NR Digital

Shoot First, Ask Never

by John Yoo
We should have interrogated Osama bin Laden, but Obama’s policies ruled that out

Osama bin Laden’s killing demonstrated in spectacular fashion American military and intelligence skills — and Pres. Barack Obama, who staked his presidency on the operation, was triumphant. Bin Laden’s death also threw into sharp relief the problems that continue to impede victory in the War on Terror.

Our most critical need in that war is intelligence. But policies put into place by the Obama administration during the last two years have retarded and even reversed the progress made since 9/11. Obama’s policies on detention, interrogation, and the trial of terrorists are driving us to kill rather than capture high-value al-Qaeda leaders. While bin Laden’s death was a victory, we lost an even greater intelligence opportunity.

The operation proved the worth of a decade of aggressive policies aimed at destroying the al-Qaeda network. Current and former intelligence officials confirmed that three al-Qaeda leaders — Khalid Sheikh Mohammed, Abu Faraj al-Libi, and Hassan Ghul — gave up the identity and importance of the courier after the CIA subjected them to harsh interrogation measures. Armed with the courier’s nom de guerre, American intelligence agencies later found him and tracked him to the compound, but it took another eight months before the CIA became certain that bin Laden was hiding inside.

 Critics of the Bush administration’s use of enhanced interrogation methods wrongly claim they constituted torture, produced unreliable information, and failed to contribute to the prevention of any attack on the United States. Sens. Dianne Feinstein (D., Calif.) and John McCain (R., Ariz.) claimed that the CIA had told them that enhanced interrogations did not produce the first lead to the courier’s identity. But CIA director Leon Panetta and former attorney general Michael Mukasey, who had access to the intelligence, have said publicly that the al-Qaeda leaders subjected to coercive questioning disclosed the courier’s identity and significance. No one in the administration has explained how we would have found bin Laden without the fruits of Bush-era policies.

McCain, in particular, claims that KSM and his successor, al-Libi, gave up the courier’s name but lied about his role. But the fact that they tried to deflect attention from the courier doesn’t undermine the success of the interrogation. Their stories, which were inconsistent with those of other commanders, raised red flags. Information from multiple sources, when pulled together, can snap the right targets into focus.

Controversy over interrogation should not distract from a second advance made during the Bush years: our ability to act quickly to take advantage of targets of opportunity. In the last decade, our political and military leaders have redoubled the emphasis on the elite special forces that, under the demands of the wars in Afghanistan and Iraq, have developed tactics for targeting terrorists and insurgents. The bin Laden killing was only the latest result of the integration of intelligence and military capabilities into a seamless strike force. American presidents did not have such options three decades ago, or even a decade and a half ago — witness Pres. Jimmy Carter’s failed attempt to rescue the Iranian hostages and the Clinton administration’s inability to kill or capture bin Laden.

But even as the bin Laden strike demonstrated the great leap forward in American intelligence and special forces, it also showed the Obama administration’s unwillingness to use these new weapons to their best advantage. Consider the options that President Obama faced on learning bin Laden’s location. Obama might have ordered him killed — as, apparently, he did. Or Obama might have attempted to capture him, which would have been an intelligence boon for the United States.

But what would capturing him have entailed?

First, there would have been the question of where to detain bin Laden. Guantanamo Bay would seem to be the obvious place. But a near-decade of criticism of Guantanamo, most of it coming from liberal Democrats loyal to Obama, would have made that decision politically costly. If not Guantanamo, where? Holding bin Laden in the territorial United States would have made the controversy over trying KSM in New York City pale by comparison. We might have tried the Saudis or a Navy vessel, but neither is a plausible long-term solution.

Where and how would we have tried bin Laden? Holding a military commission in Guantanamo would have vindicated Bush-era policies, something this president has striven mightily to avoid. Attorney General Eric Holder might have preferred a trial in civilian court. But the KSM controversy would have ruled that out. Some would have demanded a Nuremberg-style commission, but in today’s world selecting the judges, deciding on the rules of substance and procedure, and finding a secure neutral venue could have taken years. Bin Laden would have exploited his presence on the international stage to turn the tables on his accusers, appealing over their heads to the Muslim world. And if bin Laden had been convicted, his followers would surely have claimed that the outcome was merely “victors’ justice.”

Would he have been convicted? It is easy to imagine lawyers from the country’s legal elite queuing up to represent bin Laden — as many of them (several now serving in Holder’s Justice Department) have done for lesser al-Qaeda figures. The defense team would have used bin Laden’s right to confront witnesses and see the evidence in the government’s files that would effectively reveal U.S. intelligence sources and methods to those still fighting for al-Qaeda. In an ongoing war, the loss of intelligence advantages might be the most dangerous threat of all. 

Then there is the question of sentencing. Surely the great majority of Americans would have wanted the court to impose the death penalty. But that penalty would have caused European consternation, an ever-present worry for the Obama administration. Rather than closing the books on 9/11, the sentencing of bin Laden could have roiled the Western alliance.

And while awaiting trial, would we have interrogated bin Laden? If so, we would not have found him cooperative. For one thing, he might have insisted on having legal counsel present with him during any questioning — and could this administration have refused that request? He might also have claimed that his American interrogators were abusing or torturing him, and many around the world — not a few of them Obama loyalists — would surely have been willing to credit such allegations. 

Obama’s own policies in practice eliminated all options but killing bin Laden. In the world that Obama and his advisers inhabit, detention by the U.S. military is always suspect, interrogation by the CIA always regrettable if not criminal, and trial before U.S. military judges and officers always a distant second-best. Obama’s policy of using drone strikes to kill terrorists — exemplified recently by the attempt to hit Anwar al-Awlaki, the American national who occupies a leading role in al-Qaeda’s Yemen operation — is the inescapable outcome of the other pieces of his overall counterterrorism effort.  

What lessons, then, should be drawn from killing bin Laden?

First, capture high-value terrorists rather than kill them, if possible. Killing them destroys potentially rich sources of information and all but ensures that we will suffer from a chronic intelligence deficit. And cut back on drones: Even if they strike their target, they are liable to hit civilians as well, and they embitter local populations. Their use wounds national pride in Pakistan and elsewhere. And they destroy not only potential informants but also the physical evidence that could lead us to other terrorists.  

Second, trust U.S. military and intelligence professionals. Despite liberal myths about Guantanamo, the U.S. Army maintains a model detention facility there. The administration should stop apologizing for it. It should also drop Holder’s ongoing criminal investigation of CIA agents and trust our interrogators to do their job. It should set legal parameters for classified interrogations that reflect the fact that the country is still at war. Finally, it should trust the highly professional and conscientious military judges, prosecutors, defense counsel, and jurors who staff the military commissions, and use them unhesitatingly to try captured terrorists.   

Third, know who your real friends are. Bin Laden was living in Abbottabad only a few miles from Pakistan’s version of West Point. It is hard to believe that his presence escaped the knowledge of leaders in Pakistan’s intelligence and military hierarchy. Unfortunately, we cannot trust Islamabad to be a loyal ally in destroying al-Qaeda; its leaders may well have an interest in maintaining a certain level of instability in neighboring Afghanistan. Relying on Pakistan to find and remove al-Qaeda leaders is no substitute for unilateral American action that may violate its territorial sovereignty to pursue terrorist leaders.

The reaction overseas to bin Laden’s death also spoke volumes. When German chancellor Angela Merkel said that bin Laden’s death was “good news,” she provoked a firestorm of criticism from her countrymen. Polls showed that 52 percent of Germans believed that bin Laden should have been arrested, as against only 42 percent who thought that the United States had a right to kill him. A German judge even filed a formal protest against Merkel for “endorsing a crime.” Reactions in the United Kingdom were similar: One British commentator wrote that the sight of young Americans rejoicing at bin Laden’s death reminded him of Munchkins celebrating the death of the Wicked Witch of the East. Obama and his advisers need to absorb a lesson that most Americans have already learned: that the European Left has a problem not with the Bush administration, but with this countryand that we should ignore European opinion. And that is one fight that President Obama does not seem ready to take up.

– Mr. Yoo, a law professor at the University of California, Berkeley, is an American Enterprise Institute scholar and served in the Bush Justice Department from 2001-03. 

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