At the January 2009 Association of American Law Schools’ Section on National Security Law panel discussion, I and others urged the incoming Obama administration to make a clear and decisive break with the Bush administration’s national security policies.
By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy.
After 9/11, two officials at the Central Intelligence Agency (CIA) made decisions that led to major news. In 2002, one CIA official asked the Justice Department’s Office of Legal Counsel (OLC) to clarify how aggressive CIA interrogators could be in questioning al Qaeda operatives held overseas. This request led to the August 2002 memorandum, later leaked, in which John Yoo argued that an interrogator crosses the line into torture only by inflicting pain on a par with organ failure. Yoo further suggested that interrogators would have many defenses, justifications, and excuses if they faced possible criminal charges. One commentator described the advice as that of a “mob lawyer to a mafia don on how to skirt the law and stay out of prison.” To cool the debate about torture, the Bush administration retracted the memorandum and replaced it with another.