The story told by and about Professor John Yoo reveals an unexplainable irrationality on the part of those who should be leading our country to victory against the Islamofascist assault upon Western civilization that some call World War 4 (World War 3 was the Cold War).
To understand this irrationality and the importance of Professor Yoo, we must go back to the 1990s when Osama first began attacking US persons and property, and to al-Qaeda’s attack on the USS Cole (12 October 2000). President Clinton’s response was that these were criminal acts and the US would prosecute the criminals, working in partnership with nations having access to the perpetrators, in order to hunt them down and bring them to justice.
Such an approach to terrorist attacks and asymmetrical warfare stood in sharp contradistinction to the doctrine of “active defense” developed in the Reagan era by George Schultz, which included “active prevention, preemption, retaliation, and deterrence.”
With Clinton’s less aggressive approach, the FBI was dispatched to Yemen and Arabia to hunt down and bring to justice the perpetrators of the USS Cole bombing. Needless to say there was much consternation in the FBI, the State Department and White House when, much to their surprise, Saudi Arabia and Yemen were unwilling to cooperate. Such was the Clinton Doctrine.
After 9/11, President Bush formulated a different doctrine, relating back to Schultz and Reagan, but going farther:
The President adopted a set of principles to guide US policy: first, that serious terrorist attacks should be treated as acts of war, not merely as crimes; second, that states are responsible for terrorism emanating from within their borders; and third, that we must preempt attacks where possible, because of their potentially devastating consequences.
Obama has taken us back to Clinton, and beyond. He has not actually verbalized a doctrine. Rather he has a general style of foreign policy that eschews America’s uniqueness and status as a world power and relies on engagement, negotiation and collaboration. None the less, it seems clear that he has revived Clinton’s doctrine by dismantling the Bush Doctrine. When he proposed the closing of the American detention facility at Guantanamo Bay and the use of American civil courts (instead of military courts) to try Guantanamo detainees, ordered discontinuing the use of the term "Global War on Terror," prohibited government publications from associating Muslim terrorist attacks with Islam, and delayed substantive response to Iran’s WMD progress by pressing instead for engagement, Obama was reversing the Bush Doctrine and, de facto, giving terrorist prisoners the status of American civilian criminals whose rights and person are protected by our constitution and centuries of social and criminal legislation.
And the status of terrorist prisoners is what Professor Yoo’s story entails.
On Wednesday, May 2, the Ninth Circuit Court of Appeals voted unanimously to reject the Obama doctrine and return to the Bush doctrine. The court dismissed the case against former Bush administration lawyer John Yoo, filed by convicted terrorist Jose Padilla. The case focused on Yoo’s immunity from the lawsuit and the definition of torture, since Padilla claimed that he was tortured while in military detention; and it was Yoo who had argued to the Bush administration that the interrogation techniques used on Padilla did not qualify as torture.
The ruling vindicates the principle that government officials are immune from private litigation for their national-security decisions. The ruling is also a watershed for repudiating sham tort claims whose goal is to intimidate government personnel who deal with terrorists as enemy combatants rather than as common criminals. But even more important, the court’s ruling reinforces the legal definition of enemy combatant as it applies to terrorists; and it is in this legal arena that the ruling reverses Obama.
It is important to recall that modern regulations dealing with the treatment of war prisoners are based on the Third and Fourth Geneva Conventions, and these conventions did not envision issues related to the asymmetric terrorist warfare in which the USA and much of the Western world are now engaged. According to these conventions, to qualify for prisoner of war status and the protections provided therein, the prisoner must have been a lawful combatant when taken prisoner, engaged in lawful acts of war, wearing a recognizable uniform, part of a chain of command, openly bearing arms, and serving in the armed forces of a “high contracting party” (i.e., one of the states that signed the treaties enacting the Geneva Conventions). Most terrorists share none of these characteristics, and al-Qaeda is not a “high contracting party.” Moreover, there is no time limit to detention for a prisoner of war. Prisoners are exchanged when the war is over, in accordance with the terms of the peace treaty. So even if terrorists were protected by the Geneva Conventions, terrorist prisoners may be legally detained for the entire course of the war until al-Qaeda and the USA sign peace treaties.
By denying Padilla the right to sue Yoo, and declaring that he has the status of an enemy combatant and not that of a common criminal, the court has in essence declared that the United States is indeed at war, was so in the days following 9/11 when al-Qaeda and its affiliates attacked, and continues to be at war with an enemy that has not agreed to the West’s laws of war and does not respect them.
This decision diametrically contradicts Obama’s un-enunciated Doctrine of “engage and negotiate even while they are blowing us up.” This decision validates the assertions of many of Obama’s critics, who say that we are at war, we are under attack, and our Commander-in-Chief is trying to resolve this by glad-handing our attackers.
When the Japanese bombed Pearl Harbor, we did not send the FBI to arrest the Japanese pilots (the Clinton Doctrine) nor did we try to engage Japan in constructive conversation about how to address their grievances (the Obama Doctrine). We recognized that Japan had declared war on us, and we retaliated with an offensive that brought Japan to its knees and won the war.
Osama bin Laden, his surviving al-Qaeda leaders, the now numerous al-Qaeda off-shoots and affiliates in the Maghreb, central Africa, the Sinai, Saudi-Arabia, Iraq, Syria, and Afghanistan, all are waging a brutal and savage terror war against the USA in particular and against Western civilization in general. They do not wage this war in conformity to Western norms and conventions, nor are they amenable to treaties, compromises, engagement, or negotiations. As their leaders have said numerous times, they wage this war against “global un-belief” (that’s most of us) until all the world is Muslim or at least under Muslim sovereignty, no matter how long it takes. Theirs is a triumphalist apocalyptic vision in which their terrorist jihad against the non-believer hastens the coming of the end times and ultimate Muslim victory and redemption.
This being the case, it is irrational for our nation’s Commander-in-Chief to preen and posture while doing nothing substantive, or worse, to commit military force and billions of dollars to countries in league with al-Qaeda. Rather, it is incumbent on him to muscularly lead our forces in addressing expeditiously this existential, asymmetric, non-traditional, but still very military threat, in the most effective way possible. He, with the full force of American military might behind him, must make clear to this intractable enemy through word and deed that we have the power to destroy their ability to harm us, and we will use that power to do so.
If he continues to dither, hope for change, appease, ingratiate, or grovel, he emboldens our enemy to greater aggression and more savage attacks. If our Commander-in-Chief is not up to the challenge, he should be replaced.
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