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UC Berkeley Point of View

The rules of war: Sept. 11 has changed the rules

On Tuesday, June 15, the San Francisco Chronicle's Open Forum section published two opposing op-ed pieces by professors from UC Berkeley's Boalt Hall School of Law. The Chronicle asked David D. Caron and John C. Yoo to argue why the United States should or should not continue to recognize and conform to the international conventions on warfare. Americans' sense of morality, our belief that we are fighting "a good war,'' depends on our understanding of the rules. The primary question is, Are the current rules of war ill-suited to the war on terrorism?

John C. Yoo is a law professor at UC Berkeley's Boalt Hall School of Law. As an aide in the U.S. Department of Justice from 2001 to 2003, he worked on anti-terrorism policy and the question of the application of the Geneva Conventions to the war on terrorism in Afghanistan. Yoo's response to the Chronicle's question has been reprinted below. (Read David Caron's answer: "Emergency rule leaves us morally ill at ease.")

Leaks of classified legal analyses in Washington have raised again the question of the rules that should apply to the war on terrorism. Human-rights groups declare that the Bush administration has disregarded the human rights of al Qaeda and Taliban fighters by denying them status as prisoners of war under the Geneva conventions. Others claim that the administration has violated detainees' constitutional rights to legal counsel, hearings and, ultimately, review of their case in a federal court.

 John Yoo
John Yoo

Unfortunately, these criticisms obscure the important choices our society must make in order to confront the new terrorism. They display a fundamental misunderstanding of the dramatic changes wrought by the Sept. 11 attacks. On that day, operatives of the al Qaeda terrorist network launched coordinated attacks on the political and financial centers of our nation and succeeded in hitting the Pentagon, destroying the World Trade Center twin towers and killing some 3,000 civilians. Those attacks were launched against civilian targets, by terrorists who disguised themselves as civilians, and were designed to cause huge civilian casualties.

To be sure, the world has lived with terrorism in places such as Israel, Western Europe and Asia for decades. But al Qaeda and Sept. 11 are unprecedented. For the first time, a non-state organization carried out attacks with a destructiveness that only a nation-state once possessed. Such large-scale terrorism is no longer just a crime, as administrations of both parties had once thought. It is war. Is there any doubt that if the former Soviet Union had launched the exact same attacks in the exact same manner that the United States would have been at war?

Putting to one side the near-term military challenge of prevailing in places such as Afghanistan, the long-term task is to develop a legal framework for addressing this new type of enemy and this new kind of war. Thinking of the war with al Qaeda as either a criminal investigation or a normal war between nations may conform with familiar structures of thinking about previous threats to American security. But the scope and destructiveness of the Sept. 11 attacks demonstrates that traditional categories do not work.

Law-enforcement tools, standing alone, are ill-suited for comprehensively solving the problem. In the criminal-justice system, for example, suspects may and do refuse to provide the government with any information, and we provide Miranda warnings and legal counsel to protect that right. In war, however, information is the primary commodity. It is not needed to assign historical guilt, but to prevent future attacks on the United States.

Applying the procedures of a criminal investigation and trial would cut off the most important resource we have in fighting terrorism. For such reasons, the laws of war do not provide detained prisoners of war with lawyers or trials, and the U.S. Constitution has never previously been read to afford enemy combatants with the same rights that apply to mere criminal suspects.

But al Qaeda also does not fall into the traditional category of interstate war. Our previous struggles have come from nations, such as the Soviet Union, Germany and Japan. They all fielded armed forces, defended territory and protected civilian populations. Al Qaeda is an organization with covert cells of operatives who hide among civilians. It has no territory to defend, no population to protect, no infrastructure or armies in the field to attack. Its primary goal - to target and kill large numbers of civilians - violates the very core purpose of the laws of war to spare civilian life and limit combat to armies. Because it is interested only in killing civilians, systematically violates the laws of war and is not a state, al Qaeda should not receive the normal prisoner-of-war protections that are reserved only for national armed forces.

It is only appropriate that we have a public debate about the rules to confront terrorism, even if spurred by the leaking of classified information. But we should also realize that claims of violations of human-rights law or the Constitution must be evaluated in the context of the realities created by Sept. 11.

Read David Caron's answer: "Emergency rule leaves us morally ill at ease"

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