SCOTT DETROW, HOST:
We're going to talk about another area where President Trump's use of the military is facing big legal questions. This is strikes on alleged drug smuggling boats. We got more details late last week about the administration's legal justification for the attacks in the form of a notification sent to Congress and obtained by NPR. It says that the president has determined the U.S. is in armed conflict with unspecified drug cartels.
That argument has found many critics, including law professor John Yoo. He was a lawyer in the Bush administration's Justice Department and played a key role in developing the legal justification for the war on terror after 9/11, as well as the ways the U.S. government interrogated people captured during that war. John Yoo, welcome to the program.
JOHN YOO: Hi. Great to be here.
DETROW: I want to start with something that you wrote recently. You wrote that war invokes powers too extraordinary to be used against crime. Walk me through what those powers are and why it's important to you and to many legal scholars to keep them separate.
YOO: Our Constitution and our laws distinguish between war and crime. For example, if you are arrested by the government because you're suspected of a crime, you get all the protections of the Bill of Rights. You have the right to be presented to a judge, to learn the charges against you, to get the Miranda warnings, a lawyer, ultimately be tried by a jury before you're sentenced.
Think of war - we try to kill the enemy or detain members of the enemy if they can't fight. You don't have to have evidence. You don't present it to a judge. You don't go out and arrest people and give them a trial because you're fighting a foreign enemy that threatens a national security. So the most important problem is identifying who's really an enemy versus what's part of just a perpetual social problem we have.
DETROW: I mean, arguably, illegal drugs and overdoses have killed way more people than terror attacks in the United States. Should that be part of the consideration? Do you think there's a clear-cut this is a standard crime, even if it has deadly effects, and this is a war?
YOO: You're definitely right. The harms that our country suffers from crime are definitely higher. I think last year, or the last two years, we've lost about 100,000 a year, maybe 200,000 every two years, just to fentanyl and other drug overdoses, which is way more than the casualties in Korea, Vietnam, Iraq or Afghanistan. But that - the harm to the country itself does not define whether something's war or crime. You could say murderers inflict way more harm on the United States than a lot of the wars that we fought. But we don't use the military to fight murderers at home. Instead, I think what you need to see is a foreign entity that is using force against the United States because of a political agenda, because of disagreement with our ideology, to take territory, for political objectives.
DETROW: Is that - what, to you, is the main difference then between an international terrorist group like al-Qaida and a big drug trafficking group? Is it just the overall end goal that each of them has?
YOO: Yes, in part. So I was at the Justice Department, as you said, on 9/11. And we had to actually face the question that we really hadn't faced in the United States before, whether we could have a war against something that was other than another country. And we decided that al-Qaida and other terrorist groups were much like a foreign country in the level of force they could use against us, why they used force against us, for political reasons.
I think that that decision with drug cartels that are not connected - they're not fighting for Venezuela, for example - but just drug cartels don't pass that test because they aren't using force against us because they disagree with us politically, because they want to harm the country, because they have some ideological agenda. They just want to make money.
DETROW: The Trump White House is drawing a clear line between what it is doing here and what the Bush administration first articulated 20-some years ago and what the Obama administration in many ways continued as policy. And I'm wondering, as you have seen this played out and used in different ways, have you had any second thoughts about the standards that you and others put into place in the wake of 9/11?
YOO: I don't. And I'm not saying that - right? - we have perfect answers. We were under a lot of pressure on September 11 itself while we were suffering attacks from al-Qaida. But the way we thought about it was, can we ever use the military against something other than a nation? And look, there were a lot of people in Congress and in the academy and media who were critical of that view. That's why we went to Congress and within a week got an authorization to use military force, and we went to the Supreme Court when the very first detainees were captured out of Afghanistan, and the Supreme Court agreed.
I think that's something that the Trump administration should do if they - 'cause I think they're going out way on a limb, way beyond what we did. They're going to have to get Congress to agree, and I think that would then have a big influence on the way the Supreme Court will view it when these cases start to come up later this year.
DETROW: That is John Yoo, a law professor at the University of California, Berkeley. Thanks so much for talking to us.
YOO: Thank you. Great to be with you. Transcript provided by NPR, Copyright NPR.
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