John Yoo (2:28)

Scott.

Scott Detrow (2:28)

I'm Scott Detrow.

John Yoo (2:32)

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John Yoo (3:26)

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Scott Detrow (3:48)

It's Kid Sid of this from npr. We got some more details late last week about the Trump administration's legal justification for recent attacks on alleged drug boats in the Caribbean. In the form of a notification sent to Congress and obtained by npr, it says that the president has determined the US 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 US government interrogated people captured during that war. John Yoo, welcome to the program.

John Yoo (4:26)

Hi. Great to be here.

Scott Detrow (4:28)

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.

John Yoo (4:43)

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. You, 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.

Scott Detrow (5:35)

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.

John Yoo (5:52)

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 murders 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 murders 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.

Scott Detrow (6:47)

Is that what to you is the main difference then between an international terrorist group like Al Qaeda and a big drug trafficking group? Is it just the overall end goal that each of them has?

John Yoo (7:00)

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 Qaeda 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.

Scott Detrow (7:47)

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?

John Yoo (8:10)

I don't. And I'm not saying that we have perfect answers. We were under a lot of pressure on September 11 itself while we were suffering attacks from Al Qaeda. 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. And 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 really. Because 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.

Scott Detrow (9:05)

How much of a difference do you would congressional authorization make here? Would it make a difference at all, or do you think this is still a clear cut case that they are, they are using powers that they don't have?

John Yoo (9:13)

I think it make a big difference in this sense. I think everyone agrees no matter where you fall on the debate over whether Congress has to authorize force or not, I tend to think it doesn't. But everyone agrees that if the United States is attacked, the president can automatically respond without having to go to Congress. But the problem here is that it's not clear whether the United States is being attacked by the operations of drug cartels. And so if you're going to go out as the White House and really push this argument into new territory, then congressional support becomes all important because the Supreme Court wants to see the president and Congress in agreement if it's going to bless some new kind of war that we've never seen before. I tend to think the Supreme Court is going to be very leery of it because they see as their mission the protection of the individual rights of Americans and everyone who lives here under the Bill of Rights. And this argument that the government can wage war against drug gangs has such obvious implications in policing in the United States that the court's going to be very skeptical.

Scott Detrow (10:19)

That is John Yoo, a law professor at the University of California, Berkeley. Thanks so much for talking to us.

John Yoo (10:24)

Thank you. Great to be with you.

Scott Detrow (10:31)

This episode was produced by Connor Donovan. It was edited by Courtney Dorning. Our executive producer is Sammy Yenigun. It's consider this from npr. I'm Scott Detrow.

Rachel Martin (10:46)

Here at Life Kit, we take advice seriously. We bring you evidence based recommendations. And to do that, we talk with researchers and experts on all sorts of topics because we have the same questions you do, like what's really in my shampoo? Or should I let my kid quit soccer? Or what should I do with my savings in uncertain economic times? You can listen to NPR's Life Kit in the NPR app or wherever you get your podcasts. I'm Rachel Martin. If you're tired of small talk, check out the Wild Card Podcast. I invite your favorite celebrities to open up about the big topics we all think about, but rarely talk about. Tune in this fall to hear Matthew McConaughey, Shonda Rhimes and Padma Lakshmi talk about everything from grief and God to ambition and forgiveness. Watch or listen on the NPR app, YouTube, or wherever you get your podcasts. Want to hear this podcast without sponsor breaks? Amazon prime members can listen to Consider this sponsor free through Amazon Music. Or you can also support NPR's vital journalism and get consider this plus@plus.NPR.org that's plus.NPR.org.