STEVE INSKEEP, host:
The Supreme Court decision striking down the military tribunal system for detainees directly rebuked a memo written by a former Bush administration Justice Department official, John Yoo. That memo said that detainees in the war on terror were not subject to the protections of the Geneva Conventions.
This week the Pentagon sent out its own memo saying the Geneva Conventions do in fact apply at Guantanamo Bay. John Yoo now teaches law at the University of California at Berkeley, and we've called him this morning to ask what he thinks.
Mr. Yoo, good morning.
Professor JOHN YOO (UC, Berkeley): Good morning.
INSKEEP: And what do you think of the administration's change?
Prof. YOO: I think, first of all, that as a legal matter, the president made the call back in 2002 when he said that al-Qaida wasn't covered by the Geneva Conventions because al-Qaida wasn't a nation-state that was a part of the Geneva Conventions and it didn't obey any of the rules of war. That said, I think the administration politically had to change positions because of what the Supreme Court did two weeks ago.
INSKEEP: Is this in some way a dangerous decision, in your view, to comply with the Geneva Conventions?
Prof. YOO: A lot of it is fine. And a lot of it is already consistent with what the military does. But other parts of this provision, which is called Common Article Three, is quite vague. For example, it forbids quote-unquote, outrages on personal dignity, and the treaty doesn't define what that means. Does that mean using isolation to control dangerous prisoners? Does it mean that it's illegal for us to use female interrogators?
Other provisions are also vague. There's another provision that says people covered by Common Article Three cannot be tried except by constituted tribunals that follow principles of justice followed by civilized nations. What is that? The treaty doesn't explain what those are either.
INSKEEP: Although wait a minute. I mean that's what the debate in Congress is about. And people do seem to have reasonable limitations for what that is. It means a trial where you get to confront the evidence against you.
Prof. YOO: Well, that's exactly one thing. I think originally the military commission rules don't allow the defendant to see classified information against you. The Supreme Court thinks that that's a fundamental principle of justice. Or at least some of them suggested, the Court itself didn't directly hold on that. But that shows you the range of how ambiguous these terms are.
INSKEEP: Let's talk about one other practice that has been reported to be used by U.S. forces, water-boarding, making a person who's being interrogated believe that they're drowning, by dumping tons of water on them. Is that allowed, do you think?
Prof. YOO: First, let me say, I don't think that's happened at Guantanamo Bay. I don't think there are any reports that are occurring there. But it seems to me that would be an outrage on personal dignity, probably, and would be prohibited. You know, the military says that, for the most part they are already in compliance with the humane treatment standards of Common Article Three. The problem is that a lot of the Common Article Three terms are ambiguous. And other people - lawyers, courts, other countries - are going to - could say they mean very different things than we think.
INSKEEP: How does this memo pertain, in your understanding, to detainees held by agencies other than the Pentagon, such as the CIA?
Prof. YOO: Well, that's an unanswered question because the memo that everyone is talking about is really a directive. It's only about a page and a quarter long, and it only applies to Defense Department. So we haven't seen an announcement explaining how the CIA does or does not fall within the Supreme Court's decision. We have to wait and see what the administration is going to do next.
INSKEEP: Meaning that as far as we know from public information, it could be that the CIA can go right on ahead, practicing the techniques that are prohibited by this memo.
Prof. YOO: We don't know one way or the other, because we don't really, really know what the CIA has or has not been doing.
INSKEEP: As you know, Congress is now considering how to reconstitute these tribunals that were struck down by the Supreme Court.
Prof. YOO: Mm-hmm.
INSKEEP: If it were up to you, what legal advice would you give?
Prof. YOO: Well, I think you have either a short law or a long law. Congress is going to pass something. And the short bill could be one sentence long, and it could just simply say Congress overrules the Supreme Court's decision from two weeks ago, and the Geneva Conventions should not be interpreted to apply to al-Qaeda.
INSKEEP: Indications are that's not going to happen.
Prof. YOO: I don't know if that's case. You could also have a very long bill, which could establish procedure by procedure, could be a new code of justice for these particular tribunals. Personally, I would say go for the shorter bill.
INSKEEP: Just overturn everything.
Prof. YOO: Just - well, I think Congress is going to set the rules, one way or the other, not the courts. It's just a matter how much discretion they want to allow the president to have in doing it.
INSKEEP: John Yoo is a former official in the Bush administration Justice Department, and is also author of a forthcoming book called War by Other Means.
Thanks very much.
Prof. YOO: Thank you, Steve. Transcript provided by NPR, Copyright NPR.