Yoo: Court Rejection Of Bush Detainee Policy Is An Effort ‘To Deny What Happened On 9/11′

Appearing on Fox News’ Journal Editorial Report this weekend, former Bush Justice Department official John Yoo, a primary architect of the administration’s detainee policies, attacked a recent court decision barring the indefinite detention of civilians by the military as an effort “to deny what happened on September 11.”

Using that claim as his premise, Yoo disingenuously attacked the legal reasoning of the decision while also arguing that the court decision is not a rejection of Bush administration policy. Watch it:

In his attempt to discredit the court’s rebuke of President Bush’s detainee policy, Yoo makes several false and misleading claims that undermine his argument:

Claim #1 — Osama bin Laden would be treated “like any other criminal” in the U.S.: The Fourth Circuit Court specifically limited the ruling to those who are in the U.S. legally, have established connections here, and are citizens of countries that enjoy good standing with the U.S. Bin Laden is neither a citizen of a country friendly to the U.S. nor would he ever be allowed to enter this country legally. Thus, his detainment would not be barred under this ruling.

Claim #2 — The “decision is an outlier and doesn’t represent a rejection” of Bush’s policies: In 2006, the Supreme Court ruled that the original military commissions set up by the administration “were unauthorized by federal statute and violated international law.” Two weeks ago, two separate military judges ruled that the revised military commissions set up by the administration have no jurisdiction over any of the detainees at Guantanamo Bay. The ruling is only the latest in a series of blows to the Bush administration’s detainee policy.

Claim #3 — These judges “have been putting up resistance to the war on terrorism for many years”: The Fourth Circuit Court, which made the ruling, is actually one of the most conservative appellate courts in the nation. The same court previously ruled that American citizens captured in “a zone of active combat in a foreign theater of conflict” can be held as “enemy combatants.” One of the judges who supported the recent decision, Roger Gregory, was appointed by Bush.

As ThinkProgress has noted before, Yoo has a history of extreme positions in his legal advice. He has previously argued that interrogation isn’t torture unless it results in organ failure or death, Bush didn’t need to ask Congress before invading, Iraq and that the Geneva Conventions don’t apply to detainees.

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Transcript:

GIGOT: Welcome to the Journal Editorial Report. I’m Paul Gigot. A federal appeals court in Virginia ruled an alleged al-Qaeda agent being held in U.S. custody cannot be detained as an enemy combatant.

Ali Al-Marri was identified by 9/11 mastermind Khalid Shaikh Mohammed as part of an al Qaeda sleeper cell. And investigators believe he came to the United States to prepare for a second wave of terror attacks.

A native of Qatar, Al-Marri was in the U.S. legally when he was arrested in Illinois in December 2001. He was held in prisons in Illinois and New York before being deemed an enemy combatant by the Bush administration and transferred to a navy brig in South Carolina where he has been held for the past four years.

This week’s decision by the Fourth Circuit Court of Appeal said Al- Marri can no longer be held there and should be given a criminal trial in a civilian court.

John Yoo was a chief architect of many of the Bush administration’s post 9/11 legal policies. He is now a law professor at the University of California at Berkeley.

Welcome to the program, John Yoo.

JOHN YOO, FORMER BUSH ADMINISTRATION JUSTICE DEPARTMENT OFFICIAL: Thanks for having me on.

GIGOT: What do you think of the Al-Marri decision?

YOO: I think it is an effort by this court to deny what happened on September 11. It basically holds that we cannot be at war with some organizations that are not a state. So we can capture people in Afghanistan, we can capture people in Iraq. Those people would be enemy combatants. Any al-Qaeda member that makes it the United States have to be given a criminal jury trial, Miranda, lawyers. This is exactly the framework of the law that existed on September 10, 2001.

GIGOT: It carves out a special procedure, a civilian-criminal court procedure for al Qaeda members who are captured on U.S. soil as opposed to those in Afghanistan and Iraq? What’s the justification for that, legally?

YOO: According to this court — which I don’t really agree with — according to this court, the justification is, by definition, we can’t be at war with a non-state. So anyone who is captured trying to hurt the United States, who doesn’t fight on behalf of another country, is, by definition, a criminal.

So just to take an example, if we had managed to get one of the airliners down on September 11, and capture some of the people or suppose we captured Usama bin Laden with a weapon of mass destruction in downtown New York City, according to this court, we would have to give them a jury trial just like any other criminal we caught in the United States.

The fact that they are fighting on behalf of al-Qaeda, that they want to use weapons of mass destruction or airliners in driving their planes makes no difference to the court.

GIGOT: Some critics say look, this fellow has been in prison now for four years and there is no prospect of a trial for him. Why should any administration be able to hold somebody indefinitely given the fact that we really don’t know how long this war on terror is going to go on. And he could be held for decades even.

YOO: The first thing is, under the laws of war, any nation has a right to hold members of the enemy who it captures for as long as the conflict goes on. Simply because the war might go on for a long time — I wouldn’t say indefinitely, just a long time — doesn’t mean suddenly you give up that right.

Just like, in wartime, you have the right to kill members of the enemy. That doesn’t mean, if we have a long war, you have to give that right up too.

The second thing is there are procedures, there is a chance for someone, like Al-Marri, to have a chance to have a hearing, to go to the second most important federal court in the country, the D.C. Circuit and require the government to explain why we think he is an enemy combatant.

But the most important thing here is that those procedures are carefully balanced to protect the security interests of the country, to protect the way we found out about Al-Marri, to protect us from having to disclose intelligence means and operations in open court.

GIGOT: How well do you think this decision will hold up on appeal? It could go to the entire Fourth Circuit. They call it on bond hearing by the entire court. This was just a two to one decision by a panel of that court, or to go to the Supreme Court. Will it survive on appeal?

YOO: I think that the entire Fourth Circuit is likely to hear the case and overrule it because it is inconsistent with the same court’s earlier decision to allow the government to hold Jose Padilla in military custody without a trial.

It is hard to see why Padilla, who you tried to sneak into the United States in the Chicago airport in order to launch attacks in the United States for al Qaeda, is any different factually than this Al-Marri fellow.

And if the Fourth Circuit doesn’t overrule the case entirely, I would think the Supreme Court would definitely hear the case.

GIGOT: I want to read something, broaden this out a little bit and read you a quote this week from the Wall Street Journal, a news story that said that, The U.S. administration’s effort to create a separate legal system for the war on terror may be foundering because of court rulings against the government. As a result the approach promoted by President George W. Bush may not survive his presidency. What do you think about that assertion?

YOO: I think that this one decision is an outlier and doesn’t represent a rejection of the Bush administration’s war on terrorism policies.

The first thing to keep in mind is these are policies that Congress has ratified by huge majorities in the Military Commissions Act passed last October. Congress said there are enemy combatants in the war on terrorism, fighting on behalf of organizations like al-Qaeda against us. So this is a situation where I think you have a few judges and they have been putting up resistance to the war on terrorism for many years. Every time they have, Congress and the president together have overruled them.

So I think that the war on terrorism demands that we have these kinds of procedures because of the need to protect intelligence information and ongoing operations in the middle of a real conflict.

And I think you’re going to see, if the courts don’t fix themselves, the president and Congress, the elected branches of the government, will do it for them.

GIGOT: How much of this legal architecture and these institutions, like military commissions or the right to name enemy combatants, how much of that will be likely to survive the end of the Bush presidency? Will a new president sustain those policies?

YOO: I think any president, once they see the kind of threat the country is under, the kind of enemy we are fighting, would still need to have these options available.

Let me give you one example. If we went back to the way things were on September 10, every al-Qaeda operative we captured would have to go undergo a trial, just be like Zacarias Moussaoui. His one trial threw the courts into fits for five years and never even went to a real trial.

Think about that every single al-Qaeda operative would put you in the same position and would you have opportunity to get intelligence information from them because they would all get lawyers and Miranda rights. And that’s really the most important thing, is that the next president have these tools so they can get intelligence about any pending attacks on the United States.

GIGOT: All right, John Yoo thanks so much for being with us.

YOO: Thank you.