John Yoo

“ There can be little doubt that the conduct of war is a matter that is fundamentally executive in nature, the power over which the Framers vested in a unitary executive. "The direction of war implies the direction of the common strength," Alexander Hamilton observed, "and the power of directing and employing the common strength' forms a usual and essential part in the definition of the executive authority." ”

“ In order to respect the President's inherent constitutional authority to direct a military campaign against al Qaeda and its allies; general criminal laws must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress cannot interfere with the President's exercise of his authority as Commander in Chief to control the conduct of operations during a war. ”

“ If each time the President captured and detained enemy aliens outside the United States, those aliens could bring suit challenging the deprivation of their liberty, such a result would interfere with and undermine the President's capacity to protect the Nation and to respond to the exigencies of war. ”

“ The detention of enemy combatants can in no sense be deemed "punishment" for purposes of the Eighth Amendment. Unlike imprisonment pursuant to a criminal sanction, the detention of enemy combatants involves no sentence judicially imposed or legislatively required and those detained will be released at the end of the conflict. ”

“ In other words, the victim state has the right to use force against the aggressor who has initiated an "armed attack" until the threat has abated. The United States, through its military and intelligence personnel, has a right recognized by Article 51 to continue using force until such time as the threat posed by al Qaeda and other terrorist groups connected to the September 11 th attacks is completely ended."Other treaties re-affirm the right of the United States to use force in its self-defense. ”

“ In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any arguinent that these statutes apply to persons under the direction of the President in the conduct of war. ”

“ Second, even if the Fifth Amendment applied to enemy combatants in wartime, it is clear that that the Fifth Amendment .does not operate outside the United States to regulate the Executive's conduct toward ,aliens. The Supreme Court has squarely held that the Fifth Amendment provides no rights to non-citizens who have no established connection to the country and who are held outside sovereign United States territory. ”

“ The absurd consequences that would of necessity flow from such an argument show that it cannot be the true construction-it cannot be what was intended by the framers of the instrument. One of the prime motives for the Union and a federal government was to confer the powers of war. If any provisions of the Constitution are so in conflict with the power to carry on war as to destroy and make it valueless, then the instrument,instead of being a great and wise one, is a miserable failure" a felo de se. ”

“ Construing generally.applicable statutes so as not to apply to the conduct of military operations against the enemy during an armed conflict respects the Constitution's basic allocation of wartime authority. ”

“ Att'y Gen. 249, 252 (1873) ("it cannot be pretended that a United States soldier is guilty of murder if he kills a public enemy in battle, which would be the case if the municipal law was in force and, applicable to an act committed under such circumstances") . ”

“ See Verdugo-Urquidez, 494 U.S; at 269 (" [W] e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.") . See also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) ("It is well established that certain constitutional protections [, such as the Fifth Amendment,] available to persons inside the United States are unavailable to aliens outside of our geographic borders.") ”

“ Countries That Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148,149 (July 14, 1994) ("Shoot Down Opinion") (requiring "careful examination of each individual [criminal] statute"before concluding that generally applicable statute applied to the conduct of U.S; government· officials) . This canon of construction applies especially where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government See, e.g., Franklin v. ”

“ Leaders of al Qaeda and the Taliban, with access to active terrorist cells and other resources, remain at large. It has been reported that ·they have regrouped and are communicating with their members. See, e.g., Cam Simpson, Al Qaeda Reorganized, German Official Says, Minister Fears Reprisals if U.SA attacks Iraq, Star-Ledger, Jan. ”

“ Eisentrager, 339 U.S. 763, 788 (1950) . ill wartime, it is for the President alone to decide what methods to use to best prevail against the enemy. See, e.g., Flanigan Memorandum at 3; Memorandum for Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) . [8] The President's complete discretion in exercising the Commander-in..:Chief power has been recognized by the courts. ”