John Yoo is currently a professor of law at the University of California, Berkeley. From 2001 to 2003 he was a deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice. It was during this time that he co-authored the Bybee memo defining torture and American Habeas Corpus which was the legal basis for the CIA’s harsh interrogation techniques. He is the author of The Powers of War and Peace: Foreign Affairs and the Constitution after 9/11, War By Other Means: An Insider’s Account of the War on Terror and Crisis and Command: A History of Executive Power from George Washington to George W. Bush. NewsReal Blog had the pleasure of interviewing him on a wide range of issues.
NewsReal Blog: Should 9/11 mastermind Khalid Shaikh Mohammed be tried in Federal Court or a military commission?
John Yoo: The trial should be moved to Guantanamo Bay and done by a military commission. The rules are much more generous to protecting national security secrets. Military commissions have experts on the rules of warfare and how the war is fought. By the administration thinking about moving it shows how obviously misguided their original decision was.
NRB: Can you explain what you mean by national security secrets and rules of warfare?
Yoo: A Federal trial will force the US to release a lot of intelligence secrets. People in the field will start acting as if they should follow police rules. They will be worrying about what they are doing and if they will ruin witness statements. The important point is that we are at war and normal police rules do not apply.
NRB: Should a terrorist be allowed Constitutional rights?
Yoo: I talked about that in my 2006 book (War by Other Means). I don’t think terrorists caught outside the US should have the same kinds of rights as American citizens. They certainly should not have them in war time. Not under the Constitution. This is a war that is so different we have to re-think how the rules of law apply to this enemy.
NRB: What is President Obama’s main duty?
Yoo: His main job is to try to return the Presidency back to taking a leading role regarding national security. He gives the courts the lead role in deciding what to do with the terrorists. He should not be deferring to the Supreme Court.