The cost of killing Osama bin Laden

By John Yoo
September 7, 2011
By John Yoo
The opinions expressed are his own.
In the space of forty minutes on May 1, 2011, two Navy SEAL teams descended on a compound in Abbottabad, Pakistan, and killed Osama bin Laden. They brought a rough measure of justice to the man responsible for the killing of 3,000 Americans on September 11, 2001, and thousands of others in countries from Spain to Iraq. President Obama’s greatest victory to date in the war on terror vindicated the intelligence architecture—put into place by his predecessor—that marked the path to bin Laden’s door. According to current and former administration officials, CIA interrogators gathered the initial information that ultimately led to bin Laden’s death. The United States located al-Qaeda’s leader by learning the identity of a trusted courier from the tough interrogations of Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi. Armed with the courier’s nom de guerre, American intelligence agencies later found him thanks to his phone call to a contact already under electronic surveillance. Last August, the courier traveled to bin Laden’s compound, but it took another eight months before the CIA became certain that the al-Qaeda leader was hiding inside.

The successful operation to kill bin Laden followed in the steps of earlier victories in the war on terror made possible by the enhanced interrogation program. Interrogation of Abu Zubaydah, thought at the time to be al-Qaeda’s operations planner, in the spring of 2002 led to the capture of much of al-Qaeda’s top leadership at the time.

On September 11, 2002, Pakistan captured Ramzi bin al-Shibh, the right-hand man to Khalid Sheikh Mohammed (KSM) and the primary conduit between al-Qaeda leaders and 9/11 commander Mohammed Atta. Six months later, American and Pakistani agents landed KSM, the “principal architect” of the 9/11 attacks and a “terrorist entrepreneur.”

Not only did the captures of these three commanders take significant parts of the al-Qaeda leadership out of action, they also yielded intelligence that prevented future terrorist attacks. The 9/11 Commission Report is a testament to the large amount of information that they provided.

Both Porter Goss, then-Director of the CIA, and Pat Roberts, then-chairman of the Senate Intelligence Committee, said publicly that they provided “actionable intelligence.” General Michael Hayden, CIA Director at the end of the Bush administration, reported that most of the United States’ information on al-Qaeda during the first years of the war came from the interrogation of these al-Qaeda leaders. If civil libertarians had their way, however, this information would not have come into the hands of the United States. They argue that any effort to coerce a detainee constitutes “torture”— conflating any interrogation method that goes beyond standard police-house questioning with a war crime.

Furthermore, human rights lawyers and some in the media have spun a broader “torture narrative.” The Bush administration allegedly deprived al-Qaeda of Geneva Convention protections as part of a conscious conspiracy to torture al-Qaeda leaders. These interrogation methods “migrated” to Iraq, where they produced the horrible abuses at Abu Ghraib.

This conspiracy theory is nothing but an exercise in hyperbole and partisan smear. The Bush administration went through its internal struggles over the Geneva issue only three months after the 9/11 attacks. American forces were still in Afghanistan and President Bush would not launch his political offensive on Iraq until the fall of 2002. Iraq presented a different situation entirely—a war between nation-states that was clearly covered under the Geneva Conventions.

Instead of conspiracy theories, the war on terror presents us with hard questions on coercive interrogation. Federal law prohibits torture. But limiting a captured terrorist to six hours’ sleep, isolating him, interrogating him for several hours, or requiring him to exercise does not constitute “severe physical or mental pain or suffering” within the meaning of that law. Surely the United States is not required to treat captured terrorists engaged in war against the United States as if they were suspects held at an American police station. Limiting our officials to polite questioning, and demanding that terrorists receive lawyers, Miranda warnings, and eventually a court trial, are more than likely to be ineffective in stopping future attacks.

Our government has a responsibility to take reasonable measures in self-defense. In 2004, Senator Charles Schumer (D-NY) acknowledged during a Senate Judiciary Committee hearing that “very few people in this room or in America . . . would say that torture should never, ever be used, particularly if thousands of lives are at stake.”

Even John McCain (R-AZ)—who helped craft a 2005 law that prohibited the American military not just from using torture (which was already prohibited), but also from employing a much broader category of cruel, inhuman, and degrading treatment—conceded that the President ought to violate his own law if al-Qaeda has hidden a nuclear bomb in New York. “You do what you have to do,” McCain said in the fall of 2005. “But you take responsibility for it.”

Unfortunately, these are no longer hypothetical questions. We face an enemy that is intent on carrying out surprise attacks on innocent civilians, with weapons of mass destruction (WMD) if possible, by using covert cells of operatives within the United States. The enemy refuses to obey any of the basic principles of civilized warfare, and its lack of territory, population, or regular armed forces means that gaining intelligence is the only way to prevent attacks successfully.

Federal statute, international agreement, and presidential policy all ban torture. But the law draws a distinction between torture and coercive interrogation. Torture is not all forms of interrogation that go beyond questioning, just as first-degree murder does not include all deaths. Physical or mental coercion, for example, could include threats of poor treatment or promises of better treatment. It could include non-harmful physical contact. Interrogators, for example, could use standard methods for Marine basic training without committing torture.

In 1994, the United States ratified the Convention Against Torture (CAT). The CAT makes a clear distinction between torture, which states must criminalize, and less harmful “cruel, inhuman, or degrading treatment.” President Reagan understood the treaty this way when he first sent it to the Senate: “[I]n order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.” The Reagan administration reported to the Senate: “rough treatment as generally falls into the category of ‘police brutality,’ while deplorable, does not amount to ‘torture.’”

Congress maintained this distinction when it criminalized torture outside the United States in 1994 as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” Congress intended its prohibition on torture to be narrow. The alleged torturer must have acted with “specific intent,” the highest level of criminal intent known to the law.

Notice that Congress only prohibits “severe physical or mental pain or suffering,” not any pain or suffering, whether physical or mental. It prohibits only severe acts, though it does not define “severe.” Standard dictionaries define “severe” in the context of pain as something that is “grievous,” “extreme,” “sharp,” and “hard to endure.” The only other place where Congress has used similar words is in statutes defining health benefits for emergency medical conditions; in these statutes, “severe pain” occurs when an individual’s health is placed “in serious jeopardy,”“serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part.” Obviously, Congress’s terminology here is not exactly on point, but it is the closest Congress has come.

Civil libertarian critics imply that the Bush administration interpreted torture to include only physical abuse. They have claimed, for example, that under Bush, the Justice Department would allow the denial of medical care, or the use of psychotropic drugs, or Russian roulette, or the threat of imminent death to a detainee or his family members. These claims ignore the words of the 2002 legal opinion issued by the Justice Department’s Office of Legal Counsel (OLC) and the 1994 law. Congress clearly prohibited the infliction of severe mental pain or suffering, which it more precisely defined as “the prolonged mental harm” caused by four specific acts: (1) the threat of or actual physical pain and suffering, (2) the threat or administration of “mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality,” (3) the “threat of imminent death,” or (4) the threat of inflicting these harms on a third person. Congress’s definition prohibited certain actions, but allowed others— that is the nature of drawing a line.

Some critics believe it is wrong for our elected leaders even to ask about the legal limits of their powers. President Bush and his advisors should not have inquired about the meaning of the antitorture law, according to Professor Jeremy Waldron, because merely asking about it would encourage policy makers to go too far. Apparently, government lawyers in the OLC should have refused to answer the White House’s question out of moral outrage. This is absurd. A President would be derelict in his duty if he did not review the full legal extent of his options when confronted by the challenges of a new kind of war.

The critics’ desire to impose their policies by misreading the law comes through loud and clear on the question of defenses. American law presumes self-defense and necessity defenses to exist for violations of any criminal law unless explicitly precluded by Congress. Before 9/11, legal scholars had debated whether necessity or self-defense could justify or excuse torture.

Necessity, or as it is known, the “choice of evils,” is the most discussed justification for violations of criminal law. The defense depends on weighing probabilities of outcomes and costs and benefits. Discussion of the necessity defense employs the well-known “ticking bomb” scenario. Congress also did not explicitly rule out self-defense when it passed the anti-torture law. Like necessity, whether a claim of self-defense is upheld will depend on the facts. It is also possible a nation’s right to self-defense from attacks supports an individual agent’s claim to the use of force in self-defense. If self-defense is a standard defense to homicide, it is difficult to see why it would not be a defense to torture. Congress specifically considered but decided against the elimination of defenses for government officials engaged in harsh interrogation. It intentionally omitted the CAT provision that eliminated defenses based on war or public emergency.

We cannot ask our intelligence and military officers to put their lives on the line in a state of dangerous ignorance and uncertainty. We do not send our police officers onto the streets without fully understanding the rules on the use of force, including self-defense. Our intelligence officers deserve the same clarity.

Critics want to keep intelligence officers in the dark with vague standards, behind which lurks massive liability. Our agents in the field deserve better.

Executive Powers in Times of War

A broader constitutional issue is whether Congress can interfere with the President’s authority to wage war. The Bush Justice Department concluded that the torture statute could not limit the President’s constitutional exercise of his commander-in-chief power to dictate the interrogation of enemy prisoners during wartime. I believe that in times of crisis, the Constitution grants the President broad powers to respond to unforeseen circumstances and dangerous threats to protect the nation. This was the very essence of the executive power at the time of the framing of the Constitution and the reason it is concentrated in one person: so that the nation can respond with speed, decision, and force, particularly in times of war. Presidents such as George Washington, Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and Ronald Reagan all shared this understanding of presidential power.

Some believe that coercive interrogation is never justified in a moral society, even if the consequences are another 9/11 or worse.

Most Americans, and certainly anyone of either political party who must actually run a government, would adopt a more reasonable position. We are repelled by the idea of using physical or mental pressure to elicit information, but we cannot rule it out in all cases. It would be morally wrong for a leader to allow the deaths of thousands of citizens rather than consider coercive interrogation of a single terrorist leader. Civil libertarian absolutists often dismiss the nuclear bomb scenario as an artificial hypothetical.

That is simply mistaken. We continue to face an enemy that killed 3,000 citizens on September 11, 2001; that enemy has attempted to acquire biological and nuclear weapons, and will use them against us if possible. Coercive interrogation of al-Qaeda leaders made possible the capture or killing of the top ranks of al-Qaeda’s leadership, including Osama bin Laden himself.

Critics commonly make claims about the costs of coercive interrogation based on highly speculative assumptions. They assert that relaxing the prohibition on physical pressure will make torture the norm. Or that it will encourage the enemy to fight harder. Or that it will undermine the advancement of international human rights. Or that it will reduce cooperation from allies or cause us to lose the moral high ground. Coercive interrogation in an individual case might make sense, a critic might even concede, but because we cannot rationally balance costs and benefits under the pressure of war, we should follow a prohibition in all cases.

To look at the problem from a different perspective, consider the costs of inaction. Suppose a second attack in the United States, on a par with or greater than 9/11, had occurred. al-Qaeda has a record of follow-on attacks, it has sent more operatives to the United States since 9/11, and it has actively sought WMD technology. Would an American leader have found the death and destruction caused by a second attack an acceptable price to pay for an absolute ban against coercive interrogation?

The legal system could adopt effective approaches toward coercive interrogation. A President could decline to prosecute an officer whom he believed to have acted properly in self-defense or out of necessity (particularly if the President ordered the interrogation). A President could pardon those involved. The necessity defense can maintain society’s declaration that such interrogation is wrong, while also recognizing an exception for emergencies. It allows future decision makers with better information to decide on coercive interrogation rather than blindly follow an ex ante one-size-fits-all rule.

The executive branch should continue to bear primary responsibility for any decision to use coercive interrogation, but it must brief the House and Senate Intelligence Committees generally. The intelligence agencies have understood for many years that congressional support is essential for the long-term success of their missions. They have been and will increasingly be reluctant to carry out any dubious action without both the approval of the President and the political support of Congress. Covert actions developed by the President and his staff and briefed to the intelligence committees have included targeted killings and paramilitary operations against foreign nations. Courts have not intervened, nor have they been necessary. These institutional arrangements should be equally suitable to the realm of interrogations.

September 11 requires us to make choices about whether coercive interrogation is worth the cost. The law we passed did not give us the answers, but instead required our elected leaders to make a policy judgment. That is how it should be. Coercive interrogation can produce information from al-Qaeda leaders and operatives that helps our military, intelligence, and law enforcement personnel prevent future attacks. It has produced the information that led to the capture or killing of high-ranking al-Qaeda leaders, ultimately including Osama bin Laden himself.

The practice may have costs in foreign policy, organizational discipline, and enemy morale. But we should also not lose sight of the benefits—for it was much more than luck that allowed our government to frustrate and disrupt terrorist efforts to carry out another 9/11.

This post has been excerpted with permission from the new book Confronting Terror: 9/11 and the Future of American National Security (Encounter), edited by Dean Reuter and John Yoo. Excerpt copyright 2011, John Yoo.

Photo: The grounds of the compound are seen after U.S. Navy SEAL commandos killed al Qaeda leader Osama bin Laden in Abbottabad May  2, 2011. Bin Laden was killed in the U.S. special forces assault on the Pakistani compound, then quickly buried at sea, in a dramatic end to the long manhunt for the al Qaeda leader who had been the guiding star of global terrorism. Picture taken May 2, 2011.   REUTERS/Stringer

23 comments

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The problem with torture is this: Is the indiviual telling you the truth or what he thinks you want to hear to make you stop? Ether of which may or may not be verified.

Posted by drsayle | Report as abusive

Mr Yoo, if you we’re around in WWII, you’d be facing a death sentance. Thank goodness, we’ve become more civilized in the 60+ years since? Hope the whole truth comes out before you meet your maker.

Posted by alowl | Report as abusive

good for you, big guy, to define torture. I’m really proud of you to take on the task and defend it until your death, but let me ask you a question…

2000 years ago, the preferred method of execution for the Roman empire was crucifixion. Spartacus’ entire slave army received death by crucifixion, and so did Jesus, in whom I believe you place your faith. Does the punishment always have to fit the crime? Does certainty and the fallibility of the executive branch permit any evil? or should there be some golden rule? as in only waterboard a terror suspect should you feel ready to be waterboarded in return? How many innocents have you caused to suffer and how in god’s name can you believe that you’re going to heaven?

Posted by theinfamoush6 | Report as abusive