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.
With the drawdown of standing armies following the end of the Cold War, the United States and other Western governments have increasingly used civilian contractors in support roles to free up limited military forces to perform combat missions. Since the initiation of hostilities under the rubric of the global war on terror, however, this extensive reliance on civilian support, coupled with the increasing technological sophistication of the contemporary battlefield, has pushed these civilians ever closer to performing tasks historically reserved for uniformed personnel.
“American anti-terrorism laws are insufficient to address the next wave of global terrorism. When President Bush declared that the United States had begun a ‘war on terror,’ the entire government began to reorient itself to tackle America’s newest ‘generational challenge.’ The Department of Justice (DOJ) joined this massive effort, declaring in a new Strategic Plan that its focus was not simply to prosecute terrorists for crimes, but to ‘[p]revent, disrupt, and defeat terrorist operations before they occur.’ Despite its constant talk of reorientation, however, DOJ has been limited in its ability to creatively address the war on terror for one simple reason: many of the relevant federal criminal statutes are poorly constructed. Prior to September 1994, there were no federal criminal prohibitions that specifically punished material support for terrorism. Prosecutors had to rely instead on generic federal crimes, such as murder and money laundering, or on a variety of statutes condemning specific acts of terrorism, such as air piracy or hostage taking. After the 1993 terrorist bombing of the World Trade Center, this situation rapidly changed. Legislators hastily drafted a number of statutes and amendments that sought to address the domestic terrorist threat. Acting in response to public demand for quick, decisive action, Congress generally maximized the scope of anti-terror prohibitions while overriding any legal obstacles to quick prosecution that were presented by the judiciary.”
This article attempts to explore the origin and evolution of the concept of persecution as a crime against humanity in international law. In particular, I will focus on the latest jurisprudence on this matter and will try to highlight the major challenges ahead for tribunals – both domestic and international – when faced with charges of this kind.
Reviewing The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, by John Yoo
John Yoo is nothing if not controversial. During his tenure at the Department of Justice’s Office of Legal Counsel (OLC), he became widely known for, among other things, drafting the Administration’s legal justification for the use of aggressive interrogation techniques.1 His prior academic writing also frequently staked out bold positions supporting expansive interpretations of executive power in the realm of foreign affairs. Yoo’s recent book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, amplifies many of the themes of his earlier work in academia. In it, he addresses two fundamental aspects of foreign policy making, the war power and the treaty power, each of which he analyzes from a decidedly revisionist perspective.