlefield against a discrete, geographically identifiable enemy — don’t necessarily work.

So at times, certainly, we have engaged in battles on a battlefield against the Al Qaeda terrorist network, as we did in Afghanistan.  In that respect I think we were fortunate in that they were playing to our strength.  But before then and since then, Al Qaeda has not fielded regular armed units on a battlefield to engage the United States in traditional nation-state style warfare.

So one is I think that the identity of the enemy causes a problem and two, I’ll argue does this not make the war on terrorism and the type of enemy we’re fighting, does not that make, in some way, the war on terrorism unique?  And does that not require us to think about how we ought to apply the laws of war and where the laws of war — as I think Tom…I have no dispute or criticism of the way Tom described the way the laws of war have developed over time or how they sort of formally read today.  But the question is, do those laws of war, which were written primarily post World War II in the Geneva Conventions of 1949, which were written primarily to govern nation-state to nation-state conflict of the type we saw in World War II, do those laws of war, should they be applied strictly to war on terrorism when the kind of enemy and the kind of conflict were not anticipated by the people who drafted those rules?

So first let me describe a little bit about the differences that would be raised if you consider this to be a war versus crime.  So the first topic that Tom raised, the use of force.  So in the use of force in law enforcement, in domestic criminal law enforcement, one can only use force to defend yourself or save a life of a third person.

If we’re in a wartime situation, one can use force against any member of the enemy armed forces.  They don’t have to be attacking you at the time.  They don’t necessarily have to have a weapon in their hands.  We have bombed and attacked regular armed units, often with people who aren’t carrying weapons, people who are supporting the units in the field.  But in that sense the use of force is preventative.  The purpose of the use of force in a military conflict is to prevent the other side from harming you, from launching attacks on your nation.  It’s not necessarily, in each individual case, self-defense.

Another difference would be with detention.  So in law enforcement, there are two types of detention.  There’s the arrest, the initial arrest when someone is arrested on probable cause, probable cause that they either have committed or engaged in criminal activity, and then incarceration, which is when you serve out the sentence which occurs after you have received a full and fair trial before a jury of your peers.  And in that process, under the Bill of Rights, you have lawyers, you have the right to remain silent under Miranda, you have the right not to testify at your trial.

In the military system, detention serves completely different purposes.  So unlike the law enforcement system or the criminal justice system, in the laws of war system, detention is not a punishment.  You are not imprisoned because you are guilty or responsible for some past action.  One way to think of this is in the criminal justice system, the courts and the prosecutors and so on are engaged in a historical enterprise, essentially.  They are trying to piece together who did some act and to hold them responsible.  In the military system, in contrast, you are detained not because you are guilty of some previous act, but to prevent you from continuing to fight.  So for that purpose, even under the Geneva Conventions system, there are no lawyers, there’s no trial for people who are detained as prisoners in a military conflict.

So given, if you accept that the laws of war apply — and here I’ll make a distinction.  I don’t think Tom does agree with this.  He did not address it.  How should we think of conflict versus nation-states versus conflict between a nation-state like the United States and a non-state terrorist actor like Al Qaeda?  And I certainly agree, in all cases in nation-states, the Geneva Conventions apply.  The Geneva Conventions are treaties that are signed between nations, and their benefits run to those nations.

Al Qaeda, as a non-state terrorist organization, however, I don’t think fits within those rules.  First off, the Al Qaeda terrorist organization is not a nation.  It never signed the Geneva Conventions.  Nor has it ever openly and willingly said it would obey the Geneva Conventions.  And from everything we know of the way Al Qaeda fights and the way it treats people it captures, it violates the very core principles of the laws of war and the Geneva Conventions.

Now, let me say this, and on that point I very much agree with Tom, the purpose of the laws of war has historically been to prevent harm and suffering to civilians.  It does that in two ways.  It prohibits, as Tom said, the targeting of civilians.  You cannot intentionally target a civilian under the laws of war.  And it tries to require people who engage in combat to distinguish themselves from civilians, to clearly wear some kind of uniform or insignia and operate in units under responsible command.  These are not sort of silly things.  The main point is to make sure that people who are fighting know who is a combatant and who is a civilian.

And think about what Al Qaeda did on September 11^th, and what Al Qaeda continues to do.  They deliberately targeted civilian targets.  The World Trade Center had no military significance.  The Pentagon, I agree, is a military target.  The World Trade Center was not.  And second, they operate by disguising themselves as civilians. Al Qaeda does not wear uniforms or any kind of insignia to distinguish themselves from civilians.  In fact they operate by deliberately disguising themselves and concealing themselves in open civilian societies using the open channels of commerce and transportation and finance against nation-states.

So given that Al Qaeda operates that way, that they are not a nation-state, I think that our political leaders and nations of the world have the option to consider what kind of legal regime ought to apply to the Al Qaeda terrorist network, given that they do not fall within the traditional categories that we’ve come to recognize in the Geneva Conventions system.

And to give one clear example of this, and this is how the question first came up in the government, is when you capture members of Al Qaeda, what kind of detention facility do they have a right to be housed in?  So if you are an honorable warrior, you fight in a regular armed unit in combat between nation-states that have signed the Geneva Conventions, you have the right to be housed in a POW camp in which the soldiers live in open barracks.  They live in open barracks, they continue to wear the uniforms, they continue to operate essentially under the military hierarchy that they have in their home nations.  The only thing they can’t do is continue to fight.

If Al Qaeda are enemy combatants, but are not within the Geneva Conventions system, then they can be detained in individual cells.  And I think that makes a lot of sense, given that members of Al Qaeda want to continue to fight.  They don’t recognize that if they’re captured they’re, in a way, off the playing field.

That approach also applies to interrogation.  So under the Geneva Conventions approach, people who are interrogated only have to give name, rank and serial number.  And, in fact, the Geneva Conventions require that people who are interrogated receive no positive or negative differential treatment…  I’m sorry.  People who answer questions or don’t answer questions are not to be treated any differently under the Geneva Conventions system.  So, for example, under the Geneva Conventions system, if you are a prisoner of war and the government, the capturing power, cannot offer you a plea bargain for choosing to cooperate.  They cannot offer you the possibility of moving to a minimum security facility if you cooperate.  These are all things which we regularly use in our own police stations in the United States.

And also, the United States is subject to the prohibition on torture.  But if they’re not in the Geneva Conventions system, can we use methods that do not arise to torture?  Because under the Geneva Conventions system, as I understand it, all we can essentially do is yell at people, yell at POWs.  So the question is, can the United States do anything that’s more than yelling at people but falls short of the ban on torture?  And I would say people who have criticized the government believe that the law compels that you cannot employ anything that would be more than simply yelling questions at terrorists.

And I do not think that the law requires that.  And I especially think so because of — and here this is more getting into policy about what kind of rules we ought to think about — because we are facing a non-state terrorist organization, we are facing a non-state actor.  Because of that, the traditional methods of warfare do not work.  We don’t use surveillance — the traditional methods of surveillance of enemy armed forces in the field are not going to succeed in stopping terrorist attacks that are carried out by individual cells who disguise themselves as civilians.  The only — maybe not the only, but I think probably the best way to stop future September 11^th attacks on the United States it through the interrogation of enemy combatants, members of Al Qaeda who are captured, who have plans and information about future activities against the United States.

I know I’m almost at the end of my time, so let me…okay, I am at the end of my time.  Let me just end by — I also don’t have time to address the domestic legal issues that Tom raised, but we can certainly do that in the question and answer.  But let me end by talking a little bit about law.  So in law we traditionally think of law as establishing clear, strict rules that are applied.  For example, speed limit.  You can’t drive faster than 55 would be a typical example.

And those rules make a lot of sense when we have a very good sense of the cost and benefits of a particular activity, particular rules and how they might be applied over lots of cases.  Those kind of rules give no discretion to decision-makers at the time that they confront particular cases.  And I would say those kinds of rules make a lot of sense when we have a fair amount of comfort and historical experience with a certain kind of problem.

And I would say the problem created by the Al Qaeda terrorist network and September 11^th is this: we are facing a non-state actor that, for the first time — this is why it is different, I think, historically than other examples of terrorism — that for the first time has the power of a nation-state.  Before September 11^th, really only nation-states could have inflicted that kind of damage on the United States.

And I think that new situation demands that we apply more standard based approaches to law in this kind of context, where we give more discretion to decision-makers in order to shape the kind of legal regime that we ought to apply in that situation, because we aren’t comfortable yet, we don’t know the costs and benefits of particular practices, we don’t know the costs and benefits of what works and what doesn’t work in the war on terrorism because we’re still trying to figure that out right now.  Thanks.  [Applause.]

Mr. Kreisler:  So we’ll distribute post cards again, and then we’ll collect them, so if anybody wants to write down a question, we’ll distribute the cards again.  The panel is unbalanced because we have two lawyers and a journalist writer, but I think that we selected somebody who can bring…clear the air as the lawyers talk, without being critical of either of our two lawyers here.

Mark Danner is a writer, journalist and professor who has written for more than two decades on foreign affairs and international conflict.  He has covered Central America, Haiti, the Balkans and Iraq, among other stories, and has written extensively about the development of American foreign policy during the late Cold War and afterward, and about violations of human rights during that time.  His books includeTorture and Truth: America, Abu Ghraib and the War on Terror, The Road to Illegitimacy: One Reporter’s Travels Through the 2000 Florida Vote Recount, and The Massacre at El Mozote: a Parable of the Cold War.  The New Yorker has only twice in its history devoted one issue to an entire article.  One was in the case of John Hershey’s article on Hiroshima written after the dropping of the bomb and the other was Mark’s piece on the massacre at El Mozote.

Mark is a longtime staff writer for The New Yorker and a regular contributor to The New York Review of Books.  He is also a professor of journalism at the University of California at Berkeley, where he directs the Goldman Forum, and Henry R. Luce Professor of Human Rights, Democracy and Journalism at Bard College.  He is a recipient of numerous honors and awards, including a MacArthur Fellowship, Overseas Press Club awards, and national magazine awards.  In brief, Mark is a witness who writes beautifully about what he has seen, and clears the air.  Mark.  [Applause.]

Mr. Mark Danner:  Thank you, Harry.  My goodness, clear the air.  This is a very serious charge I’ve been given, not least of which the implication that the air is now dirty.  And I certainly would not imply that myself.  As Harry said, and as you’ll have noticed in his very generous introduction, I am not a lawyer.  I have covered the story of Iraq — I’ve covered a lot of wars — and have written a book on torture, most of which consists, actually, of documents that the government lawyers, including Professor Yoo, have drafted, and other documents that have come out of Abu Ghraib.  It seems to me that perhaps the best thing I can do — I know Harry gave me a charge in his letter to me inviting me in which he said, “Ideally you will lay out the theory behind the policy, Farer will talk about what history tells us, and you the implications of the policy.”  You meaning me, not you meaning Yoo.

Mr. Yoo:  Yeah, yeah.

Mr. Danner:  There’s a lot of Abbott and Costello, which I’m sure he’s tired of.

Mr. Yoo:  But it doesn’t stop people from—

Mr. Danner:  It doesn’t.  You know, the problem is you think you’ll never get the chance again, so you take the opportunity.   I will talk about the implications.  Today Lynndie England was sentenced.  She is the woman you all know from the photograph of her holding the leash around the neck of the naked Iraqi man, he’s actually a politician, a mayor of a small town, lying on the floor.  It’s a very famous image throughout the Middle East, and indeed, if Osama bin Laden had come to Madison Avenue and asked for a poster to be made advertising his case in the Muslim world, I think our advertising agencies could scarcely have done better than that particular image in its strong political effect.

The implications of many of these documents — and I’m glad to be here in Boalt Law School to say this — can be seen in the photographs that were broadcast a year ago last Thursday on 60 Minutes II on CBS and that were published a few days later by my colleagues in The New Yorker.  The implications of these policies are torture, which has been systematically applied to prisoners not just in the war on terror, but in Iraq.  And I would remind you — and I don’t want to argue like a lawyer, but I would remind you that Iraq is a nation-state, the Geneva Conventions supposedly do apply in Iraq.  So the case, as laid out just now by Professor Yoo, is a very limited one.  It does not include the main problems, if we’re talking about human rights problems, and how human rights have changed after 9/11.  That case doesn’t include most of the serious cases that we would want to discuss.

I’d like to make a simple argument to you today, which is that torture, coercive methods of interrogation, cruel, inhuman treatment and other things have become systematic in the interrogation of prisoners in the war on terror, and in particular in Iraq.  Now, I use the word systematic advisedly.  A few weeks ago Secretary Rumsfeld stood up in the Pentagon press briefing room, that center of world humor, and he was asked a question by a reporter,

“I wonder if you would just respond to the suggestion that there is a systematic problem rather than the kinds of individual abuses we’ve heard of before?”  Secretary Rumsfeld replied, “I don’t believe there’s been a single one of the investigations that have been conducted, which has got to be six, seven, eight or nine.”  General Pace, the Marine General, Vice Chairman, standing next to him, put in, “Ten major reviews and a hundred individual investigations of one kind or another, sir.”  Secretary Rumsfeld: “And have you seen one that characterized it as systemic or systematic?”  General Pace, sounding like a man about to be promoted, which he was, “No, sir.”  Secretary Rumsfeld: “I haven’t either.”  Reporter: “What about…?”  Secretary Rumsfeld: “Next question.”

I’m glad you all laughed, because that’s precisely what the reporters did, which meant that the reporter couldn’t point out a number of very obvious things, which is that if you look at any of these reports, none of which are complete, none of which are adequate, but if you look at any one, the word systemic leaps out at you.

Taguba Report.  “Unfortunately, many of the systemic problems that surfaced during Major General Rider’s team’s assessment are the same issues subject to this investigation.”  In the conclusion from Taguba, who was a Major General, “Between October and December 2003, at the Abu Ghraib Confinement Center, numerous instances of sadistic, blatant and wanton criminal abuses were inflicted on several detainees.  This systemic and illegal abuse of detainees was intentionally perpetrated.”

Or we can go back to the Red Cross report, which is the only contemporaneous report in which the investigators were actually looking at what was going on, this quote,

“The ill treatment by coalition personnel during interrogation was not systematic except with regard to persons arrested in connection with suspected security offenses or deemed to have intelligence value.  In these cases, persons deprived of their liberty supervised by the military intelligence were subject to a variety of ill treatments, ranging from insults and humiliation to both physical and psychological coercion that, in some cases, might amount to torture.  In order to force them to cooperate with their interrogators, in certain cases, such as in Abu Ghraib military intelligence sections, methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information.”

Then they list them: hooding, handcuffing, beatings, boots on the head, longtime hooding for days in a row.

“These methods of physical and psychological coercion were used by the military intelligence in a systematic way” — they’re talking about American forces — “to gain confessions and extract information or other forms of cooperation from persons who had been arrested in connection with suspected security offenses or deemed to have an intelligence value.”

These are people in Iraq who are protected by the Geneva Conventions.  That is only two reports.  You could go through the ten of them and find many, many uses of the words “systemic” and “systematic.”

Now, obviously I’ve made my point.  Why am I going on about it?  I’m going on about it because the issue of systemic, systematic is absolutely critical.  On the day when Lynndie England is sentenced, we should be very aware that the government in the last year, for those photographs were made public a year ago, has followed a very clear strategy.  That strategy is to sever the connection between what was done on the ground in Abu Ghraib, Guantánamo, Bagram and many other places, and what is, so far as we know, still being done, to sever the connection between that and between what policymakers did in their offices.

And I’m talking about policymakers in the Department of Justice, including Professor Yoo, policymakers in the Department of Defense, policymakers in the White House.  Now, there is a very clear chain of evidence, chain of policy linking these behaviors to decisions and policies made in those offices.  And it is my contention, and it is not just mine — all you have to do is, as the phrase is, look at the documents — that that can be shown and demonstrated.  You just have to follow it.

One of the reasons I published this book, which is 80 percent of it written by government employees like Professor Yoo and others, is to show that if you actually read them, if you actually look at them, and Secretary Rumsfeld is counting on the fact that you will not, that this chain of evidence is absolutely clear.  And that you’re sitting in a law school, you should realize, it seems to me — and forgive me for hectoring you — that what you do, what you write, the policies you set, the ways you interpret international and other laws like the convention against torture, like the Geneva Conventions, will have a very real effect on what people are doing in the interrogation rooms.

Now, forgive me for hectoring you, as I say, but what I would like to do is read you something, an account.  It’s a deposition of what happened in an interrogation room in Abu Ghraib, in the fall of 2003.  Now, these things have been public for a year.  They were taken by the Criminal Investigation Division of the Army.  They are legal documents.  And they have been confirmed in a way I’ll tell you in a moment.  This is Detainee 7.

“The first day they put me in a dark room and started hitting me in the head and stomach and legs.  They made me raise my hands and sit on my knees.  I was like that for four hours.  Then the interrogator came and he was looking at me while they were beating me.”  It’s a very important sentence.  “The interrogator came and he was looking at me while they were beating me.  Then I stayed in this room for five days naked with no clothes.  They put handcuffs on my hand and they cuffed me high for seven or eight hours, and that caused a rupture to my right hand, and I had a cut that was bleeding and had pus coming from it.”

High cuffing is a stress position.  The idea is to keep the prisoner on his toes, or indeed, dangling from the bars, and to dislocate the shoulder.

“They kept me this way on 24, 25 and 26 October,” three days hanging there.  “And in the following days they also put a bag over my head.”  This is hooding.  The euphemistic term for it is “sensory deprivation,” approved explicitly by Secretary Rumsfeld.  “And of course this whole time I was without clothes and without anything to sleep on.  And one day in November they started a different type of punishment where an American police came in my room, put a bag over my head, and cuffed my hands and took me out of the room into the hallway.  He started beating me, him and five other American police.  I could see their feet only from under the bag.”

The hood is used to increase the effectiveness of a beating, because you cannot see the blow coming.

“A couple of those police, they were female, because I heard their voices, and I saw two of the police that were hitting me before they put the bag over my head.  One of them was wearing glasses.  I couldn’t read his name because he put tape over his name.  Some of the things they did was make me sit down like a dog.  They would hold the string from the bag and make me bark like a dog, and they were laughing at me.  One of the police was telling me to crawl in Arabic, so I crawled on my stomach, and the police were spitting on me when I was crawling and hitting me.  Then the police started beating me on my kidneys.  They hit me on my right ear.  It started bleeding and I lost consciousness.”

And I won’t inflict all of this on you, but he lost consciousness several times during the course of this, beaten into unconsciousness.

“A few days before they hit me on my ear” — the ear was mostly torn off and had to be sewn back on — “the guy who wears glasses put red women’s underwear over my head and then he tied me to the window that is in the cell with my hands behind my back until I lost consciousness.”  A stress position again.  “When I was in Room No. 1, they told me to lie down on my stomach.  They were jumping from the bed onto my back and legs.  The other two were spitting on me.  After the guy with glasses got tired, the American soldiers brought me to the ground, and tied my hands to the door while laying down on my stomach.”  Remember, he’s naked all of this time.

“One of the police was pissing on me and laughing at me.  The soldier and his friend told me to lie down in a loud voice and so I did.  The policeman was opening my legs with a bag over my head and he sat down between my legs on his knees and I was looking at him from under the bag, and they wanted to do me because I saw him and he was opening his pants, so I started screaming loudly.  The other police started hitting me with his feet on my neck and put his feet on my head so I couldn’t scream.  Then they put the loudspeaker inside the room and they closed the door and he was yelling into the microphone.”  That is called use of noise to induce stress, also explicitly approved.

“They took me to the room and they signaled me to get on the floor.  One of the police put a stick that he always carried with him inside my ass.  I felt it going inside me about two centimeters.  I started screaming.  He pulled it out.  He washed it with water inside the room.  Then two American girls that were there when they were beating me, they were hitting me with a ball made of sponge on my dick.  When I was tied up in the room, one of the girls with blonde hair, she’s white, she was playing with my dick, and they were taking pictures of me during all these instances.”

Now, this is very long.  I’m giving you some excerpts.  This has been public for a year.  There are many other depositions.  The Fay-Jones Report which went through this confirmed it explicitly, those details.  And then it said something interesting.  It said that “military intelligence officers should have been aware of what was being done to this detainee.”  Now, leaving aside the fact, whether you’re interrogating everybody — someone every day, the idea that you might not notice the fact that his hand is bleeding or that he’s abused in this very systematic way, we can just go back to the statement in which he says, again, that the interrogator came into the room and was watching, okay?

Now, Generals Fay and Jones did not contradict that.  Indeed, they don’t mention it.  They simply leave it out.  Why?  First of all because it was true, and secondly because to confirm it confirms the connection between what’s happening on the ground, the interrogators, that is, military intelligence.  Once you get to military intelligence, you get to policy.  Once you get to policy, you get to policymakers.  Once you get to policymakers, you are dealing in the realm of power, where people are sitting in their offices.

Now, let’s trace it back from what you just heard.  Well, we can begin with the decisions about the Geneva Conventions, if you’d like, the Bush memo on February 7th, 2002, in which the decision was made to withhold Geneva Convention protection from prisoners in Afghanistan.  Now, I’ll begin there for a particular reason.  We’re talking about Iraq.  Then we have the so-called Bybee memo or torture memo, as it’s known, which is dated August 1^st, 2002.  Torture notably is redefined in that memo.  Torture, as you know, is illegal.  The United States signed the Convention Against Torture in 1994.  It has domestic statutes prohibiting it.

The Bybee memo gets around this by redefining the word.  What is torture?  Well, it has to be something that causes pain equivalent to major organ failure or death.  Now, I ask you to think about that phrase for a moment because you can do a lot to somebody, in fact you can probably do everything that I just recounted to you, the excerpted version, without going beyond that standard.  Along with that document, of course, is a letter by Professor Yoo stating the torture of Al Qaeda and Taliban would not be a war crime because they are illegal combatants.  We can talk about that, perhaps, in the discussion period.

Now, where can we go from there?  Well, we can go to the DOD, Department of Justice Working Group Report dated April 4^th, 2003 in which the Department of Defense approves 35 interrogation methods explicitly.  The include: forced nudity, use of dogs, sleep deprivation — that is, use of dogs to induce stress — sleep deprivation, forced grooming — that’s shaving beards, shaving hair — and now that particular document from the Department of Defense excerpts, in very large part, the memo, the so-called torture memo which Professor Yoo worked on and came out of the Office of Legal Counsel in the Department of Justice.

Now, two weeks later Secretary Rumsfeld authorized 24 interrogation techniques, including sleep deprivation, dietary manipulation, isolation, exposure to severe temperatures, and we could cite a number of others, but I do not have enough time, alas.  There is a way by which — and it’s somewhat complicated — that these methods, which were reserved for prisoners who were in Guantánamo, and those prisoners, as Professor Yoo has talked about, had from them withheld protection of the Geneva Convention.

And I should add here that his discussion of the Geneva Convention, and I’m not a lawyer, but still, those of you who have read the document will know that it is deeply misleading, because he focused on POW status, and in fact what is at issue here is Article 3 protection, which prohibits torture, prohibits cruel treatment, and allows coercive interrogation.  So the entire statement of that was, it seemed to me, completely misleading.  But alas, I’m not a lawyer.  Perhaps I would not have been misled if I was a lawyer.

We could go through a lot of these steps, but the fact is that these procedures were used in Guantánamo.  They were then brought to Iraq in the fall of 2003 by General Miller, General Jeffrey Miller, who was running Guantánamo, who brought selected interrogation techniques.  He was sent to Iraq to “Gitmo-ize” it, in the phrase used by Janis Karpinski, the Brigadier General nominally in control of Abu Ghraib.  He gave his policies to Lieutenant General Sanchez, who was then in control of the Iraqi theatre.  Lieutenant General Sanchez wrote a new policy on September the 14th, 2003.

And those — we know very specifically that Colonel Mark Warren, who was his lawyer, his JAG, that is, Lieutenant Sanchez, used these documents, used the working group report which drew very extensively on Professor Yoo’s and other writers in the Department of Justice August, 2002 torture memo, Bybee memo, I should call it.  We know that those documents were used in setting policy, very specifically, at the level of captains.   Captain [Bolz] and others cited these policies, cited “unlawful combatant” and other phrases which did not legally apply to Iraq, but which, according to the Schlesinger Commission, migrated to Iraq.

I’m being hauled offstage, so let me make a couple of final points, if my dear host and friend Harry — really dear friend Harry — will let me.  The major point I want to make—

Mr. Kreisler:  Brief, brief.

Mr. Danner:  Briefly, briefly.  We are not talking about history here, and we are not talking about theory here.  We are talking about people setting policies that have the result of those things being done to other human beings.  We have every indication that those things, many of them, are still being done to other human beings.  I have a document from Guantánamo.  It’s very brief.  It comes from an FBI counterterrorism official.  Not a human rights journalist, not a liberal reporter.  This guy is counterterrorism.  He wrote,

“On a couple of occasions” — this is four months after the Abu Ghraib photographs were broadcast, last summer, okay?  “On a couple of occasions I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor with no chair, food or water.  Most times they had urinated or defecated on themselves and had been left there for 18 to 24 hours or more.  On one occasion” — this is Cuba during the summer — “on one occasion the air conditioning had been turned up so far, the temperature was so cold in the room that the bare footed detainee was shaking with cold.

When I asked the MPs what was going on, I was told that the interrogators from the day prior had ordered this treatment, and the detainee was not to be moved.  On another occasion the air conditioning had been turned off, making the temperature in the unventilated room well over a hundred degrees.  The detainee was almost unconscious on the floor with a pile of hair next to him.  He had apparently been literally pulling his own hair out throughout the night.  On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor,”

which you will recognize as stress positions, use of noise to induce stress, and temperature adjustment, all of them approved explicitly by the Secretary of Defense.  All of them coming out of the memos that we’ve discussed.

So Harry’s asked me to talk about consequences.  I wish I could have given you a more theoretical discussion, but I hope I’ve given you an indication of some of the consequences.  And I’m very glad to engage in whatever discussion.  Thank you.  [Applause.]

Mr. Kreisler:  We’ll take some more questions.  We’ll pass out the cards again and pick up the cards.  I’m going to ask each of our panelists to comment on what his co-panelists have said.  Tom, you want to go first?  I’ll give you, at the most, five minutes.

Mr. Farer:  Is this on?  Yeah.  First, on the question of responsibility for the acts of torture which were enumerated by Mark, in a way it’s an open and shut case because why would the Justice Department — in circumstantial evidence, as a lawyer, I know circumstantial evidence is usually the most persuasive evidence, the most powerful evidence.  Most prosecutors recognize circumstantial evidence is more effective than eyewitness testimony when people are identifying other people at moments of high stress.  Circumstantial evidence is the core of effective prosecution.

What’s the circumstantial evidence here?  The office of the President or the Vice President or the Secretary of Defense, I’m not sure just where, seeks at an early stage after 9/11, at the beginning of the struggle against terrorism, an opinion from the Department of Justice about terrorism — I mean, about torture, about the use of torture.  Why?  Why would the highest officials of the United States government seek such an opinion from the principal legal officer of the United States unless they intended to employ these methods, but hope to do it in a way which would not engage them in individual delinquency, violation of American criminal law.  The circumstantial evidence seems to me absolutely overwhelming.  It merely supports the point that Mark made.  I don’t think that’s an interesting question.

The more interesting, or at least debatable question, perhaps, is whether torture is justified under these circumstances.  But to pretend — if anyone is pretending — that there have been random acts of torture or that torture is an anomaly is…you’d have to be a fool or a liar.  That would be my first point.  It’s kind of an obvious point, but I thought I’d make it because Mark made every other point but that one.

The second point has to do with the sense of crisis which has been used to justify many of the measures that have been employed — not just terror, but incarceration, detention, the effort to prevent judicial review, the initial decisions about the military commissions that would try persons who were declared to be enemy combatants.  As someone who spent eight years investigating every hellhole in Latin America, those were cases of state terror, as opposed to NGO terror, I was really intrigued by the initial set of rules for these military commissions.  And one of the items that I found most striking is that the only persons who would be allowed to serve as defense lawyers were serving members of the military, that is, people who are subject to military discipline.

Now, the last time I had encountered that happened to be when I and my colleagues in the Inter-American Human Rights Commission were investigating the disappearances in Argentina.  The Argentine military, the lucky few who lived through the experience of encounter with marshal law in Argentina — most of the people who were swept up didn’t.  They were tortured mercilessly and then blown to bits, eviscerated, drugged and dropped into the South Atlantic.  But some people actually survived.  Most of them were arrested before the disappearance policy was introduced.  And they were brought before military commissions.

And one of the things that struck me about the Argentine military commissions, that struck my colleagues, who I can assure you are not liberals.  Some of them barely believed in democracy with a small “d,” and yet our report was unanimous.  And one of the striking things was that even a retired Argentine general could not serve as a defense counsel under the Argentine system; only serving officers could.  And here we were adopting the very same method.  Of course my colleagues concluded that there was a total violation of due process, even though they accepted the idea of trial by military tribunal, which I questioned at the time, but they said it’s allowed in every Latin American constitution.

So I said, then let’s just look at the due process.  Due process really means an opportunity to make a fair defense, to demonstrate that you are not the person or you didn’t commit the act.  That’s ultimately what due process is about.  And if you’re going to be tried by serving officers and you’re going to be defended by serving officers, and you don’t have access to evidence, I have seen military tribunals that probably complied with minimal due process.  But I’ve also seen some that didn’t.  And what struck me, and which I think is so revealing about the way we have gone about the struggle against terrorism, is that we were willing to adopt some of the worst methods of state terror regimes in Latin America in order to do so.

Mr. Kreisler:  John.  [Applause.]

Mr. Yoo:  Well, it probably won’t be surprising that I’m going to spend most of my comments responding to what Professor Danner had to say.  First, I certainly agree that the conduct which he described was illegal, deplorable, immoral, and so on, whatever words you want to use.  And certainly to read out those kind of descriptions should not be taken as an attempt to try to persuade you that I agree with it.  Just as if I could sit here and in a very colorful way read you descriptions about the death and destruction on September 11^th and claim that people who are critics of the Administration’s policies have no problems with allowing that to happen or are not willing to undertake measures to stop it.  I mean, I think it’s a nice rhetorical trick, but I don’t think it should be used in any way to suggest that the Administration or military commanders or people who worked in the government agreed with that kind of conduct.

Second, let me say that the conduct that was described in Abu Ghraib was never ordered.  It clearly violated the Geneva Conventions.  The military and the Administration was very clear that the Geneva Conventions applied in Iraq.  And I don’t think anyone would doubt that the conduct he described violated the Geneva Conventions and violated the orders about the conduct that was supposed to occur in the military.

Third, there have been a lot of reports and studies and commissions now into what happened in Abu Ghraib.  None of them say that the conduct that occurred in Abu Ghraib was ordered by people in Washington or in the Pentagon.  In fact — and yeah, let’s talk about facts — I mean, in fact the Schlesinger-Brown Commission Report — and of course you could always say it’s a whitewash, I suppose, but they’re both Democrats and Republicans.

Democratic and Republican Secretaries of Defense and former members of Congress have found that the rate of detainee abuse in the Iraq war has been lower than any previous conflict since World War II waged by the United States.  And I think — Senator Lieberman, in hearings before the Armed Services Committee, said that the rate of detainee abuse was .10 percent of all detainees captured.  And the Schlesinger Report found that 50 percent of those claims — those aren’t even investigated and found to have occurred, but claims — occurred at the point of capture.

Now, I suppose you can criticize all these reports and say they’re all people who have a purpose in hiding the facts, or they’re not going to have any interest in the truth, but I think if you’re going to discount all these reports, then you’re proposing conspiracy of a massive kind and, well, I can’t convince you otherwise if that’s what you believe.

I think the real problem in Abu Ghraib is that we had sent in insufficient resources and we did not train people sufficiently because we did not anticipate that there would be large-scale detention operations in Iraq and that there would be a large insurgency of the kind we’ve seen.  So I think one of the points that’s raised is that in Guantánamo Bay, the ratio of guards to prisoners, I think, is something like one to one, whereas the ratio of guards to prisoners in Abu Ghraib was one to 75.  And I think it’s unfortunate, but when you have large institutions which have jobs like that to carry out, there are going to be people who violate the rules.

We have, for example, in this country, police who have the job of stopping crime.  Cases of police abuse and prisoner abuse occur in our own country.  That doesn’t mean there’s a massive conspiracy in the United States to encourage and sanction that kind of conduct.  What it does mean is that there are people who violate the rules, and we have an investigatory and criminal justice system to hold them responsible.

Fifth, I think that Mark and other members of the media have constructed what I would think of as a torture narrative, where they claim that — and you heard it many times.  So, for example, he said Secretary Rumsfeld approved this interrogation method, and Secretary Rumsfeld approved that interrogation method.  And all the cases he was talking about were descriptions of Abu Ghraib.  Secretary Rumsfeld did not approve any of those interrogation methods for the Iraq war.  It’s quite clear he approved certain interrogation methods, which were not to be applied in any way as he described, for Guantánamo Bay, and they were only to be used in situations where he personally approved — he, the Secretary of Defense personally approved their use as to an exact individual.

And I think what you have amongst people in the media is an effort to blur the lines between the war on terrorism and the war and Iraq and to claim that all of these decisions that had to do with the war on terrorism apply to the war in Iraq without any proof.  And if you have examples where there are memos that say that the Geneva Conventions do not apply in Iraq, or that the rules that were developed by this working group which were to apply to Guantánamo Bay are to be used in Iraq, then point them out to me.

Male Voice:  What about the ___?

Mr. Kreisler:  We’re not going to — please, let’s let him finish and then we’ll have Mark respond.  Please.

Mr. Yoo:  Now, the last thing I’d say about the Common Article 3 and the prisoners of war.  Now, under the Geneva Conventions, as they existed in 1949, there are two basic categories.  There are enemy combatants who are prisoners of war under the Geneva Conventions and there are civilians.  Enemy combatants can be targeted, they can be shot, they can be captured and detained.  Now if members of Al Qaeda are not prisoners of war and are subject to Common Article 3, then is it the case that they are civilians?  And if it’s the case that they are civilians, is it the case that the United States and other countries cannot use preventative military force against them?  So, for example, if they are civilians, does the United States have to wait until terrorists are actually about to launch an imminent attack before force can be used to stop them?  If they’re enemy combatants, then the United States can use force much earlier.  But if they are civilians subject to Common Article 3, then I think the implication is that they are civilians.

And let me end by raising the actual case, because as Mark said, the memos that he’s talking about, whether the Geneva Conventions apply toward terrorism, had nothing to do with Iraq.  That decision occurs in February of 2002, long before there’s any consideration of any conflict in Iraq.  And I can tell you as someone…  [Laughter..]  I can tell you as someone in the government, there was no thought that there was a war in Iraq that was going to occur.  Well.

The second thing is…well.

Mr. Danner:  I’m sorry.  No, go ahead.  I thought you’d finished.  I apologize.

Mr. Kreisler:  Please, go ahead.

Mr. Yoo:  The second thing is the question of interrogations.  So what happened is the United States captured Abu Zubaida and other high ranking Al Qaeda members who were directly responsible for operational planning of attacks on the United States by Al Qaeda.  And these people were trained to resist normal interrogation methods that are applied by the United States.  Now, the question I’d ask is what do the other members of the panel think can be done to interrogate these people who have, if anyone does, have information about attacks that are planned on the United States to occur in the future?  Is it the case, if they are prisoners of war or if they’re subject to Common Article 3 that the only thing the United States can do is shout at them, given the possible benefits that occur from interrogation?

Mr. Kreisler:  Mark.

Mr. Danner:  Well, thank you.  Tom Farer began by essentially saying, in his response, by saying that, well, who could really doubt that this is systemic?  Nobody really doubts that.  It’s kind of obvious.  It’s a given point.  And I would point out that Mr. Yoo doubts it, and that most of the — it’s the policy of the American government that a few bad apples carried out these activities.  I use that phrase advisedly, not only because it’s been used, actually, by Administration officials, who have also used other variations like “Animal House on the night shift” to suggest these were isolated acts of sadism, but also because, as I discovered, it’s actually a legal term of art, and the usual way that governments respond.

A notable case is Britain in the mid-seventies, the early to mid-seventies in the five techniques case.  When governments are accused of torture, this is very often their response.  It was a few bad apples.  We will punish them.  And as I say, today was the trial, or at least the sentencing, excuse me, of Lynndie England.  So we’ve had these seven people, or six of them, I believe, now tried as a few bad apples.  So the notion that everybody agrees that this is systematic, that that’s a given point and everybody knows it is not true.  People don’t know it.

People, in large part, believe — and this is one of the reasons why these people were brought back.  They were being tried in Baghdad, which would be customary.  Many of them were brought back to Fort Hood essentially because the military believed that these trials were not getting enough publicity and it needed to be shown to Americans that the people who had done these things were being punished.

Well, there are a lot of points that Mr. Yoo just made.  First of all, I read that document.  I thought a lot about it before I read it.  There wasn’t much time.  I didn’t want to use all my time reading this.  But I thought it was very important to show people what actually had happened.  And there are a lot of documents like that.  And the fact is that this wasn’t simply “Animal House on the night shift.”  This happened during interrogation.  Much of it happened during interrogation.  The Schlesinger Report itself suggests that more than a third of “the incidents,” quote, unquote, happened during interrogation sessions, so this was not simply military policemen acting out.

And, you know, you have to, I mean, at a certain point you have to plead with an audience such as you to read the documents.  You know, just read the reports.  Read them, because it’s in there.  They describe, Fay-Jones describes, at great length, what happened.  And this image on the cover of this book, this so famous image, which is on murals all over Iraq — American troops paint over is, but you see it throughout the Middle East now.  Supposedly this was some military police people just getting up to high jinx at night.

Well, people who know anything about interrogation know that this is a technique developed by the Brazilian autocracy, authoritarian regime in the ’60s.  And Tom probably knows this.  It’s called the Vietnam.  It combines stress position, that is, standing up and not moving, with electrocution.  And, you know, one doesn’t just kind of fall onto this and say, hey, let’s put some wires on and put him on a box.  I mean, this is a recognizable form of interrogation.  And again, I don’t know what else to day except you should read these reports.

Now, Professor Yoo essentially told you to do the same thing, and said, well, you know, the reports show that this wasn’t systematic behavior and nobody ordered it, it was illegal, deplorable, etc.  I tried to suggest, in going back along these memos, and talking about how the decisions made for the war on terror migrated — that word is not mine, that word is former Secretary of Defense Schlesinger’s in the report —  migrated to Iraq.  This is not — I didn’t make that up.  I mean, this is what the report found.

Now, so the question of the fact that these activities, these permissible interrogation techniques that were approved for Guantánamo, first of all, the question of whether they migrated and were then used in Iraq is a closed question, you know?  This is — I mean, the reports that he is citing show that.  So the only thing I can do, rather than wave the book around is — or, you know, you don’t have to buy the book.  I mean, get it on the Internet, wherever.  The reports are all over the place.  But that question has been decided.  That is not a question in doubt.

If you want to do some more reporting, you know, Colonel Warren, other people who were close to Sanchez — Colonel Warren is his lawyer, and he has said that he used these guidelines to develop the guidelines for interrogation in Iraq.  That is a matter of fact.  It’s also a matter of fact that you get on levels, on operational levels like Captain Bolz, who was the staff S2 in the task force in Iraq who stressed, you know, the reason we can do this stuff to these people is they’re unlawful combatants.  I mean, he was essentially quoting these documents.  So the notion that this is still arguable is just wrong.

Now, the reports.  Let’s talk about the reports for a minute that, what was it that Secretary Rumsfeld said?  “I don’t believe there’s been a single one of these investigations that’s been conducted, which has got to be six, seven, eight, or nine.”  Ten major reviews.  You know, you’ll learn, I think, as lawyers that when people start telling you there have been ten major reviews, that means there’s been less than one major review.  That is, the Administration took up a particular strategy here.  It’s been very clever.

Essentially you have this chain of command, beginning in those rooms in Abu Ghraib and in Guantánamo and in Bagram and elsewhere, and it goes up through military police, military intelligence, officer level, command level in those theatres, back to command level in the United States, back to the Secretary of Defense, on up Justice Department, White House.  Think of it as a long chain.  Each of those investigations has taken up a couple links in those chains.  So you have Taguba doing military police.  You have Fay-Jones doing military intelligence.  None of them has done all of it.  And military officers, as anyone familiar with the military knows, have the power to look down the chain of command, not up it.  That’s explicit policy.  You cannot investigate your superiors.  You certainly cannot investigate the Secretary of Defense, the counsel to the President or the President.

So are all these reports a conspiracy?  No, I would not argue that.  I urge you to read them.  Some of them are very short.  I urge you to read them if you’re interested in this question.  Go to the documents.  Read what Professor Yoo wrote, read these other documents, and judge for yourself.  I don’t say they’re all conspiracy theories at all.  I say there’s a lot of extremely valuable information in them.  But read them aggressively.  Read them like attorneys.  And that means read the body of the report, go to the executive summary, go to the conclusion, and decide for yourself whether the executive summaries and the conclusions agree with what’s in the reports themselves.  Find out what happened to Detainee 7.  You know his story already.  Find out his story.  You can look him up in the reports.

Well, Professor Yoo said a lot about the rate of detention is lower than any other war, bla-bla-bla.  You know, excuse me.  I don’t mean to be disrespectful.  It’s just the fact is—

Mr. Yoo:  I’m sure.  Bla-bla-bla?

Mr. Danner:  Well, I apologize.  But I say bla-bla-bla because these arguments, again, as you know, how many detainees were in Iraq?  Fifty thousand.  Well, you know, there’s no actual record of that.  If you want to take…you know, these numbers are incredibly fungible and manipulatable.  If you want to take a town that you’ve moved into as suddenly under detention and pump up the numbers, which the U.S. military has done for those purposes, you can do that.

The fact is that, you know, there has been extreme, systematic, continuing abuse.  The fact is that the U.S. government, at the policy level, has in essence approved that abuse insofar as it’s in their power to approve that abuse.  And that is why, to go to the final point — I know we want to have questions here — that is why in talking and describing what happened to this detainee I tried to show you the meaning of the euphemisms, because those euphemisms — and again, you can look at what was approved — those euphemisms, when they have content, when you say sensory deprivation, it has content.

What is the content?  The content is putting a hood on the guy’s head for 72 hours.  When you say stress position, it has content.  You’re handcuffing someone, you’re making them — I mean, I could go into a lot of things that were done and that are being done in Guantánamo and before in Abu Ghraib, but I was trying to show you what exactly these activities are.  An I assure you, it is not an exaggeration.  I’ve been in Iraq.  I’ve interviewed a lot of interrogators.  I’ve spent a lot of time doing it.  And this is — I wish it was an exaggeration, I really do.  It is not, and it is approved government policy.  And I urge you to read the documents.  Thank you.  [Applause.]

Mr. Kreisler:  I want to address some of the questions which come from some of the students.  One of the themes that we’ve playing with with the course, and we’ve looked at this through interviews that I have done, this question of the label “war on terrorism.”  I showed the students an interview that I had done with David Frum, who was a speech writer, and he thought it was very important that this distinction was made, and he thought it was a critical moment of recognition after 9/11 by President Bush.

And another question that comes up related to this deals with another interview that I showed the class with Michael Mann, the historian at UCLA, that that label blurs the distinction between international terrorism and national liberation movements that use terrorism.

And I have an anecdote here that I have to tell very briefly.  I saw Martin Maley about a year before he died.  Martin Maley was a distinguished Russian historian here who was very, very conservative in the Cold War.  And he came up to me at a party and he said, “What is this business about terrorism?  What does it mean a war on terrorism?  Terrorism is a tactic.”

What I’m hearing here is that this is a very important assumption, that we are now in a war on terrorism, and that what follows from that is a number of efforts to write rules, but they all get distorted somehow, because suddenly you’re in Iraq with the war there, and ideas that are flowing in the bureaucracy, that have come down in legal memos, there’s just a lot of confusion.  So I want to ask our panelists, is it correct to say that it’s a war on terrorism or is this a war against Al Qaeda and a war against particular nation-states that sponsor terrorism?  Any comment on that from our..?

Mr. Farer:  Well, it’s a question of choice how you describe what we’re trying to do to counter terrorism.  The danger of calling it a war is obvious.  In a time of real war between states, a war like the Second War, a war where you feel your very national existence is threatened, a war where you feel the balance of power in the entire world is at stake, you are going to be able, as a psychological matter and as a political matter, to be able to do things which you could not conceivably do in any other time.

So in the case of the Second World War, one of the things we did, of course, was to round up all the Japanese Americans and Japanese residents, as you all know, and put them in concentration camps.  And confiscate their property, I might add, which was never returned.  Long after the war.  And we kept them in those camps even after it was clear that there was no longer any threat to the Pacific Coast of the United States, which was the original justification for rounding them up.  After the Battle of Midway in 1942, assuming there was every a threat to the West Coast, but after the Battle of Midway in 1942, there was no longer any threat to the West Coast.  But these people were kept in the concentration camps until the end of the war, and their property was never returned.  Terrible things can be done in the name of fighting a war, including torture or summary execution.

So one of — I think it’s a profound political policy question, it’s a moral question.  It is a legal question too, but I think it needs to be considered in all of these respects.  And if you’re fighting a war which has no likely end, that is, we’re going to be dealing with some kinds of terrorism as far as the mind can stretch.  And indeed, the President of the United States himself has said that.  It’s not even clear that we will ever extinguish the Al Qaeda network because it’s not an organization with some hierarchical structure, it’s — almost any group that wants to call itself affiliated with or informed or inspired by Osama bin Laden is now reckoned as part of the network.  The word network almost has no meaning here.  It’s a lot of groups that are hostile to the United States.

Do they individually — well, first of all, the point is that we’re going to have to live with this.  We’ll eliminate some groups, other groups will arise.  Changes in our policies may diminish the recruits for some groups.  But there is going to be a threat in perpetuity.  And if we treat this threat in perpetuity as a war, then the constitutional system of the United States will be transformed.  Not all at once, but over time.  And that is why I think it is unwise to call it a war.  I call it a struggle.

The British lived with the IRA for what, three decades.  And not only were many people — in fact, several thousand people killed in Northern Ireland, but bombs were placed in Britain.  Britain lived with that.  The Spaniards have been fighting the Basque terrorists for about 30 years.  They killed a head of state.  They have killed several hundred local government officials, police.  It’s a serious problem.  And they’re willing to kill large numbers of people.

John’s point — this is my last point about this.  This is a point I wanted to make earlier.  John says this is an unparalleled, an unparalleled threat, and the main element that made it unparalleled is the scale of destruction.  But I think that’s simply inaccurate.  First of all, the particular destruction, the 9/11 case could have been averted in a dozen different ways if we had not been negligent, number one.  Number two, just think of the Neo-Fascist movement in Italy which, with one bomb, killed hundreds of people in the Bologna Railroad Station.

Or think of the Mafia.  This nice distinction between international — or crime and between people who are motivated by commercial concerns and people motivated by political concerns, the Mafia killed leading members of the judiciary, leading prosecutors, and even bombed one of the main cultural centers, cultural artifacts of Italy, the Borghese Museum in Florence.  Other countries have lived with very serious attacks on them, whether from organized crime or from terrorists, but they have not declared war, and I think it’s largely because of the implications for the very basic liberties of your society if you do.

Mr. Kreisler:  Anybody else want to comment on that?  Yeah, John.

Mr. Yoo:  First I think it’s important to distinguish between the political rhetoric that the Administration uses and the legal concept of war.  So it’s certainly the case that the Administration is using the political rhetoric that we’re at war with terrorism.  And it does have problems, because we have used the metaphor of war with other persistent social problems like drugs.  We have a war on drugs, we have a war on crime, we’ve had a war on poverty.  And those are persistent social problems.  Terrorism is a tactic.  So I’d be the first to admit where the United States is not at war with anyone who might use terrorism as a method, we’re certainly not at war with every terrorist group in the world.

The second thing is I think legally there are two conflicts.  There’s a war against Al Qaeda.  And I think Tom and I think other people have very good arguments why, as a matter of policy, we might not want to use the war metaphor with all its attributed powers to fight Al Qaeda.  I don’t think the law compels that the conflict with Al Qaeda be treated as something other than what it has to be treated as, a crime.  I think that our policymakers have the discretion to treat it as war, and certainly, it seems to me, all three branches of the federal government consider the war with Al Qaeda to be a war.

So the President announced and Congress passed an authorization to use force against anyone connected with the 9/11 attacks.  And the Supreme Court last summer found that people who were captured in the conflict as enemy combatants can be detained without trial.  And we have a war against Iraq, which is a separate war, and is not a war against terrorism.  It may have strategic goals that people in the Administration think will assist in defeating radical extremis Islamicists in the Middle East or so on, but it’s a different conflict.  Just as the way I would say the Cold War could be seen as an exceptionally long conflict that had many different dimensions, where we had individual wars in Korea, Vietnam, all around the world.  They were all individual different wars, part of a larger strategy and a longer struggle.

The third thing I’d say, and I think Tom at the end really hits on the most difficult legal and policy question of the war, which is when is it over?  Because one can sometimes justify or expand the federal government powers or national powers in war time because they are an emergency, but they will have an end.  And we don’t want to live in a permanent state of emergency.  And the problem with the war on terrorism is precisely because we are not fighting a nation-state with which we could sign a peace treaty where we could end a state of war.

And we have been fortunate, in American history, to have fought very short wars.  Countries in Europe, however, have fought some very long wars.  Just because a war might be long doesn’t mean it’s not a war.  I think the harder thing to figure out is how do you define when a conflict with a non-state terrorist organization is over, and when there’s no peace treaty, there’s no likelihood that the other side will force a peace treaty on its own members?

And so there I would say, you know, I think one way you would figure it out is if you have sufficiently destroyed or degraded the resources and capabilities of Al Qaeda, which is the specific enemy in the war on terrorism, whether you have done that sufficiently that they cannot pose a serious threat of attack on the United States.  But I don’t know if that’s the right answer.  I think we certainly could use a lot of work on trying to figure that out.  Maybe we don’t need to figure it out just yet, because I happen to think, unfortunately, that we have made good progress in the war against Al Qaeda, but it’s nowhere near over.  But that, I think, really is the thing that we need to figure out in order to know when the period of emergency would be over.

Mr. Kreisler:  Mark.

Mr. Danner:  Well, I agree, actually, with a lot of what Professor Yoo just said.  I think it’s true that the distinction here is whether we’re asking a question about — a rhetorical question or an ontological one.  It seems to me, you know, I have a friend who’s a military strategist who said declaring war on terror is like declaring war on air power.  You know, it’s basically nonsensical.  So why do you do it?  Well, it’s very helpful in setting forth a very clear rhetorical strategy, as far as public diplomacy goes, political diplomacy, that is.

I mean, when it comes to setting very clearly before the American people what the government intends to do to mobilize their support, which I think the government has done, you know, did at least in the first few years after the 9/11 attacks, the government did extraordinarily well.  And it did it along trails that were well established in American history.  If you look at George W. Bush’s rhetoric, beginning with the September 20th speech, September 20th, 2001, and going right up to the second inaugural, you see echoes of the Truman Doctrine, very clearly, in which the world is divided into two separate spheres, good and evil.  The United States is the good, obviously, and must be the victor.  And you see this rhetoric, which is very powerful and strikes very deep into the American heart, it’s politically very effective.  You see that rhetoric being added to and elaborated in a very systematic way.  So it’s very worth reading George Bush’s speeches.

The problem comes when, in Professor Yoo’s remarks about the ending of the war, and as Tom Farer, I think, pointed out, there is a certain sense in which the government does not have an interest, at a certain point, in ending the war.  First of all, declaring it over has political risks of its own, as George Bush discovered after his flight to the USS Lincoln, what, two years ago yesterday, I believe.  You know, to go out there and say the war on terror is over is a politically risky thing to do.  Secondly, it means giving up those powers that you have accrued on the basis of the declared war.

So to me these attacks — I mean, Professor Yoo said, at the end of his opening remarks, that this kind of attack could not have been possible before September 11^th, and I thought of that and thought, well, you know, we had airliners for what,50 years.  It could have been — you know, despite all of the discussion about weapons of mass destructions, in fact this attack could have been possible before.  Nobody attempted it, that’s quite true, and it did kill a huge number of people, many more than Al Qaeda expected, if we’re to believe the videotape in which Osama bin Laden expresses his surprise that the buildings collapsed.

But my view is that this rhetorical strategy and the legal strategy that flowed from it has been much more harmful than useful.  And we’ll see, I think, in the later stages of the war on terror, when those powers given to the Executive Branch presumably have to be wrested from it, the costs of the decisions to respond in this particular way, because it was not the only decision the government could have made.

Mr. Kreisler:  Our time is just about up.  We’ve actually covered a lot of the questions.  Not some of the speeches that were in the cards, but the questions, definitely.  And so what I want to do is take the last — we have about nine minutes left — and I want to give each panelist two minutes, which I will enforce, and really say what is the main point that comes out of this dialogue, because we’ve actually had a very rational, reasonable discussion.  There are two different views here.  I think a lot of ideas have been put on the table.  So let’s address this to the students, and in two minutes, tell me what you think is the main point, not necessarily of this discussion, but the national discussion about the war on terrorism and its implications for international law and for human rights.

Mr. Farer:  Let someone else go first.  I always go first.

Mr. Kreisler:  Anybody want to volunteer?  I’ll have to impose—

Mr. Yoo:  Let’s go in reverse order.

Mr. Kreisler:  Huh?

Mr. Danner:  I’ll just as soon keep the order that we have.

Mr. Kreisler:  Okay.  Tom, who lectured me on the enforcement rules before the event, I will now enforce—

Mr. Farer:  In other words, I don’t get a chance to think.

Mr. Kreisler:  Yeah, well, that’s right.  We’re always good at that, but you especially.

Mr. Yoo:  I think that’s called a backhanded compliment.

Mr. Farer:  At speaking without thinking, yes.

Mr. Kreisler:  I meant to say as he thinks on his feet.  It’s very clear.  I did not mean…

Mr. Farer:  Don’t worry, I—

Mr. Kreisler:  It’s been a long evening.

Mr. Farer:  —I always make favorable interpretations of all comments.

Mr. Kreisler:  Two minutes.

Mr. Farer:  One minute would be this.  That these may be extraordinary circumstances.  I don’t think they’re war.  And it may be that some measures which we wouldn’t apply to dealing with conventional crimes, with common crimes are needed.  And I could devise them, and I could find the constitutional explanation and justification for them.  There are certain things that I think we ought not to do.  One of them is to torture people.

Now, John was a little inconsistent there, because after saying that he really was opposed to torture, as defined by the various methods that were described by Mark in the affidavit he read, he then went on to ask what would you do if you had captured the leading figures associated with Al Qaeda?  Would you just shout at them?  And I could feel in him that tension that he didn’t want to endorse all the methods that were described by Mark, but it is tempting.  And in a way he was saying, but there are those exceptional cases.

But in my experience of investigating terrible violations of human rights in many countries, what I find is that the exceptional case quickly becomes the ordinary case.  And perhaps this view is summed up by General Saint-Jean, one of the Argentine generals who, as the war against subversion — and they had real subversive movements in Argentina — as the war progressed, he finally said, first we will kill all the subversives, and then we will kill all those who supported the subversives, and then we will kill all those who didn’t support us.  Now, he was regarded as a little extreme in the Argentine context, but there is this powerful tendency.

Because who are the people who actually do the torturing?  They’re not people like John or even like myself, for that matter.  It’s the psychopaths, it’s the sadists.  But people who would normally be in the prisons are now in your security services.  And if you do this over a period of time — no, this is serious — if you do this over a period of time, you will find yourself enmeshed, drawn, and I feel irreversibly into a constant expansion of these methods.  Just think — one, could I make one final point which—

Mr. Kreisler:  We’re really out of time, so let’s let Mr.—

Mr. Yoo:  I’ll cede a minute.

Mr. Farer:  John cedes a minute.  John is a mensch.  Terrorism is a method, correct?  It’s an indiscriminate attack on civilians.  That’s what terrorism is.  And one of the most effective measures we can employ against terrorism is to intensify the delegitimation of these barbarous means, that is, attacks on civilians.  If we ourselves employ those means, we are defeating one of our main, or we are frustrating one of our main tactics, which is to intensify the delegitimation of certain means.  If all means are legitimate for us, all means are legitimate.

Mr. Kreisler:  John.  [Applause.]

Mr. Yoo:  Since I only have one minute, I’ll make my points really quick.  One, I do think it’s a choice between war and crime, and I will press another question, which is, if you are not going to use war — and I think both of the other panelists don’t think that this either is or should be treated as a war — what is the alternative?  We did use the criminal justice system in the most aggressive fashion possible, I think, up through, till September 10^th, to stop Al Qaeda, and it didn’t work.

It did not stop the September 11^th attacks, and I don’t think we seriously degraded their efforts or their ability to attack the United States, because the rules for crime and war are quite different, to the point where the National Security Advisor, under the Clinton Administration — and I don’t think any decision would have been different under a previous Republican Administration — refused to authorize the use of force against Osama bin Laden, or refused to allow his capture because, as he put it, we did not have sufficient evidence to prove probable cause in a Federal District Court that he was involved in a criminal activity.  That is the criminal justice mindset, and I don’t think that that worked.

And then the second point I’ll make, and then I’ll end, is we do have laws of war.  The Geneva Conventions are clear.  But they were drafted for nation-state to nation-state conflict.  And so what I would sum is why should or do you think that those rules must automatically apply to a kind of conflict — and I do think it is different, not — I do think it’s different in terms of scale — against an enemy that is not a nation-state, is not subject to the kind of deterrents, not subject to the kind of expectations of reciprocal treatment that we have applied traditionally with other nation-states?  Why should those rules apply automatically to such an unprecedented type of enemy which marries a non-state terrorist organization with the ability to inflict violence on the level that only nation-states used to possess and were interested in inflicting?

Mr. Kreisler:  Mark.  Final two minutes.

Mr. Danner:  Thank you.  Thank you, Harry.  Thanks for inviting me, and I’d like to thank the other panelists, and particularly Professor Yoo for being willing to come out and defend his views publicly in a true spirit of academic debate.  I appreciate that very much.

A quick point on what he just said, however, which is that — [laughs] — I can’t resist — which is that, you know, the failure to prevent 9/11 was not a failure in mindset or a stressing of legality over war.  If some of those people had been picked up who the CIA knew were in the country, 9/11 could have been prevented.  So that does not necessarily prove anything.  Nor does it prove that the alternative to a legal treatment of terrorism is the system that we have now and is the methods that I’ve tried to describe today.

You know, I began writing about foreign affairs mostly writing about Central America and some of the issues that Tom knows so well, and I remember writing about waterboarding.  And it’s quite extraordinary to come back 20 years later and find that the American government has apparently explicitly justified its use.  This is so-called feigned drowning, in which you strip someone down and submerge their head backward in water until they lose consciousness, and this apparently has been used Abu Zubaida and was explicitly approved by the Department of Justice.

And it strikes me that torture, in the end, is a strategy of weakness.  That is, and this is a point similar to the one Tom just made, it has been explicitly recognized by this Administration, partly by declaring a war on terror, but also by invading Iraq, that the answer to this war must, in the end, be a political one.  That is that we have to, as it were, drain the swamp from whence terrorism comes.  In the words of Condi Rice, you have to convince young Muslims that they no longer need to drive airplanes into buildings in Manhattan and Washington.  So this is a political idea.

And the fact is that when you resort to terror, when you produce images like this one, you’re admitting that your methods, the political methods, the spreading of democracy, cannot work, and you are essentially doing the enemy’s work for them, which is giving the lie to pretensions of democratic freedom, of democratic development, and all the things that the Administration is holding out politically to the Middle East and to Muslims as an alternative to following Osama bin Laden.

And we see that in microcosm in Iraq where the United States has resorted to torture partly because of the failure to obtain intelligence from Iraqis on the ground, that is, the failure to get enough trust among Iraqis, which has to be the strategy of counterinsurgency, to get them to provide information that will allow you to successfully prosecute a war.  Instead you pick them up and you torture them.

It is a strategy of weakness.  It will lead to not only moral defeat, as Tom so eloquently put it, but it will lead to a practical defeat as well.  And we have seen the damage, and I’ve talked to people in Iraq who were led to join the insurgency because of these images and because of what they represent.  So I would say to me the great final thought here is that the United States should work towards its strengths, both moral and political, and not succumb to its weakest, darkest urges, which is what the resort to torture, in the end, represents.  Thank you.  [Applause.]

Mr. Kreisler:  I want to thank all of our panelists, but I especially want to thank the audience.  This must be the best, most attentive audience that I have ever had at a controversial event like this, and I appreciate that.  It must be the combination of my students, the law students, and the public.  But thank you all very much.  [Applause.]