The Aspen Security Forum never lacks for high-powered panelists for its annual discussions on homeland security. The July 30 session featuring ACLU Executive Director Anthony Romero was no exception.
For a discussion on The Rule of Law and the War on Terrorism, Romero went up against, among others, John Yoo, the former assistant attorney general in the last Bush administration, whose memo provided the legal justification for water boarding, and former Attorney General Alberto Gonzales, also Yoo’s old boss.
Right out of the gates, Romero threw down the gauntlet by saying the biggest threat to homeland security was America’s “willing abdication of her moral authority at home and abroad and the utter lawlessness of the Bush years.” That lawlessness included the “surveillance of U.S. citizens without Congressional approval or review of the judiciary; the detention of American citizens without charges or trial, apprehended on American soil as enemy combatants; the establishment of black sites where torture was committed … and the absence of ensuring accountability for crimes committed by Americans and authorized at our highest level.”
Romero challenged Gonzales’ claim that Bush’s policies fell within the constraints of the law, reasoning that the Bush administration changed laws to suit its policies. Nonsense, said Romero, who countered that the lawlessness Gonzales condoned resulted in us “forfeiting our ability to be free.”
Gonzales contended that 9/11 presented uncharted territory and the Bush Administration needed options to react quickly. He conceded mistakes were made, but that the new policies did not technically break the law. For example, “cruel, inhumane and degrading” could only constitute torture if it “shocked the conscience,” he said. Glaringly, Gonzales never mentioned whose conscience needed to be shocked, or that to shock the conscience, the information must be public.
Yoo immediately went on the defensive – after all, he was a chief architect behind quite a few of those (now illegal or retracted) policies. He accused the ACLU of “blurr[ing] the rules of war,” and said the end justified the means. He insisted that “waterboarding is enhanced interrogation, not torture.” Romero had little use for such euphemisms. He fired back that Japanese soldiers were prosecuted for waterboarding U.S. soldiers as torture. Yoo replied that waterboarding was approved because less than one percent of soldiers who had gone through training using waterboarding had suffered any psychological or physical reaction. Really?
Yoo contended that the fight against terrorism should be framed as a war and that “different” rules apply during times of war, a notion Romero vehemently rejected. Romero said “this war is not like the civil war or the second World War, this war will never come to a public decisive end. We do not have established lines of the battlefield. This war will end only when we re-insert ourselves in a lawful approach to dealing with crime.”