CREW Versus Department of Justice (Lawsuit) : John Yoo Emails: 8/31/10 - August 31 Production

From: Harrison, Wanda Mariah
Sent: Monday, July 23, 2001 10:30 AM

To: Yoo, John C :
Subject: RE: Could you find me the phone numbers for
jim haynes -.~

alex azar - (~
lee liberman otis - ~~
gene scaila -~
bill myers (interior) - ~
david aufhauser (treasury)
..... Original Message .....

From: Yoo, John C
Sent: Monday, July 23, 2001 9:42 AM
To: Harrison, Wanda Mariati
Subject: Could you find me the phone numbers for
Jim Haynes, GC at Defense
Alex Azar, soon to be GC at HHS; I suspect he is a consultant there now
Lee Liberman, GC at Energy
Gene Scalia, soon to be GC at Labor, I suspect a consultant there now
Also, could you find out who the Gen Counsels at Treasury and Inl~erior are, and their phone numbers?
Thanks.
OLC 000001
From: Wall, Jeffrey B. ......
Sent: Thursday, August 16, 2001 5:03 PM
To: Yoo, John C
Subject: RE: U. Chicago Federalist Society
Sensitivity: Personal
Attachments: tmp.htm
tmp.htm (11 KB)

What about Monday, November 12 through Wednesday, November 14? I’ll check the Law School’s
calendar to make sure those dates work.
When I mentioned the legal agenda, I had in mind something that Frank Easterbrook said a few months ago. He talked
about how he had worked in the Solicitor’s Office to get certain cases before the Court. I thought that it might be
interesting to discuss the Bush Administration’s aims in that regard. To go in the other direction: I was speaking with
Gene Meyer today, and he mentioned that you have done substantial work on the separation of powers. What about a
panel on Bush judicial selection -- at all levels, including the Supreme Court -- and the prope~r role of the Senate in the
confirmation process? The level of deference due a President’s nominations, and so on. Perhaps that would be both
topical and a bit more scholarly.
However, I’m open to developing the topic through the fall, especially if an issue arises in your work with the OLC that
you would like to discuss. I will get back to you wffhin the next few days on Nov. 12-14.
Again, many thanks for all your help --
Jeff

From: Yoo, John C [mailto:John.C.Yoo@usdoj.gov]
To: Wall, Jeffrey B.
Jeff:
October is pretty much booked for me, so I think the best time for mewould be November. I am happy to come out
early in the week, say on a Monday, and I am equally happy to do the event at a lunch time°
In terms of topics, Bush judicial selection is certainly fine. We could also talk about Supreme Court appointment
possibilities. What else on the legal agenda would you be curious about?

From: Wall, Jeffrey B. ’ OLC 000002
To: Yoo, John C
<< File: tmp.htm >:~ Deputy Assistant Attorney GeneraI-Yoo:
It’s wonderful to hear that you’re interested in speaking. This early in the year, most dates are still open, so we’re
happy to accommodate your visit at a time most convenient for you. If you have an idea which time of the year might
work best, I’ll throw out some datesand we can work from there. Beginning with just the.fall quarter, I still have open
space in early and mid-October, and then again in mid-November.
Our most popular events are held during the noon hour, and usually events earlier in the week draw greater response.
As for topics, I’m not sure what’s of particular interest to you or the OLC generally. Perhaps we could arrange a panel
discussion on judicial nominations, or the Bush Administration’s legal agenda? I’m open to suggestions, and I think that
we would be pleased to hear from you on any matter you deem appropriate.
After today, my contact information is:
I hope that we will be able to work out a visit to the Law School this year. Thanks --
Jeff

From: John Yoo,
Sent: Monday, August 13, 2001 5:08 PM
Subject: Re: U. Chicago Federalist Society
Jeff:
Thanks very much for your invitation. I would be very interested in speaking. Right now, I have taken a year off and am
serving as a deputy
assistant attorney general in the Office of Legal Counsel at DOJ. So it
may be harder to schedule, and it may be harder to figure out a topic.

But I would love to do it, and want to figure out a good date and subject.
What do you have in mind on both subjects? Also, the better way to reach me would be:
jo h n.c.yoo @ usdoj.gov
202.514.2069

From: "Wall, Jeffrey B." ¯
Date: Sunday, August 12, 2001 9:13 pm
Subject: U. Chicago Federalist Society
OLC 000003
> Dear Professor Yoo:
> I apologize in advance for contacting you via e-mail, but, according
> to your home page, you are on leave and e-mail is the best way to
> reach you. On behalf of the Federalist Society at the University of
> Chicago Law School, I am honored to invite you to speak to our members
> and the law school community. We would be delighted to hear from you
> on-any matter you deem appropriate.
>
Our mos~ popular events are held during the noon hour. Of course, the
Federalist Society will cover all travel-related expenses. If your
schedule permits, we would also like to take you to lunch following
the event. This early in the year, most dates are still open, so we
would be happy to accommodate your visit at a time most convenient for
you.
If you have any questions, I can be reached at the address below.
We do hope to be able to welcome you to the Law School this year.

Thankyou for your time and consideration.
Sincerely,
/s/Jeffrey Wall
Vice President for Speakers
> :~1~1~1~
NOTICE: This e-mail message and all attachments transmitted with it

are intended solely for the use of the addressee and may contain
legally privileged and confidential information. If the reader of this
message is not the intended recipient, or an employee or agent
responsible for delivering this message to the intended recipient, you
are hereby notified that any dissemination, distribution, copying, or
other use of this message or its attachments is strictly prohibited.
If you have received this message in error, please notify the sender
immediately by e-mail reply and please delete this message from your
> computer.
> Thank you. Mayer, Brown and Platt.
>
OLC 000004
NOTICE: This e-mail message and all attachments transmitted with it are intended solely for the use of the addressee
and may contain legally privileged and confidential information. If the reader of this message is~ot the intended
recipient, or an employee or agent responsible for delivering this message to the intended recipient,_ you are hereby
notified that any dissemination, distribution, copying, or other use of this message or its attachments is strictly
prohibited.
Ifyou have received this message in error, please notify the sender immediately by e-mail reply and please delete this
message from your computer.
Thank you. Mayer, Brown and Platt.
NOTICE: This e-mail message and all attachments transmitted with it are
intended solely for the use of the addressee and may contain legally privileged
and confidential information. If the reader of this message is not the intended
recipient, or an employee or agent responsible for delivering this message to
the intended recipient, you are hereby notified that any dissemination, distribution,
copying, or ot?.,er use of this message or its attachments is strictly prohibited.
If you have received this message in error, please notify the sender immediately
by e-mail reply and please delete this message from your computer.
OLC 000005
..RE: U. Chicago Federalist Society Page 1 of 4
What about Monday, November 12 through Wednesday, November14? I’il check the Law School’s calendar to make sure
those dates work. -
When 1 mentioned the legal agenda, I had in mind something that Frank Easterbrook said a few months ago. He talked about
how he had worked in the Solicitor’s Office to get certain cases before the Court. I thought that it might be interesting to discuss
the Bush Administration’s aims in that regard. To go in the other direction: I was speaking with Gene Meyer today, and he
mentioned that you have done substantial work on the separation of powers. What about a panel on Bush judicial selection -- at
all levels, including the Supreme Court -- and the proper role of the Senate in the confirmation process? The level of deference
due a President’s nominations, and so on. Perhaps that would be both topical and a bit more scholarly.
However; I’m open to developing the topic through the fall, especially if an issue arises in your work with the OLC that you
would like to discuss. I will get back to you within the next few days on Nov. 12-14. Again, many thanks for all your help --
Jeff
.... Original Message .....

From: Yoo, John C [mailto:John.C.Yoo@usdoi. oggy_]
Jeff:
October is pretty much booked for me, so I think the best time for me would be November. I am happy to come out early in the
week, say on a Monday, and I am equally happy to do the event at a lunch time.
In terms of topics, Bush judicial selection is certainly fine. We could also talk about Supreme Court appointment possibilities.
What else on the legal agenda would you be curious about?

From: Wall, Jeffrey B. ~
Sent: Thursday, August_16, 2001 3:37 PM
To: Yoo, John C
<< File: tmp.htm >> Deputy Assistant Attorney General Yoo:
It’s wonderful to hear that you’re interested in speaking. This early

in the year, most dates are still open, so ~ve’re happy to accommodate
your visit at a time most convenient for you. If you have an idea which
time of the year might work best, I’ll throw out some dates and we can
work from there. Beginning with just the fall quarter, I still have
open space in early and mid-October, and then again in mid-November.
Our most popular events are held during the noon hour, and usually
events earlier in the week draw greater response.
As for topics, I’m not sure what’s of particular interest to you or the
OLC generally. Perhaps we could arrange a panel discussion on judicial
nominations, or the Bush Administration’s legal agenda? I’m open to
suggestions, and I think that we would be pleased to hear from you on OLC 000006
.RE: U. Chicago Federalist Soci.ety Page 2 of 4
any matter you deem appropriate.
After today, my contact information is:
I hope that we will be able to work out a visit to the Law School this
year. Thanks--
Jeff

From: John Yoo ~
Sent: Monday, August 13, 2001 5:08 PM
Subject: Re: U. Chicago Federalist Society
Jeff:
Thanks very much for your invitation. I would be very interested in

speaking. Right now, I have taken a year offand am serving as a deputy
assistant attorney general in the Office of Legal Counsel at DOJ. So it
may be harder to schedule, and it may be harder to figure out a topic.

But I would love to do it, and want to figure out a good date and
subject.
What do you have in mind on both subjects? Also, the better way to
reach me would be:
john.c.yoo@usdoj.gov -
202.514.2069

From: "Wall, Jeffrey B." ~
Date: Sunday, August 12, 2001 9:13 pm
Subject: U. Chicago Federalist Society
> Dear Professor Yoo:

>
> I apologize in advance for contacting you via e-mail, but,
> according to
> your home page, you are on leave and e-mail is the best way to reach
> you. On behalf of the Federalist Society at the University of Chicago
> Law School, I am honored to invite you to speak to our members and the
> law school community. We would be delighted to hear from you on any
> matter you deem appropriate.
> OLC 000007
> Our most popular events are held during the noon hour. Of course, the
tiE: U. Chicago Federalist Society Page 3 of 4
> Federalist Society will cover all travel-related expenses. If your

> schedule permits, we would also like to take you to lunch
> following the
> event. This early in the year, most dates are still Open, so we would
> be happy to accommodate your visit at a time most convenient for you.
> If you have any questions, I can be reached at the address below.
> We do hope to be able to welcome you to the Law School this year.
> Thankyou for your time and consideration.
>
> Sincerely,
>/s/Jeffrey Wall
>
> Vice President for Speakers
***********************************************************************
> NOTICE: This e-mail message and all attachments transmitted with
> it are
> intended solely for the use of the addressee and may contain
> legally privileged
> and confidential information. If the reader of this message is not
> the intended
> recipient, or an employee or agent responsible for delivering this
> message to
> the intended recipient, you are hereby notified that any
> dissemination, distribution,
> copying, or other use of this message or its attachments is
> strictly prohibited.
> If you have received this message in error, please notify the
> sender immediately
> by e-mail reply and please delete this message from your computer.
> Thank you. Mayer, Brown and Platt.
NOTICE: This e-mail message and all attachments trans~nitted with it are
intended solely for the use of the addressee and may contain legally privileged
and confidential information. If the reader of this message is not the intended
recipient, or an employee or agent responsible for delivering this message to
the intended recipient, you are hereby notified that any dissemination, distribution,
copying, or other use of this message or its attachments is strictly prohibited.
If you have received this message in error, please notify the sender immediately
by e-mail reply and please delete this message from your computer. OLC 000008
’:RE: U. Chicago Federalist Society Page 4 of 4
NOTICE: This e-mail message and all attachments transmitted with it are
intended solely for the use of the addressee and may cgntain legally
privileged
and confidential information. If the reader of this message is not the
intended
recipient, or an employee or agent responsible for delivering this
message to
the intended recipient, you are hereby notified that any dissemination,
distribution,
copying, or other use of this message or its attachments is strictly
prohibited.
If you have received this message in error, please notify the sender
immediately
by e-mail reply and please delete this message from your computer.
Thank you° Mayer, Brown and Platt.
OLC 000009
Froth: " EEX:l-r~ns [EEXTrans@opm.gov]
¯ Sent: Tuesday, August 21, 2001 9:37 AM
To: Yoo, John C
Subject: E-mail Confirmation of your Employee Express action.
You entered a Direct Deposit Change Action on 08/20/200i at :£1:26:06 and it will be effective 08/25/200~L; however,
due to agency processing it may not be effective until the next pay period. Thank you for using Employee Express. For
questions concerning this action, please contact your servicing personnel or payroll office.
The Employee Express Helpdesk can assist you with new Employee Express PIN requests, refer you to your agency
contact, and assist you with using the system. Please send e-mail to eexhelp@opm.gov.
OLC 000010
John Tryneski ~
¯ Tuesday, August 21, 2001 4:47 PM
Yoo, John C
Our:supporting statement for Your book
tmp.htm (6 KB)
Dear John,
As I mentioned on the phone, our evaluation of your proposal will be faxed to you shortly. The supporting statement
below is not so much an evaluation as, say, an amicus curiae piece. A supporting statement is written by someone who
either already knows the project or the author well, but whose good opinion of the work carries weight. In this case,
that person is Jack Goldsmith. You’ll see that he does have a suggestion for you to consider.
When. you receive our evaluation, I would ask that you respond in writing to the points raised in both. it and in the
supporting statement: agreeing,, disagreeing, and noting whether you will be incorporating them in your plan. You can
send your response to me via email as either attachment or as text. In the meantime, we will be discussing an advance
contract for your book on Thursday afternoon, and I will be in touch with you either that afternoon or the next morning
with what I trust will be good news.
All best,
John
> You asked me to write a supporting statement for John Yoo’s

> War, Peace, and the Framer’s Constitution for the Chicago Press. I
>should disclose up front that ¥oo and I are close friends, that we
> have collaborated on op-eds related to the subject matter of this
> book, and that we are generally identified in the academy as being in
> the same "school" or "camp."
>
> I think this will be a terrific and important book and that
> you should agree to publish it.
>
>The academic field of foreign affairs law has long been dominated by a
>set of "internationalist" assumptions, including: (a) international law
>(both treaties and customary international law) presumptively applies
>in the domestic realm and trumps domestic law when the two conflict;
>(b) presidential power, and especially presidential war power, should
>be narrowly construed; (c) Congress is the dominate branch in foreign
>affairs; and (d) the states have no constitutional role whatsoever in
>foreign affairs. These views domi.nate the academy, and are best summed
>up in Henkin’s famous book Foreign Affairs and the Constitution (Oxford
>2d ed. 1996).
OLC 000011
>There are two problems¯with these views: From a positive perspective,
>they are out of step with modern constitutional practice; and from a
¯ >normative perspective, they are very poorly theorized. (Foreign
>affairs scholarship is without a doubt among the weakest in the field
>of constitutional
>law.) This is especially unfortunate because as the world shrinks,
>more and more traditionally "domestic" issues are taking on a "foreign"
>component -- treaties regulate domestic subjects with greater
>frequency, domestic acts increasingly have international consequences,
>etc.. Foreign affairs law is thus a growing and important field.
>
>The articles on which Yoo’s book will be based are all excellent pieces of
>academic work that have been published in top law reviews. Many of his
>conclusions -- some of which I disagree with -- are original, and many
>of them are controgersial and/or iconoclastic. (I mean this last
>description as~.a compliment, especia.lly in such a stodgy field as
>foreign
>affairs.) To take one of many examples, Yoo argues, contrary to
>conventional wisdom, that treaties do not have domestic force in mo~t
>instances unless they receive implementation by Congress. He also
>argues, Controversially but persuasively to my mind, that, desPite
>Congress’s war declaration power, the Framers intended the President to
>have broad power to send troops into conflict abroad. These and other
>of Yoo’s ideas are central to modern legal debates on these topics;, his
>book will, I am sure, expand that influence.
>
>Yoo’s methodology is also unusual in this field. Although originalism
>has been a dominate approach to constitutional law for the past 20
>years, it has barely been. invoked in the foreign affairs field. Yoo’s
>originalist approach to foreign affairs law, as well as his largely
>formalist approach to the subject, are thus rare in the academy in this field.
>
> I have only one suggestion for Yoo which you can pass along to
> him if you think it appropriate. This concerns his use of originalism
> to address foreign affairs problems. Of all the areas of
> constitutional law, foreign affairs is the one in which the original
> understanding of the Framers is arguably the least relevant. In a
> nutshell, the problem is this: The Framers designed a constitutional
> system that presupposed, and hoped, that U.S. international
> engagements would be few and shallow. This constitutional framework
> has necessarily changed as we have moved from a weak isolationist
> nation to the global hegemon in a nuclear world. In this light, of
> what relevance is original understanding? Why do the framers’ views
matter? I know Yoo has responses to this query; I simply urge him to flesh them out in the book.
John Tryneski
Executive Editor
University. of Chicago Press
[NEW ADDRESS AS OF ~1/:15/0:1i
OLC 000012
[NEW FAX NUMBER]
Catalogs, online ordering, and features from our publications-may be found at http://www.press.uchicago.edu/
Sign up to receive email notification of new titles in any field:

http://www.press.uchicago.ed u/mailnotifier/
OLC 000013
Dear John,
As I mentioned on the phone, our evaluation of yourproposal will be faxed to you shortly. The
supporting statement below is not so much an evaluation as, say, an amicus curiadpieee. A supporting.
statement is written by someone who either already knows the project or the author well, but whose
good opinion of the work carries weight. In this case, that person is Jack Goldsmith. You’ll see that he
does have a suggestion for you to consider.
When you receive our evaluation, I would ask that you respond in writing to the points raised in both it
and in the supporting statement: agreeing, disagreeing, and noting whether yoh will-be incorporating
them in your plan. You can send your response to me via email as either attachment or as text.. In the
meantime, we will be discussing an advance contract for your book on Thursday afternoon, and I will be
in touch with you either that afternoon or the next morning with what I trust will be good news.
All best,
John
You asked me to write a supporting statement for Jolm Yoo’s War, Peace, and the
Framer’s Constitution for the Chicago Press. I should disclose up .front that Yoo and I are
close friends, that we have collaborated on op-eds related to the subject matter of this book,
and that we are generally identified in the academy as being in the same "school" or
"camp."
think this will be a terrific and important book and that you should agree to publish it.
The academic field of foreign affairs law has long been dominated by a set of
"internationalist" assumptions, including: (a) international law (both treaties and customary
international law) presumptively applies in the domestic realm and trumps domestic law
when the two conflict; (b) presidential power, and especially presidential war power, should
be narrowly construed; (c) Congress is the dominate branch in foreign affairs; and (d) the
states have no constitutional role whatsoever in foreign affairs. These views dominate the
academy, and are best summed up in Henkin’s famous book Foreign Affairs and the
Constitution-(Oxford 2d ed. 1996).
There are two problems with these views: From a positive perspective, they are out of step
with modern constitutional practice; and from a normative perspective, they are very poorly
theorized. (Foreign affairs scholarship is without a doubt among the weakest in the field of
constitutional law.) This is especially unfortunate because as the world shrinks, more and
more traditionally "domestic" issues are taking on a "foreign" component -- treaties regulate
domestic subjects with greater frequency, domestic acts increasingly have international
consequences, etc. Foreign affairs law is thus a growing and important field.
The articles on which Yoo’s book will be based are all excellent pieces of academic work
that have been published in top law reviews. Many of his conclusions -- some of which I
disagree with -- are original, and many of them are controversial and!or iconoclastic. (I
mean this last description as a compliment, especially in such a stodgy field as foreign
affairs.) To take one of many examples, Yoo argues, contrary to conventional wisdom, that
treaties do not have domestic force in most instances unless they receive implementation by
OLC 000014
file://C:kDocuments and Settings\dbrinley~Local Settings\Temporary Internet Files\OLK6C... 7/14/2010
Congress. He aIso argues, controversially but persuasively to my mind, that, despite
Congress’s war declaration power, the Framers intended the President tohav~broad power
to send troops into conflict abroad. These and other of Yoo’s ideas are central to modem
legal debates on these topics; his book will, I am sure, expand that influence.-
Yoo’s methodology is also unusual in this field. Although originalism has been a dominate
approach to constitutional law for the past 20 years, it has barely been invoked in the
foreign affairs field. Yoo’s originalist approach to foreign affairs law, as well as his largely
formalist approach to the subject, are thus rare in the academy in this field~
I have only one suggestion for Yoo which you can pass along to-him if you think it
appropriate. This concerns his use of originalism to address foreign affairs problems. Of
all the areas ofconstitutionai law, foreign affairs is the one in which the original
understanding of the Framers is arguably the least relevant. In a nutshell, the problem is
this: The Framers designed a constitutional system that presupposed, and hoped, that U.S.
international engagements would be few and shallow. This constitutional framework has
necessarily changed as we have moved from a weak isolationist nation to the global
hegemon in a nuclear world. In this light, of what relevance is original understanding? Why
do the framers’ views matter? I know Yoo has responses to this query; I simply urge him to
flesh them out in the book.
John Tryneski
Exeoutive Editor
University of Chicago Press
[NEW ADDRESS AS OF 1/15/01]
~ {NEW FAX NUMBER]
Catalogs, online ordering, and features from our publications

may be found at http://www.press.uchicago.edu/
Sign up to receive email notification of new titles in any field:

http://www.press.uchicago.edu!mailnotifier/
OLC 000015
file:NC:kDocuments and Settings\dbrinley\Local Settings\Temporary Intemet Files\OLK6C... 7/14/2010
Geurtsen, Frits
Sent: Wednesday, August 22, 2001 11:35 AM
YQo, John C
Subject: RE: moving question
John - The short answer is that the government covers the Cost of shipping your car, as opposed to the cost of you~.
mileage if you were to drive the car out here, "if it’s advantageous to the government to d0 so". My guess is thatthe cost
of shipping will always exceed the cost of driving, but had Deneen figure out for comparison purposes how much you
would get paid for the mileage. It comes to approximately $482 (2,835.2 miles, per Mapquest, times $.17 per mile).
I will also have her ask. her contact point if we can apply the mileage amount toward the shipping cost and just Iiave you.
cover the difference. I’ll let you know as soon as we get an answer. Any other questions? Frits
.... Original Message ....

From: Yoo, John C
Senti Monday, August 20, 2001 4:10 PM
To: Geurtsen, Fd~
Subject= moving question
Frits:
I am still figuring out exactly how I am going to move our household out here. Does DOJ cover the move of a car, in
addition to the household weights you gave me before? I am looking at auto shippers right now.
Thanks.
John .Yoo
Office of Legat Counsel
U.S. Department of Justice
Washington, D.C. 20530
202.514.2069 "
202.305.8524 (fax)
OLC 000016
From: Geurtsen, Frits
To: Yoo, John C
Subject: FW: Relocation Question
John - Good news; see below. On the fourth item of consideration, we will characterize it in terms of lost productivity as
opposed to accelerated arrival since you’re already here. Deneen is in contact with the relocation specialist and we will let
you know what the next step is. Frits

From: Rodeffer, Mark H
Se~t: Thursday, August 23, 2001 2:17 PM
To:. Geurtsen, Frits
Subject; Relocation Question
Frits,
Marcia Paull printed your e-mail to her and gave it to me. You ask if a POV can be shipped (costing $750), and the
employee pay the excess over the mileage that would have been paid for driving the POV for relocation ($482).
It may not be necessary for the employee to pay anything for shipping the POV. The Federal Travel Regulation allows
shipment when it is advantageous and cost effective to the Government. The Regulation, at 41 C.F.R. 302-10.505
requires that consideration be given to the following:
Cost of travel by POV;

Cost of transporting the POV;
Cost of travel if the POV is transported: and
Productivity benefit you derive from the employee’s accelerated arrival at the new official station.
The cost of travel by POV would include per diem (lodging plus meals and incidental expenses) in addition to mileage.
However, you must add to the cost of shipping the POV the airline ticket and other costs of the employee’s en route travel.
The fourth item may important enough to override any small cost considerations.
Mark
OLC 000017
¯
From: Martin Hotvet ! ..
Sent: Thursday, September 06, 2001 4:12 PM
To: Yoo, John C
Subject: 2002 NAAG Corrections Seminar
Dear Professor Yoo:

As per our telephone conversation, the National Association of Attorneys General invites you to speak to our
Corrections Seminar on February 5, 2001. The Seminar will be held in Louisiana. The attendees will be Assistant
Attorneys General from around the country(80 to :100 in
number). Your topic will be a constitutional law update, with a focus
on prisoner/criminal law/federalism issues.
We would also like to extend an invitation to your friend Professor Manning to speak on the same topics, and
perhaps also statutory interpretation~ and you indicated you would ask him.
Martin Hotvet
Assistant Solicitor General
New York Dept. of Law
e-mail:
OLC 000018
Page 1 of 1
From: John Yoo l!l~t~~~l~lll

Sent: Sunday, September 30, 2001 5:07 PM
To: Yoo, John C
Subject: Fwd:
Attachments: Untitled Attachment
OLC 000019
Dear Professor YoO,
Attached is a draft of the letter I am preparinl~ to send out to potential

contributors to the Harvard Journal of Law and Public Policy’s special issue on
Law and the War on Terrorism.
I am submitting this draft tO you for your approval. In it, I mention your name
as an encouraging force behind the symposium and as an informally-committed
contributor. I hope you find this description accurate, and I hope you find the
use of your name acceptable.
You probably understand the collective-action problem involved in an endeavor

such as this because quality writers such as yourself only want to contribute if
other quality writers will also be participating. Professor Stuntz has
already given his permission for the use of his name. I think my use of your
name will likewise be a very valuable force in drumming-up other contributors.
Please let me know as soon as possible if you find this acceptable. I still
consider your commitment an informal one. I would, of course, also welcome
any
substantive reccomendations you might have for the letter.
I greatly appreciate your encoural~ement.
Chris Posteraro
Editor-in-Chief
Harvard Journal of Law and Public Policy
OLC 000020
October 1, 2001
Professor
School of Law
765 Avenue
Boston, MA 02215
Dear Professor :
The terrorist attacks of September 11, 2001 will almost certainly bring about a sea change
in American law and public policy. The depth and breadth of that change is only now
beginning to take shape. It is the responsibility of the legal community to provide what
insight and guidance it can to policy-makers as they forge the parameters of America’s
response to international terror.
The Harvard Journal of Law & Public Policy invites you to participate in an extraordinary
intellectual endeavor: a special issue on Law and the War on Terrorism. The goal of this
issue is to provide policy-makers with much-needed guidance at a critical juncture in our
nation’s history. The issue will consist of a series of short articles and essays by leading
scholars in a variety of law and policy fields. Potential topics include:
1) The Constitutionality of the Bush Administration’s proposed changes in the

law of criminal procedure.
The Constitutionality of proposed changes to rules governing INS detention

and deportation.
Requirements under national and international law for the use of force,
particularly the limits of the war powers of the President.
4) The wisdom of US restrictions on assassination of heads-of-state.
5) The legal viability of a declaration of war against an individual, a group or

even against an idea (terrorism).
The role, if any, that doctrines of self-defense and hot pursuit play in
America’s pursuit o f international terrorism.
7) Peripheral concerns, such as the wisdom and legality of industry bailouts.
Rethinking the relationship of the United States to. the international

community, particularly our participation in international organizations
such as the International-Criminal Court and the wisdom, or lack thereof, in
using such organizations to address terrorism.
OLC 000021
1
9) Anticipating US vulnerabilities creatively and offering solutions that take
into consideration concerns about freedom and practicality. -
Addressing the rift between domestic conservatives and libertarians

regarding potential and actual responses to terrorism.
Please feel.flee to write about any of the above suggestions, or develop ~your own topic
related to America’s war against terrorism. Submissions should be relatively brief,
between 12 and 25 double-spaced pages in length, and should contain between 25 and 50
footnotes. These are general guidelines, not firm restrictions.
So that your work will be relevant and timely, the Journal will compress its editing
timeline as much as possible without sacrificing our reputation for excellence and
thoroughness. To insure relevance, that is to say, your article’s consideration of the most-
recent developments, the deadline for submission will be Monday, November 26. This
deadline is firm. I would greatly appreciate earlier submissions. To insure timeliness, the
Journal will send the symposium to our printers before January 31, 2002. It will be in
.policy-makers hands soon thereafter.
Should you decide to submit an-article, please inform me as soon as possible so that I may
allocate space accordingly. The collection of contributors will be an exceptional gathering
of legal academia’s finest. [ should acknowledge that the concept for this symposium
benefited greatly from the encouragement of two informally-committed authors, Professor
William Stuntz of Harvard Law School and Professor John Yoo of the University of
California School of Law (Boalt Hall).
The distinct possibility exists that shortly-after publication the Journal will invite all
participants to Harvard Law School for a symposium where authors would present their
pieces and discuss other author’s work.
Please contact me at the phone number or address listed above if you have any questions.
You should also feel free to e-mail me at _~ --~ ................. . This solicitation does
not constitute an offer of publication, but I can assure you that based on your reputation for
excellence, I cannot foresee the possibility of declining to publish your work. As always,
.the Journal welcomes any other written submissions you would like to make. I hope you
chose to participate in this important opportunity.
Sincerely,
Clwistopher C. Posteraro
Editor-in-Chief, Volume 25
OLC 000022
From: _ - . -
Sent: Wednesday, October 03, 2001 1:23 PM
To: Yoo, John C; ,
Subject: Law and Terrorism Project Soliciation Letter
Dear Professors Yoo and Stuntz,
I just wanted to thank you both for your early assistance in the Journal of Law and Public Policy’s special issue on Law
and Terrorism.
The Journal has sent out over 60 solicitation letters to. prominent scholars in constitutional, criminal and international
law as well as a few to military and international relations scholars. We will be following up with these scholars in the
near future.
Your own pieces Should proceed on the same timeline I have given the other author’s, that is that we would like your
piece submitted by November 26, 2001.
As we previously discussed, your contributions need not be lonl~ or heavilly researched; rather we are looking for your
~first cutat addressing some of the legal issues involved in America’s war on terrorism.
Please let me know whenever there is anything I can.do to assist you. Also, if you know of colleagues, thaiwould like to
contribute to this special issue, please do not hesitate to contact me with their names. I have already contacted several
of the people Professor Stuntz recommended.
Again, sincere thanks,
Chris Posteraro
. Looks fine to me.

>
> John Yoo
> Office of Legal Counsel _
> U.S. Department of Justice
> Washington, D.C. 20530
> 202.514.2069
> 202.305.8524 (fax)
OLC 000023
~rom:
Sent: Thursday, October 18, 2001 10:40 AM
To: Yoo, John C
Subject: Law and Terrorism Symposium
Dear Professor Yoo,
I wanted to update you on the truly impressive collection of commitments the Journal has been able to secure for its
special issue on Law and the War on Terrorism.
Here is the current list, the topics are rough estimations, not necessarilly finalized. I think it is an unprecidented
gathering of legal thinkers and policy-makers.
Prof. Cass Sunstein University of Chicago Law School

Topic: "The social dynamics, that lead terrorists to be terrorists, in a way that bears on the importance of checks and
balances, on constitutional design, and on what we might do to help prevent more terrorism"
Prof. Debra A. Livingston Columbia Law School

Topic: Criminal Procedure - Electronic Surveillance Issues
Prof. William Stuntz Harvard Law School

Topic: Criminal Procedure - Stop and Frisk Issues
Assistant Attorney General Viet Dinh

Department of Justice - Office of Legal Policy Professor, Georgetown University Law Center
Topic: Proposed Anti-Terrorism Legislation (may be a foreword)
Prof. Geoge Fletcher Columbia Law School

Topic: We Must Choose: Justice or War (expanding on a 10/6 Washington Postop-ed)
Kenneth Anderson, American University Law School

Topic: What to do with Bin Laden; exploring the murky categories of covert operations, assasination and military
execution.
Jack M. Beard, Assoc. Deputy General Counsel for International Affairs - Dept.
of Defense (recently returned from Uzbekistan trip w/Sec. Rumsfeld) Adjunct Professor, Georgetown University Law
Center
Topic: Legality of the Use of Force
Phillip Karber
Director, JFK International Airport
Former Deptuty Secretary for Strategy - Department of Defense (approx. title)
Topic: Regulating and Reconstituting Global Aviation in an Era of ’the Plane as Weapon’
Prof. William E. Lee University of Georgia - Grady College of Journalism

Topic: Military Control of the Press
Prof. Noah Feldman NYU Law School

Topic: Implication of the choice of war or law enforcement on administrative law.
OLC 000024
Lt. Col. (Ret.} Dave Grossman andProf. David Klinger (U. of Missouri
Topic:Potential of Terrorists as "Active Shooters" (e.g., Columbine} - The Need for Military Respon_se and Impact on
Second Amendment Law
This list is growing every day.. We have more tentative commitments from Randy Barnettat BU Law, Richard Parker at
Harvard, Jack Matlock (Former Ambassador to the USSR for Reagan and Bush, and Professor Fredrick Hitzat the
Woodrow Wilson School at Princeton.
I should let you know that Gary Lawson at BU paid you a great compliment when he e-m~iled me declining to write
"because anything [he] could say, John Yoo would say better."
Let me know once you have settled on a topic, I believe you were interested in writing about the war powers of the
President.
I want to sincerely thank you for your encouragement with this project, I think it is going robe a truly exceptional issue.
With sincere thanks,
Chris Posteraro
EIC
OLC 000025
From: Jeff Wall ......
Sent: -[hursday, October 18, 2001 12:02 PM
To: " Yoo, John C
Subject: Re: Speaking Date
DAAG Yoo,
No problem at all -- we look forward to seeing you on the :~8th. I’ll get in touch with you a little closer to the event to
discuss travel plans, topic, and the like. In the meantime, please don’t hesitate to contact me with questions.
Jeff
At 06:13 PM 10/17/2001 -0400, you wrote:

>Jeff:
>
>I’ve just discovered I have to attend a conference at DePaul on Apr. 18
>& 19. Is there anyway we can move my talk to the :lgth? That would
>also save you all money. If that is not possible; can we reschedule for May?
>
>John Yoo
>Office of Legal Counsel
>U.S. Department of Justice
>Washington, D.C. 20530
>202.514.2069
>202.305.8524 (fax)
OLC 000026
Page 1 of 1
From: John Yoo i ~~I

Sent: Thursday, October 18,200.1 1:58 PM
To: Yoo, John C
Subject: Fwd: Invitation
Attachments: Invitation
OLC 000027
October 16, 2001
Dear John:
I am writing to invite you to a meeting to be held at the George

Washington University School of Law on the morning of November 2.to
discuss a work in progress. I havebeen developing, with the assistance
of one of my students, a database covering the treaty ratification
process in the U.S. since World War I1. Although I have not in my
scholarship generally engaged in empirical work, I undertook this
project in the belief that a firmer factual foundation might help guide
the debate about U.S. treaty ratification that has become particularly
heated over the past decade. The database has entries for the 958
treaties submitted to the Senate between December 1944 and January 2001.
The s’.,~tem contains, for example, information about the use of
reservations, understandings, and declarations, and the lengths of time
taken for treaties to pass through various points in the ratification
process. Other fields of information allow for analysis of differences
in the treaty-making process depending upon the party alignments in the
Executive Branch and Houses of Congress, and the subject matter of the
treaties.
Our results are preliminary at this point, but quite fascinating also.
On the one hand, there are serious limits to what one can expect from
such an in.vestigation, and in the end the project may serve primarily to
clarify the lines of debate. On the other hand, my work with the
’facts,’ as it were, has brought home to me how all of us operate with
many unverified, or even non-verifiable, assumptions about past and
present U.S treaty ratification practice. It is my intent at the meeting
to present the methodology we have employed, review our preliminary
findings thus far and highlight the directions we are contemplatingfor
continued elaboration of the database. We hope that the comments of the
academics and foreign policy practitioners in the meeting will help us
evaluate future directions for this project, and particuiarly aid us in
focussing on how this database might be useful to the work of both
groups. Database design requires a great deal of foresight both as to
the data to be collected but also as to the questions that are most
importar~t to try and illuminate. Your assistance will be greatly
appreciated.
Initially, I planned to hold this working session at the ASIL’s Tillar

House. Given that site is unavailable because of renovation, Sean Murphy
and Susan Karamanian have generously offered to co-host the workshop
with ASIL, and to hold it at George Washington University. The workshop
will be held in Room S 305 (the S denotes the Stockton building),
beginning at 9 AM. S 305 is locatedin the main building of the GW Law
School, at 2000 H Street, NW.
OLC 000028
We will adjourn by noon. Please RSVP by Oct. 26th to Susan Karamanian, -
at ~~111~ or by email at : If you
have any questions, please feel free to call Susan or myself. I hope to
send you a draft of our preliminary results in advance of the meeting.
I look forward to seeing you on November 2nd and thank you for your
consideration.
Best Wishes,
David D. Caron
cc: Susan Karamanian

Sean Murphy
OLC 000029
Full Name: Caron, David D.
Last Name: Caron
First Name: David D.
Job Title: C. William Maxeiner Distinguished Professor of Law
Company: School of Law, University of California at Berkeley
Other Address:
Business:
Business Fax:
E-mail:
E-mail Display As:
OLC 000030
Sent: Thursday, October 18, 2001 2:37 PM
Yoo, John C
Subject: IRE: Law and Terrorism Symposium
Professor Yoo,
Glad to hear you are pleased.
The production schedule is this: We need your piece in as close to final a form as possible by November 26. That
should be the Monday after Thanksl~iving weekend. We willgive it to our subciters immediately. They will have The
first two weeks of December to work on it. Our Upper level editors will get the pieces immediately once they return
from the holiday on Jan. 3. We expect to send it to the printers before the end of January so it will be in policy-makers
hands in February.
Remember that these are to be short pieces, certainly no lonl~er than 25 pages and 50 footnotes.
Thanks for your support,

Chris
> That is really great. Congratulations on pullinl~ together such a

> sharp line
up.
>
> Yes, my paper would be on the president’s war powers. Whatis the
> production
schedule going to be?
>
> ..... Original Messal~e .....
> From: . " .
> Sent: Thursday, October_:18, 200:1 :I0:40 AM
> To: Yoo, John C
> Subject: Law and Terrorism Symposium
>
> Dear Professor Yoo,
>
> I wanted to update you on the truly impressive collection of
> commitments the Journal has been able to secure for itsspecial issue
> on Law and the War on Terrorism.
>
> Here is the current list, the topics are rough estimations, not
> necessarilly finalized. I think it is an unprecidented gathering of
> legal thinkers and policy-makers.
>
> Prof. Cass Sunstein University of Chicago Law School
> Topic: "The social dynamics that lead terrorists to be terrorists, in
> a way
that OLC 000031
¯ >~]~ears on the importance of checks and balances, on constitutional
> design, and on what we might do to help prevent
more
> terrorism"
>
> Prof. Debra A. Livingston Columbia Law School
> Topic: Criminal Procedure - Electronic Surveillance Issues
Prof. William Stuntz Harvard Law School

Topic: Criminal Procedure - Stop and Frisk Issues
Assistant Attorney General Viet Dinh

Department of Justice - Office of Legal Policy Professor, Georgetown
University Law Center
> Topic: Proposed Anti-Terrorism Legislation (may be a foreword)
>
> Prof. Geoge Fletcher Columbia Law School
> Topic: We Must Choose: Justice or War (expanding on a 10/6 Washington
Postop-ed)
> Kenneth Anderson, American University.Law School

> Topic: What to do with Bin Laden; exploring the murky categories of
> covert operations, assasination and military execution.
>
> Jack M. Beard, Assoc. Deputy General Counsel for International Affairs - Dept.
> of Defense (recently returned from Uzbekistan trip w/Sec. Rumsfeld)
> Adjunct Professor, Georgetown University Law Center
> Topic: Legality of the Use of Force
>
> Phillip Karber

> Director, JFK International Airport
> Former Deptuty Secretary for Strategy - Department of Defense (approx.
> title)
> Topic: Regulating and Reconstituting Global Aviation in an Era of"the
> Plane -
¯ as
> Weapon’
>
> Prof. William E. Lee University of Georgia - Grady College of
> Journalism
> Topic: Military Control of the Press
> Prof. Noah Feldman NYU Law School

> Topic: Implication of the choice of war or law enforcement on
> administrative law.
>
> Lt. Col. (Ret.) Dave Grossman andProf. David Klinger (U. of Missouri)
> Topic: Potential of Terrorists as "Active Shooters" (e.g., Columbine)
> - The
Need
> for Military Response and Impact on Second Amendment Law
> OLC 000032
>This list is growing every day. We have more tentative commitments
> from Randy Barnett at BU Law, Richard Parker at Harvard, Jack Matlock
> (Former Ambassador
to
> the USSR for Reagan and Bush, and Professor Fredrick Hitz at the
> Woodrow
Wilson
> School at Princeton.
. > i should let you know that Gary Lawson at BU paid you a great
-> compliment when
he
¯ > e-mailed me declining to write "because anything [he] could say, John
> Yoo
would
> say better."
> Let me know once you have settled on a topic, I believe you were
> interested, in writing about the war powers of the President.
>
> I want to sincerely thank you for your encouragement with this
> project, I
think
> it is going to be a truly exceptional issue.
">
> With sincere thanks,

>
> Chris Posteraro
> EIC
> Harvard Journal of Law and Public Policy
>
OLC 000033
From:
sent: Tuesday, October 23, 2001 8:56 PM
To: Yoo, John C
Subject: Vanderbilt Federalist Soceity
From:.
To: "john.c.yoo" <john.c~yoo@usdoj.org>
Subject: Federalist Society debate
Mr. Yoo,
Professor Nagareda tells me that you may be available to come to Vanderbilt for a Federlist Society event next Spring.
We would be delighted to receive you on the date of your choice and on the topic of your choice. We are particularly
interested in issues related to the anti-terrorism effort, specifically civil liberties issues and issues of U.S. foreign, policy.
The chapter customarily seeks out a member of the faculty to debate our guest, although we also put together panel
discussions on occassion.
Please let me know your thoughts, and hopefully we can work something out for next semester.
Best~
Jacki L. Pick
President, Vanderbilt Federalist Society
OLC 000034
From: McCoy, Deneen
To: Yoo, John C
Subject: Relocation News
JQhn,
FYI.
The movers will pack you on November 14th, Load on November 15th & your delivery date is November 19th. Please feel
free to give me a buzz if you need to discuss.
S. Deneen McCoy
Office of Legal Counsel
Budget and Financial Liaison
OLC 000035
From: Pick, Jacki Lynn ............. _
To: Yoo, John C
Subject: RE: Vanderbilt Federalist Soceity
Mr. Yoo,
Any weekday at the noon hour between January 20th and April 20th (excluding
’holidays) is a go...you’re the first to schedule for Spring, so we are flexible at this-point. January is best.
Thanks,
Jacki L. Pick
Quoting "Yoo, John C" <John.C.Yoo@usdoj.gov>:
Jacki:
I am interested, and would be willing to do a talk on anti-terrorism

issues. What dates did you have in mind?
John Yoo

From:
Sent: Tuesday, October 23, 2001 8:56 PM
To: Yoo, John C
Subject: Vanderbilt Federalist Soceity
->From: i ..........
> To:"john.c.yoo" <john.c.yoo@usdoj.org>
> Subject: Federalist Society debate
>
> Mr. Yoo,
>
Professor Nagareda tells me that you may be available to come to
Vanderbilt for a Federlist Society event next Spring. We would be
delighted to receive you on the date of your choice and on the topic
of your choice. We are particularly interested in issues related to
the anti-terrorism effort, specifically civil liberties issues and
issues of U.S. foreign policy.
The
chapter customarily seeks out a member of the faculty to debate our
guest, although we also put together panel discussions on occassion.
Please let me know your thoughts, and hopefully we can work something
out for next semester.
OLC 000036
Best,
Jacki L. Pick
President, Vanderbilt Federalist Society
Pick, Jacki Lynn

vanderbilt University
Email: , ~ ...........
OLC 000037
From: Jack Goldsmith ¯
~.Sent: Thursday, October 25, 2001 12:35 PM
ITo: Yoo, John C .
Subject: RE: Not bad for a day’s work, huh?
Imp.him
here is the op-ed. Any thoughts? Think it could be a Rule of Law? It helps
that my coauthor is a well-respected former Nuremberg prosecutor. You’ll notice one of your
sentences in here;
A U.S. Military Trial for the September 11 Terrorists
JackGoldsmith & Bernard Meltzer
There is an emerging conventional wisdom that Bin Laden and his associates, if captured alive,
should be tried,. ~..,~fore an international tribunal made up of judges from around the world,
including Muslim judges. The judgment of such a tribunal would supposedly be more legitimate
to the world community, and in particular to Muslims who oppose the U.S. invasion of
Afghanistan, than a trial in the United States. But the legitimacy gains o.f an international trial are
far from .certain, and any such trial carries significant, and unacceptable, risks.
Nuremberg is often invoked as a precedent for a Bin Laden trial. It is important to recall that the
Nuremberg format was not settled until late in the War. The British worried that a trial would give
Hitler a propaganda platform, and might turn him in to a martyr. It was only after Hitler and
.Goebbels killed themselves, and thus after this concern was reduced, that the British agreed to
the Nuremberg format. The Nuremberg trials thus took place in a defeated and exhausted
Germany that had.been denuded of political martyrs. There was no audience in Germany that
could react to the trial in a way harmful to the allies.
The Bin Laden situation is much different. It is doubtful--or at least very uncertain--than an
international tribunal to try the terrorists would make much difference to those who currently
believe that U.S. actions are unjust. The nati.ons that would establish such a tribunal have
already condemned Bin Laden and AI Quaeda for the attacks. Bin Laden sympathizers will view
an international tribunal in the same way that many Serbs continue to view the U.N.-sponsored,
multi-ethnic international tribunal in The Hague: As a biased tool of western power. Some
audiences on the margin who are unsure of the justness of the U.S. action might be favorably
influenced by ~n international tribunal. But we should not be naively optimistic about the
legitimacy gains of an international trial.
We should, however, be worried about the costs of Such a trial, whichcould enhance Bin Laden’s
¯ profile and stature. Bin Laden will use the trial as a platform to attack United States’ motivesand
policies an attack that will reverberate throughout the Muslim world. A dissenting opinion from a "
sympathetic judge would further legitimize Bin Laden’s power and prestige. Even an acquittal for
insufficient evidence is a non-trivial possibility, especially if protection of intelligence sources
precluded the United States from making certain evidence public. In light of the events that have
already transpired a devastating war against Afghanistan premised on Bin Laden’s guilt, the
deaths of Afghani civilians and U.S. soldiers, and the possibly related continuing bioterrorist
attacks in the United States this is a risk the United States must minimize.
We are not suggesting that the t~-ial process be rigged against Bin Laden, for of course a fair trial
presupposes that the defendant could be innocent. But fairness does not require the United
States to give Bin Laden every conceivable advantageprior to conviction. As Justice Cardozo
stated in a different context, "justice, though due to the accused, is due to the accuser also. The
concept of fairness must not be strained till it is narrowed to a filament."
OLC 000038
To: OLC All
Subject: Flu Shots
All: As noted in my earlier email with notes from the anthrax briefing, flu shots are effective in combating organisms such
.as anthrax. I just checked with the health unit and flu shots are available right now for high-r.isk individuals and after "
November 5 for the rest of us. You can go to the Health Unit in Room 2517 without appointment any day of the week
except Wednesdays between 9:00 and noon. Frits
OLC 000039
From: ............
Subject: Contributors to Harvard Journal of Law and Public Policy’s Special issue On Law and the War
on Terrorism
Thank you very much for agreeing to contribute to the Harvard Journal of Law and Public Policy’s Special Issue: Law and
The War on Terrorism.
The Journal has assembled an extrordinary collection of scholars who are prepared to examine a wide range of critical
questions.
Please remember to abide by the guidelines I outlined in my solicitation letter.

The deadline for your submission is now less than a month away, November 26.
Contact me as soon as possible if you require special accomodations.
Below is the current list of contributors. In some cases my statement of an author’s topic is a very..rough estimation. I
would welcome dairification.
Name: Prof. Kenneth Anderson

Affiliation: Washington College of Law at American University
Topic: How to Deal With a Terrorist: Capture, Assassination, Summery Execution and Other Options
Name: Prof. Randy Barnett (tentative commitment)

Affiliation: Boston University Law School
Topic: TBA
Name: Prof. Sara Sun Beale and Mr. James Felman

Affiliation: Duke University School of Law
Topic: Grand Jury Provisions in Anti-Terrorism Legislation
Name: Professor Jack M. Beard

Affiliation: Deputy General Counsel for International Affairs- Dept. of Defense, Adjunct_Professor, Georgetown
University Law Center
Topic: Legality of the Use of Force in Afghanistan under Doctrine of Self-Defense
Name: Assistant Attorney General Viet Dinh

Affiliation: Department of Justice- Office of Legal Policy and Professor, Georgetown University Law Center
Topic: Anti-Terrorism Legislation (may be a forward)
Name: Professor Noah Feldman

Affiliation: Assistant Professor of Law NYU School of Law
Topic: Is terrorism crime, or is it war? What conceptual framework will or should the United States use to conceptualize
its fight against terror?
Examining problems associated with the choice of framework, and the central question of how the war/crime
distinction should be treated, developed, preserved, or rejected.
Name: Professor George Fletcher

Affiliation: Columbia Law School
Topic: We Must Choose: Justice or War (Expanding on 10/6 Washington Post op-ed)
OLC 000040
Name: Professor Michael J. Glennon
Affiliation: University of California at Davis School of Law
Topic: Undetermined
Name: Lt. C01 (Ret.) Dave Grossman and Prof. David Klinger
Affiliation: Expert on psychology of killing; Prof. of Criminology u. of Missouri
Topic: Potential of Terrorists as ?Active Shooters? (e.g. Columbine)-The Need for Military Response and Implications on
Gun Laws and Second Amendment.
Name: Prof. Frederick P. Hitz

Affiliation: Princeton University - Woodrow Wilson School of Public and Int’l Affairs, Former Inspector General, Central
Intelligence A[~ency
Topic: Exploring not only the ban on assassination but also the restrictions on the use of so-called "protected"
professions such as journalists, clericsl and academics. Also addressing the injunction on avoidance of human ril~hts
violators as agents, and the restrictions on the CIA’s use of domestic law enforcement powers.
Name: Phillip Karbe~

Affiliation: Chairman, JFK International Airport, Former Deputy Secretary for
Strategy- Department of Defense
Topic: Regulating and Reconstructing Global Aviation in an Era of ?The Plane as the Weapon?
Name: Prof. William E. Lee

Affiliation: University of Georgia- Grady College of Journalism
Topic: Military Control of the Press through Prepublication Review, and the First Amendment Implications of the
Practice
Name: Prof. Debra Livingston

Affiliation: Columbia Law School
Topic: Electronic Surveillance Implications of Anti-Terrorism Legislation
Name: Prof. Richard Parker (tentative commitment)

Affiliation: Harvard Law School
Topic: The under-girding of political discourse by patriotism
Name: Prof. William Stuntz

Affiliation: Harvard Law School
Topic: Criminal Procedure, Stop and Frisk issues of New Anti-Terrorism Legislation
Name: Prof. Cass Sunstein

Affiliation: University of Chicago Law School
Topic: The social dynamics that lead terrorists to be terrorists, in a waythat bears on the importance of checks and
balances, on constitutional design, and on what we might do to help prevent more terrorism
Name: Professor Robert F. Turner

Affiliation: University of Virginia, Center of National Security Law Studies
Topic: TBA
Name: Michael Williams

Affiliation: .Clerk, The Honorable Chief Judge Douglas Ginsburg
Topic: The Irrelevance of International Law to the War on Terrorism
OLC 000041
Name: Professor John Yoo and Robert Delahunty, Special Counsel at Office of Legal Counsel _
Affiliation; Boalt Hall School of Law
Topic: War Powers of President Bush in the War on Terrorism . _
There may be a few additional contributors, but as you can see, the issue is already quite large.
Thank you very much for deciding to contribute to this important endeavor. As always, do not hesitate to contact me
with any questions or concerns.
Sincerely,
Christopher Posteraro
Editor-in-Chief
OLC 000042
From Eric Posner
Sent: Wednesday, October 31,2001 5:31 PM
To: Yoo, John C; David Strauss; Geoffrey Stone; Cass Sunstein; Alan Sykes; Douglas Baird;
Richard Epstein; Jack Goldsmith; Mark Tushnet
Cc: Adrian Vermeule
Friends,
After tortuous negotiations, the law review has (for various institutional
reasons) turned down our proposal to publish a conference issue on the legal implications of the war on terrorism.
However, we have been talking to the University of Chicago Press, and they are excited about the idea.
We need to know whether you are willing to go ahead with the Chicago Press option.¯ The requirements are: (1) 20
page limit (10,000 words including footnotes); (2) deadline of Dec. 7. The Press would send the collected essays to a
reader, and the Press’ board would need to approve the book, so although the editor is very optimistic, there is no
guarantee that the book would, be published. If it is, the publication date would be July or August if all goes according to
plan. You would be free to republish your essays separately in law reviews or other outlets, but only after the book ~s
out.
We need from you a yes or no. If we get more than a few no’s, the project is off. Please let us know. (Below is our
current lineup.)
Thanks,
Eric and Adrian.
Posner & Vermeule, Introduction

Strauss, The Anti-Terrorism Bill
Stone, Censorship
Sunstein, Congressional-Executive Relations Sykes, Insurance Baird, Bailouts Epstein, Patents Goldsmith, Military
Tribunals Posner, Regulatory Responses Yoo, Posse Comitatus Tushnet, Federalism
OLC 000043
~rOm: Leonard A. Leo ~ _ -
Sent: . Thursday, November 01,2001 6:24 AM
To: Yoo, John C; Laufman, David H; PowelI,SeLena Y; i~
Co:
Subject: 2001 Federalist Society Convention--Terrorism Briefing
Attachments: 2001-TERRORISM BRIEFING COORDINATION MEMO.doc; Ileo.vcf
2001-TERRORISM lleo.vcf (374 B)

~RIEFING COORDI..
See attached panel coordination memo.
OLC 000044
MEMORANDUM
November 1, 2001
TO: Hon. Frank Keating, Governor of Oklahoma

Hon. Larry Thompson, Deputy Attorney General
Prof. Bob Turner, UVA National Security Law Center
Hon. Edwin Williamson, Sullivan & Cromwell
Prof. John Yoo, DOJ Office of Legal Counsel
FROM: Leonard A. Leo, Vice President, Lawyers Division
Federalist Society National Lawyers Convention, November 17 Briefing

on Legal Issues Relating-to the War on Terrorism
First, thanks again for agreeing to participate in the Federalist Society’s

2001 National Lawyers Convention. We are expecting an outstanding turnout this
year, and I lcnow that our members will be very interested in hearing from each of
you regarding "Law and the War Against Terrorism."
As we’ ve discussed, the program takes place on Saturday, November 17

from 8:00-9:30 at the Mayflower Hotel’s State Room. The order of business will
be as follows:
8:00 Call to order and introduction of the moderator, John Yoo

Introduction of the topic and three of the speakers (Keating,
Turner, Williamson) by Professor Yoo
8:05-8:50 Presentations by Governor Keating, Mr. Williamson, and Professor

Turner (12-15 minutes each)
8:50-9:05 Question period led by moderator, with audience participation as

well
9:05 Introduction of Mr. Thompson by the moderator, Professor Yoo

Presentation by Mr. Thompson (12-15 minutes)
9:25-9:30 Additional questions from the audience
OLC 000045
In telans of subject areas, Our current understandi_ng is that each of_the
speakers will address the following subjects:
Governor Keating--law enforcement issues, with particular emphasis on

the role of state and local authorities.
Mr. Williamson--war powers issues.
Professor Turner--the laws 0f war and the use of force
Mr. Thompson--law enforcement issues, with particular emphasis on the
federal effort.
If you have any questions before the program, please do not hesitate to
contact me. We will look forward to seeing you on the .17th.
OLC 000046
Full Name: Leonard A. Leo
Last Name: Leo
First Name: Leonard A.
Job Title: Vice President, Lawyers Division
Company: The Federalist Society
Other Address:
~-
Business:
Business Fax:
Eomail:
E-mail Display As:
OLC 000047
From: Jack Goldsmith -
Sent: Tuesday, November 06, 2001 10:51 AM
To: Yoo, John C
Subject: Re: give a call when you can.
tmp.htm (9 KB)
here it is in a nutchell
Why ClL is not federal law
1. Textual/originalist evidence
The Supremacy clause limits supreme federal law to treaties and "laws made in pursuance" of the Constitution."
CIL is not made pursuant to the Constitution. It is made by the nations of the world.through a different process. This
textual point raises an important constitutional
issue: If CIL were automatically federal law, it would raise delegation/appointments clause issues, because U.S. law
would be made by non-U.S, entities.
Article III limits the laws that establish federal jurisdiction to treaties and the "laws of the United States." It is well-
settled that the law of nations, which was part of general common law in the eighteenth century, was not part of the
"laws of the United States" within the meaning of this phrase. Also, Federalist 80 (Hamilton) confirms that the law of
nations was not included within this phrase. See Stewart Jay, Vanderbilt Article; Bradley and Goldsmith articles; Clark
article in Penn.
Article II says that the Prez must "take care that the Laws are faithfully executed." Hamilton, citing this provision,
argued as Pacificus that the President had the ability to enforce the law of nations if he so chose. But Hamilton never
suggested (nor did anyone elsei that the law of nations limited Presidential power.
There are lots of early sources that say the law of nations is part of the "law of the land " See especially the
Neutrality Grand Jury charges. However, the assertion that the law of nations was part of the law of the land was likely
nothing more than a mimicking of Blackstone, who
certainly was not referring to U.S. federal law. See 4 William
Blackstone, Commentaries 67 (1769) ("law of nations.., is held to be part of the lawof the land"). In any event, the
characterization of the law of nations as the law of the land was perfectly consistent with the law of nations’ Status as
general common law. Nineteenth-century courts frequently employed the phrase "law of the land" to refer to a variety
of non-federal laws, including general common law. See Ogden v. Saunders, 25 U.S. 213, 320 (1827) (stating that law of
the land governs enforcement of contracts); Marine Insurance v. Tucker, 7 U.S. 357, 393 (1806) (declaring well settled
marine insurance rule part Of the "law merchant of the land")
See also Charles Pergler, Judicial Interpretation of International Law in the United States 19 (1928) (if state statute
"violates an established principle of international law.., clearly there would be only one course open to the courts, viz.,
to enforce the state statute, always assuming its constitutionality and that it does not contravene any valid federal
enactment, or any treaty"); Quincy Wright, The Control of American Foreign Relations 161 (1922) ("state constitution or
legislative provision in violation of customary international law was valid unless in conflict with a Federal constitutional
provision or an act of Congress").
OLC 000048
2. Case Authority
Article II1: Numerous nineteenth century decisions confirm that ClL was not federal law within the meaning of Article III.
Perhaps most on point is New York Life Ins. Co. w Hendren, 92 U.S. 286, 286-87 (1875), which held that the Supreme
Court had no jurisdiction to review "the general laws of war, as recognized by the law of nations applicable to this
case,"
because such laws do not involve "the constitution, laws, t~eaties, or executive proclamations of the United States."
See also Oliver Am. Trading Co. v. Mexico, 264 U.S. 440, 442-43 (1924), which says that the ClL of sovereign immunity in
not federal law; Ker v. lllinois, 119 U.S. 436, 444 (1886), which makes the point clear with respect to foreign abductions;
and City and County of San Francisco v. Scott, 111 U.S. 768, 769 (1884), which concerned the power of conquest on the
. validityof expropriation. Compare Huntington v. Attrill, 146 U.S. 657, 683 (1892)~ These cases all involved Section 25 of
¯ Judiciary Act of 1789, not Article III; but the language of Section 25 and Article III is the same, and the reasoning of these
cases that the law of nations is general law, not federal law applies to Article II as well. In addition, American Ins. (30. v.
Canter~ 26 U.S. 511, 545-46 (1828), which said that a case involving application of the "law, admiralty and maritime" --
elements of the law of nations -- does "not arise under the Constitution or Laws of the United States" within the
meaning of Artic!e III. This last case point to another reason why the law of nations did not implicate article III. The law
of nations included the law merchant and the law maritime as well as what we today call public international law. We
know from Swift and many marine insurance cases that the law merchant and the law maritime were not part of the
laws of the United States under Article III. There are more cites like this (e.g. Ware v.
Hilton). if you need.them.
In modern times, there is one court Filartiga that has held that CIL is federal law for purposes of Article Ill. To the best
of my knowledge, no other court has followed Filartiga on this point in a holding, althoul~h many modern courts have
stated in dicta that ClL is federal common law.
Article Vl: No court has ever held that ClL is federal law within the meaning of Article Vl. Unfortunately, no court has
held that CIL is not federal law within the meaning of Article VI either. However, it follows from the-cases above, which
hold that ClL was general law, that CIL is not federal law within the meaning of Article VI.
Article II: Paquete Habana says that CIL is part of our law, and that courts should enforce it subject to controlling
congressional or executive action. This confirms that ClL was general common law prior to Erie. For if it were federal
law, it would control the executive. Sabbatino also suggested that CIL did not bind the President, for it emphasized that
the President gets to determine the content of ClL for the United States. Also, most modern courts, that have
considered the issue have concluded, following Paquete Habana, that CIL does not bind the President. See e.l~. Garcia
.Mir v. Meese, 788 F 2d 1446, 153-56 (CAll). The only case I know to the contrary is a dct opinion, 505 F supp 787, aff’d
on other l~rounds.
Finally, the Supreme Court has never ever held that CIL is federal law for any purpose (and as the cases above suggest,
before Erie it often held that CIL was not federal law). And in recent years it has suggested that it is not. Thus, for
example, in United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Court rejected the argument that a criminal
prosecution of a person abducted from Mexico by U.S. agents violated the U.S.-Mexico extradition treaty, and the Court
refused to give independent significance to the ClL prohibition on international abductions. See The Supreme Court,
1991 Term - Leading Cases, 106 Harv. L. Rev. 163, 322-23 (1992) ("By chance or design, the Supreme Court disposed of
Alvarez-Machain’s potentially viable customary international law defense without analysis."). Similarly, in Stanford v.
Kentucky, 492 U.S. 361 (1989), the Court refused to consult international practice in construin~ the Eighth Amendment
because "it is American conceptions of decency that are dispositive," and the Court failed to give any independent
significance to a possible CIL prohibition on execution of juvenile offenders. Id. at 369
OLC 000049
At 07:52AM 11/6/2001 -0400, you wrote:
>John Yoo
>Office of Legal Counsel
>U.S. Department of Justice
>Washington, D.C. 20530
>202.514.2069
>202.305.8524 (fax)
OLC 000050
.. ’ - Page 1 of 5
here it is in a nutchell
Why CIL is not federal law
Textual/originalist evidence
The Supremacy clause limits supreme federal law to

treaties and "laws made in pursuance" of the Constitution."
ClL is not made pursuant to the Constitution. it is made by the
nations of the world through a different process. This textual
point raises animportant constitutional issue: If ClL were
automatically federal law, it would raise
delegation/appointments clause issues, because UoS. law
would be made by non-U.S, entities.
Article Ill limits the laws that establish federal jurisdiction

to treaties and the "laws of the United States." It is well-settled
that the law of nations, which was part of general common law
in the eighteenth century, was not part of the "laws of the
United States" within the meaning of this phrase. Also,
Federalist 80 (Hamilton) confirms that the law of nations was
not included within this phrase. See Stewart Jay, Vanderbilt
.Article; Bradley and Goldsmith articles; Clark article in Penn.
Article-II says that the Prez must "take care that the Laws
are faithfully executed." Hamilton, citing this provision, argued
as Pacificus.that the President had the ability to enforce the
law of nations if he so chose. But Hamilton never suggested
(nor did anyone else) that the law of nations limited
Presidential power.
There are lots of early sources that say the law of nations
is part of the "law of the land." See especially the Neutrality
Grand Jury charges. However, the assertion that the law of
OLC 000051
file://C:kDocuments and Settings\dbrinleykLocal Settings\Temporary Internet File~\(~l .V6(~ 7/1 ~/~nl n
Page 2 of 5
nations was part of the law of the land was likely notching more
than a mimicking of Blackstone, who certainly.was not--referring.
to U.So federal law. See 4 William Blackstone,Commentaries 67
(1769) ("law of nations ~.. is held to be part of the law of the
land"). In any event, the characterization of the law ofnations as the
law of the land was perfectly consistent with the law of nations’ status
as general common lawl Nineteenth-century courts frequently
employed the phrase "law of the land" to refer to a variety of non-
federal laws, including general common law. See Ogden v.
Saunders, 25 U.S. 213, 320 (1827) (stating that law ofthe land
governs enforcement of contracts); Marine Insurance v.
Tucker, 7 U.S. 357,393 (1806) (declaring well settled marine
insurance rule part of the "law merchant of the land")
See also Charles Pergler, Judicial Interpretation of

lnternational Law in the United States 19 (1928) (if state
statute "violates an established principle of international law...
clearly there would be only one course open to :the courts, viz.,
to enforce the state statute, always assuming its
constitutionality and that it does not contravene any valid
federal enactment, or any treaty"); Quincy Wright, The Control
of American Foreign Relations 161 (1922).(".state constitution
or legisl.ative provision in violation of customary international
law was valid unless in conflict with a Federal constitutional
provision or an act of Congress").
Case Authority
Article ill: Numerous nineteenth century decisions confirm that

CIL was not federal law within the meaning of Article I1~.
Perhaps most on point is New York Life ~ns. Co. v. Hendren,
92 U.So 286, 286-87 (1875), which held that the Supreme
Court had no jurisdiction to review "the general laws ofOLCwar, as
000052
Page 3 of 5
recognized by the law of nations applicable to this ~case,"

because such laws do not involve "the constitution, laws,
treaties, or executive proclamations of the United States." See
also Oliver Am. Trading Co. v. Mexico, 264 U.S. 440, 442-43
(1-924), whichsays that the ClL of sovereign immunity in not
federal law; Ker v. Illinois, 119 U.S. 436, 444 (1886), which
makes the point clear with respect to foreign abductions; and
City and County of San Francisco v. Scott, 111 UoSo 768, 769
(1884), which concerned the power of conquest on the validity
of expropriation. Compare Huntington v. Attrill, 146 U.S. 657,
683 (1892). These cases all involved Section 25 of Judiciary
Act of 1789, not Article Ill; but the language of Section 25 and
Article III is the same, and thereasoning of these cases that
the law of nations is general law, not federal law applies, to
Article II as well. In addition, American Ins. Co. v. Canter, 26
U.So 511,545-46 (1828), which said that a case involving
application of the "law, admiralty and maritime" - elements of
the law of nations -- does "not arise under the Constitution or
Laws of th’e United States" within the meaning of Article
This last case Point to another reason why the law of nations
:did not implicate article I II. The law of nations included the law
merchant and the law maritime as well as what we today call
public international law. We know from Swift and many marine
¯ insurance cases that the law merchant and the law maritime
were.not part of the laws of the United States under Article Ill.
There are more cites like this (e.g. Ware vo Hilton)if you need
them.
In modern times, there is one cour~ Filartiga that has held that
ClL. is federal law for purposes of Article ill. To the best of my
knowledge, no other court has followed Filartiga on this point in
a holding, although many modern courts have stated in dicta
that ClL is federal common law.
OLC 000053
Page 4 of 5
Article W: No court has ever held that CIL is federal-law with.in

the meaning of Article Vl. Unfortunately, no court has-held that
ClL is not federal law within the meanin9 of Article V~ either.
However, it follows from the cases above, which hold that CiL
was gen. erai law, that ClL is not federal law within the meaning
of Article W.
Article ll: Paquete Habana says that CIL is part Of our law, and
that courts should enforce it subject to controlling
congressional or executive action.. This confirms that CIL was
general common law prior to Erie. For if it were federal law, it
would control the executive. Sabbatino also suggested that
CiL did not bind the President, for it emphasized that the
President gets to determine the content of CIL for the United
States. Also, most modern courts that have considered the
issue have concluded, following Paquete Habana, that CIL
does not bind the President. See e.g. Garcia Mir v. Meese,
788 F 2d 1446, 153-56 (CA11). The only case ! know to the
contrary is a dct opinion, 505 F supp 787, aff’d on other
grounds.
Finally, the Supreme Court has never ever held that CIL is
federal law f_or any purpose (and as the cases above suggest,
before Erie it often held that CiL was not federal law). And in
recent years it has suggested that it is not. Thus, for example,
in United States v. AIvarez-Machain, 504 U.S. 655 (1992), the
Court rejected the argument that a criminal prosecution of a
person abducted from Mexico by UoS~ agents violated the UoS.-
Mexico extradition treaty, and the Court refused to give
independent significance to the CIL prohibition on international
abductions. See The Supreme Court, 1991 Term - Leading
Cases, 106 Harvo Lo Rev. 163, 322-23 (1992) ("By chance or
design, the Supreme Court disposed of AIvarez-Machain’s
potentially viable customary international law defense without
OLC 000054
analysis."). Similarly, in Stanford v. Kentucky, 492 0.S. 361
(1989), the Court refused to consult international.practice in
construing the Eighth Amendment because "it is American
conceptions of decency that are dispositive," and the Court
failed to give any independent significance to a possible OiL
prohibition on execution of juvenile offenders. Id. at369 n.1.
At 07:52 AM 11/6/2001 -0400, you wrote:
John Yoo
U.S2 Department of Justice
202.514.2069
202.305.8524 (fax)
OLC 000055
From: Hyepin Im ~
Sent: . Saturday, November 10, 2001 7:57 AM _
To: Yoo, John C; shinae chun
Subject: "Lighting the Community" conference - parking information & program
Attachments.." tmp .htm
tmp.htm (8 KB)
Here’s some helpful information. If you have any questions, please call me at ~
Hyepin Im
Location of Event:
I wanted to pass this information to you. Attached is l~he latest program which will be held on Tuesday, November 13th,
at
US Capitol
Cannon Caucus Room (Room 345)
Corner of Independence Way &.New Jersey
Parking Information:
Nearest parking Iot,$5 all day
it is on the 400 block of South Capitol Street SW, between E and I Street, SW. The entrance is at the intersection.
FOR IMMEDIATE RELEASE

Media Contact:
Hyepin Im
www.kccd3300.org
"Lighting the. Community" Conference Joins National Delegation of Asian American Church and Nonprofit Leaders for
Faith-Based Economic Development on November 13, 2001
Washington, DC, U.S. Capitol 345 Cannon Caucus Room - On November 13, 2001, national and faith based leaders will
gather to address issues of the state of the nation, including economic development and faith based initiatives.
Attendees of the conference will join together on the steps of the Capitol in PraYer for the nation.
Featured keynote speakers include Bush appointee John Yoo, Deputy Assistant Attorney General in the Office of Legal
Counsel in the U:S. Department of Justice, Jim Wallis~ Editor for Sojourner Magazine and Convener for a "Call to
Renewal," and Reverend Lee Earl of Shiloh Baptist Church.
The conference will include an overview of faith based initiatives with panel discussions and featured speakers from the
White House and Directors from the Eaith-based and Community Initiative Offices at the Departments of HUD, Justice,
OLC 000056
Labor and Health and Human Services.
KCCD is a nonprofit, nonpartisan, faith-based community development organi.zatibn. KCCD’s mission is to educate and
empower Korean American churches so they can provide greater services to the community, beyond the four walls of
the churches, in partnership with the private and public sectors. KCCD provides timely information, capacity building
training, funding source data, proposal writing assistance, referral services, and collaboration for community and
economic development and financing.
SCHEDULE OF ACTIVITIES
Location: U.S. CAPITOL, 345 CANNON CAUCUS ROOM 8:30 AM - 9:00 AM
WELCOME
Hyepin Im, President, Korean Churches for Community Development
OPENING PRAYER
Reverend Ken Fong, Senior Pastor, Evergreen Baptist Church
Reverend Richard Seung Hoon Shin, Senior Pastor, Glory Church of Jesus Christ
Reverend Basilio Laforteza, Senior Pastor, Jesus the Only Way
INTRODUCTION / SPECIAL RECOGNITIONS

Hyepin Im
GREETINGS FROM THE PRESIDENT

Stanley. Carlson-Thies, Associate Director for Cabinet Center Affairs, White House Office of Faith-Based and Community
Initiatives
9:25 AM - 9:40 AM
SPECIAL PRESENTATION ON RESEARCH STUDY ON ASIAN AMERICAN CHURCHES
Dr. Jolly Beyioku, Program-Manager, Vision I_A/World Vision
Introductions by Jin Kim, Vice President, Korean Churches for Community Development
9:40 AM - :~0:00 AM
OVERVIEW OF FAITH- BASED INITIATIVE
Lisa Cummins, Task Force on White House Office of Faith - Based and Community Initiative, Corporation for National a
and Community Service
John Duong, Executive Director, White House Initiative on Asian Americans and Pacific Islanders
Introductions by Richard Macias, Board Member, Korean Churches for Community Development
:10:00 AM a 10::15 AM
BREAK
10::~5 AM - :12:00 PM
SESSIONS - FAITH PANEL C~&A OLC 000057
James A. Davids, Deputy Director, Faith - Based Task Force, U.S. Department of Justice
Robin McDonald, Director, Center for Faith - Based and Communitylnitiatives, I3.S. Departmer~t of Housing and urban
Development
Brent Orrell, Director, Office of Faith-Based and Community Initiatives, U.S.

Department of Labor
Reverend Mark Scott, Co-Director, Task Force on the White House Faith-Based and Community Initiatives, Corporation
for National and Community Service
Elizabeth Seale, Director, Center for Faith - Based and Community Initiatives, U.S. Department of Health and Human
Services
Introductions by Michael Mata; Director of Urban Leadership Institute & Advisory Board Member of Korean Churches
for Community Development & Debbie Lim, Attorney-at-Law, Board Member of Korean Churches for Community
Development
FAITH PANEL RESPONSE
Reverend Chong Hee Yim, President, Korean Gospel Broadcasting Company
Reverend Won Sang Lee, Senior Pastor, Korean Central Presbyterian. Church
Reverend Jae Ryung Whang, Executive Pastor, Oriental Mission Church
Reverend Dennis Manpoong Kim, Senior Pastor, Global Mission Church of Greater Washington
Introductions by Fanny Kim, Board Member, Korean Churches for Community Development & Jee Lee, Executive
Director of Shalom Center & Staff of Korean Churches for Community Development
:~2:00 PM - :[: 30 PM
LUNCH
SPECIAL MUSIC
Johanna Park
LUNCH PRAYER
Reverend Kyung Lim Shin Lee, Vice President, Wesley Theological Seminary
KEYNOTE SPEAKER
Jim Wallis, Editor, Sojourners Magazine
1:30 PM- 1:45 PM

BREAK
:[:45 PM - 2:45 PM
TESTIMONY - "SUCCESS STORY" / Q&A
David Wu, Executive Director, Pui Tak Center

OLC 000058
Location: Steps of Capitol, Western Lawn
2~45 PM - 3:30 PM
PRAYERS FOR THE NATION

Reverend Keith Park, Senior pastor, GMI Southland Church
Reverend Albert Hahn, Senior Pastor, Vision of Peace Church
Reverend Earnest Park, President, Christian Spiritual Movement, USA
¯ Reverend Bishop Peter Hwang, Senior Pastor, First Korean Baptist Church of Philadelphia, Newly Elected Upper Darby
School Board
Reverend Daniel Kim, Senior Pastor, River of Life Church
:.GROUP PHOTO
3!30 PM- 4:30 PM

CAPITOL TOUR
4:30 PM - 6:30 PM
BREAK
Location: (U.S. Capitol, 345 Cannon Caucus Room)
6:30 PM - 9:00 PM
DINNER / CLOSING CEREMONY
MUSIC
Elijah Bang & Kathy Oh
PRAYER
Reverend Seung Woo Lee,Senior Pastor, National Korean United Methodist Church
MUSIC PRESENTATION
YMCA Choir
Congressman Lane Evans

Congressman Xavier Becerra
KEYNOTE SPEAKER
Honorable John Yoo, Deputy Assistant Attorney General
Reverend Earl Lee, Shiloh Baptist Church
CLOSING PRAYER
Reverend Joung Myung Song, Senior Pastor of Mijoo Peace Church
GROUP PHOTO SESSION OLC 000059

Hyepin.lm
Do You Yahoo!?
Find a job, post your resume on Yahoo! Careers.
Hyepin Im
Do You Yahoo!?
OLC 000060
Page 1 of 5
Here’s some helpful information. If you have any questions, please call me at .... -:
Hyepin Im
Location of Event:
I wanted to pass this information to
you. Attached is flae latest program
which will be held on Tuesday,
November 13th, at
US Capitol
Cannon Caucus Room (Room 345)
Comer of Independence Way & New
Jersey
Par_p~E~g~n Information:
Nearest parking lot, $5 all day
it is on the 400 block of South Capitol

Street SW, between E and I Street,
SW. The entrance is at the
intersection.
FOR IMMEDIATE RELEASE

Media Contact:
Hyepin Im
www.kccd3300.org
"Lighting the Community" Conference Joins

National Delegation of Asian American Church "
and Nonprofit Leaders for Faith-Based Economic
Development onNovember 13,2001
Washington, DC, U.S. Capitol 345 Cannon Caucus Room - On November 13,200,1,
national and faith based leaders will gather to address issues of the state
of the nation, including economic development and faith based initiatives.
Attendees of the conference will join together on the steps of the Capitol in
prayer for the nation.
Featured keynote speakers include Bush appointee Jolm Yoo, Deputy Assistant
Attorney General in the Office of Legal Counsel in the U.S. Department of
Justice,
Jim Wallis, Editor for Sojourner Magazine and Convener for a "Call to
Renewal," and Reverend Lee Earl of Shiloh Baptist Church.
The conference will include an overview of faith based initiatives with panel
discussions and featured speakers from the White House and Directors from the
Faith-based and Community Initiative Offices at the Departments of HUD,
OLC 000061
Page 2 of 5
Justice, Labor and Health and Human Services.
KCCD is a nonprofit, nonpartisan, faith-based community development

organization. KCCD’s mission is to educate and empower Korean American
churches so they can provide greater services to the community, beyond
the four walls of the churches, in partnership with the private and public
sectors. KCCD provides timely information, capacity building training,
funding source data, proposal writing assistance, referral services,
and collaboration for community and economic development and financing.
SCHEDULE OF ACTIVITIES
Location: U.S. CAPITOL, 345 CANNON CAUCUS ROOM

8:30 AM - 9:00 AM
WELCOME
Hyepin Im, President, Korean Churches for Community Development
OPENING PRAYER
Reverend Ken Fong, Senior Pastor, Evergreen Baptist Church
Reverend Richard Seung Hoon Shin, Senior Pastor, Glory Church of Jesus Christ
Reverend Basilio Laforteza, Senior Pastor, Jesus the Only Way
INTRODUCTION / SPECIAL RECOGNITIONS

Hyepin Im
GREETINGS FROM THE PRESIDENT

Stanley Carlson-Thies, Associate Director for Cabinet Center Affairs, White
House Office of Faith-Based and Community Initiatives
9:25 AM - 9:40 AM
SPECIAL PRESENTATION ON RESEARCH sTuDY ON ASIAN AMERICAN CHURCHES
Dr. Jolly Beyioku, Program Manager; Vision LA/World Vision
Introductions by Jin Kim, Vice President, Korean Churches for Community

Development
9:40 AM - 10:00 AM
OVERVIEW OF FAITH- BASED INITIATIVE
Lisa Cummins, Task Force on White House Office of Faith - Based and Community
Initiative, Corporation for
National a and Community Service
John Duong, Executive Director, White House Initiative on Asian Americans and
Pacific Islanders
OLC 000062
Page 3 of 5
Introductions-by Richard Macias, Board Member, Korean Churches for Community

Development
10:00 AM - 10:15 AM
BREAK
10:15 AM- 12~00 PM

SESSIONS - FAITH PANEL Q&A
James A. Davids, Deputy Director, Faith - Based Task Force, U.S. Department
o f Justice
Robin McDonald, Director, Center for Faith - Based and Community Initiatives,
U.S. Department of Housing and Urban Development
Brent Orrell, Director, Office of Faith-Based and Community Initiatives, U.S.

Department of Labor
Reverend Mark Scott, Co-Director, Task Force on the White House Faith-Basdd
and Community Initiatives, Corporation for National and Community Service
Elizabeth Seale, Director, Center for Faith - Based and Community

Initiatives, U.S. Department of Health and Human Services
Introductions by Michael Mata, Director of Urbar~ Leadership Institute &
Advisory Board Member of Korean Churches for Community Development & Debbie
Lim, Attorney-at-Law, Board Member of Korean Churches for.Community
Development
FAITH PANEL RESPONSE
Reverend Chong Hee Yim, President, Korean Gospel Broadcasting Company
Reverend Won Sang Lee, Senior Pastor, Korean Central Presbyterian Church
Reverend Jae Ryung Whang, Executive Pastor, Oriental Mission Church
Reverend Dennis Manpoong Kim, Senior Pastor, Global Mission Church of Greater
Washington
Introductions by Fanny Kim, Board Member, Korean Churches for Community

Development & Jee Lee, Executive Director of Shalom Center & Staff of Korean
Churches for Community Development
12:00 PM - 1" 30 PM
LUNCH
SPECIAL MUSIC
Johanna Park
LUNCH PRAYER
OLC 000063
Page 4 of 5
Reverend Kyung Lim Shin Lee, Vice President, Wesley Theological Seminary
KEYNOTE SPEAKER
Jim Wallis, Editor, Sojourners Magazine
1:30 PM - 1:45 PM
BREAK
1:45 PM - 2:45 PM
- TESTIMONY - "SUCCESS STORY" / Q&A
David Wu, Executive Director, Pui Tak Center
Location: Steps of Capitol, Western Lawn
2:45 PM - 3:30 PM
PRAYERS FOR THE NATION

Reverend Keith Park, Senior Pastor, GMI Southland Church
Reverend Albert Hahn, Senior Pastor, Vision of Peace Church
Reverend Earnest Park, President, Christian Spiritual Movement, USA
Reverend Bishop Peter Hwang, Senior Pastor, First Korean Baptist Church of
Philadelphia, Newly Elected Upper Darby School Board
Reverend Daniel Kim, Senior Pastor, River of Life Church
GROUP PHOTO
3:30 PM - 4:30 PM
CAPITOL TOUR
4:30 PM - 6:30 PM
BREAK
Location: (U.S. Capitol, 345 Cammn Caucus Room)
6:30 PM - 9:00 PM
DINNER/CLOSING CEREMONY
MUSIC
Elijah Bang & Kathy Oh
PRAYER
Reverend Seung Woo Lee, Senior Pastor, National Korean United Methodist Church
MUSIC PRESENTATION
YMCA Choir OLC 000064
Page 5 of 5
Congressman Lane Evans

Congressman Xavier Becerra
KEYNOTE SPEAKER
Honorable John Yoo, Deputy Assistant Attorney General
Reverend Earl Lee, Shiloh Baptist Church
CLOSING PRAYER
Reverend Joung Myung Song, Senior Pastor of Mijoo Peace Church
GROUP PHOTO SESSION
Hyepin Im
Do You Yahoo!?
Hyepin hn
Do You Yahoo!?
OLC 000065
From: Dave Smith .... .... ~
Sent: Tuesday, November 13, 2001 6:52 PM
To:
Subject: Revised Convention Schedule
Attachments: 2001 Lawyers Convention Schedule - Revised.doc; dsmith.vcf
2001 Lawyers dsmith.vcf (420 B)

~onvention Schedu..
Dear Convention Resistrant,
Thank you for registering for the 15th Annual Lawyers Convention.
¯ Attached to this email is a revised schedule for the Federalist Society’s 15th Annual Lawyers Convention. Please note
that the.morning sessions on.Thursday, November 15, will begin a half hour earlier than originally, planned. The
Welcome and Opening will nbw start the day off at 9:00AM, followed by Showcase Panel One~ All other events for that
day will also be starting earlier, including the Thursday evening receptions.
If you have registered to attend the Fifteenth Annual Laywers Banquet this Thursday evening, we request that you bring
a photo ID to the banquet for security purposes. We also request that you arrive prior to the banquet asthe doors will
lock promptly at 7:00PM and no one will be allowed in or out until after the speaker has finished speaking. Dinner will
be served immediately after the banquet speech.
OLC 000066
15th ANNUAL NATIONAL LAWYERS
CONVENTI[ON
SCHEDULE
Thursday, November 15
9:00 a.m.-I 1:00 a.m. Welcome and Opening
State Room
Mr. Leonard Leo
Vice President, Lawyers Division, The Federalist Society
Hon. Viet Dinh
Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
Showcase Panel One:

Judicial Decisionmaldng: The Case of Life, Liberty & Property in the Modern
Technological Age (Sponsor: Federalism & Separation of Powers Group)
Hon. Frank Easterbrook

U.S. Court of Appeals, 7~h Circuit
Professor John Eastman
Chapman University School of Law
Professor Jeffrey Rosen
George Washington University Law School
Professor Nadine Strossen
New York Law School and President, American Civil Liberties Union
Hon. Douglas Ginsburg (Moderator)
Chief Judge, U.S. Court of Appeals, D.C. Circuit
11:00 a.m.-I 1:30 a.m. What Now for Democratic Capitalism in the World Today?
State Room
Hon. Edwin Meese (Introduction)
Ronald Reagan Distinguished l~ellow in Public Policy, The Heritage
Foundation and former U.S. Attorney General
Mr. Steve Forbes
President and CEO, Forbes and Editor-in-Chief, Forbes Magazine
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t l :~5 a.m.- 1:15 p:m. Lunch Buffet (Ticketed Event with Open and Continuous Seating) -
Maryland/Massachusetts/
New Hampshire Rooms
.I1:45 a.m.-l:15 p.m. Practice Group Member Luncheons (Brief presentations will be made regarding the .
war against terrorism at many of the lunches)
Civil Rights--Baker & Hostetler*

(Racial Profiling in the War Against Terrorism, Roger Clegg, Center for
Equal Opportunity)
Corporations, ,Securities, & Antitrust--Gibson, Dunn & Crutcher**
(The Terrorist Threat to Insurance Markets, Francis Menton, Wiltkie Farr)
Criminal Law & Procedure--Mayflower Hotel, Rhode Island Room
(Criminal Procedure and the War on Terrorism, Kent Seheidegger, General
Counsel, Criminal Justice Legal Foundation)
Environmental Law & Property Rights-Mayflower Hotel, Pennsylvania Room
(Terrorism and the Threat from Right-to-Know Laws, Gregory Cote, Gadsby
& Hannah)
Federalism & Separation of Powers--Gibson, Dunn & Crutcher**
(War Powers, Professor Robert Turner, Associate Director, Center for National
Security Law, University of Virginia; War Against Terrorism: Law
Enforcement Versus National Security Dimensions, George Terwilliger, White
& Case and former Deputy U.S. Attorney General)
¯ Financial Services & E-Commerce--Mayflower Hotel, New Jersey Room
(Isolating & Detecting Terrorists: Application of the Bank Secrecy Act, Andy
Cochran, House Financial Services Committee and Dina Ellis, U.S. Department
of Treasury)
Professional Responsibility & Legal Education--Baker & Hostetler*
(Pro Bono Litigation, Professor John Eastman, Chapman University School of
Law)
Telecommunications & Electronic Media--Mayflower Hotel, North Carolina Room
1:30 p.m.-3:00 p.m. Administrative Law & Regulation Group

East Room What Next for Negotiated Rulemaidng?
Hon. C. Boyden Gray

Wilmer, Cutler & Pickering and former White House Counsel
Professor Philip Hatter
Director of the Program on Consensus. Democracy, and Governance, and
Visiting Associate Professor of Law, Vermont Law School
¯ Mr. Jay Letkowitz
General Counsel, White House Office of Management and Budget
Professor Jonathan Macey
Cornell Law School
Professor Michael DeBow (Moderator)
Cumberland Law School
*Baker & Hostetler is located at Washington Square, Suite 1100, 1050 Connecticut Avenue, N.W.
**Gibson, Dunn & Cmtcher is located at Washington Square, Suite 900, 1050 Connecticut Avenue, N.W.
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1:30 p.m.-3:00 p.m. Intellectual Property Group
Virginia Room Intellectual Property Rights: Advancing or Hindering Medical Breakthroughs?
Professor Scott Kieff

Washington University School of Law
Professor Julia Mahoney
University of Virginia School of Law
Dr. Robert Oldham
CEO, Cancer Therapeutics, Inc.
Professor Arti Rai
University of Pennsylvania Law School
Mr. Michael Werner
Director of Government Relations and Bioethics Counsel, Biotechnology
h~dustry Organization
Mr. Daniel Troy (Moderator)
Chief Counsel, Food and Drug Administration
1:30 p.m.-3:00 p.m. Professional Responsibility Group

State Room When Free Speech and Ethical Standards Collide
Professor Steve Lubet

Northwestern University Law School
professor David McGowan
University of Minnesota Law School
Hon. A. Raymond Randolph
U.S. Court of Appeals, D.C. Circuit
Hon. Harold See
Supreme Court of Alabama
Professor Richard Painter (Moderator)
University of Illinois Law School
3:15 p.m.-4:45 p.m. Financial Services & E-Commerce Group

Virginia Room Is Federalism Consistent with Nationwide Markets and Globalization? The Case of
the Insurance Industry
Mr. Bert Ely

Ely & Company
Mr. Noel Francisco
Assistant Counsel to the President, The White House
Mr. Robert Gordon
Senior Insurance Counsel, House Financial Services Committee
Dr: Michael Greve
American Enterprise Institute’s Federalism Project and Author, Real
Federalism
Mr. Gary Hughes
Senior Vice President and Chief Counsel, American Council of Life htsurers
Hon. Peter Wallison (Moderator)
American Enterprise Institute, former White House Counsel/Treasury
Department General Counsel
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3:15 p.m.-4:45 p.m- International & National Security Law Group
East Room The Alien Tort Claims Act: Are American Courts the World’s Policemen?
Professor Curtis Bradley

Professor Beth Stephens
Rutgers University Law School--Camden
Mr. Hamish Hume
Cooper & Kirk
Mr. Andrew Vollmer
Wilmer, Cutler & Pickering
Mr. John Yoo
Deputy Assistant Attorney General, U.S. Department of Justice Office of Legal
Counsel
Ms. Margaret Wilson (Moderator)
Deputy General Counsel, U.S. Department of Commerce
3:15 p.m.-4:45 p.m. Labor & Employment Group

State Room Labor Law for the 21st Century
Mr. Andrew Sift(Introduction)

Counselor to the Secretary, U.S. Department of Labor
Hon. Ann Combs
Assistant Secretary for Pension Welfare Benefits, Department of Labor
Mr. Don Kaniewski
Legislative and Political Director, Laborers’ International Union of North
America
Hon. Chris Spear
Assistant Secretary for Policy, U.S. Department of Labor
Hon. Cameron Findlay (Moderator)
Deputy Secretary, U.S. Department of Labor
5:00 p.m.-5:30 p.m. Address

State Room
Mr. John Irving (Introduction)
Kirkland & Ellis and former General Counsel, National Labor Relations
Board
Hon. Elaine Chao
Secretary, U.S. Department of Labor
5:30 p~m.-6:45 p.m_ Madison Club Reception (Invitation Only)

Cabinet Room
5:30 p.m.-6:45 p.m. 2001 Lawyers Reception

East Room
7:00 p.m. Fifteenth Annual Lawyers Banquet (Ticketed Event)

Grand Ballroom Address by Hon. Richard Cheney, Vice President of the United States
OLC 000070
Friday, November
9:30 a.m.-10:00 a.m. Address
State Room
Hon. Gale Norton
Secretary, U.S. Department of Interior
10:00 a.m.-12:00 p.m. Showcase Panel Two:

State Room Judicial Decisionmaldng: The Case of Judicial Oversight of the Political Process
(Sponsors: Free Speech & Election Law and Civil Rights Groups)
Hon. Ralph Boyd

Assistant Attorney General, U.S. Department of Justice, Civil Rights Division
Mr. Michael Carvin
Jones, Day, Reavis & Pogue and Counsel in Bush v. Gore
Professor Dan Lowenstein
UCLA Law School
Professor Nelson Lund
George Mason Law School
Mr. Joshua Rosenkranz
President and CEO, Brennan Center; NYU Law School
Dr. Abigail Themstrom
U.S. Civil Rights Commission
Mr. Paul Clement (Moderator)
Deputy U.S. Solicitor General
12:00 p.n~-l:30 p.m. Lunch Buffet (Ticketed Event ~vith Open and Continuous Seating)
Maryland/Massachusetts/
New Hampshire Rooms
12:00 p.m.-l:30 p.m. Practice Grpup Member Luncheons (Brief presentations will be made regarding the
war againstterrorism at many of the lunches)
Administrative Law & Regulation--Mayflower Hotel, Rhode Island Room

(Aviation Security, Tara Branum, Fulbright & Jaworski)
Free Speech & Election Law--Mayflower Hotel, New Jersey Room
(Surveillance and Wiretap Law in the Wake of America’s War on Terrorism,
Mr. Tom Gede, Executive Director, Conference of Western Attorneys General)
Intellectual Property--Gibson, Dunn & Crutcher**
International & National Security Law--Baker & Hostetler*
(Domestic Use of Troops Issues, Mr. Paul Stevens, former Counsel; National
Security Counsel)
Labor & Employment--Mayflower Hotel, New York Room
(Reemployment of.Members of the Armed Forces, John Irving, Kirkland &
Ellis; Workplace Safety and Security in a Worm of Terrorism, Joseph McHugh,
Reed Smith)
.Litigation--Gibson, Dunn & Crutcher**
(Liability Issues Presented by Terrorist Activity, Robert McConnell, Hawthorne
& York)
Religious Liberties--Mayflower Hotel, Pennsylvania Room
(The Future of Human Rights" in Islam, Professor David Forte, Cleveland-
Marshall College of Law)
1:45 p.m,-2.:30 p.m. Barbara K. Olson Memorial Lecture

State Room
Hon. Robert Bork (Introduction)
Senior Fellow, American Enterprise Institute
Hon. Theodore Olson
Solicitor General of the United States
*Baker & Hostetler is located at Washington Square, Suite 1100, 1050 Connecticut Avenue, N.W.
**Gibson, Dunn & Crutcher is located at Washington Square, Suite 900, 1050 Connecticut Avenue, N.W.
OLC 000071
2:45 p.m.-4:15 p.m. Showcase Panel Three:
State Room Judicial Decisionmaldng: Judicial Enforcement of the Boundaries of Government
Power
(Sponsors: F~deralism & Separation of Powers and Administrative Law &
Regulation Groups)
Mr. Elliot Mincberg

Executive Vice P~esident, People for the American Way
Hon. Lee Liberman Otis
General Counsel, U.S. Department of Energy
Hon. Kenneth Starr
Kirkland & Ellis, former U.S. Solicitor General and former Judge, U.S. Court
of Appeals, D.C. Circuit
Professor Cass Sunstein
University of Chicago Law School
Hon. David Sentelle (Moderator)
U.S. Court of Appeals, D.C. Circuit
4:30 p.m.-6:00 p.m. Religious Liberties Group

"State Room Moment of Silence Debate
(to be. taped for broadcast on National Public Radio’s "Justice Talking" Program)
Hon. Walter Dellinger

O’Melveny & Myers and former U.S. Solicitor General
tton. William Pryor
Alabama Attorney General
Ms. Margot Adler (Moderator)
National Public Radio
4:30 p.m.-6:00 p.m Criminal Law & Procedure Group

..East Room Litigating the High Profile Case
Mr. Robert Bennett

Skadden, Arps, Slate, Meagher &.Flora and former Counsel to President Bill
Clinton
Mr. Plato Cacheris
Law Offices of Plato Cacheris and former Counsel to Monica Lewinsky
Mr. Roger Cossack
Burden of Proof CNN
Hon. James Robert, son
U.S. District Court, Washington, D.C.
Mr. Michael Madigan (Moderator)
Akin, Gump, Strauss, Hauer & Feld
4:30 p.m.-6:00 p.m Free Speech & Election Law Group

Cabirtet Room The Bartnicki Case and Privacy
Professor Lillian BeVier

University of Virginia Law School
Mr. John Malcolm
Deputy Assistant Attorney General, Criminal Division, U.S. Department of
Justice
Mr. Marc Rotenberg
Executive Director, Electronic Privacy Information Center
Mr. Stuart Taylor
Editor, National Journal
Professor Eugene Volokh
UCLA Law School ’
Mr. Manuel Klausner (Moderator)
Individual Rights Foundation and Reason Foundation
OLC 000072
6:30 p.m.-8:30 p.m. Lawyers Division’s 15th Anniversary Reception -
U.S. Supreme Court (Ticketed Event)
Saturday, November 17
8:00 a.m.-9:30 a.m. Briefings on Legal Issues Surrounding America’s War on Terrorism
State Room
Hon. Frank Keating
Governor of Oklahoma and former U.S. Associate Attorney General
Hon. Larry Thompson
Deputy Attorney General of the United States
Professor Robert Turner
Associate Director, Center for National Security Law, University of Virginta
Hon. Edwin Williamson
Sullivan & Cromwell and former Legal Advisor to the State Department under
former President Bush
Mr. John Yoo (Moderator)
Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department~.
of Justice
9:30 a.m.-I 1:15 a.m. Environmental Law & Property Rights Group
East Room Property Rights Protection: Judicial Activism or a Return to First Priuciples?
Professor Peter Byrne

Georgetown Law School
Professor James Ely
Vanderbilt Law School
Mr. Douglas Kendall
Founder and CEO, Community Rights Counsel
Dean Doug Kmiec
Columbus School of Law, Catholic University
Dr. Roger Pilon
Vice President for Legal Affairs, Cato Institute
Hon. Roger Marzul|a (Moderator)
Marzulla & Marzulla and former Assistant U.S. Attorney General
9:30 a.m.-I 1:15 a.m. Litigation Group

State Room The Role of Juries
Mr. John Coale

The Castano Group
Professor Ted Eisenberg
Cornell Law School
Professor George Priest
Yale Law School
Dr. Donald Vinson
Vinson & Dimitrius
Mr. Paul Harris (Moderator)
Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice
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9:30 a.m.-I 1:15 a,m. Telecommunications & Electronic Media Group
Cabinet Room The FCC Versus the Constitution
Hon. Jane Mago

General Counsel, Federal Communications Commission
Mr. Randolph May
Senior Fellow, Progress & Freedom Foundation
Mr. Andrew Schwartzman
Media Access Project
Mr. Gregory Sidak
American Enterprise Institute
Hon. Stephen Williams (Moderator)
US. Court of Appeals, D.C. Circuit
11:30 a.m.-l:00 p,m. Showcase Panel Four:

State Room Judicial Decisionmaking: Precedent & Constitutional Meaning
(Sponsors: Federalism & Separation of Powers and Litigation Groups)
Professor William Eskridge, Jr.

Deputy Dean, Yale Law School
Hon. William Fletcher
U.S. Court of Appeals, 9~j’ Circuit
Professor Caleb Nelson
University of Virginia School o fLaw
Hon. Diarmuid O’Scannlain
U.S. Court of Appeals, 9~h Circuit
Hon. Timothy Flanigan (Moderator)
Deputy Counsel to the President, The White House
¯1:00 p.m.-3:00 p.m. Convention Luncheon:

Grand.Ballroom Bush v. Gore: A One Year Retrospective
Mr. Phil Beck

Bartlit Beck and Bush Legal Team
Mr. Ronald Klain
O’Melveny and Myers and Gore Legal Team
Mr. Tim O’Brien
CNN Correspondant and former ABC News Legal Correspondant
Mr. Joseph Smith (Moderator)
Bartlit Beck
3:00 p.m.-4:30 p.m. Corporations, Securities & Antitrust Group

Cabinet Room Does the SEC Believe in Free Speech?
Mr. Robert Giuffra

Sullivan & Cromwell
Mr. Paul Gonson
Kirkpatrick & Lockhart and former Solicitor, Securities & Exchange
Commission
Mr. Joseph McLaughlin
Sidley & Austin and former General Counsel, Goldman Sachs
Hon. Alex Kozinski (Moderator)
-U.S. Court of Appeals, 9~’ Circuit
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3:00 p.m.-4:30 p.m. Civil Rights Group -
East Room The Future of Racial Preferences: Is tile Issue on the Brink of Resolution at Last?
professor James Coleman

Duke Law School
Professor Gail Heriot
University of San Diego Law School
Mr. Michael Rosman
General Counsel, Center for Individual Rights
J. Michael Wiggins (Moderator)
Deputy Assistant Attorney General, U.S. Department of Justice, Civil Rights
Division
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Leadership and WorMng Group
Thursday, November 15
7:30 a.m,-9:00 a;m. Practice Groups Chairmen: Annual Meeting
Maryl and Roo m
1:30 p.m.-3:00p.m. Securities Reform Working Group

Board. Room
4:00 p.m.-6:00 p.m. Board of Visitors/Business Advisory Council: Annual Meeting

Board Room
Friday, November 16
8:00 a.m.-9:30 a.m. Lawyers Chapters Leadership Breakfast
East Room
8:00 a.m.-9:30 a.m. Practice Groups Publicatious Vice Chairmen: Annual Meeting
Board Room
11:30 a.m.-l:30 p.m. Crimiualization of Commercial Activity Working Group

Board Room
8:30 p.m.-10:00 p.m. National Practitioners Advisory Council Reception

Mayflower Suite (Room 210)
Saturday, November 17
9:30 a_m.-I 1:30 a.m. National Practitioners Advisory Council: Annual Meeting
South Carolina Room
6:30 p.m. Annual Lawyers Leadership Dinner

Morton’s Stealdaouse (Ticketed Event)
1050 Connecticut Avenue, N.W.
OLC 000076
Full Name: C. David Smith _
Last Name: Smith
First Name: C. David
Job Title: Membership Director
Company: The Federalist Society for Law and Public Policy Studies
Other Address:
Business:
Business Fax:
E-mail:
E-mail Display As:
OLC 000077
From: Perez, Antonio F -
Sent: Friday, November 16, 2001 1:23 PM
To: ’john.c.yoo@doj.gov’
Subject: FW: Nov19 Panel
f’~_ ~5,~" J2~" ~

FYI . As I said, 5:30 -- 7:30 at A&P, the Paul Porter room.
Original Message .....
From: Crocker, Tom
Sent: Thursday, November 15, 2001 3:07 PM
To; ’: ........
Subject: RE: Nov 19 Panel
Bruce-- Should we talk about what we need to be covering at this seminar, as

it is next Monday?
......Original Message .....
From: Bruce Zagaris
Sent: Saturday, October 06, 2001 11:13 AM
To= Harry Marshall
Cc: Receipt Notification.Requested; Crocker, Tom; John Harris; Anthony
Perez; David B. Sullivan; Jennifer E. Levy; Nancy Perkins
Subject: Re: Nov 19 Panel
Harry:
Thanks for your message. I do not have John Harris email address, but
Presume it.is as I have listed. Can you please notify Yoo and obtain
any suggestions from him?
I propose the following order and time guidelines for the panel. Please
let me know your thoughts and suggestions.
As I think you know, Anthony Perez and David Sullivan are my Committee’s
cochairs and Tony and I have done most of the organization work.
Zagaris-~in~roduce panel & panelists (2-3 min.)
5 Panelists in prop. order (they should speak 12-15 min.-)
-i) Noone--existin~ int’l terrorist laws
2) Karris--evid-gathering in the prosecution of. int’l terrorist cases
3) Marshall--obtaining custody in int’l terrorist cases
4) CrockerL-anti-terrorist finans, sanctions, esp. exec. order of Sept.
23 and aftermath
5) Yoo--prop. anti-terrorist legislation.
6) Levy--comments (approxim. 5 min.)
question& answer
Anthony Perez--final remarks (2-3 min.)
Harry M~rshall wrote:
>
> Date: 10/06/2001 I0:01 am-0400 (Saturday)
> From: Harry Marshall
> To:
> CC: Olson, Jeffrey
> Subject: Re: Nov 19 Panel
>
>
OLC 000078
Could you let. me know which panelists you expect to address the various_
aspect-s-of the p~o~am described in the flyer? Many thanks.
>>>.Bruce Zagaris 09/28/01 04~40PM >>> -

Domini.ck:
As we discussed, a~tached in word perfect and Rich Text Format is the
final flyer for dissemination.
Bruce Zagaris
Berliner Corcoran & Rowe
>
>.
NOTICE~ This e-mail message and ail attachments transmitted with it may contain legally
privileged and confidential infQrm~tion intended solely for the Use of the addressee. If
the reader of this message is not the intended recipient, you are hereby notif±ed that any
reading, dissemination, distribution, copying, or other use ofthis message or its
attachments is strictly prohibited. If you have received this message in error, please
motify the sender immediately by telephone,S’or by electronic mail
(postmaster@alston.com), and delete this message and all copiEs.and backups thereof.
Thank you.
OLC 000079
Colurabus School The Catholic Universit), of AmeriCa - Office of the Facull)t
CUA
FAX
Number of pages,
including cover sheet:
FROM:
Phone: Phone:
Fax:
REMARKS: [] Urgent d For your review o Reply ASAP [] Please Comment
TI~e ~n~’ormafion in this tdcfax communication is confidential and hate~aded fox the use af the individual or entity named above. If
OLC 000080
the reader of this message is not the intended recipient, any reading, distribution or copying of this communication is prohibited.
If you h~ve received this information in error, pleaxe notify the send~- ~IlIi~!~nd destroy the fax mes~ge.
From: Jack Goldsmith
Sent: Monday, November 26, 2001 3:38 PM _
To: Yoo, John C
Subject: RE: another applicant
tmp.htm (7 KB)
see questions below
I primarily want to ask John Yoo about historical practice, especially to make sure I’m not missing anything major.
I’ve provided some minimal background and then asked some questions at the bottom. What do you think? Is this too
much nonsense? Are there other things you think he’d be especially helpful with? Let me know. I’m going to Regenstein
right now, but will be back in a couple of hours¯
The .presidential power to unilaterally withdraw signed treaties from the Senate Questions for John Yoo
Historical Practice:
1. With a few exceptions, I’ve found that the President usually requests return of the treaty through a written message
in a deferential manner.
a. Examples:
il First instance I found: On 8/9/~L856, Franklin Pierce requested the return of an extradition treaty with the Netherlands
writing, "Deeming it advisable to withdraw that instrument from the consideration of the Senate, I request that it may
be returned to me."
ii. More recently: FDR used similar "1 request the return" language a few times b. The Senate usually responds with an
order or resolution by. unanimous consent returning the treaty in compliance with the President’s request¯
2. However, sometimes the President uses more forceful language.
a. Examples:
i. Grover Cleveland on 4/2/1885: "For the purpose of its reexamination I withdraw an additional article.., to the treaty
1. Similar response as above

ii. Most notably: FDR on 1/:12/1934: "Due to changed conditions... I withdraw from the Senate the treaty to regulate
[relations with Turkey]..
1. Senate response (Mr. Pittman): "Mr. President, I take it that the withdrawal is simply notice to the Senate that the
President has constitutional authority to withdraw it and does withdraw it. I ask unanimous consent that the Senate
recognize the withdrawal of the treaty by the President."... (Presiding Officer) "Without objection it is so ordered."
2. Note: the treaty had been voted on and failed 2/3 requirement, but not returned to President
3. Question 3_: In every instance I’ve looked at, the President has received Senate consent through a resolution or an
order. Are there any instances when the President withdrew a signed treaty without Senate consent, or at least without
a resolution or an order (that seem to signify consent) granting the withdrawal?
4. Question 2: What is the significance of Mr. Pittman’s response to FDR above ("... the President has constitutional
authority to withdraw it..
’a. Does it matter that the treaty had been voted on and reiected {but not returned)?
OLC 000081
5. Question 3: Do you think the rhetoric of the President’s message to the Senate is significant (e=g. "1 request the return
¯.." vs. "1 withdraw.
¯ .")? It seems strange that President Cleveland writes "1 withdraw the treaty," ira_plying the Senate has no discretion in
the matter, and then the Senate responds with an order returning the treaty (as if they have discretion).
At 04:25 PM 11/26/2001 -0400, you wrote:

>Yes. I assume that means that you aren’t being asked to testify in
>person. But what you send will be included in the printed hearing
>record, which is always good.
>
>From: Jack Goldsmith i
>Sent: Monday, November 26, 2001 2:59 PM
>To: Yoo, JohnC
>Subject: RE: another applicant
>They asked me to submit something for the record in these hearings --

>is that worth doing?
>
>At 02:18 PM 11/26/2001 -0400, you wrote:
> >Not yet; you might have him Fax it too. The fax number is
>>
> > ..... Original Message .....
> >From: Jack Goldsmith
> >Sent: Monday, November 26, 2001 12:11 PM
>>To: Yoo, John C
> >Subject: RE: another applicant
>>
> >OK. Did you get the application from ~l~l~ts son in law?
>>
> >At 12:$5 PM 11/26/2001-0400, you wrote:
> > >Aside from the last ~ame, she looks good to me. Have her just
> > >e-mail or fax her stuff, because we are notgetting mail yet.
>>>
> > > ..... Original Message .....
> > >From: Jack Goldsmith.
> > >Sent: Monday, November 26, 2001 10:38 AM
>>>To: Yoo, JohnC
> > >Subject: another applicant
>>>
> > > << File::~ Resume.doc >> Attached is the resume of another
> > >applicant I hope you’ll take very very seriously. Her name is
> > >:~ She’s the President of the Federalist Society and
> > >will beclerking for Easterbrook. She is
> absolutely
> > >first rate -- my very highest recommendation. She’s so good that
> she’s the
> > >RA for about S faculty members -- seriously. You have to hire OLC 000082
2
> her. She’ll
> > >fed ex her stuff tonight. J
OLC 000083
Page 1 of 2
see questions below
I primarily want to ask John Yoo about historical practice, especially to make sure Pm not missing
anything major. I’ve provided some minimal background and then asked some questions at the bottom.
What do you think? Is this too much nonsense? Are there other things you think he’d be especially
helpful with? Let me know. I’m going to Regenstein right now, but will be back in a couple of hours.
The presidential power to unilaterally withdraw signed treaties from the Senate
Questions for John Yoo
Historical Practice:
1. With a few exceptions, I’ve found that the President usually requests return of the treaty through a
written message in a deferential mannerl
a. Examples:
i. First instance I found: On 8/9/1856, Franklin Pierce requested the return of an extradition treaty with
the Netherlands writing, "Deeming it advisable to withdraw that instrument from the consideration of
the Senate, I request that it may be returned to me."
ii. More recently: FDR used similar "I request the return" language a few times
b. The Senate usually responds with an order or resolution by Unanimous consent returning the treatyin
compliance with the President’s request.
2. However, sometimes thee President uses more forceful language.
a. Examples:
i. Grover Cleveland on 4/2/1885: "For the purpose of its reexamination I withdraw an additional article.
¯. to the treaty .... "
1. Similar response as above
ii. Most notably: FDR on 1/12/1934: "Due to changed conditions ....I withdraw from the Senate the
treaty to regulate [relations with Turkey] .... "
1. Senate response (Mr. Pittman): "Mr. President, I take it that the withdrawal is simply notice to the
Senate that the President has constitutional authority to withdraw it and does withdraw it. I ask
unanimous consent that the Senate recognize the withdrawal of the treaty by the President."...
(Presiding Officer) "Without objection it is so ordered."
2. Note: the treaty had been voted on and failed 2/3 requirement, but.not returned to President
3. Question l" In every instance I’ve looked at, the President has.received Senate consent through a
resolution or an order. Are there any instances when the President withdrew a signed treaty without
Senate consent, or at least without a resolution or an order (that seem to signify consent) granting the
withdrawal?
4. Question 2: What is the significance of Mr. Pittman’s response to FDR above ("... the President has
constitutional authority to withdraw it...")?
a. Does it matter that the treaty had been voted on and rejected (but not returned)?
5. Question 3: Do you think the rhetoric of the President’s message to the Senate is significant (e.g. "I
request the return.. 2’ vs. "I withdraw.. .")? It seems strange that President Cleveland writes "I
withdraw the treaty," implying the Senate has no discretion in the matter, and then the Senate responds
with an order returning the treaty (as if they have discretion).
OLC 000084
Page 2 of 2
At 04:25 PM 11/26/2001 -0400, you wrote:
Yes. I assume that means that you aren’t.being asked to testify in person. But~chat you
send will be included in the printed hearing record, which is always good.

From: Jack Goldsmith
Sent: Monday, November 26, 2001 2:59 PM
To: Yoo, John C
Subject: RE: another applicant
They asked me to submit something for the record in these hearings -- is

that worth doing?
At 02:18 PM 11/26/2001 -0400, you wrote:

>Not yet; you might have him fax it too. The fax number is ~
Original Message ......

>From: Jack Goldsmith
>Sent: Monday, November 26, 2001 12:11 PM
>To: Yoo, John C
>Subject: ¯ RE: another applicant
>
>OK. Did you get the application from ~s son in law?
>
>At 12:55 PM 11/26/2001 -0400, you wrote:
> >Aside from the last name, she looks good to me. Have her just e-mail or
> >fax her stuff, because we are not getting mail yet.
>>
> > .....Original Message .....
>>From: Jack Goldsmith i
> >Sent: Monday, November 26, 2001 10:38 AM
> >To: Yoo, John C
> >Subject: another applicant
>>
> > << File: ~ Resume.doc >> Attached is the resume of another applicant
>> I hope you’ll take very very
> >seriously. Her name is ~~ll~. She’s the President of the
> >Federalist Society and wilt be clerking for Easterbrook. She is absolutely
>>first rate -~ my very highest recommendation. She’s so good that she’s the
>>RA for about 5 faculty members -- seriously. You have to hire her. She’ll
>>fed ex her stuff tonight. J
OLC 000085
Bryant, Dan
Thursday, November 29, 2001 10:26 AM -
To: O’Brien, Pat; Chertoff, Michael; Elwood, John; Yoo, John C; Philbin, Patrick
FW: Gonzales on militarv tribunals
PBS -~ NewsHour w/Jim Lehrer, 11/28/01
JIM LEHRER: Mr. Gonzales, welcome.
ALBERTO GONZALES, Counsel to President Bush:

Good evening.
JIM LEHRER: First, is the president having any second

thoughts about this military tribunal decision?
ALBERTO GONZALES:
Absolutely not, Llim. This
nation is at war. And the
President felt it absolutely
essential that he have this
tool available to him.
JIM LEHRER:Is there,

were you and the President expecting this kind of growing
storm about it?
ALBERTO GONZALES: I don’t know if I would

characterize it as a growing storm, Jim. I think what you’re
seeing from the Hill is the exercise by Congress of its
oversight role of actions by the executive branch. So I
wouldn’t call it a storm of criticism.
Again, I think people of course are looking at the actions

carefully, as they should be. This is an extraordinary action;
generally. It is not extraordinary in a time of war. There is a
long line of precedent for this type of action during these
times of war. But again, I think Congress is simply doing
what it should be doing during this time.
Fair to foreigners?
JIM LEHRER: New York Times columnist Anthony Lewis
was on this program last night and he said the way the
order is drafted, some 20 million foreigners living in the
United States could be tried under this. Is he right?
ALBERTO GONZALES: Well, let me just say, Jim, that

the order is requiring the president of the United States
himself to make a determination that is in the best interests
of this country, that a member of aI-Qaida or another
OLC 000086
terrorist from another terrorist group or someone who has
harbored a member of aI-Qaida, that that person should
be subject to the jurisdiction of military commissions. And
again, the commission is only going to be entitled to try
someone for violations of the law of war.
JIM LEHRER: But why was it

not more specific in terms of
aI-Qaida and Osama bin Laden
and those folks?
ALBERTO GONZALES: To
provide maximum flexibility for
this president to deal with contingencies unforeseen, Jim.
JIM LEHRER: So in other words it could apply to people

beyond aI-Qaida?
ALBERTO GONZALES: Well, again, we need to wait
and see if the regulations promulgated by the Department
of Defense. This is only the first step that’s been taken. The
Department of Defense is now in the process of
promulgating the rules and regulations by which -- which
will govern these military commissions.
! will tell you that already the Department of Defense has

had informal consultations with the Department of Justice,
it will have formal consultationswith DOJ and other
agencies so that people should feel comfortable that the
rules promulgated by the Department of Defense will be
fair. Terrorists were tried pursuant the military commissions
will receive a full and fair trial. That is the command from
the commander in chief, down to the secretary of defense.
And one final thing to provide reassurance to the citizens of

the United States, I have every expectation when these
regulations are promulgated by the Department of Defense
that they will be made public and people will be able to
judge for themselves that in fact the secretary of defense
has followed the orders of the commander in chief.
JIM LEHRER: We heard just now on tape Mr. Chertoff’s

answer to Senator Leahy~s concern that this sends a
terrible message to the world that it says we don’t have
confidence in our own judicial system. How would you
respond to Senator Leahy?
ALBERTO GONZALES: I
strongly disagree with that.
There are other ways that we
have historically dealt with
people who have committed
crimes, we have court-martials,
for example, we’ve had provost
courts, we’ve had military commissions in the past.
The criticism that we may have leveled around the world at

other countries regarding military trials or secret trials
stems from the fact that we have not had confidence that
the trials were of themselves independent and impartial.
Here in the United States, we have a statute that provides

that military officers Who participate military proceedings
like military commissions must discharge their
2 OLC 000087
responsibilities in a fair and impartial manner.
JIM LEHRER: Columnist William Sapphire made that very

point that we would be outraged if China, for instance, sets
up a military tribunal like this similar to what we are
proposing.
ALBERTO GONZALES: Well, I must disagree with that. :

I believe that a military commission is not unfair simply
because it’s a military commission. You must look at the
procedures. The rules and regulations governing the
commission determine whether or not it is fair, and-whether
or not a country should be outraged. And again it’s
premature at this juncture to judge that because the rules
and regulations have not been promulgated as of yet.
Impact on minorities
JIM LEHRER: Earlier in the program, Margaret Warner
interviewed the Egyptian foreign minister, and he
expressed concern that not only the military tribunals but
these large detentions of foreign nationals here in the
United States, that they not be directed solely or mostly at
Arabs and Muslims. What can you say to him about that?
ALBERTO GONZALES:
Well, none of these decisions have been based
on race or ethnicity, Jim, I can reassure the American
people and our allies around the world that that has not been the basis for any of the decisions made in this
administration.
JIM LEHRER: But is it’s not in fact true that the over 600
detainees now that still remain, most of them are Middle
East origin?
ALBERTO GONZALES: They may be of Middle East

origin, Jim, I don’t know for sure. But what I understand
and you’ll have to talk with the folks at the Department of
Justice about this, is that the decisions were based
primarily on where people came from, the country of origin
-- their age range, and things of that nature -- not based
upon race or ethnicity or religion.
Who decides to set up tribunals?
JIM LEHRER: How involved are you and the president in
this overall program, this overall plan, this anti-terrorist
plan that Attorney General Ashcroft is announcing and has
announced one piece at a time?
ALBERTO GONZALES: I’m sorry, Jim, did you say--.
JIM LEHRER: How involved are you and the president,

you directly or you on the president’s behalf in formulating
these plans?
ALBERTO GONZALES: Well, the president has a great

deal of confidence in members of his cabinet, Jim; that is
the way he operates and he manages. And he picks good
people to deal with responsible jobs, and the first of,
defers to their judgment.
Obviously, he’s advised every step of the way. He does

get involved in making key decisions, was involved in
making some key decisions regarding military
commissions. So he is very much involved in the war going
on here in the homeland, as well as overseas.
OLC 000088
JIM LEHRER: Sure. How about you as White House
counsel?
ALBERTO GONZALES:
Obviously, all of his top advisors
are involved in advising the
president on a myriad of issues
we have to confront daily in
connection with this war.
JIM LEHRER: In terms of the

detainees, here again there’s been some criticism of that. I
won’t use the word storm again, I won’t use any word,
there’s been some criticism of the detainees. Is it correct,
what’s been written in the last few days, that the real
priority now of the anti-terrorism effort by the FBI and
Justice Department is aimed at preventing future terrorist
acts more than it is in arresting and prosecuting people
who may have participated in the Sept. 11 attacks?
ALBERTO GONZALES: Well, they’re both obviously

equally important, Jim. Obviously, those who were
responsible for the acts of Sept. 11 should be caught and
they need to be punished.
But equally important, is to do everything that we can to

-insure that there are no future attacks on Americans here
or overseas.
JIM LEHRER: That’s new, though, is it’s not? Isn’t that a
new direction for the FBI and Justice Department?
ALBERTO GONZALES: Jim, I think that has been a

¯ . priority from day one.
JIM LEHRER: No, I mean day one since Sept. 1 1. But

prior to Sept. 11, wasn’t the FBI primarily a law
enforcement agency that investigated crimes that had
already been committed, rather than in the business of
prevention?
ALBERTO GONZALES: Jim, I don’t feel comfortable

answering that question. You’ll have to talk to the Director
Mueller. But again I would just repeat that preventing
terrorism has been a priority for the FBI, and capturing
those who are responsible for the attacks on Sept. 11
remain a priority.
Potential threat to civil liberties
JIM LEHRER: In general, Mr. Gonzales, what would you say

to anybody, whether or not they’re, as you know this
criticism is coming from some on the left, it’s also coming from
libertarians on the right who are concerned in general about some reduction of our civil
liberties in order to combat terrorism.
What would you say in general about them to make those folks feel more comfortable at this stage?
ALBERTO GONZALES: We of course are in an

extraordinary time, Jim. And these call for different kinds
of measures. But I can assure you that we have looked at
everything that’s been done by the administration carefully,
from a legal perspective; everything that has been done, I
OLC 000089
think is well within the requirements of the constitution and
the laws passed by Congress.
JIM LEHRER: And you think they’re well within the

framework of what the American people want done as
well?
ALBERTO GONZALES: I believe genuinely the
American people support the efforts of this administration.
Again, for example, the establishment of the military
commission, the president simply felt that was a necessary
tool that needed to have at his ready disposal to deal with
future terrorist attacks.
JIM LEHRER: Was that in fact the idea of the Justice

Department? Where did that come from, who brought it to
the president to sign off on? .
ALBERTO GONZALES: Well, again, this was an idea whose original nation began many, many weeks ago,
and a team of lawyers had been working on this for some time and we’ve had several conversations with the President
and other key members of the Bush administration, and before ultimately a decision was made by the president that this
was something he wanted to do.
JIM LEHRER: It wasn’t done lightly, in other words?

ALBERTO GONZALES: No, sir, not at all. A great deal
of time and effort was put into this project.
JIM LEHRER: All right. Mr. Gonzales, thank you very

much.
ALBERTO GONZALES: Thank you, Jim.
Susan M. Richmond
Assistant to the Attorney General
& Deputy White House Liaison
Office of the Attorney General
Fax:~ ~
"Freedom and fear, justice-and cruelty, have always been at war, and we know that God is not neutral between them." :-
President George W. Bush
OLC 000090
From: JCON Remote Dial-in (JMD/SMO)
Sent: Thursday, November 29, 2001 10:49 AM .-
To: Yoo, John C
Subject: FW: New Dial-in Solution - Important Info
Here’s your username/password needed for JCON dial-in ....................
.....Odginal Message .....

From: JCON Remote Dial-in (JMD/SMO)
Sent: Monday, October 22, 2001 1:42 PM
To: Yoo, John C
Subject: New Dial-in Solution - Important Info
You are one of our JCON Remote Dial-in users. JCON has upgraded the dial-in solution to provide a toll-free
number, fix current problems, and provide more security to our JCON network. You may have already received
a copy o£the new software (CD) and instructibns. If you have not, you will soon receive it through inner-office
mail.
If you should run into any problems (loading the software, receiving a copy of your software, using the new
softwarer etc.), contact the JMD/SMO JCON Help Desk on :~~11~.
Below is a new username and password for use with the new dial-in solution. The new solution calls for two
usernames and two passwords to be used. At the first logon prompt, you will enter this username and password:
Username: ~ ’ ~b(2"’~ }
Password: ~
The second logon screen will appear and you will use your regular JCON logon account (the username and
password you use while working in the office).
This software should ONLY be installed on government owned PC’s running Windows 95 or Windows NT. If
you chose to load this on a personally owned computer, JMD/SMO JCON will on!y provide basic phone
support for this application. JMD/SMO JCON is not authorized to work on users’ personnally owned pcs. We
strongly encourage you to ONLY load this software on a government owned PC. Thanks-for your cooperation.
OLC 000091
From: Softer, Mary L
Sent: Friday, November 30, 2001 5:46 PM
To: Softer, Mary L
Subject: TSP annual limit
Attachments: tspnewlmt.wpd
tspnewlmt.wpd (12
KB)
Mary Lou Softer

Employee Relations Specialist
OLC 000092
Justice Management Division__
Personnel Staff ._
-November 21,2001
MEMORANDUM FOR FERS EMPLOYEES EARNING MORE THAN $100,000 PER YEAR
From: Mary Lou Soffer

Employee Relations specialist
Employee/Labor Relations Section
OBD Personel Group
Personnel Staff
Justice ManagementDivision
TSP Open Season will be held from November 15, 2001 through January 31, 2002. FERS
employees may contribute up to 12 percent of basic pay in 2002 (increased from 11 percent).
The annual.limit on elective deferrals has been raised from $10,500 to $11,000 for 2002.
Inthe past, you might have made periodic adjustments to your TSP contribution rate in order to
stay under the annual limit on elective deferrals. Since the limit has been raised to $11,000, you
might want to make an adjustment to your contribution rate. If you increase your tsp deduction
to 12%, once you have met the a~mual limit of $11,000, your tsp deductions will stop, and you
would not receive any more agency matching funds. If you would like to spread your
contributions out throughout the year to maximize the agency matching contributions, you can
specify a dollar amount per pay period - $ i 1,000 divided by 26 pay periods is $424 per pay
period. (The last paycheck of 2002 would have $400 deducted, to stay within the $11,000 limit.)
You cannot specify a dollar amount which is more than 12% of your basic pay.
All TSP changes should be processed through Employee Express, a customer-friendly automated
system which enables you to initiate or change your TSP contributions via telephone or
computer. You must have your Employee Express Personal Identification Number (PIN) to make
a TSP change. If you do not have access to Employee Express, or if you need assistance, please
contact Paulette Ricks on ~~1~.
Unfortunately, at this time, we have not received the official pay scales for 2002; this information
shonld be announced in the near future. As long as your tsp election is processed through
Employee Express before 01/12/02, it will be effective 01/13/02, the earliest effective date of
open season changes.
.Effective dates of TSP elections:
OLC 000093
If election is processed ... Effective date will be ....
Before 01/12/02 01/13/02
After 01/13/02, but 01/27/02

before 01/26/02
After 01/27/02, but 02/10/02

but before 01/31/02
If you have further questions con.ceming the TSP open season, you may contact me at ~.
OLC 000094
From: Delahunty, Robert J
Sent: Sunday, December 02, 2001 6:12 PM -
To: ..... ~_ ......
CC: Yoo, John C
Subject:
Attachments: wararticle.doc
wararticle.doc (126
KB)
Dear Mr. Posterara: Attached please find an article by John Yoo and myself. If there are any
transmission difficulties (and I fear I have misaddressed this once already), please let me know. Thank you, Robert
Delahunty
OLC 000095
The President’s Constitutional Authority To Conduct
Military Operations Against Terrorist Organizations
And The Nations That Harbor or Support Them
John C. Yoo~
Robert J. Delahunty2
The terrorist attacks on the United States on September 11, 2001 raised several
important questions concerning the President’s authority to take military action in
response. Although Congress acted promptly to pass. legislation authorizing, the
President to take military action against the terrorists and those linked tO them) we shall.
argue the President had broad constitutional power, even without such legislation, to
deploy military force to retaliate against those implicated in the September 11 attacks.
Congress acknowledged this inherent executive power in its recent legislation, as it had
earlier in the War Powers Resolution (the "WPW’).4 Further, we argue, the President had
the inherent power not only to retaliate against any person, organization, or State
suspected of involvement in terrorist attacks on the United States, but also against foreign
States suspected of harboring or supporting such organizations. Finally, we argue that
the President’s inherent power to deploy military force against terrorists and the States
that harbor or support them includes both the power to respond to past attacks and the
power to act preemptively against future ones.
Our analysis falls into four parts. First, we examine the constitutional text and
structure, executive branch positions, and judicial decisions. We conclude that the
Constitution vests the President with the plenary constitutional authority, as Commander-
in-Chidf and the. sole organ of the nation in its foreign relations, to use military force
abroad - especially in response to grave national emergencies created by sudden,
unforeseen attacks on the people and territory of the United States. Second, we confirm
¯ that conclusion by reviewing executive and judicial statements and decisions interpreting
the Constitution and the President’s powers under it. Third, we analyze the relevant
practice of the United States, including recent history, that supports our view of the
President’s guthority. Finally, we discuss congressional enactments that, in our view,
.acknowledge the President’s plenary authority to use force to respond to the September
11 attacks on the United States and to deter future attacks of that character.
The President’s constitutional power to defend the United States and the lives of
its people must be understood in light of the Founders’ express intention to create a
~ Deputy Assistant Attorney General, Office of Legal Counsel, U~tited States Department of Justice.
2 Special Counsel, Office of Legal Counsel, United States Department of Justice.
3 S.J. Res. 23, 107ru Cong. (2001).
4 Pub. L. No. 93-148, 87 Star. 555 (1973), codifiedat 50 U.S.C. {}{} 1541-48.
OLC 000096
federal government "cloathed with all the powers requisite to [the] complete_execution of
its trust." 5 Foremost among the objectives Committed to that trust by the Constitution.is
the security of the Nation.6 As Hamilton explained in arguing for the Constitution’s
adoption, because "the circumstances which may affect the public safety are [not]
reducible within certain determinate limits, . . . it must be admitted, as a necessary
consequence that there can be no limitation of that authority which is to provide for the
defense and protection of the community in any matter essential to its efficiency.’’7
"It is ’obvious and unarguable’ that no governmental interest is more compelling

than the security of the Nation.’’8 Within the limits that the Constitution itself imposes,
:the scope and distribution of the powers to protect national security must be construed to
authorize the most efficacious-defense of the Nation and its interests in accordance "with
the realistic purposes of the entire instrument.’’9 Nor is the authority to protect national
security limited to actions necessary for "’victories in the field.’’~° The authority over
:national security "carries with it the inherent power tci guard against the immediate
renewal of the conflict.’’~
We now turn to the more precise question of the President’s inherent

constitutional powers ti~ use military force.
The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed. 1999).
6 "As Lincoln aptly said, ’[is] it possible to lose the nation and yet preserve the Constitution?’" Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).
7 Id.; se also The Federalist No. 34, at 175 (Alexander Hamilton) (Federal government is to possess "an
indefinite power of providing for emergencies as they might arise"); id., No. 41, at 224 (James Madison)
(~’Security against foreign danger is one of the primitive objects of civil society .... The powers requisite
for attaining it must be effectually confided to the foederal councils."). Many Supreme Court opinions
echo Hamilton’s argument that the Constitution presupposes the indefinite and unpredictable nature of the
"the circumstances which may affect the public safety," and that the federal government’s powers are
correspondingly broad. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the
President "exercis[es] the executive authority in a world that presents each day some new challenge with
which he must deal"); Hatnilton v. Regents, 293 U.S. 245, 264 (1934) (federal govenunent~s war powers
are ."well-nigh limitless" in extent); Stewart v. Kahno 78 U.S. (11Wall.) 493,506 (1870) ("The measures to
be taken in carrying on war.., are not defined [in the Constitution]. The decision of all such questions
rests wholly in the discretion of those to whom the substantial powers involved are confided by the
Constitution."); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers
upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules
respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of
course the power to declare war involves the power to prosecute it by all means and in any manner in
which war may be.legitimately prosecuted.").
8 Haig v. Agee, 453 U.S. 280, 307 (1981) (citation omitted).
9 Lichter v. United States, 334 U.S. 742, 782 (1948).
Application of Yamashita, 327 U.S. l, 12 (1946).
ll
OLC 000097
Constitutional Text. The text, structure and history of the Constitution establish
that the Founders entrusted the President with the primary responsibility, ~nd therefore
the power, to use military force in situations of emergency. Article II, Section 2 states
that the "President shall be Commander in Chief of the Army and Navyof the United
States, and of the Militia of the several States, when called into the actual Service of the
United States.’’~2 He is further vested with all of "the executive Power" and the duty to
execute the laws. These powers give the President broad constitutional authority to use
military force in response to threats to the national security and foreign policy of the
United States.t3 During the period leading up to the Constitution’s ratification, the power
to initiate hostilities and to control the escalation of conflict had been long understood to
rest in the hands of the executive branch.14
By its terms, these provisions vest full control of the military forces of the United
States in the President. The power of the President is at its zenith under the Constitution
when the President is directing military operations of the armed forces, because the
power of Commander in Chief is assigned solely to the President. The-President’s
complete discretion in exercising the Commander-in-Chief power has been recognized by
the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court
explained that, whether the President "in fulfilling his duties as Commander in Chief’’
had met with a situation justifying treating the southern States as belligerents and
instituting a blockade, Was a question "’to be decided by him" and which the Court could
not question, but must leave to "the political department of the Government to which this
power was entrusted.’’15 ~
~2 U.S. Const. art. II, § 2.
~3 See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States
armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850)
("As commander-in-chief, [the President] is authorized to direct the movements of the naval and military
forces placed by law at his command, and to employ them in the manner he may deem most effectual");
Loving v: United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in
judgment) (The "inherent powers" of the Commander in Chief "are clearly extensive."); Maul v. United
States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any
¯ revenue cutter-to cruise in any waters in order to perform any duty of the service"); Commonwealth of
-Massachusetts v. Laird, 451 F.2d 26, 32 (lst Cir. 1971) (the President has "power as Commander-in-Chief
to station forces abroad"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6
(1992).
~4 See John C. Yoo, The Continuation of Politics by Other Means." The Original Understanding of War
Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
~s See also id. ("He must determine what degree of force the crisis demands."); Eisentrager, 339 U.S. at
789 ("Certainly it is not the function of the Judiciary to entertain private litigation = even by a citizen -
which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our
armed forces abroad or to any particular region."); Chicago & Sout.hern Air Lines v. Waterman Steamship
Corp., 333 U.S. 103, 111 (1948) ("The President, both as Commander-in-Chief and as the Nation’s organ
for foreign affairs, has available intelligence services whose reports are not and ought not to be published to
the world. It would be intolerable that courts, without the relevant information, should review and perhaps
nullify actions of the Executive taken on information properly held secret."); Ramirez de ArelIano v.
Weinberger, 745 F.2d 1500, 1561 (D.C. Cir. 1984) (Scalia, J., dissenting), vacated, 471 U.So 1113 (1985);
Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting "under this
OLC 000098
Some commentators have read the constitutional text differently. They argue that
the vesting of the power to declare war gives Congress the sole autho~ity-to decide
whether to make war.~6 This view misreads the constitutional text and misunderstands
the nature of a declaration of war. Declaring war is not tantamount to making war -
indeed, the Constitutional Convention specifically amended the working draft of the
Constitution that had given Congress the power to make war. An earlier draft of the
Constitution had given to Congress the power to "make" war. When it took up this
clause on August 17, 1787, the Convention voted to c.hange the clause from. "make" to
"declare.’’~7 A supporter of the change argued that it would "lear[e] to the Executive
the power to repel sudden attacks."18 Further, other elements of the Constitution
describe "engaging" in war, which demonstrates that the Framers understood making and
engaging in war to be broader than simply "declaring" war.~9 A State constitution at the
¯ time of the ratification included provisions that prohibited the governor from ’,making"
war without legislative approval.2° If the Framers had wanted to require congressional
power where there is no express legislative declaration,¯ the president is guided solely by his own judgment
and discretion"); Hefleblower v. United States, 21 Ct. CI. 228, 238 (Ct. CI. 1886) ("The responsibility of
¯ declaring what portions of the country were in insurrection and of declaring when the insurrection came to
an end was accorded to the President; when he declared a portion of the country to be in insurrection the
judiciary cannot try the issue and find the territory national; conversely, when the President declared the
insurrection at an end in a.ny portion of the country, the judiciary cannot try the issue and find the territory
hostile."); cf United States v. Chemical Foundation, Inc., 272 U.S. 1, 12 (1926) ("It was peculiarly within
the province of the Commander-in-Chief to know the facts and to determine what disposition should be
made of enemy properties in order effectively to carry on the war.")
~6 See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Responsibility:
Constitutional Lessons of Vietnam and Its Aftermath, 3-5 (1993); Michael J. Glennon, Constitutional
Diplomacy 80-84 (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs, 109 (1990);
Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-
61 (1990); Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War: The War Power Of
Congress in History and Law (2d ed. 1989).
Other scholars, however, have argued that the President has the constitutional authority to initiate
military hostilities without prior congressional authorization..See, e:g., Edward S. Corwin, The President:
Office and Powers 1787-1984 (5t~ ed. 1984); Philip Bobbitt, War Powers: An Essay on John Hart Ely’s
~’War and Rdsponsibility: Constitutional Lessons of Vietnam and Its Aftermath, " 92 Mich. L. Rev. 1364
(1994); Robert H. Bork, Erosion of the President’s Power in Foreign Affairs, 68 Wash. U. L. Q. 693
(1990); Henry P. Monaghan, Presidential War-Making, 50 B.U.L. Rev. 19 (1970); W. Michael Reisman,
Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J. Int’l L. 203 (1991);
Eugene V. Rostow, "’Once More unto the Breach:" The War Powers Resolution Revisited, 21 ¯Val. U.L.
Rev. 1 (1986); John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673
(2000); Yoo, supra n. 14.
~7 2 ’Max Farrand, The Records of the Federal Convention of 1787 at 318-19 (rev. ed. 1966).
18 Id. at 318.
19 See U.S. Const. art. I, § 10 ("No State shall, without the Consent of Congress... engage in War, unless
actually invaded, or in such imminent Danger as will not admit of delay.").
2°.S.C. Const. art. XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis Newton
Thorpe ed., 1909. A subsequent version made clear "that the governor and commander-in-chief shall have
no power to commence war, or conclude peace, or enter into any final treaty" without legislative approval.
OLC 000099
consent before the initiation of military hostilities, they knew how to write such
provisions.
Finally, the Framing generation well understood that declarations of war were
obsolete. Not all forms of hostilities rose to the level of a declared war: during the
seventeenth and eighteenth centuries, Great Britain and colonial America waged
numerous conflicts against other states without an official declaration of war.2~ As
Alexander Hamilton observed during the ratification, "the ceremony of a formal
denunciation of war has of late fallen into disuse.’’2~ Instead of serving as an
authorization to begin hostilities, a declaration of war was only necessary to "perfect" a
conflict under international law. A declaration served to fully transform the international
legal relationship between two states from one of peace to one of war.~3 Given this
context, it is clear that Congress’s power to declare war does not constrain the President’s
independent and plenary constitutional authority over the use of military force.
Constitutional Structure. Our reading of the text is reinforced by analysis of the

constitutional structure. First, it is clear that the Constitution secures all federal-executive
power in the President to ensure a unity in purpose and energy in action. "Decision,
activity, secrecy, and dispatch ycill generally characterize the proceedings of one man in a
much more eminent degree, than the proceedings of any greater number.’’24 The
centralization of authority in the President alone is particularly crucial in matters of
national defense, war, and foreign policy, where a unitary executive can evaluate threats,
consider policy choices, and mobilize national resources with a speed and energy that is
far superior to any other branch. As Hamilton noted, "Energy in the executive is a
leading character in the definition of good government. It is essential to the protection of
the community against .foreign attacks.’’25 This is no less true in war. "Of all the cares or
S.C. Const. art. XXXIII (1778), reprinted in 6 The Federal and State Constitutions 3255 (Francis Newton
Thorpe ed., 1909).
2~ Of the eight major wars fought by Great Britain prior to the ratification of the Constitution, war was
declared only once before the start of hostilities. See Yoo, supra n.14, at 214-15. See also W. Taylor
Reveley, III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? 55
(1981) ("[U]ndeclared war was the norm in eighteenth-century European practice, a reality brought home
to Americans when Britain’s Seven Years’ War with.France began on this continent." ); William Michael
Treanor, Fame, The Founding, and The Power to Declare War, 82 Cornell L. Rev. 695,709 (1997).
The Federalist No. 25, at 133 (Alexander Hamilton).

23 See 1 William Blackstone, Commentaries on the Laws of England *249-50 (1769). See also James
Madison, Helvidius No. 1 (1793); reprinted in 15 The Papers of James Madison 72 (Thomas A. Mason et
al. eds., 1985) ("The power of making treaties and the power of declaring war, are royal prerogatives in the
British government, and are accordingly treated as Executive prerogatives by British commentators.").
The Federalist No. 70, at 392 (Alexander Hamilton).
2s Id. at 391.
OLC 000100
concerns of government, the direction of war most peculiarly demands those qualities
which distinguish the exercise of power by a single hand.’’26 -
Second, the Constitution makes clear that the process used for conducting military
¯ hostilities is different from other government decisionmaking. In the area of domestic
¯ legislation, the Constitution creates a detailed, finely-wrought-procedure in which
Congress plays the central role. In foreign affairs, however, the Constitution does not
establish a mandatory, detailed, Congress-driven procedure for taking action. Rather, the
Constitution vests the two branches with different powers - the President as Commander-
in-Chief, Congress with control over funding and declaring war - without requiring that
they follow a .specific process in making war. By establishing this framework, the
Framers expected that the process for warmaking would be far more flexible, and capable
-of.quicker, more decisive action, than the legislative process. Thus, the President may
use his Commander-in-Chief and executive powers to use military force to protect the
Nation, subject to congressional appropriations and control over domestic legislation.
Third, the constitutional structure requires that any ambiguities in the allocation of
a power that is executive in nature - such as the power to conduct military hostilities -
must be resolved in favor of the executive branch. Article II, Section 1 provides that
,[t]he executive Power shall be vested in a President of the United States,"’27 By. contrast,
Article I’s Vesting Clause gives Congress only the powers "herein granted.’’28 This
difference in language indicates that Congress’s legislative powers are limited to the list
enumerated in Article I, Section 8, while the President’s powers include inherent
executive powers that are unenumerated in the Constitution. To be sure, Article II lists
specifically enumerated powers in addition to the Vesting Clause, and some have argued
¯ that this limits the "executive Power" granted in the Vesting Clause to the powers on that
list. But the purpose of the enumeration of executive powers in Article II was not to
define and cabin the grant in the Vesting Clause. Rather, the Framers unbundled some
plenary powers that had traditionally been regarded as "executive," assigning elements of
those powers to Congress in Article I, while expressly reserving other elements as
’ enumerated executive powers in Article II. So, for example, the King’s traditional power
to declare war was given to Congress under Article I, while the Commander-in-Chief
--authority w~s expressly reserved to the President in Article II. Further, the Framers
¯ altered other plenary powers of the King, such as treaties and appointments, assigning the
2~ Id. No. 74, at 415 (Alexander Hamilton). James Iredell (later an Associate Justice of the Supreme Court)
argued in the North Carolina Ratifying Convention that "[f]rom the nature of the thing, the command of
armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary
in military operations, can only be expected from one person." Debate in the North Carolina Ratifying
Convention, in 4 Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the
Federal Constitution as Recommended by-the General Convention at Philadelphia in 1787 at 107 (2d ed.
:1987). See also 3 Joseph Story, Commentaries on the Constitution of the United Statgs § 1485 (1833) (in
military matters, "[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and
these can scarcely exist, except when single magistrate is entrusted exclusively with the power").
27 U.S. Const. art. II, § 1.
z8 Id. art. I, § 1.
OLC 000101
Senate a share in them in Article 1I itself.29 Thus, the enumeration in Article II marks the
points at which several traditional executive powers were dilt~ted or reall~cat~d. Any
other, unenumerated executive powers, however, were conveyed to the President by the
Vesting Clause.
There can be little doubt that the decision to deploy military force is "executive"
.in nature, and was traditionally so regarded, It calls for action and energy in execution,
rather than the deliberate formulation of rules to govern, the conduct of private
individuals. Moreover, the Framers understood it to be an attribute of the executive.
"The direction of war implies the direction of the common strength," wrote Alexander
Hamilton, "and the power of directing and employing the common strength forms a usual
and essential part in the definition of the executive authority.’’3° As a result, to the
¯ extent that the constitutional text does not explicitly allocate the power to initiate military
:hostilities to a particular branch, the Vesting Clause provides that it remain among the
¯ President’s unenumerated powers.
Fourth, depriving the President of the power to decide when to use military force
would disrupt the basic constitutional framework of foreign relations..From the very
beginnings of the RepUblic, the vesting of the executive, Commander-in-Chief, and treaty
¯ powers in the executive branch has been understood to grant the President plenary control
over the conduct of foreign relations. As Secretary of State Thomas Jefferson observed
during the first Washington administration: "the constitution has divided the powers of
govermnent into three branches [and] has declared that "the executive powers shall be
vested in the president," submitting only special articles of it to a negative by the senate."
Due to this structure, Jefferson continued, "the transaction of business with foreign
nations is executive altogether; it belongs, then, to the head of that department, except as
to such portions of it as are specially submitted to the senate. Exceptions are to be
construed strictly.’’3! In defending President Washington’s authority to issue the
¯ Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the
President’s foreign affairs powers. According to Hamilton, Article II "ought... to be
considered as intended . . . to specify and regulate the principal-articles :implied in the
¯ definition of Executive Power; leaving the rest to flow from the general grant of that
power.’’32 As future Chief Justice John Marshall famously declared a few years later,
29 Thus, Article II’s enumeration of the Treaty and Appointments Clauses only dilutes the unitary nature of
,the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-
legislative functions. See Constitutionality of Proposed Conditions to Senate Consent:to the Interim
Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) (’~Nothing in the text
of the Constitution or the deliberations of the Framers suggests that the Senate’s advice and consent role in
the treaty-making process was intended to alter the fundamental constitutional balance between legislative
authority and executive authority.").
3o The Federalist No. 74, at 415 (Alexander Hamilton)..
3~ Thomas Jefferson, Opinion on the Powers of the Senate (1790), reprinted in 5 The Writings of Thomas
Jefferson 161 (Paul L. Ford ed. 1895).
32 Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 39
(Harold C. Syrett et al. eds., 1969).
OLC 000102
"’The President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations .... The. [executive] department.., is entrusted with
the whole foreign intercourse of the nation .... ,33 Given the agreement of Jefferson,
Hamilton, and Marshall, it has not been difficult for the executive branch consistently to
assert the President’s plenary authority in foreign affairs ever since.
In the relatively few occasions where it has addressed foreign affairs, the Supreme
Court has agreed with the executive branch’s consistent interpretation. Conducting
foreign affairs and protecting the national security are, as the Supreme Court has
observed, "’central’ Presidential domains.’’34 The President’s constitutional primacy
flows from both his unique position in the constitutional structure, and from the specific
grants of authority in Article II that make the President both the Chief Executive of the
Nation and the Commander in Chief.35 Due to the President, s constitutionally superior
.position, the Supreme Court has consistently "recognized "the generally accepted view
that foreign policy [is] the province and respons~ility of the Executive.’’’36 "The
Founders in their wisdom made [the President] not only the Commander-in-Chiefbut
also. the guiding organ in the conduct of our foreign affairs," possessing "vast powers, in
relation to the outside world.’’37 This foreign affairs power is exclusive: it is "the very
delicate, plenary and. exclusive-power of the President as sole-organ of-the federal
government in the field of international relations - a power which does not require as a
basis for its exercise an act of Congress.’’38
Conducting military hostilities is. a central tool for the exercise of the President’s
plenary control over the conduct of foreign policy. There can be no doubt that the use of
force protects the Nation’s security and helps it achieve its foreign policy goals.
Construing the Constitution. to .grant. such power to another branch could prevent the
President from exercising his core constitutional responsibilities in. foreign affairs. Even
in the cases in which the Supreme Court has limited executive authority, it has also
emphasized that we should not construe legislative prerogatives to prevent the executive
branch "from accomplishing its constitutionally assigned functions."’39
¯ 33 10 Annals of Cong. 613-14 (1800).

34 Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982).
35 Nixon v. Fitzgerald, 457 U.S. 731,749-50 (1982).
36 Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. at 293-94).
37 Ludecke v. Watkins, 335 U.S. 160, 173 (1948).
38United States v. Curtiss-Wright Export Co~p., 299 U.S. 304, 320 (l 936).
39 Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977).
OLC 000103
Executive Branch Construction and Practice. The position we take here has long
represented the view of the executive branch and of the Department of Justice. Attorney
General (later Justice) Robert Jackson formulated the classic statement of the executive
branch’s understanding of the President’s military powers in 1941:
Article II, section 2, of the Constitution provides that the President

"shall be Commander in Chief of the Army and Navy of the United
States." By virtue of this constitutional office he has supreme command
over the land and naval forces of the country and may order them to
perform such military duties as, in his opinion, are necessary or
appropriate for the defense of the United States. These powers exist in
time of peace as well as in time of war.
Thus the President’s responsibility as Commander in Chief

embraces the authority to command and direct the armed forces in their
immediate movements and operations designed to protect the security and
effectuate the defense of the United States. [T]his authority
undoubtedly includes the power to dispose of troops and equipment in
such manner and on such duties as best to promote the safety of the
country.[4°]
Other Attorneys General have defended similar accounts of the President constitutional
powers and duties, particularly in times of unforeseen emergencies.
Attorney General William P. Ban-, quoting the opinion of Attorney General

Jackson just cited, advised the.President in 1992 that "[y]ou have authority to commit
troops overseas without specific prior Congressional approval ’on missions of good will
or rescue, or for the purpose of protecting American lives or property or American
interests.’’’4~ Attorney General (later Justice) Frank Murphy, though declining to define.
precisely th-e scope of the President’s independent authority to act in emergencies or
states of war, stated that:
the Executive has powers not enumerated in the statutes - powers derived
not from statutory grants but from the Constitution. It is universally
recognized that the constitutional duties of the Executive carry with them
4O Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61-62 (1941). At the
time Attorney General Jackson delivered his opinion, the United States was a neutral, and thus his
conclusions about the President’s powers did not rest on any special considerations that might apply in time
of war. Although he stated that he was "inclined to the opinion" that a statute (the Lend-Lease Act)
authorized the decision under review, Jackson expressly based his conclusion on the President’s
constitutional authority. Id. at 61.
Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. at 6.
OLC 000104
the constitutional powers necessary for their proper performance. These
constitutional Powers have never been specifically defined, and in fact
cannot be, since their extent and limitations are largely dependent upon
conditions and circumstances .... The right to take specific action might
not exist under one state of facts, while under another it might be the
absolute duty of the Executive to take such action.[42]
Attorney General Thomas Gregory Opined in 1914 that "[i]n the preservation of
the safety and integrity of the United States and the protection of its responsibilities and
obligations as a sovereignty, [the President’s] powers are broad.’’43 Finally, in 1898,
Acting Attorney General John K. Richards wrote:
The preservation of our territorial integrity and the protection of our

foreign interests is intrusted, in the first instance, to the President .... In
the protection-of these fundamental rights, which are based upon the
Constitution and grow out of the jurisdiction of this nation over its own
territory and its international rights and obligations as a distinct
sovereignty, the President is not limited to the enforcement of specific acts
of Congress. ~[The President] must preserve, protect, and defend those.
fundamental rights which flow from the Constitution itself and belong to
the sovereignty it created.[44]
Solicitor General Richards cited, among other judicial decisions, Cunningham v. Neagle,
135 U.S. 1, 64 (1890), in which the Supreme Court stated that the President’s power to
enforce the laws of the United States "include[s] the rights, duties and obligations
growing out of the constitution itself, our international relations, and all the protection
implied by the nature of the government under the constitution."
Opinions o_f the Office of Legal Counsel. Our Office has taken the position in
recent Administrations, including those of Presidents Clinton, Bush, Reagan and Carter,
that the President may unilaterally deploy military force in order to protect .the national
security and interests of the United States.
In Deployment of United States Armed Forces into Haiti,45 our Office advised that
the President had the authority unilaterally to deploy some 20,000 troops into Haiti. We
relied in part on the structure of the WPR, which we argued "makes sense only if the
President may introduce troops into hostilities or potential hostilities without prior
42 Request of the Senate for an Opinion as to the Powers of the. President "’In Etnergency or State of Wat;"
39 Op. Att’y Gen. 343, 347-48 (1939).
43 Censorship of Radio Stations, 30 Op. Att’y Gen. 291,292 (1914).
4~ Foreign Cables, 22 Op. Att’y Gen. 13, 25-26 (1898).
45 18 Op. O.L.C. 173 (1994).
OLC 000105
authorization by the Congress.’’46 We further argued that "’in establishing a~d fUnding a
military force that is capable of being projected anywhere around the globe, Congress has
given the President, as Commander in Chief, considerable discfetion in deciding how that
force is to be deployed.’’47 We also cited and relied upon the past practice of the
executive branch in undertaking unilateral military interventions:
In 1940, after the fall of De~unark to Germany, President Franklin

Roosevelt ordered United States troops to occupy Greenland, a Danish
possession in the North Atlantic of vital strategic interest to the United
States .... Congress was not consulted or even directly informed ....
Later, in 1941, the President ordered United States troops to occupy
Iceland, an independent nation, pursuant to an agreement between himself
and the Prime Minister of Iceland. The President relied upon his authority
as Commander in Chief, and notified Congress only after the event ....
More recently, in 1989, at the request of President Corazon Aquino,
President Bush authorized military assistance to the. Philippine
government to suppress a coup attempt.[48]
In Authority to Use United States Military Forces in Somalia,49 our Office

advised that the President had the constitutional authority to deploy United States Armed
Forces into Somalia in order to assist the United Nations in ensuring the safe delivery of
relief to distressed areas of that country. We stated that "the President’s role under our
Constitution as Commander in Chief and Chief Executive vests, him with the
constitutional authority to order United States troops abroad to further national interests
such as protecting the lives of Americans overseas.’’5° Citing past practice (further
discussed below), we-pointed out that "[f]rom the instructions of President Jefferson’s
Administration to Commodore Richard Dale in 1801 to ’chastise’ Algiers and Tripoli if
they continued to attack American shipping, to the present, Presidents have taken military
initiatives abroad on the basis of their constitutional authority. Against the
background of this repeated .past practice under many Presidents, this Department and
this Office have concluded that the President has the power to commit United States
troops abroad for the purpose of protecting important national interests.’’51
46Id. at 175-76.
47Id. at 177.
48 Id. at 178.
49 16 Op. O.L.C. at 8.
S°ld. atS.
51 Id. at 9 (citations omitted).
OLC 000106
In Overview of the War Powers Resolution, 52we noted that "[t]he President’s
authority to deploy armed forces has been exercised in a broad range of circumstances
[in] our history."
In Presidential Power to Use the Armed Forces Abroad Without Statutory

Authorization,53 we stated that "[o]ur history is replete with instances of presidential uses
of military force abroad in the absence ofpri~r congressional approval. This pattern of
presidential initiative and congressional acquiescence may be said to reflect the implicit
advantage held by the executive over the legislature under our constitutional scheme in
situations calling for immediate action. Thus, constitutiona! practice over two centuries,
supported by the nature of..the functions exercised and by the few legal benchmarks that
exist, evidences the existence of broad constitutional power." In light of that
understanding, we advised that the President had independent constitutional authority
unilaterally to order "(1) deployment abroad at some risk of engagement - for example,
the current presence of the fleet in the Persian Gulf region; (2) a military expedition to
rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) ar~:attempt
to repel an assault that threatens our vital interests in that region.’’54
Judicial Construction. Judicial decisions since the beginning of the Republic

confirm the President’s constitutional power and duty to repel military action against the
United States through the use of force, and to take measures to deter the recurrence of an
attack. As Justice. JoSeph Story said long ago, "[i]t may be fit and proper for the
government, in the exercise of the high discretion confided to the executive, for great
ipublic purposes, to act on a sudden emergency,-or to prevent an irreparable mischief, by
summary measures, which are not found in the text of the laws.’’55 The Constitution
entrusts the "power [to] the executive branch of the government to preserve order and
insure the public safety in times of emergency, when other branches of the government
are unable to function, or their functioning .would itself threaten thepublic safety.’’56
If the President is confronted with an unforeseen attack on the territory and people
ofthe United States, or other immediate, dangerous threat to American interests and
security, the courts have affirmed that it is his constitutional responsibility to respond to
that threat without whatever means are necessary, including the use of military force
abroad. See, e.g., The Prize Cases, 67 U.S. at 635 ("If a war be made by invasion of a
52 80p. O.L.C. 271,275 (1984).
s3 4A Op. O.L.C. 185, 187 (1980).
54
Id. at 185-86. See also Presidential Powers Relating to the Situation in Iran, 4A Op. O.L.C. 115, 121
(1979) ("It is well established that the President has the constitutional power as Chief Executive and
Commander-in-Chief to protect the lives and property of Americans abroad. This understanding is
reflected in judicial decisions.., and recurring historic practice which goes back to the ti~ne of
Jefferson.").
ss TheApollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824).
56 Duncanv. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).
OLC 000107
foreign nation, the President is not only authorized but bound to resist force_ by force..
. without waiting for any special legislative authority."); Kahanamoku, 327 U.S. at 336
(Stone, C.J., concurring) ("Executive has broad discretion in determining when the public
emergency is such as to give rise to the necessity" for emergency measures); United
States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit
Justice) (regardless of statutory authorization, it is "the duty . . . of the executive
magistrate.., to repel an invading foe")57; Mitchell v. Laird, 488 F.2d 611,613 (D.C.
Cir. 1973) ("there are some types of war which without Congressional approval, the
President may begin to wage: for example, he may respond immediately without such
approval to a belligerent attack")58; Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.)
(Silberman, J. concurring) ("[T]he President has independent authority to repel
aggressive acts by third parties even without specific statutory authorization.7), cert.
denied, 531 U.S. 815 (2000); id. at 40 (Tatel, J., concurring) ("IT]he President, as
Commander in Chief, possesses emergency authority to use military force to defend the
nation from attack without obtaining prior congressional approval."); see also Story,
supra n.26, § 1485 ("It]he command and application of the public force.., tO maintain
peace, and to resist foreign invasion" are executive powers).
III.
The historical ’practice of all three branches confirms the lessons of the
constitutional text and structure. The normative role of historical practice in
constitutional law, and especially with regard to separation of powers, is well settled.59
Both the Supreme Court and the political branches have often recognized that
govermnental practice plays a highly significant role in establishing the contours of the
constitutional separation of powers. Indeed, as the Court has observed, the role of
practice in fixing the meaning of the separation of powers is implicit in the Constitution
itself: "’the Constitution . . . contemplates that practice will integrate the dispersed
)owers into a workable government.’’’6° In addition, governmental practice enjoys
57 Justice Paterson went on to remark that in those circumstances "it would I apprehend, be not only lawful
for the preside_nt to resist such invasion, but also to carry hostilities into the enemy’s own country." ld. at
1230.:
58 The court further observed that "in a grave emergency [the President] may, without Congressional
approval, take the initiative to wage war .... In such unusual situations necessity confers the requisite
authority upon the President. Any other construction of the Constitution would make it self-destructive."
Id. at 613-14. Accord Commonwealth of Massachusetts v. Laird, 451 F.2d at 31 ("[t]he executive may
without Congressional participation repel attack").
59 As the Supreme Court has noted, "the decisions of the Court in th[e] area [of foreign affairs] have been
rare, episodic, and afford little precedential value for subsequent cases." Dames & Moore, 453 U.S. at 66 l
(1981). In particular, the difficulty the courts experience in addressing "the broad range of vitally
important day-to-day questions .regularly decided by Congress or the Executive" with respect to foreign
affairs and national security makes the judiciary "acutely aware of the necessity to rest [judicial] decision[s]
on the narrowest possible ground capable of deciding the case." ld. at 660-61. Historical practice and the
ongoing tradition of executive branch constitutional interpretation therefore play an especially important
role in this area.
60 Mistretta v. United States, 488 U.S. 361,381 (1989) (citation omitted).
OLC 000108
significant weight in constitutional analysis for practical reasons, on "the basis of a wise
and quieting rule that, in determining.., the existence of a power, weight, s~al[be given
to the usage itself -- even when the validity of the practice is the subject of
.- ~- ,,61
lnvesl~lgatlon.
The role of practice is heightened in dealing with issues affecting foreign affairs
and national security, where "the Court has been particularly willing to rely on the
practical statesmanship of the political branChes when considering constitutional
questions.’’62 "The persistence of these controversies (which trace back to the eighteenth
century), and the nearly complete absence of judicial decisions resolving them,
underscore the necessity of. relying on congressional precedent to interpret the relevant
constitutional provisions."63 Accordingly, considerable weight should be given to the
practice of the political branches in trying to determine the constitutional allocation of
¯ warmaking powers between them.
The historical record demonstrates that the power to initiate m_ilitary hostilities,
particularly in response to the threat of an armed attack, rests exclusively with the
President. As the Supreme Court has observed, "[t]he United States frequently employs
Armed Forces outside this country - over 200 times in our history - for the protection of
American citizens or national security.’’64 On at least 125 such occasions, the President
acted without prior express authorization from Congress. Such deployments, based on
the President’s constitutional authority alone, have occurred since the Administration of
George Washington.65 Perhaps the most Significant deployment without specific statutory
authorization took place at the time of the Korean War, when President Truman, without
prior authorization from Congress, deployed United States troops in a war that lasted for
over three years and caused over 142,000 American casualties.
Recent deployments ordered solely on the basis of the President’s constitutional

authority have also been extremely large, representing a substantial commitment of the
Nation’s military personnel, diplomatic prestige, and financial resources. On at least one
occasion, such a unilateral deployment has constituted full-scale war. On March 24,
199-9, without any prior statutory authorization and in the absence of an attack on the
United States, President Clinton ordered hostilities to be initiated against-the Republic of
6~ United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915). For a "Coasian" explanation of the
significance of practice to separation of powers doctrine, See John O. McGinnis,. Constitutional Review by
the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of
Powers, 56-AUT, Law & Contemp. Probs. 293 (1993).
62 Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 234 (1994).
63Id. at 236.
64 United States v. Verdugo-Urquidez, 494 U.S. at 259, 273 (1990).
6s See David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791,
6l U. Chi. L. Rev. 775, 816 (1994) ("[B]oth Secretary [of War] Knox and [President] Washington himself
seemed to think that this [Commander in Chief] authority extended to offensive operations taken in
retaliation for Indian atrocities.").
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Yugoslavia. The President informed Congress that, in the initial wave of air strikes,
"United States and NATO forces have targeted the [Yugoslavian] government’s
integrated air defense system, military and security police command and control
elements, and military and security police facilities and infrastructure.. ~. I have taken
these actions pursuant to my constitutional authority to conduct U.S. foreign relations and
as Commander in Chief and Chief Executive.’’66 Bombing attacks against targets in both
Kosovo and Serbia ended on June 10~ 1999, .seventy-nine.days after the war began. More
than 30,000 United States military personnel participated in the operations; some 800
U.S. aircraft flew more than 20,000 sorties; more than 23,000 bombs and missiles were
¯ used. As part of the peace settlement, NATO deployed some 50,000 troops into Kosovo,
7,000 of them American.67 In a News Briefing on June 10, 1999, Secretary of Defense
William S. Cohen summarized the effects of the campaign by saying, "[t]hree months
ago Yugoslavia was a heavily armed country with a significant air defense system. We
reduced that defense system threat by destroying over 80 percent of Yugoslavia’s modem
aircraft fighters and strategic suface-to-air missiles. NATO destroyed a significant share
of the infrastructure .Yugoslavia used to support[] its military with, we reduced his
capacity to make ammunition by two-thirds, and we eliminated all of its oil refining
capacity and more than 40 percent of its military fuel supplies, Most-important, we
severely crippled the military forces in Kosovo by destroying more than 50 percent of the
artillery and more than one-third of the armored vehicles.’’68 General Shelton of the Joint
Chiefs of Staff reported that "about half of [Yugoslavia’s] defense industry has either
been damaged or destroyed .... [A]viation, 70 percent; armored vehicle production, 40
[percent]; petroleum refineries, 100 percent down; explosive production, about 50
percent; and 65 percent of his atnmunition .... For the most part Belgrade is ~a city that’s
got about probably 70 percent without [electrical] power.’’69 A report by General Ryan,
Air Force Chief of Staff, on June 8, 1999, stated that "Serbia’s air force is essentially
useless and its air defenses are dangerous but ineffective. Military armament production
is destroyed. Military supply areas are under siege. Oil refinement has ceased .and
-petroleum storage is systematically being destroyed. Electricity is sporadic, at best.
Major transportation routes are cut. NATO aircraft are attacking with impunity
¯ throughout the country.’’7° Estimates near the time placed the number of Yugoslav
~ Letter to Congressional leaders reporting on Airstrikes against Serbian targets in the Federal Republic
¯ of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William Jefferson Clinton 459, 459 (1999).
67 See Campbell v. Clinton, 203 F.3d at 40 (Tatel, J., concurring) (quoting testimony of Secretary of
Defense Cohen that "’[w]e’re certainly engaged in hostilities [in Yugoslavia], we’re engaged in combat’");
Exec. Order No. 13,119, 64 Fed. Reg. 18797 (Apr. 16, 1999) (designating March 24, 1999, as "the date of
the conunencement of combatant activities" in Yugoslavia); John C. Yoo, US Wars, US War Powers, 1
Chi. J. Int’l L. 355 (2000).
68 News Briefing, Office of the Assistant Secretary of Defense (Public Affair:s), June 10, 1999, available at
http://www.defenselink.mil/news/Jun1999/t06101999__t0610asd:html (remarks of Sec. Cohen).
69 Id. (remarks of Gen. Shelton).
7o General Michael E. Ryan, It may take time, but it’s inevitable, Air Force News (released June 8, 1999).
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military casualties at between five and ten thousand.7~ In recent decades,_no President
has unilaterally deployed so much force abroad.
Other recent unilateral deployments have also been significant in military, foreign
policy and financial terms. Several such deployments occurred in the Balkans in the mid-
1990s.72 In December 1995, President Clinton ordered the deployment of 20,000 United
States Bosnia to implement a peace settlement. In February 1994, sixty United States.
warplanes conducted airstrikes against Yugoslav targets. In 1993, United States
warplanes were sent to enforce a no-fly zone over Bosnia; in thesame year, the President
despatched United States troops to Macedonia as part of a United Nations peacekeeping
operation.
Major recent deployments have also taken place inCentral America and in the
Persian Gulf. In 1994, President Clinton ordered some 20,000 United States troops to be
deployed into Haiti, again without prior statutory authorization from Congress, in
reliance solely upon his Article II .authority.73 On August 8, 1990, in response to the Iraqi
invasion of Kuwait and the consequent threat to Saudi Arabia, President Bush ordered the
deployment of substantial forces into Saudi Arabia in Operation Desert Shield. The
forces were equipped for combat and included two squadrons of F-15 aircraft and a
brigade of the 82na Airborne Division; the deployment eventually grew to several
hundred thousand. The President informed Congress that he had taken these actions
"pursuant to my constitutional authority to conduct our foreign relations and as
Commander in Chief.’’74 President Bush also deployed some 15,000 troops into Panama
in December, 1990, for the purpose (among others) of protecting Americans living in
Panama.75 :
Further, when Congress has in fact authorized deployments of troops in

hostilities, past Presidents have taken the position that such legislation, although
welcome, was not constitutionally necessary. For example, in signing Pub. L. No. 102-
01, 105 Stat. 3 (1991), authorizing the use of military force in Operation Desert Storm
against Iraq, President Bush stated that "my request, for. congressional support did not,
and my signing this resolution does not, constitute any change in the longstanding
positions of the executive branch on either the President’s constitutional authority to use
¯ the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers
71 Nick Cook, War of Extremes, in Jane’s Defence Weekly (July 7, 1999), available at
http://www.j anes.com/defense/news/kosovo/jdw990707~0 ~__n.shtml.
72 See Yoo, supra n.47, at 359.
73 .See Deployment of United States Armed Forces into Haiti, supra.
74 Letter to Congressional Leaders, 2 Pub. Papers of George Bush 1116 (1990).
7s See 2 Pub. Papers of George Bush 1722 (1989); see generally Abraham D. Sofaer, The Legality of the
United States Action in Panama, 29 Colum. J. Transnat’l L~ 28l (1991).
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Resolution."76 Similarly, President Jolm F. Kennedy stated on September 13, 1962, that
congressional authorization for a naval blockade of Cuba was_ unnecessary~ maintaining
that "I have full authority now to take such action.’’77 And in a Report. to the American
People on October 22, 1962, President Kennedy asserted that he had ordered the
blockade "under the authority entrusted to me by the Constitution as endorsed by the
resolution of the Congress.’’v8 Thus, there is abundant precedent, much of it from recent
Administrations, for the deployment of-military force abroad, including the waging of
war, on the basis of the President’s sole constitutional authority.
Several recent precedents stand out as particularly relevant to the situation at

hand, where the conflict is with terrorists. The first and most relevant precedent is also
the most recent: the military actions that President William J. Clinton ordered on August
20, 1998, against terrorist sites in Afghanistan and Sudan. The second is the strike on
¯ Iraqi Intelligence Headquarters that President Clinton ordered on June 26, 1993..The
.third is President Ronald Reagan’s action on April 14, 1986, Ordering United-States
armed forces to attack selected targets at Tripoli and Benghazi,. Libya.
(A) On August 20, 1998, President Clinton ordered the Armed Forces to strike at
terrorist-related, facilities in Afghanistan and Sudan "because of the threat they present to
our national security.’’79 The President stated that-the purpose Of the operation was "to
strike at the network of radical groups affiliated with and funded by Usama bin Ladin,
perhaps the preeminent organizer and financier of international terrorism in the world
today,m° The strike was ordered in retaliation for the bombings of United States
Embassies in Kenya and Tanzania, in which bin Laden’s organization and groups
affiliated with it were believed to have played a key role and which had caused the deaths
of some 12 Americans and nearly 300 Kenyans and Tanzanians, and in order to deter
later terrorist attacks of a similar kind against United States nationals and others. In his
remarks at Martha’s Vineyard, President Clinton justified the operation as follows:
I ordered this action for four reasons: first, because we have convincing
evidence these groups played the key role in the Embassy bombings in
v6 Statement on Signing the ResOlution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers
of George Bush 40 (1991). Further, in a press conference on January 9, 1991, President Bush was asked if
he believed that he needed congressional authorization in order to begin offensive operations against Iraq.
He answered, "I don’t think I need it. I think Secretary Cheney expressed it very well the other day. There
are different opinions on either side of this question, but Saddam HuSsein should be under no question on
this: I feel that I have the authority to fully implement the United Nations resolutions." The President’s
News Conference on the Persian Gu~ Crisis, 1 Pub. Papers of George Bush 17, 20 (1991).
77 Pub. Papers of John F. Kennedy 674 (1962).
78 Id. at 807 (emphasis added).
v9 Remarks in Martha’s Vineyard, Massachusetts, on Military Action Against Terrorist Sites in Afghanistan
and Sudan, 2 Pub. Papers of William J. Clinton 1460 (1998).
8o Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub.
Papers of William J. Clinton 1460 (1998).
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Kenya and Tanzania; second, because these groups have executed terr_orist
attacks against Americans in the past; third, because w~ have compelling
information that they were planning additional terrorist attacks against our
citizens and others with the inevitable collateral casualties we saw so
tragically in Africa; and fourth, because they are seeking to acquire
chemical weapons and other dangerous weapons.[8l]
In his Address to the Nation on the same day, the President made clear that the strikes
were aimed, not only at bin Laden’s organization, but at other terrorist groups thought to
be affiliated with it, and that the strikes were intended as retribution for other incidents
caused by these groups, and not merely the then-recent bombings of the two United
States embassies. Referring to the past acts of the interlinked terrorist groups, he stated:
Their mission is murder and their history is bloody.. In recent years, they
killed American, Belgian, and Pakistani peacekeepers in Somalia. They
plotted to assassinate the President of Egypt and the Pope. T~ley planned
to bomb six United States 747’s over the Pacific. They bombed the
Egyptian Embassy in Pakistan. They gunned down German tourists in-
Egypt.[82]
Furthermore, in explaining why military action was necessary; the President noted that
"’law enforcement and diplomatic tools" to combat terrorism had proved insufficient, and
that "when our very national security is challenged.., we must take extraordinary steps
to protect the safety of our citizens.’’83 Finally, the President made plain that the action of
the two targeted countries in harboring terrorists justified the use of military, force on
their territory:
The United States does not .take this action lightly. Afghanistan and
Sudan have been warned for years to stop harboring and supporting ~these
terrorist groups. But countries that persistently host terrorists have no
fight to be safe havens.[a4]
The ~errorist incidents of September 11, 2001, were surely far graver a threat to
the national security of the United States than the 1998 attacks on our embassies
¯ (however appalling those events were). The President’s power to respond militarily to
the later attacks must be correspondingly broader. Nonetheless, President Clinton’s
action in 1998 illustrates some of the breadth of the President’s power to act in the
present circumstances.
82 Id. at 1460-6l.
83Id. at 1461.
84/d.
OLC 000113
First, President Clinton justified the targeting of particular groups on the basis of
what he characterized as "convincing" evidence of their invblvement in )he-embassy
attacks. While that is not a standard of proof appropriate for a criminal trial, it is entirely
appropriate for military and political decisionmaking. Second, the President targeted not
merely one particular group or leader, but a network of affiliated groups. Moreover, he
ordered the action, not only.because of particular attacks on United States embassies, but
because of a pattern of terrorist activity, aimed at both Americans and non-Americans,
that had unfolded over several years. Third, the President explained that the military
,action was designed to deter future terrorist incidents, not only to punish past ones.
Fourth, the President specifically justified milita~ action on the territory of two foreign
States because their, governments had "harbor[ed]" and "support[ed]" terrorist groups for
years, despite warnings from the United States.
(B) On June 26, 1993, President Clinton ordered a Tomahawk cruise missile
strike on Iraqi Intelligence Service (the "IIS") headquarters in Baghdad. The IIS had
planned an unsuccessful attempt to assassinate former President Bush in Kuwait in April,
1993. Two United States Navy surface ships launched a total of 23 missiles against the
IIS center.
In a Letter to Congressional Leaders on the Strike on Iraqi Intelligence

Headquarters,85 the President referred to the failed assassination attempt and stated that
"[t]he evidence of the Government of Iraq’s violence and terrorism demonstrates that Iraq
poses a continuing.threat to United States nationals." He based his authority to order a
strike against the Iraqi government’s intelligence command center on "my constitutional
authority with respect to the conduct of foreign relations and as Commander in Chief," as
well as on the Nation’s inherent right of self-defense.86
President Clinton’s :order was designed in part to deter and prevent future terrorist
attacks on the United States - and most particularly future assassination attempts on
former President Bush. Although the assassination attempt had been frustrated by the
arrest of sixteen suspects before any harm was done,. "nothing prevented Iraq from
directing a second - possibly successful = attempt on Bush’s life. Thus, the possibility of
another assiassination plot was ’hanging threateningly over [Bush’s] head’ and was
therefore imminent. By attacking tlie Iraqi Intelligence Service, the United States hoped
to prevent and deter future attempts to kill Bush.’’~7
(C) On April 14, 1986, President Ronald Reagan, acting on his independent
authority, ordered United States armed forces to engage in military action against the
Pub. Papers of William J. Clinton 940 (1993).

86 [d.
87 Robert F. Teplitz, Taking Assassination Attetnpts Seriously: Did the United States Violate International
Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Int’l L. J. 569, 609
(1995).
OLC 000114
government of Colonel Gadhafi of Libya.88 Thirty-two American aircraft attacked
selected targets at Tripoli and Benghazi, Libya. Libyan officials reported thirty-seven
people killed and an undetermined number injured. More than sixty tons of.ordnance
were used during the attack.
For some time Libya had supported terrorist groups and organizations and indeed
had ordered direct terrorist attacks on the United States. "Under Gaddafi, Libya has
declared its support of ’national liberation movements’ and has allegedly financed and
trained numerous terrorist groups and-organizations, including Palestinian radicals,
Lebanese leftists, Columbia’s M-19 guerrillas, the Irish Republican Army, anti-Turkish
Armenians, the Sandinistas in Nicaragua, Muslim rebels in the Philippines, and left-wing
extremists in Europe and Japan.’’89 It had harbored a variety of terrorists, including Abu
Nidal and the three surviving members of the Black September group that had killed
eleven Israeli athletes at the 1972 Munich Olympic Games.9° Libya’s attacks on:the
United States included the murder of two United States diplomats in Khartoum (1973),
.the attempted assassination of Secretary of State Kissinger (1973),the. burning of the
United States Embassy in Tripoli (1979), the planned assassination of President Reagan,
Secretary of State Haig, Secretary of Defense Weinberger, and Ambassador to Italy Robb
(1981), and the hijacking of T.W.A. flight 847 (1985).91 Libya had also been linked to
terrorist events close to the time of the April, 1986, airstrike in which Americans and
other had lost their lives. In January, 1986, American intelligence tied Libya to the
December 27, 1985, bombings at the Rome and Vienna airports in which nineteen
people, including 5 Americans, had died, and one hundred and twelve persons had been
injured.
The particular event which triggered the President’s military action had occurred
on April 5, 1986, when a bomb exploded in the "Labelle,’.’ a Berlin discotheque
frequented by U.S. military personnel. The blast killed three people (two Americans) and
¯ :.injured two hundred and thirty others (including seventy-nine Americans). Intelligence
¯ " reports indicated that the bombing was planned and executed under the direct orders of
the Government of Libya. The United States Ambassador to the United Nations stated
thatthere was "direct, precise, and irrefutable evidence that Libya bears responsibility"
for the bombing of the discotheque; that the "Labelle" incident was ~’only the latest in an
ongoing pattern of attacks" by Libya against the United States and its allies; and that .the
United States had made "repeated and protracted efforts to deter Libya from its ongoing
attacks,, including "quiet diplomacy, public condemnation, economic sanctions, and
demonstrations of military force.’’92
88 See generally Wallace F. Warriner, U.S.M.C., The Unilateral Use of Coercion Under International Law:
A Legal Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L. Rev. 49 (1988);
Teplitz, supra n.87, at 583-86.
89 Teplitz, supra n.87, at 617 n. 112.
90/d.
9~ ld. at n.113.
92 U.N. SCOR, 2674th mtg. at t6-17, U.N. Doc. S/PV.2674 (prov. ed. 1986).
OLC 000115
Like the two unilateral Presidential actions discussed above, Presidgnt Reagan’s
decision to use armed force in response to a terrorist attack on United States military
personnel illustrates that the President has independent constitutional authority to use
such force in the present circumstances.
IV.
Our analysis to this point.has surveyed the views and practice of the executive and
judicial branches. In two enactments, the War Powers Resolution and the recent Joint
Resolution, Congress has also addressed the scope of the President’s independent
constitutional authority. These two statutes demonstrate Congress’s acceptance, of the
President’s unilateral war powers in an emergency situation like that created by the
September ~ t incidents.
Furthermore, the .President can be said to be acting at the apogee of his powers if
he deploys military force in the present situation,, for he is operating both under his own
Article II authority and with the legislative support of Congress. Under the analysis
outlined by Justice Jackson in Youngstown Sheet & Tube Co., supra. (and later followed
and interpreted by the Court in Dames & Moore, supra), the President’s power in this
case would be "at its maximum,’’93 because the President would be acting pursuant to an
express Congressional authorization. He would thus be clothed with "all [authority] that
he possesses in his own fight plus all that Congress can delegate,’’94 in addition to his
own broad powers in foreign.affairs under Article II of the Constitution.
The War Powers Resolution. Section 2(c) of the WPR, 50 U.S.C. § 1541(c), reads
-as follows (emphasis added):
The constitutional powers of the President as Commander-in-Chief to

introduce United states Armed Forces into hostilities, or into situations
whe~e imminent involvement in hostilities is clearly indicated by the
circumstances, are exercised only pursuant to (1) a declaration of war, (2)
specific statutory authorization, or (3) a national emergency created by
attack upon the United States, its territories or possessions, or its armed
forces.
The executive branch consistently "has taken the position from the very beginning
that § 2(c) of the WPR does not constitute a legally binding definition of Presidential
93 343 U.S. at 635.
94/d.
OLC 000116
authority to deploy our armed forces.’’95 Moreover, as our Office has note_d, "even the
defenders of the WPR concede that this declaration [in § 2(c)~ -- found in the -’Purpose
and Policy’ section of the WPR -- either is incomplete or is not meant to be binding."96
Nonetheless, 8 2(c)(3) correctly identifies one, but by no means the only, Presidential
authority to deploy military forces into hostilities.97 In the present circumstances, the
statute signifies Congress’s recognition that the President’s constitutional authority alone
would enable him to take military measures to combat the organizations or groups
responsible for the September 11 incidents, together with any governments that may have
harbored or supported them.
Further, Congress’s support for the President’s .power suggests no limits on the
executive’s judgqnent whether to use military force in response to the national emergency
created by those incidents. Section 2(c)(3) leaves undisturbed the President’s
constitutional authority to determine both when a "national emergency" arising out of an
".attack against the United States" exists, and what types and levels of force-are necessary
or appropriate to respond to that emergency. Because the statute itself supplies no
definition of these terms, their interpretation must depend on longstanding constitutional
practices and understandings. As we have shown in Parts I-iII of this memo,
constitutional text, structure and practice demonstrate that the President is vested with the
plenary power to use military force, : especially in the case of a direct attackon the United
States. Section 2(c)(3) recognizes the President’s broad authority and discretion in this
area.
Given the President’s constitutional powers to respond to national emergencies

caused by attacks on the United States, and given also that WPR § 2(c)(3) does not
attempt to define those powers, we think that that provision must be construed simply as
a recognition of, and support for, the President’s pre-existing constitutional authority.
Moreover, as we read the WPR, action taken by the President pursuant to the
constitutional authority recognized in 8 2(c)(3) cannot be subject to the substantive
requirements of the WPR, particularly the inter-related reporting requirements in 8 4 and
the "cut off" provisions of § 5, 50 U.S.C. 88 1543-44-98 Insofar as the Constitution vests
950verview of the War Powers Resolution, 80p. O.L.C. at 274. Thus, the State Department took the view,
¯ in a letter of November 30, 1974, that § 2(c) was a "declaratory statement of policy." Id. Further, in 1975,
the .Legal Adviser to the State Department listed six (non-exclusive) situations, not enumerated in § 2(c), in
. which the President had independent constitutional authority to deploy t~oops without either a declaration
of war or specific statutory authorization. Id. at 274-75.
9~ Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. at 176: see also Presidential
Powers Relating to the Situation in Iran, 4A Op. O.L.C. at 121 ("[T]he Resolution’s policy statement is not
a comprehensive or binding formulation of the President’s powers as Commander-in-Chief.").
97 We note that § 2(c) ca~mot itself qualify as a statutory authorization to act in national emergencies. It is
rather a congressional acknowledgment of the President’s nonstatutory, Article II-based powers. Section
8(d)(2) of the WPR, 50 U.S.C. § 1547, specifically provides that nothing hi the WPR "shall be construed as
granting any authority to the President... which authority he would not have had in the absence of this
[joint resolution]."
98 True, the reporting requirement in § 4(a)(l), 50 U.S.C. § 1543(a)(1), purports to apply to any case in
which U.S. armed forces are introduced into hostilities "[i]n the absence of a declaration of war." Further,
the "cut off" provisions of § 5 are triggered by the report required by § 4(a)(t). Thus, the language of the
OLC 000117
the power in the President to take military action in the emergency circumstances-
described by § 2(c)(3), we do not think it can be restricted by-Congress through, e.g., a
requirement that the President either obtain congressional authorization for the action
within a specific time frame, or else discontinue the action. Were this not so, the
President could find himself unable to respond to an emergency that outlasted a statutory
cut-off, merely because Congress had failed, for whatever reason, to enact authorizing
legislation within that period.
To be sure, some interpreters of the WPR take a broader view of its scope2 But on
any-reasonable interpretation of that statute, it must reflect an explicit understanding,
¯ shared by both the Executive and Congress~ that the President may take some military
actions - including involvement in hostilities - in response to emergencies caused by
attacks on the United States. Thus, while there might be room for disagreement about the
scope .and duration of the President’s emergency powers, there can be no reasonable
doubt .as tc~ their existence.
The Joint Resolution of September 14, 2001. Whatever view one may take of the
meaning of WPR § 2()(3), it is clear that Congress, in enacting the "Joint Resolution [t]o
authorize the use of United States Armed Forces against those responsible for the recent
attacks launched against the United States," S.J. Res. 23 has confirmed that the President
has broad constitutional authority to .respond, by military means or otherwise, to the
incidents of September 11.
First, the findings in the Joint Resolution include an express statement that "the
President has authority under the Constitution to take action to deter and prevent acts of
international terrorism against the United States." Id. This authority is in addition .to the
.President’s authority to respond to past acts of terrorism. In including this statement,
.Congress has provided its explicit agreement with the executive branch’s consistent
position, as articulated in Parts .I -III of this memorandum, that the President has the
plenary power to use force even before an attack upon the United States actually occurs,
against targets and using methods of his own choosing.
Second, Congress also found that there is a "threat to the national security and
foreign policy of the United States posed by the[] grave acts of violence" on September
11, and that "such acts continue to pose an unusual and extraordinary threat to the
national, security and foreign policy" of this country. Insofar as "the President’s
independent power to act depends upon the gravity of the situation confronting the
nation,’’99 these findings would support any presidential determination that the September
11 attacks justified the use of military force in response. Further, they would buttress any
Presidential determination that the nation is in a state of emergency caused by those
WPR indicates an intention to reach action taken by the President pursuant to the authority recognized in §
2(c)(3), if no declaratiSn of war has been issued. We think, however, that it would be beyond Congress’s
power to regulate the President’s emergency authority in the manner prescribed by §§ 4(a)(1) and 5.
99 Youngstown Sheet & Tube Co., 343 U.S. at 662 (Clark, J., concurring in judgment).
OLC 000118
attacks. The Constitution confides in the President the authority, indepen_dent of any
statute, to determine when a "national emergency" caused by an attack on the United
States exists.~°° Nonetheless, congressional concurrence is welcome in making clear that
the branches agree on seriousness of the terrorist threat currently facing the Nation and on
the justifiability of a military response.
Third, it should be noted here that the Joint Resolution is somewhat narrower than
the President’s constitutiomil authority. The Joint Resolution’s authorization to use force
is limited only to those individuals, groups, or states that pla~med, authorized, committed,
or aided the attacks, and those nations that harbored them. It does not, therefore, reach
other terrorist individuals, groups, or states, that cannot be determined to have links to the
September 11 attacks. Nonetheless, the President’s broad constitutional power to use
-military force to defend the Nation, recognized by the Joint Resolution itself, would
allow the President to take whatever actions he deemed appropriate to pre-empt or
respond to terrorist threats from new quarters.
Conclusion
In light of the text, plan and history of the Constitution, its interpretation by both
-past Administrations and the courts, the longstanding practice of the executive branch,
and the express affirmation of the President’s constitutional authorities by Congress, it is
clear that the President had the plenary constitutional power to take such military actions
as he deemed necessary and appropriate to respond to the terrorist attacks upon the
United States on September 11, 2001. Force can be used both to retaliate for thos~
attacks, and to prevent and deter future assaults on the Nation. Military actions need not
be limited to those individuals, groups, or states that participated in the attacks on the
World Trade Center and the Pentagon: the Constitution vests the President with the
power to strike terrorist groups or organizations that cannot be demonstrably linked to the
September 11 incidents, but who, nonetheless, pose a similar threat to the security of the
United States and the lives of its people, whether at home or overseas.~°~ In both the War
~oo See The P~qze Cases, 67 U.S. at 670 (whether a state if belligerency justifying a blockade exists is to be
decided by the President); Sterling v. Constantin, 287 U.S. 378, 399 (1932) ("By virtue of his duty to
’cause the laws to be faithfully executed’, the Executive is appropriately vested with the discretion to
determine whether an exigency requiring military aid for that purpose has arisen."); Moyer v. Peabody, 212
U.S. 78, 83 (1909) ("[T]he governor’s declaration that a state of insurrection existed is conclusive of that
fact."); Campbell, 203 F.3d at 26-27 (Silberman, J., concurring) (The Court in The Prize Cases "made clear
that it would not dispute the President on measures necessary to repel foreign aggression"); cf Martin v.
Mort, 25 U.S. (12 Wheat.) 19, 30 (1827) (President had unreviewable discretion to determine when
"emergency" existed under statute enabling him to call up militia).
~0~ We of course understand that terrorist organizations and their State sponsors operate by secrecy and
concealment, and that it is correspondingly difficult to establish, by the standards of criminal law or even
lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the
United States. Moreover, even when evidence sufficient to establish involvement is available to the
President, it may be impossible for him to disclose that evidence without compromising classified methods
and sources, and so damaging the security of the United States. See, e.g., Chicago & Southern Air Lines,
Inc, 333 U.S. at 1 l 1 ("The President... has available intelligence services whose reports are not and ought
not to be published to the world."); see also Ruth Wedgwood, Responding to Terrorism: The Strikes
Against Bin Laden, 24 Yale J. Int’l L. 559, 568-74 (1999) (analyzing difficulties of establishing and
OLC 000119
Powers Resolution and S.J. Res. 23, Congress recognized the President’s aut_hority to use
force in circumstances such as those created by the September 11 incidents. -Neither
statute, however, could place any limits on the President’s determinations as to any
terrorist threat, theamount of military force to be used in response, or the .method, timing,
and nature of the response. Those decisions, under our Constitution, are for the President
alone to make.
publicizing evidence of causation of terrorist incidents). But the difficulty or unpossibility of establishing
proof to a criminal law standard (or of making evidence public) does not bar the President from taking such
military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States
from terrorist attacks. In the exercise of his plenary power to use military force, the President’s decisions
are for trim alone and are unreviewable.
OLC 000120
From: John T. Crist i ........
Sent: Thursday, December.06, 2001 5:20 PM
. To: Harrison, Wanda Mariah; Yoo, John C
Subject: USIP panel
Dear Mr. John Yoo:
Thanks for agreeing to participate in the panel about legal dimensions of the war against terrorism, now scheduled for
Tuesday, December :[8, 10:00 a.m. to noon. Wanda Harrison has sent along your bio. We will prepare publicity and
send a draft flyer early next week for review.
I believe you have the original letter of invitation which explains other relevant details and the goal of the panel.. If you
have further questions I am happy to discuss. You may reach me at~11111111~1~.
Of course we are open to your suggestions on the material you’d like to cover. We ask that each panelist speak for
minutes. Though.we hope that your comments will include the Department’s latest thiking about the military tribunal
issue, we don’t see this as a panel solely on that topic. Rather, we envision a review of the variety of legal instruments,
¯ issues, and challenges relevant to the pursuit of terrorists, including U,S. courts, international and UN mechanisms,
military courts, and legal underpinnings for the use of force. The first hour or so will be taken up with panelist
comments, followed bY a Q and A session.
This is a public event for interested specialists from Capitol Hill, the State Department, Pentagon, and others in the
foreign policy community.
There is likely to be. representation from the media.
Finally, you may be interested in the following special, report on "Options for Prosecuting International Terrorists" by
Ambassador David Scheffer published by the Institute of Peace (see
http://www.usip.org/pubs/specialreports/sr78.html).
Thanksagain for your help.
Best,
John Crist
John T. Crist, Ph.D.

U.S. Institute of Peace
o: ~
f: ~
e: ....
OLC 000121
Fror~:
Sent: Friday, December 07, 2001 3:15 PM
To: Yoo, John C;: ..........
Cc:
Subject: Federal Judicial Center Program
Dear Peter and John,

First, thank you both for agreeing to take part in this program. As I explained over the phone this will be a four part
program the purpose of which will be to help federal judges better deal with the post-September :[1 situation in their
courtrooms. The first three parts of he program will look at the civil rights/fourth amendment, immigration and money
laundering aspects of the.U.S.A. Patriot Act. The fourth segment will examine the issue of military commissions versus
civilian Courts as a venue for trying accused terrorists. Each segment will take about a half hour, and John Cooke, the
Director of the Judicial Education Division here at the FJC, will moderate the entire program.
I am sending you this preliminary e-mail to find out what you think are the most important issues.that we need to
discuss during.your segment. Below are a list of questions that John and I think.need to be addressed. Please let us
know if you agree or disagree with our thinking or if there are other issues you feel should .be raised. When I have
received your responses I will want to have a conference call before we tape the program on January :~7th that will
include both of you, John Cooke and :myself.
Below are the questions that seem most pertinent to us.
:~-. What are.the potential fora for prosecuting those alleged to have committed the Sept. 1:~ attacks? What (briefly) are
. the pros and cons of each?
2. Are military commissions constitutional in the present circumstances?
3. Does it make a difference that there has not been a formal declaration of war?
4. Is the analysis different "as applied", that is, vis-a-vis persons captured overseas and aliens already in the U.S.?
5. As to the latter does it make any difference whether they are here legally or not?
6. Are there international laws implicated here, e.g. the International Convention on Political and Civil Rights? Why or
why not?
7. Military commissions can try violations of the law of war. What w.ar
crime(s) were committed here? What are the implications of calling these war crimes?
8. Does the President’s order on military commissions suspend habeas corpus? Can it? If federal courts can entertain
habeas petitions, what is the scope of review?
9. Finally, by the time we tape in January procedures for the commissions are likely to have been promulgated, as well
as other refinements or developments. We will want to be aware of these so that we can discuss them.
110ok forward to your responses and to working with you on this program.
Sincerely,
Paul Vamvas
OLC 000122
P~ul S. Vamvas, Esq.
Senior Judicial Education Attorney
Federal Judicial Center
phone: !~
fax: :~
OLC 000123
From: Martin Hotvet
Sent: Friday, December 14, 2001 10:16 AM
To: Yoo, John C;
Subject: Fwd: RE: NAAG Louisiana Seminar
Attachments: Part.001
Part.O01 (42 KB)
Annexed is Karen Cordry’s e-mail, which is self explanatory. I have attached the material with the hotel
number - please confirm your room.
¯ NAAG will pay of course. Call Karen with any questions -
e-mail:.
Professor Yoo: could you forward this to Professor Manning.
Thanks.
In January we will have a conference call to coordinate the presentations.
Received: from oag.state.ny.us

(hall.oag.state.ny.us [207.198.35.43])
by smtpgw.oag.state.ny.us; Mon, 10 Dec 2001 14:09:13 -0SO0
Received: by oag.state.ny.us; id OAA07068; Mon, 10 Dec 2001 14:10:50 -0500 (EST)
Received: from nodnsquery(63.80.110.2) by hall.oag.state.ny.us via csmap (V4.1)
id srcAAA_KayZn; Mon, 10 Dec 01 14:10:50 -0S00
Received: by NAAGPDC with Internet Mail Service (5.5.2650.21)
id <XSQCGHBB>; Mon, 10 Dec 2001 14:11:49 -0500
Message-ID: <9BIFFE35ESSAD211BEE40008C709D42DE93419@NAAG PDC>
From: "Cordry, Karen ....
¯ To: "’Martin Hotvet’" ’
Subject: RE: NAAG Louisiana Seminar
Date: Mort, 10 Dec 2001 14:11:49 -0500
MIME-Version: 1.0
X-Mailer: Internet Mail-Service (5.5.2650.21)
Content-Type: text/plain;
charset="iso-8859-1"
P.S. -- Do you want to write to Yoo and Manning and confirm a couple of things with them? Ditto for Jeff.9
They need to
1) get a registration form in (I have attached it below so if you can make sure it’s forwarded to them).
2) make sure they are registered at the hotel
3) get me a short bio
4) have any materials ready preferably by the 11th, absolutely positively by the 18th
I’m going to send a formal confirminng invitation to Judge Jones now and see if she can give me a definitive answer and,
if so, when it would be. We’ll also need to get at leats the bio and materials if any from Aldisert.
OLC 000124
Karen Cordry, NAAG Bankruptcy Counsel
National Association of Attorneys General~
OLC 000125
From: Wolf, Debra
Sent: Monday, December 17, 2001 2:12 PM
To: Yoo, John C
Subject: UN Treaty information
John,
Our userid for the UN Treaty site http://untreaty.un.org/is: ~
PDaeSbSraW°rd: ~" ~ ~) (’~,’) ")
OLC 000126
~rolTI: Diane Sumoski [
Sent: Tuesday, December 18, 2001 3:28 PM
To: Yoo. John C: ;
Cc:
Subject: 2002 Fifth Circuit Judicial Conference
Greetings!.
I am writing to let you know that your panel for the Supreme Court Term Review plenary program for the Fifth Circuit
Judicial Conference is now complete - and to give each of you the contact information for the other in the event you
should want to communicate. Judge Lynn or I will be in contact with you closer to the time of the conference to work
out logistics and other planning issues. We very much appreciate your willingness to participate in the conference and
are very excited about the interesting and lively program we are confident you will present.
The promised contact information:
John Yoo, Esq.

Office .of Legal Counsel
950 Pennsylvania Ave.
Room 3706
(202) 5.14-2069
jo hn .c.yoo@ usd oj,gov
Pamela Karlan, Esq.

Stanford Law School
John B. Attanasio
Dean, Dedman School of Law, SMU
Your program is scheduled for Thursday, May 2 at 9:15 - 10:30 a.m. You will receive further details about the entire
conference in the near future.
We very much look forward to having you. In the meantime, best wishes for the holiday season!
Very truly yours,
OLC 000127
Diane M. Sumoski
This electronic message is confidential and is intended only for the use oftl~e individual to.whom it is addressed. The
information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the
intended recipient. If you have received this transmission in error, you are hereby notified that any use, dissemination,
distribution or reproduction of this transmission is strictly prohibited. If you are not the intended recipient, please
immediately notify me by electronic message or telephone at ~III~I~i~,i and delete the message from your system.
Thank you.
Carrington, Coleman, Sloman & Blumenthal, L.L.P.

www..carringtoncoleman.com
OLC 000128
Page 1 of 1
John Yoo~ ""

Sent: Friday, December 21, 2001 3:55 PM
To: Yoo, John C
Subject: Fwd: ICAS Annual Liberty Award Reception & Dinner, January 25, 2002; Philadelphia
Attachments: ICAS Annual Liberty Award Reception (038) Dinner, January 25, 2002, Philadelphia
OLC 000129
Sang Joo Kim
Sr Fellow & Executive Vice President
Institute for Corean-American Studies, Inc. (ICAS)
http://www.icasinc:org
Irisdtute for Corean-American Studies (aka ICAS) is a non-profit,

non-partisan, and private educational and research organization. It is
non’agent of any government and solely supported by voluntary
contributions. I,CAS promotes pertinent relations and conducts
appropriate activities to enhance cooperation and to pursue peace and
prosperity. Further information about ICAS and some examples of the
recent activities may be found on the ICAS website
(http://www.lCASinc.org). Thank you.
OLC 000130
~CAS Institute for Corean-American StUdies, Inc..
965 Clover Court

Blue Bell icas@icasinc.org
PA 19422
U.S.A.
www.icasinc.org
T:(610)277-9989
T:(610)277-0149 December 19, 2001
F:(610)2 77-3992
icas@icasinc.org
www.icasinc.org
THE HON JOHN. C YO0
Deputy Assistant Attorney General
Soo R Bae
Young Wha Back U S Department of Justice
Joon J Bang Washington, D C
Jemy Boucher
Hwa Kyung Chae Dear John:
Shaun Cho
Im Ja P Choi
This is to thank youfor accepting my invitation to the ICAS Annual Liberty
Julia KHan
Sandra KHan Award Reception & Dinner*.
Sahang Hee Hahn
C K Kang *January 25, 2002 6:30 PM - 9:30 PM
Michael M Kang Sheraton University Hotel, Philadelphia
II Hwan Kim
In Whan Kim
¯ Sang Joo Kim
Synja P Kim
Previous honourees include U S Rep Tony P Hall, Arab Charles Kartman, Dr
Youn Hyu Kim Jeong H Kim, Nobel Laureate Lawrence R Klein, Dr Harold Koh, Arab Jerome
Hyeon Y Kwak J Shestack, Amb Richar L Walker and Chaim~an Alfred P West. Guests will
Dennis O’ Dowd include distinguished citizens and leaders let alone important constituents of the
David H Oh Asian-Americans.
Sung Won Pack
Xing~yi Que
Kwang Sang Rim A set of detailed particulars will be communicated to you via email system.
Clarence Tong
Dan Bi Um Thank you.
Choon Ki Yoo
Sincerely,
Sang Joo Kim / signed

Sr Fellow & Executive Vice President
N.B. Would you please forward your updated bio?
C.: Board of Directors
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Fro~: Rivkin, David : _ .
Sent: Tuesday, July 02, 2002 10:08 AM
To: Yoo, John C
Subject: RE: Icc
Dear Johni
This is just to follow up on the message I left on your voicemail.

In terms of substance, I would envision a legal memorandum/write-up featuring the following key points:
Since the United States is not a party to the Rome Statute,

as a matter of black letter international law it cannot be bound in any way by its strictures. The only remaininl~ issue is
whether, Rome Statute’s provisions aside, one can argue that there are existing customary international law norms that
would allow ICC to exercise jurisdiction, at least in certain circumstances, over U.S. nationals. Indeed, as you may know,
ICC supporters have been arguing that there are such customary international norms, e.l~., the territorial jurisdiction
principle. Under this principle, for example, a U.S. national, who commits a crime/alleged crime in Mexico, is subject to
the jurisdiction of Mexican courts, unless, of course, he is covered by some form of diplomatic immunity.
While the territorial jurisdiction principle is a venerable

component of international law (and has a lot more legitimacy than, for example, such new fangled principles as
universal jurisdiction}, we would arl~ue that territorial jurisdiction, even if properly exercised by a given state, cannot be
delegated to any other entity (either to another state or to an international organization). It would be also important to
point out that, unlike the ICTY which was created pursuant to the Security Council’s exercise of its plenary Chapter 7
powers, the ICC is nothini; more than a grouping of 70 plus individual states. As such, it wields no more powers, and for
the reasons described below, a lot fewer powers, than any one of its members.
This is the case for two basic reasons. First, there is no

known principle of customary international law that would allow such delegation. (Here, one should have a long
discussion why, in the international law sphere where sovereign states are paramount, an absence of a legal principle
which would support an infringement on one’s state sovereignty, in the form of the attempted.exercise of jurisdiction
over that state’s nationals, is impermissible.) Second, we would argue that any attempted delegation would be utterly
inconsistent with a plethora of constraints, both custom- and treaty-based, that must attend any exercise of the
¯ territorial jurisdiction. For example, while Mexico may indeed be able to exercise territorial jurisdiction over U.S.
citizens visiting Mexico or residing therein, it cannot do so arbitrarily or in bad faith. If it subject~, U.S. citizens, for
example, to torture, it would be violating numerous international customary and treaty-based norms. Moreover, under
various bilateral U.S.-Mexican treaties, Mexico is obligated to accord certain rights and privileges to all U.S. citizens it
decides to try in Mexican courts, e.g., consular access.. To state the obvious, none of these conditions can be satisfied if
Mexico transfers U.S. citizens to an international organization, like the ICC, over which it has absolutely no control.
We would also argue an even broader proposition o- and the

.one I mentioned to you during our recent telephone conversation -- in the international sphere, exercises of territorial
jurisdiction and all exertions of state power in general are undergurded by the principle of reciprocity. This means that,
if Mexico mistreats U.S. citizens or businesses, we can retaliate. In some instances, we would have a right to engage in
.an identical conduct; in other situations, our retaliation would have to take a different form. To use jus in bello as an
example, if weare engaged in combat against the state that widely and systematically violates the relevant norms, e.g.,
:by executing American POWs, we would be entitled to take a variety of retaliatory measures, but not to the extent of
executing the POWs we hold. In any case, the reciprocity principle is fatally undermined by any delel~ations of state
sovereil~nty, since the delegating state would be able to arl~ue that it neither controls nor is responsible for the conduct
of the entity to which it has delegated.
OLC 000528
We might also add a discussion about the whole EU
experience, which, in a nutshell, is a series of broad delegations of power by the EU members to the EU machinery. I
believe that the right position should be that, this experience notwithstanding, if and when, the Europeans decided to
delegate criminal prosecution powers to the EU, they can only do so if the EU becomes a full-fledged sovereign state.
Under this scenario, the EU would be viewed as a United States of Europe, wielding a full set of sovereign powers, with
the individual European countries being viewed as its constituent parts, akin to American states. To drive home this
point, it might be nice to introduce a little hypothetical, whereby the U.S. and Mexico would create a special court,
tasked with the criminal prosecution of any EU nationals that have committed crimes on American or Mexican soil.
Such a court can be a good device to avoid compliance with any duties we owe to individual European countries under
the various bilateral and multilateral treaties; it would also be nice to tell the Europeans to stop bitching about the
death penalty-related issues, since the application of such a penalty to their citizens would be out of our hands. I very
much doubt that the Europeans would be happy with such a U.S./Mexican arrangement.
In any case, these are just our rough musings. Any comments you might have would be appreciated.

To:
Subject: Icc "
David:
Did you ever write up anything on the idea we talked about a few weeks ago about international law, jurisdiction, and
the ICC? If so, could I see what you did?
John Yoo
Department of Justice
202.514.2069 "
202.305:8524 (fax)-
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY
CONTAIN IN~=ORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE
-LAW.
If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying
of this communication is strictly prohibited. If you have received this communication in error, please notify the sender
immediately by e-mail or telephone, and delete the original message immediately.
Thank you.
OLC 000529
From: Koo, Soohyun (EOM). ~
To: Yoo, John C
Subject: Letter of Invitation for CCKI Future Leadership Conference
Attachments: tmp.htm; imageO01 .gif
tmp.htm (I0 KB) imageOOl.gif (2 KB)
Centennial Committee Of Korean Immigration to the United States - Greater

Washington
sample image
July 2, 2002
SUBJECT: Request for Your Participation as a guest speaker of

Korean-American
Future Leadership forum at the Centennial Conference of Korean
Immigration on Saturday, August 27, 2002
Dear Deputy Assistant Attorney General John Yoo:
The Centennial Committee of Korean Immigration to the United States-Greater Washington (CCKI-GW) will hold the
Conference on August :~6-:[8, 2002 for the commemoration of :~OOth year of the Korean immigration to the United
States of America.
On behalf of CCKI-GW, I would like to invite you to be a guest speaker at the Korean-American Future Leadership,forum
OLC 000530
on Saturday, August 17, 2002, from 10:00 a.m. - 11:45 a.m. at the Fairview Park Marriott Hotel, located at
3111 Fairview Park, Falls Church, Virginia.
It would be our distinct honor to have your acceptance of our invitation to be a Guest Speaker on August 17. We would
appreciate a response by Tuesday, July 10, 2002.
CCKI-GW has been organized to illuminate the history of Korean immigrants residing in the Vicinity of Washington, D.C.
In the 21st century, the Korean-American immigrant society must resolve to heighten its participation in mainstream
America; maintain and preserve Korean traditional culture; and assist the process of democratization and peaceful
reunification on the Korean peninsula.
The Korean-American Future Leadership Forum is designed to show our future generation about the various options in
finding their future career to increase their participation in mainstream America. For this forum, we have invited 10
guest speakers from different sectors to introduce various sectors, and I would like you to represent as a political
appointee at this forum.
We lookforward to your positive response and continued support. If you need additi~)nal information concerning the
event, please feelfree to contact Ms. Ki-Eun Rachael Oh, Co-Chair of the 2nd Generation Conference Committee, at
Sincerely,
Soohyun Koo
Soohyun Julie Koo
Co-Chair, 2nd Generation Conference Committee
OLC 000531
Centennial Committee Of Korean ~:mmigration
to the United States o Greater Washington
July 2, 2002
SUBJECT: Request for Your Participation as a guest speaker of Korean-American

The Centennial Committee of Korean Immigration to the United States-Greater Washington (CCKI-GW) will
hold the Conference on August 16-18, 2002 for the commemoration of 100th year of the Korear~ immigration to
the united States of America.
On behalf of CCKI-GW, I would like to invite you to be a guest speaker at the Korean-American Future
Leadership forum on Saturday, August 17, 2002, from 10:00 a.m. - 11:45 a.m. at the Fairview Park Marriott
Hotel, located at 3111 Fairview Park, Falls Church, Virginia.
It would b( our distinct honor to have your acceptance of our invitation to be a Guest Speaker on August 17. We
would appreciate a response by Tuesday, July 10, 2002.
CCKI,GW has been organized to illuminate the history of Korean immigrants residing in the vicinity of
Washington, D.C. In the 21 st century, the Korean-American immigrant society must resolve to heighten its
participation in mainstream America; maintain and preserve Korean traditional culture; and assist the process of
democratization and peaceful reunification on the Korean peninsula.
The Korean-American Future Leadership Forum is designed to show our future generation about the various
options in finding their future career to increase their participation in mainstream America. For this forum, we
have invited 10 guest speakers from different sectors to introduce various sectors, and I would like you to
represent as a political appointee at this forum.
We look forward to your positive response and continued support. If you need additional information concerning
the:event, please feel free to contact Ms. Ki-Eun Rachael Oh, Co-Chair of the 2nd Generation Conference
Committee, at
Sincerely,
Soohyun
S0ohyun Julie Koo
OLC 000532
¯ file://C:kDocuments and Settings\dbfinleykLocal Settings\Temporary Internet Files\OLK6C... 7/14/2010
~0~: Soohyun Koo_~
Sent: Wednesday. July 03,2002 9:41 AM
To: Yoo, John C
Subject: RE:Letteroflnvitationfor CCKI Future Leadership Conference
Dear John Yoo:
Thank you so much for your prompt response! Please check our web site for more information about our organization,
and the nature of our group.
www.cckigw.org
The Centennial Conference of Korean Immigration will be a 3 day conference with several different sessions. The
session we would like you to speak at is currently titled, "Future Leadership," with the focus being on encouraging our
future generation to get involved with Various sectors.
You would have :10 to 15 minutes to talk, hopefully about your experience with the Bush administration, stories that
you would like to share with Korean youngsters and those who work with them, and your recommendations to second
:generation Korean American youth as they plan their futures.
We believe that the 100 people we anticipate attending the conference will be very interesting in hearing from you.
Soohyun (Julie) Koo
.....Original Message .....

Sent: Tuesday, July 02, 2002 4:51 PM
To: Koo, Soohyun (EOM)
Subject: RE: Letter of Invitation for CCKI Future Leadership Conference
Could you please give me some more information on this function, such as thenature of your group, how many people
will be attending, what their general background is, what previous speeches have been about, and what you would like
me to speak about?
John Yoo
office of Legal Counsel
¯ Department of Justice
202.5:14.2069
202.305.8524 (fax)

From: Koo, Soohyun (EOM) .......... .
Sent: Tuesday, July 02, 2002:1:[:20 AM
To: Yoo, John C
Subject: Letter of Invitation for CCKI Future Leadership
Conference
OLC 000533
<< File: tmp.htm >> << File: imageOOl.gif >> Centennial Committee Of Korean Immigration to the United States -
Greater Washington
sample image
July 2, 2002
SUBJECT: Request for Your Participation as a guest speaker of

Korean-American
The Centennial Committee of Korean Immigration to the United States-Greater Washington (CCKI-GW) will hold the
Conference on August 16-18, 2002 for the commemoration of lO0th year of the Korean immigration to the United
States of America.
On behalf of CCKI-GW, I would like to invite you tO be a guest speaker at the Korean-American Future Leadership forum
on Saturday,. August 17, 2002, from 10:00 a.m. - 11:45 a.m. at the Fairview Park Marriott Hotel, located at
3111 Fairview Park, Falls Church, Virginia.
It would be our distinct honor to have your acceptance of our invitation to be a Guest Speaker on August 17. We would
.appreciate a response by Tuesday, July 10, 2002.
CCKI-GW has.been organized to illuminate the history of Korean immigrants residing in the vicinity of Washington,. D.C.
In the 21st century, the Korean-American immigrant society must resolve to heighten its participation in mainstream
Americai maintain and preserve Korean traditional culture; and assist the process of democratization and peaceful.
OLC 000534
reunification on the Korean peninsula.
The Korean-American Future Leadership Forum is designed to show our future generation about the various options in
finding their future career to increase their participation in mainstream America. For this forum, we have invited 10
guest speakers from different sectors to introduce various sectors, and I would like you to represent as a political
appointee at this forum.
We look forward to Four positive response and continued support. If you need additional information concerning the
event, please feel free to contact Ms. Ki-Eun Rachael Oh, Co-Chair of the 2nd Generation Conference Committee, at
Sincerely,
Soohyun Koo
Soohyun Julie Koo
OLC 000535
Rivkin, David. , .....
Sent: Monday, July 08, 2002 4:42 PM
To: Yoo, John C
Attachments: HRR.1 .doc; HRR.summary.doc; SGlettertoSC3July2002.pdf; focus.rtf
HP, R.l.doc (127 KB)HRP,.summary.doc SGlettertoSC3July2 focus.rtf (885 KB)

(22 KB) 002.pdf (8 K:..
> Dear John:

>
To follow up on my recent e-mail, set forth below are a few of my additional ICC-related musings. (These are largely
prompted by the events of the last couple of weeks.) Most of them are, hopefully, factual in nature; a few, are more
legalistic. First, the utter hypocrisy of the European "ICC is the best thing since sliced bread" position can be se~n most
obviously in France’s efforts to exclude itself from the ICC’s effective reach, while at the same time.purporting to ratify
the treaty.
> France ratified the Rome Statute on June 9, 2000. Despite its public
> support for the Court, the French-Government did not accept the treaty
> without qualification. Among the numerous "declarations" made by
> France in its instrument of ratification were the following:
>
>~ A statement that the ICC Statute does not preclude France from
> exercising its "inherent right of self-defence in conformity with
> Article
> 5~. of the {UN} Charter."
>"
>* A:statement that the relevant provisions of the Statute "cannot

.> regulate or prohibit the possible use of nuclear weapons nor impair
> the other rules of international law applicable to other.weapons
> necessary to the exercise by France of its inherent right of
> self-defence," unless they later become the subject of a comprehensive ban.
>
>* A statement that, as far as France is concerned, the term "armed
> conflict," which would trigger substantial portions of the ICC’s
> jurisdiction, does not include "ordinary crimes" or "actsof
> terrorism, whether collective or isolated."
>
>* Statements indicating that the concepts of "military advantage" and
> "military objective," regulating permissible objects of military
> attack, are to be interpreted broadly, permitting a greater range of
> potential targets, and less chance of liability for France.
>
> * A statement that, as far as France is concerned, "collateral damage"
>.is excluded from the treaty’s definition of war crimes involving
> attacks on civilians.
>
Exempts itself from the ICC’s entire jurisdiction over "war crimes"
OLC 000536
> committed by its nationals, or on its territory, for a period of seven
> years.
> The net effect of these declarations is that, as far as France is

> concerned, the ICC will not be able to exercise jurisdiction over its
> people for those offenses -- violations of the laws of war -- most
> likely to be alleged against them. In particular, the effort to
> define the treaty’s coverage with respect to "military advantage,"
> "military objective," and, especially, "collateral damage," is merely
> a back door effort to protect its troops from the very same type of.
> politically-motivated prosecutions that the United States is concerned
> with. However, instead of openly challenging the court’s authority in
> this area, as the United States has done, the French, as has been
> typical of them for the past 1500 years, have taken the sneaky and underhand path.
> If the Court does attempt the prosecute French citizens on these
> ground, France will simply say that the Court has exceeded the bounds
> of France’s original ratification, and will refuse to accept the ICC’s
> jurisdiction at that time.
>
> That time, however, may never come. This is because, in addition to
> these "interpretable declarations," France has exercised the escape
> hatch provided by Article 124 of the Rome Statute, which permits a
> country to ratify the treaty, but to exclude itself from the "war crimes"
> jurisdiction of the Court for a period of seven years. At the end of
> this period, of course, if France considered it to be in its national
> interest, it would be able to withdraw from the Rome Statute, thus
>.getting the benefit of joining the treaty at a early date, but
> avoiding any downside foi" its own troops in the future.
>
> This, of course, is exactly and precisely why the drafters of the Rome
> Statute inserted this provision --so that they could get a sufficient
> number of countries to ratify on the front end to create the Court,.
> even if the great powers tater withdrew:
> Second, the typically idiosyncratic French position aside, the U.S.
> efforts to secure a Security Council carve out from ICC jurisdiction
> for personnel participating in U.N. peacekeeping operations have drawn
> strong and unfair criticisms from foreign elites:
>
>* Based upon Foreign Media Reaction’s ICC Issue Focus, a copy of which
> is attached hereto (Foreign Media Reaction is produced by the State
> Department), drawing upon 87 reports from 39 countries, the vast
> majority of overseas editorial accounts feature the following themes: (1) the U.S.
> is clearly subject to the ICC jurisdiction and its efforts to secure a
> U.N. Security Council carve out are arrogant, hypocritical and
> designed to produce a two-tiered system of international justice; (2)
> submitting to ICC jurisdiction does entail at least a partial
> surrender 0f one’s sovereignty, but this is an acceptable price to pay
>.to advance the cause of human rights and international law; (3) the
> whole contretemps about the Security Council carve out is not driven
> by a U.S. desire to protect its peacekeepers, but rather is a symbolic
> salvo inthe Bush Administration’s efforts to undermine/denigrate the
2
OLC 000537
> ICC; (4) the U.S. policy should be resolutely opposed by all members
> of the international community; (5) there is absolutely no
> acknowledgement of the French seven year withdrawal from the ICC
> jurisdiction or, for that matter, of any other reservations/conditions
> proffered by various signatory parties - France aside, several other
> countries have made some braze!~ reservations, e.g., Australian; the
> fact that India, China, Russia, Indonesia, et al., have not ratified
> the Rome Statute and have no plans to do so is mentioned only in
> passing; (6) Arab accounts are even shriller than the European ones,
> and link the U.S. anti-ICC stance with the continued alleged U.S.
> policy of committing war crimes in Afghanistan, Iraq, Palestine and
> aiding and abetting Israel in its commission of war crimes, etc.;
> some European accounts are critical of the recent U.S. bombing of a
> wedding party in Afghanistan, asserting that this episode manifests
> ongoing Systemic problems with the American approach to war fighting, e.g., excessive reliance on air power.
>
> Third, Kofi Annan also weighed in on this issue, in a way that is
> sharply critical of the U.S. position.
>
>* Annan’s July 3rd letter to Powell (a copy of which is attached
> herein) is quite condescending in tone. For example, Annan warns
> Powell that there will be strong reactions against any perceived
>.American attempts to undermine the Rome Statute. Ironically enough,
> the letter proceeds to point out that one possible solution to help
>cure America’s angst about ICC is to add a paragraph to the next
> Se. curity Council resolution, extending the U.N. mission in Bosnia,
:~-that would explicitly indicate that the Hague-based Yugoslav tribunal,
> because of its status as a subsidiary organ of the Security Council
> (established under Chapter VII of the U.N. Charter) has primacy over
> the ICC with regard to any exercise of international jurisdiction over
> offenses committed in the territory of the former Yugoslavia. The
> main reason why Annan’s position is both hilarious and hypocritical is
¯ > because, to the extent that the Yugoslav tribunal, by the virtue of
> its status as the Security Council’s subsidiary organ, has primacy
> over ICC, tl~e Security Council itself, when exercising Chapter VII
>-powers, has primacy over ICC and can curtail its jurisdiction in any
> way it sees fit.~. (Indeed, I believe that the Security Council can,
> pursuant to its Chapter VII powers, immunize from ICC even SFOR/IFOR
> personnel. This is the case even though SFOR/IFOR missions are not
> carried out under the Security Council’s auspices. In fact~ the
> Security Council can even immunize a military operation by a single
> country; all that is needed is a Security Council finding that such a
> carve out/immunization would be helpful to the attainment of certain
> foreignpolicy goals, e.g., .removing the threat to peace, that are
> being sought within, the context of the exercise of the Chapter VII
> powers.) Yet, the entire gist of Annan’s letter is to deny that the
> Security Council can doanything vis-a-vis ICC. Annan’s argument,
> reduced.to its bottom .line, is that it is okay for the Security
> Council to curtail ICC’s jurisdiction in favor of another international court - the Yugoslav tribunal -- but, that it is not
proper to do so in favor of American national courts.
>
>* There is also one particular passage in Annan’s letter that I find
OLC 000538
somewhat troubling. He indicates that the Administration’s proposed
carve out language relied on Article 16 of the Rome Statute. If this
is true, it is somewhat perplexing. Article 16, as drafted, is clearly
not intended to deal with a blanket/long-term jurisdictional carve
out. By its very terms, it envisions a 12-month provisional carve out.
Indeed, it would have been best not to rely on any particular
provision of the Rome Statute, but, instead, to invoke the Security
Council’s Chapter VII powers which, when properly applied, can trump the entire Rome Statute.
Fourth, while an unnamed senior defense official gave an excellent

ICC-related briefing on July 2, even he punted on one important issue.
He was asked by reporters about how our stance that ICC has no
jurisdiction over non-State parties can be reconciled with our
erstwhile view that the Yugoslav tribunal had jurisdiction over the
likes of Mr. Milosovic, without securing Serbia’s consent. The most
straightforward legalistic answer is that, unlike ICC, the Yugoslav
tribunal was created based upon the exercise of the Chapter VII powers
by the Security Council and that, under the U.N. Charter, all U.N..
members, including Serbia, connected to obey the Security Council’s
Chapter VII resolutions when they join the U..N. The more
philosophical/conceptual answer is that ad hoc international tribunals
may be appropriate when a given state/region has suffered a
Hobbsean-level of breakdown of law and order. In sucha situation,
there is, arguably, no national sovereignty that is being trampled
upon by an international tribunal. By contrast, ICC’s entire raison
> d’etat is to function along side existing, well-functioning national sovereign systems and second-guess their decisions.
Fifth, attached are the excerpts from the State Department’s country
human rights reports for the ICC state parties. As you will see, quite
a few of them are real rogues.
This is it. My personal opinion is that the Europeans have thrown

down the gauntlet; the only way in which we can deal with this
successfully is with a broad diplomatic/legal offensive, with a claim
that ICC has no jurisdiction over-non-State parties. Sorry to be so long-winded.
Best regards,
David
.>
> <<HRR::~.doc>> <<HRR.summary.doc>> <<SGlettertoSC3July2002.pdf>>.
> <<focus.rtf>>
>
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CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE
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If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the
OLC 000539
messal~e to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying
immediately by e-mail or telephone, and delete the original messal~e immediately.
.Thank you.
OLC 000540
HUMAN RIGHTS RECORD OF ICC STATES PARTIES
EJK Extra-judicial killing

PM Serious police misconduct, not rising to the level of torture, but systemic or resulting
in deaths
T Torture
AA Arbitrary Arrests
LPD Lengthy Pre-trial Detention
PJ Political influence on Judiciary
JC Judicial corruption
RDP Restrictions on due process for criminal, defendants
States Parties to the Rome Statute as of July 1, 21102:
Andorra
The Government generally respected the human rights of its citizens, and the law and the
judiciary provide effective means of dealing with. individual instances of abuse. Violence against
’women increased, and there was some discrimination against women in the workplace. There
. were some limits on workers fights. Some immigrant.workers complained that they donot have
¯ the same labor rights and security as citizens, despite legal protections "
Antigua and Barbuda
The Government generally respected the human rights of its citizens; however, problems
remained in several areas. There were reports of police brutality against demonstrators.
Prison conditions were poor, and there were allegations of abuse of prison inmates.
Opposition parties complained that they received limited coverage or opportunity to express their
views on the government-controlled electronic media; however, in April an independent radio
station began to broadcast. Societal discrimination and violence against women continued to be
problems.
Argentina EJK/T
AA/LPD/PM
The Government generally respected the human rights of its citizens; however, there were
problems-in some areas. Police continued to commit extrajudieial killings. Torture and
¯ brutality by police and prison guards were Serious problems. In some cases the authorities
investigated and sanctioned those responsible for. abuses,.but impunity is .a problem. Police
corruption is a problem. Prison conditions are poor. Pol~ce arbitrarily arrested and
detained c~fizens~ and lengthy pretrial detention ~s a problem. There were credible
OLC 000541
allegations of efforts by members of the security forces to intimidate the judiciary,
witnesses, and local human rights groups. The press is free and vigorous; however, public
officials harassed and threatened journalists on occasion. Police used excessive force against
demonstrators on several occasions. Violence and discrimination against women also are
problems. Child abuse and dhild prostitution are not widespread, although prosecutions
demonstrate they exist. Anti-Semitism is a problem; however, the Government took steps to
combat it. Discfi, mination against indigenous people persists. Discrimination against religious
and racial minorities and foreign nationals persists. Child labor is a problem. There were reports
that women, and unconfirmed reports that children, were trafficked into the country.
Australia
The Government generally respectsthe human rights of its citizens, and the law and judiciary
provide effective means of dealing with individual instances of abuse. During the year, six
persons died of gunshot wounds that occurred while in police custody, while being taken
into custody, or while trying to evade capture by police. There were occasional reports that
police beat or otherwise abused persons. The Government administers many programs to
improve the socioeconomic conditions of Aboriginals and Tortes Straits Islanders, who together
form about 2 percent of the population, and to address longstanding discrimination against them.
Societal violence and discrimination against women.are problems that are being addressed
actively. There were some instances of forced labor in the past, but none were identified during
the year, and trafficking.in women is a limited problem, which the Government is taking steps to
address. Leaders in the ethnic and immigrant communities expressed concern that increased
numbers of illegal immigrants and violence at migrant detention centers contribute to instances
of vilification of immigrants and minorities. During the year, the country tightened its
immigration laws to deter illegal migrants.- This effort followed an incident in August in which a
Norwegian freighter carrying rescued individuals who wished to seek asylum was denied
permission to land in the country after entering territorial waters around Christmas Island.
Austria
. problems in a few areas. There were some reports of abuse by police, which involved
¯ occasional beatings but mainly iuvolved verbal abuse, threats, and harassment. Stringent
slander laws were criticized as detrimental to press reporting. The Government passed a media
reform bill to make the oversight board for the state radio and television company more
independent of political influence; however, the board continued to be dominated by political
appointees. There was some governmental and societal discrimination against members of some
" non recognized religious groups, particularly those considered to be "sects". Violence against
women was a problem, which the Government took steps to address. Interior Ministry. statistics
for 2000 showed a decrease in the number of official complaints of rico-Nazi, rightwing
extremist, and xenophobic incidents. Trafficking in women for prostitution remained a problem,
which the Government took steps to combat.
OLC 000542
Belgium
judiciary provide effective means of dealing with individual instances of abuse. Trafficking in
women and children and violence against women remained problems, and the Government took
steps to combat them.
Belize LPD/PJ/AMPM
problems in several areas. Principal human rights abuses include occasional brutality and use of
excessive force by the police when making arrests, poor prison conditions, allegations of
arbitrary arrest and detention, lengthy pretrial detention, political influence on, the
judiciary, and judicial limits on freedom of the press. Violence and discrimination against
women, abuse of children, and employer mistreatment of undocumented foreign workers also
were problems, There were reports of trafficking in persons.
Benin AA/JC/PM/RDP
The Government generally respected the human rights of its citizens; however, there, were
problems in several areas. There were credible reports that police sometimes beat suspects,
and at times the authorities arbitrarily arrested and detained persons. The most serious
human rights problems continued to be the failure of police forces to curtail acts of vigilantism
and ,mob justice; harsh and unhealthy prison conditions; serious administrative delays in
processing ordinary criminal cases with attendant denial of timely, fair trials; judicial
corruption;, violence and societaldiscriminationagainst.women; and trafficking in and abuse of
children. The practice of female genital mutilation (FGM) and, to a lesser extent, infanticide also
remained problems. Child labor, including forced and bonded child labor, continued to be a
problem. The Constitutional Court has demonstrated independ6nce; however, it was accused of
bias in. favor of the President during the presidential elections. ¯
Bolivia " P1W~/AA/LPD/JC
The Government generally respected the human rights of its citizens; however, problems.remain
in certain areas. Legal and institutional deficiencies prevented the full protection of citizens’
rights. Security forces killed 11 protesters during, violent demonstrations during the year. There
were a number.of allegations of torture by the police and security forces, although none
were confirmed independently. There were credible reports of abuses by police, including
¯ use of excessive force, petty thef~ extortion, and improper arrests° Investigations of alleged
official abuses were slow. Prison conditions are harsh, and violence in prisons is a problem. At
times police arbitrarily arrested and detained persons. Denial of justice through prolonged
detention due to antiquated procedures and inefficiency and corruption in the judicial
system remained a .serious problem, although this began to change with the full
implementation in May of the-new Code of Criminal Procedures (CCP). In March the
¯ Government also enacted a new Public Ministry Law to adapt the prosecutorial function of the
judicial system to the requirements of the CCP. There were reports that the Government
3
OLC 000543
infringed on citizens’ property rights and attempted to intimidate the media. Security forces
injured hundreds of protesters during the year. Other problems included domestic violence and
discrimination against women, abuse of children, discrimination against and abuse of indigenous
people, discrimination against Afro-Bolivians, child labor, inhuman working conditions in the
mining industry, and trafficking in persons.
Bosnia LPD/AA/PM
The Government’s human rights record remained poor; although there were some improvements
in a few areas, serious problems remained. The degree of respect for human fights continued to
vary among areas with Bosniak, Bosnian Croat, and Bosnian Serb majorities. Police eontinned
to abuse and physically mistreat detainees and other citizens. In the RS, police detained
suspects for long periods of time before filing charges; lengthy prearraignment detention
was also a problem in the Federation. However, there were fewer cases of arbitrary arrest
and detention than in the previous year. Police commonly failed to act on complaints of
police brutality and rarely were held accountable for their actions. Prison conditions met
prisoners’ basic minimum needs for hygiene and access to medical care; however, overcrowding
and antiquated facilities continued to be problems. Although the RS Parliament passed a law on
cooperation with the Hague-based International Criminal Tribunal for the Former Yugoslavia
(ICTY) in September, the RS continued its de facto refusal to take action against-any Serbs
indicted by the ICTY. In the Federation, the Govenunent cooperated with the ICTY and
facilitated the transfer of three Bosniak generals in August and of a Federation Government
minister in September. The judiciary in both entities remained subject to influence by dominant
political parties andby the executive branch. Overlapping and poorly defined layers of judicial.
responsibility and outdated procedures made the administration of justice sporadic and
vulnerable to manipulation. Even when independent decisions were rendered, local authorities
often refused to carry them out. Authorities in all areas infringed on citizens’ privacy rights. The
destruction of minority-owned houses Continued .in some areas of the RS and in Croat-controlled
areas of the Federation.
¯ Botswana LPD/PM
The Government generally respected the human rights of its citizens; however, problems
continued in several areas. There were reports that the police sometimes, beat. or otherwise-
mistreated criminal suspects in order to obtain evidence or coerce confessions. The
authorities took action insome cases against officials responsible for such abuses. Prison
conditions were poor, with overcrowding the major concern, although efforts, to address the
problem have made moderate progress. In many instances, the judicial system did not provide
timely fair trials due to a serious increasing backlog of cases. The Government continued to
dominate domestic broadcasting and limited freedom of the press. Violence against women
remained a serious problem, and women continued to face legal and societal discrimination.
¯ .Some citizens, including groups not numbered among the eight "principal tribes" of the Tswana
nation, the majority ethnic group, still claimed not to enjoy full access to social services and, in
practice, remained marginalized in the political process. Trade unions continued to face some
legal restrictions, and the Government did not always ensure that labor laws were observed in
practice.
4
OLC 000544
Brazil E3K/T
PM
The Federal Government generally respected many of the human, rights of its citizens; however,
there continued to be numerous serious abuses, and the record of some state governments was
poor. State police forces (both civil and uniformed) committed many extrajudieial killings,
tortured and beat suspects under interrogation, and arbitrarily arrested and detained
persons. Police also were implicated in criminal activity of all kinds, including killings for
hire, death squad executions, extortion, kidnapings for ransom, and narcotics trafficking.
In April U.N. Special Rapporteur for Torture Sir Nigel Rodley released his report on
torture, which contained many examples of the use of torture by police and prison
administrators, and strongly criticized the Government for not taking measures to
eliminate the use of torture. The authorities often failed to prevent violence inside prisons. The
state governments concerned did not punish most perpetrators of these abuses effectively. Police
. tribunals (special courts for the uniformed police) remained overloaded, rarely investigated cases
thoroughly, and seldom convicted abusers. The separate system of uniformed police tribunals
contributed .to a climate of impunity for police officers involved in extrajudicial killings or
- abuse of prisoners. Prison conditions ranged from poor to extremely harsh. Prison officials
often tortured and beat inmates. The judiciary has a large case backlog and often was unable to
ensure the right to a fair and speedy trial. Justice is slow and often unreliable, especially in
areas where powerful economic interests influence the local judiciary. Police used excessive
force to disperse demonstrators on several occasions during the .year, resulting in serious
injuries and at least one death. Human ¯rights monitors on occasion faced threats and
¯ .harassment. Violence and discrimination against women were problems. Child prostitution and
abuse also were problems.-Despite constitutional provisions safeguarding .the rights of
indigenous people, government authorities often failed to protect them adequately, from outsiders
who encroached on their lands, and failed to provide .them with adequate health care and other.
basic services in many areas. Discrimination against Afro-Brazilians is a problem. Violence
against homosexuals isa problem. Rural violence, including killings of land reform and rural
labor activists, persisted. Forced labor continued to be a serious problem for adults and children,
and there continued to be occasional reports of forced child labor. Trafficking in persons,
particularly women and children for the purpose of prostitution, is a serious problem.
Due to jurisdictional and resource limitations, the efforts of the Federal Government to highlight
human rights abuses and allocate federal resources to bolster the efforts of the states had limited
impact in many of the states where human rights violations are most common, In December
President Cardoso stated.that he welcomed visits by international human rights groups to
conduct investigations.
Bulgaria EJK
.AA/PM/LPD/JC
The Government generally respected the human rights of its citizens; however, while there were
improvements in some areas, its human rights record was poor in other areas. Members of the
security forces were responsible for some ldllings. Security forces commonly beat suspects
5
OLC 000545
and inmates and beat and mistreated minorities. Arbitrary arrest and detention were
problems. Security forces harassed, physically abused, and arbitrarily arrested and
detained Romani street children. Problems of accountability persisted and inhibited
government attempts to address police abuses. Conditions in many prisons and detention
facilities were harsh. There remained some instances of prolonged pretrial detention,
although the Government has continued to hnprove its performance in preventing
defendants’ periods of pretrial detention from exceeding the statutory limit of 1 year. The
judiciary is underpaid, understaffed, and has a heavy ease backlog; corruption of the
judiciary is a serious problem. The Government infringed on citizens’ privacy rights. The
Government exerted undue influence on the media. There were limits on freedom of association.
The Government restricted freedom Of religion for some non-Orthodox religious groups.
Constitutional restrictions on political parties formed along ethnic, racial, or religious lines
effectively limit participation in government for some groups. Violence and discrimination
against women remained serious problems. Conditions for children in state institutions were
¯ poor, and because of a lack of funds, the social service system did not assist homeless and other
,vulnerable children adequately, notably Romani children. There was some discrimination against
persons with disabilities. Societal discrimination and harassment of "nontraditional" religious
-minorities persisted, but were less frequent than in the past year. Discrimination and societal
. violence against Roma were serious problems. Child labor was a problem. Trafficking in women
and girls was a serious problem:
Cambodia E JilT
AA/PM/LPD/PJ/JC
The Government generally respected the human rights of its citizens in a few areas; however, its
record was poor in many other areas, and serious problems remained. The military forces .and
¯ police were responsible for both political and nonpolitical killings, and the Government
rarely prosecuted anyone in such cases. There were other apparently politically motivated
killings by nonsecurity force persons as well. The Government arrested suspects in some of
"these cases and convicted suspects in two such cases. Police acquiesced.in or failed to stop
lethal violence by citizens against criminal suspects; the Government rarely investigated
.such killings, and impunity remained a problem. There were credible reports that
--members ofthe security forces tortured, beat, and otherwise abused persons in custody,
often to extract confessions. Prison conditions remained harsh, and the Government:
¯ continued to use arbitrarY arrest and prolonged pretrial detention. Impunity for many who
:commit human rights abuses remained a serious problem. With some exceptions, national
and loca! government officials lacked the political will and financial resources to act effectively
against members of the security forces suspected of responsibility for human rights abuses.
Democratic institutions, especially the judiciary, remained weak~ The judiciary is subject to
influence and interference by the executive branch and is marred by inefficiency and
corruption. Politically related crimes rarely were prosecuted. Citizens often appear without
defense counsel and thereby effectively are denied the right to a fair trial. The Supreme Council
of Magistracy disciplined 26 judges and prosecutors for misconduct during the year but did not
impose harsh penalties. Land disputes remained frequent, and the Government and courts did not
consistently resolve them in a just manner. A new land law went into effect in July. The
Government largely controlled and influenced the content of the electronic broadcast media,
6
OLC 000546
especially television. The authorities on occasion attempted to interfere with freedom of
assembly. Election related violence and intimidation occurred less frequently than in previous
national elections, and the Government took action against some perpetrators, but not
consistently. Societal discrimination against women remained a problem. Domestic violence
against women and abuse of Children were common. Discrimination against persons with
disabilities was a problem. The ethnic. Vietnamese minority continued to face widespread
discrimination. Unlike in previous years, the political opposition did not exploit actively anti-
Vietnamese sentiment. The number of trade unions grew, and they became more active than in
previous years. The Govenmaent continued to express support for freedom of association but did
not enforce freedom of association and other provisions of the Labor Law effectively. Antiunion
activity continued. Child labor continued to be a problem in the informal sector of the economy,
including in the commercial sex industry, where forced labor was also a serious problem.
Domestic and cross-border trafficking in women and children, including for the purpose of .
prostitution, was a serious problem. Mob violence, although none was ethnically directed,
resulted in some vigilante-style killings. Landmines killed 163 persons and injured 634.
Canada
The Government generally respected the human fights ofits citizens, and the law and judiciary
provide effective means for dealing with individual instances of abuse; however, there were
problems in some,areas. Problems include discrimination against women, persons with
disabilities, and aboriginal people. There was an increase in anti-Semitic harassment, and after
September 11, there was an increase in anti-Muslim harassment. The Government continued to
take serious steps to address private acts of violence against women. Trafficking of persons into
the country, including trafficking for purposes of prostitution, is a growing problem.
Central African Republic EJK/T

AA/PM!LPD/PJ
The Government’s poor human rights record worsened in some areas, particularly after the May
28 attempted coup, and serious problems remained in many areas. Citizens generally were able
to choose their national government; however, the Government controls the electoral process.
Security forces continued to commit extrajudicial killings, including government-approved
executions of suspected bandits and killings reportedly committed for political reasons by
members of the USP, particularly during and following the May 28 attempted coup: Following
the coup attempt, security forces targeted members of the Yakoma ethnic group for killings and
abuse and used rocket launchers indiscrimir~ately in civilian neighborhoods. There also were
credible reports of deaths of prisoners due to police abuse. :Police continued to torture, beat,
and otherwise abuse suspects and prisoners. Other human rights abuses included harsh prison
conditions, arbitrary arrest-and detention, prolonged detention without trial, limits on
judicial independence, and infringements on citizens’ right to privacy. The Government
¯ restricted freedom of the press and freedom of assembly and association. There were some limits
on freedom of religion and some limits on freedom of movement. Violence and discrimination
.against women, female genital mutilation (FGM), child prostitution, discrimination against
indigenous people (Pygmies), and child labor, including instances of forced child labor,
continued to be problems. Trafficking in persons occurs.
7
OLC 000547
Congo, Democratic Republic of the EJK/T
AAJPM/LPI)/PJ/CJ/RDP
The Government’s human rights record remained poor, and it Continued to commit numerous,
serious abuses; however, there were improvements in several areas. Citizens do not have the
right to change their government peacefully. Following the assassination of President Laurent
Kabila, the Government immediately arrested and summarily executed 11 persons suspected of
involvement. Security forces were responsible for extrajudicial killings, disappearances,
torture, beatings, rape, and other abuses; however, there were fewer reported cases than in
previous years. In general security forces committed these abuses with impunity. Prison
conditions remained harsh and life threatening. Security forces continued to arbitrarily arrest
and detain citizens; however, the number of such cases decreased. Prolonged pretrial
:detention remained a.problem, and dozens of suspects remained in detention without
formal charges filed, without any evidence presented against them, and without an
opportunity to defend themselves in court. Citizens often were denied fair public trials. The
special military tribunal tried some civilians for political offenses, although most cases were
related to the Kabila assassination or to alleged coup plotting against the Joseph Kabila
Government. The military courts did not execute any civilians during the year; however, due
process frequently was disregarded. The judiciary remained subject to executive influence and
continued to be underfunded, inefficient, and corrupt. It largely was ineffective as either a
deterrent to human rights abuses or as a corrective force. Security forces violated citizens’ rights
to privacy. Forcible conscription of adults and children continued in both government-controlled
and rebel-controlled territories, despKe promises by both sides to end the practice. Government
and rebel security forces continued to use excessive force and committed violations of
international law in the war; however, there were no reports that government aircraft bombed
civilian populated areas in rebel-held territory.
¯ Costa Rica LPD
The Government generally respected the human rights of its citizens, and the law and judiciary
:provide effective means of dealing with individual instances of abuse; however, there were
problems in a few areas. There were some instances of physical abuse by police and prison ’
¯ guards, but reports of police abuse of authority or misconduct decreased during the year.
The judicial system processes some criminal cases very slowly, resulting in lengthy pretrial
detention for some personscharged with crimes. Domestic violence is a serious problem, and
traditional patterns of unequal opportunity for women remain, despite continuing government
and media efforts to advocate change. Abuse of children also remains a problem, and child
prostitution is a serious problem. Child labor persists.
Croatia LPD/PJ
The Government generally respected the human rights of its citizens and there were some
improvements during the year; however, serious problems remained. Despite some irregularities,
the Government’s conduct of elections-in 2000 improved citizens" ability to change, their
government peacefully. There were instances of arbitrary arrest and detention. The Government
8
OLC 000548
continued to arrest and charge persons for war crimes committed during the 1991-95 conflicts in
Bosnia and Croatia, and the problem of arrests of ethnic Serbs for war crimes despite extremely
weak evidence continued. Lengthy pretrial detention continued to be a problem, particularly
for ethnic Serbs indicted for war crimes. Domestic courts continued to adjudicate war
crimes cases, taking steps to depoliticize cases against ethnic Serbs and opening or
reopening investigations of members of Croatian military forces. However, ethnic Serbs
remained incarcerated after being convicted in nontransparent politicized trials in past
years. Reforms in the courts and prosecutor’s offices resulted in some improvements in the
impartiality of the judiciary; however, courts convicted persons in mass trials and in trials
with weak supporting evidence, particularly in Eastern Slavonia. The courts continued to
be .subject to some political influence on the local level and suffered from bureaucratic
inefficiency, insufficient funding, and a severe backlog of cases. At times the Government
infringed on privacy rights; restitution of occupied property to (mostly ethnic Serb)
refugees returning to the country remained slow and problematic. The Government
generally respected freedom of speech and press; however, a few problems remained. Unlike the
previous regime, the Government did not interfere politically in the editorial decisions of the
media; however, at the local level, political pressure on the media continued, and an estimated
1,200 libel lawsuits against, journalists remained pending due to backlogs in the judicial system.
A new Law on Associations reduced governmental interference in the formation and operation of
assoc, iations and NGO’s and created tax incentives for donors supporting them. The Government
generally respected freedom of religion; however, restitution of nationalized property remained
.an unresolved problem for the religious communities. Lack of progress on private property
restitution and resolution of the right to previously socially-owned property, along with severe
economic difficulties in the war,affected areas, continued to impede returns of refugees. The
Government’s record of cooperation with international human rights and monitoring
organizations and with the International Criminal Tribunal for the former Yugoslavia (ICTY)
continued to improve.
Cyprus
The Government of the Republic of Cyprus generally respected the human rights of its citizens;
-however, there were.problems in some areas. Instances of police brutality against detainees
continued to be a problem. Police reportedly subjected Turkish Cypriots to surveillance. The
Government placed some restrictions on persons traveling to the north. Violence against women
¯ persisted. Trafficking in women for prostitution remained a problem.
The Turkish Cypriot authorities generally respected human rights; however, there were a number
of problems. Police continued to abuse suspects and detainees. Civilians continued to be tried in
military courts. The authorities subjected members of the Greek Cypriot community living in the
north to surveillance. The authorities also continued to restrict freedom of movement. Since 1997
the Turkish Cypriot authorities have banned most bicommunal contacts between Turkish
Cypriots and Greek Cypriots, including previously frequent meetings in Nicosia’s buffer zone. At
times they attempted to prevent Turkish Cypriots from traveling to bicommunal meetings off the
island as well. Cooperation between the authorities and the U.N. High Commissioner for
Refugees was uneven. The Turkish Cypriot authorities have taken some steps to improve the
conditions of Greek Cypriots and Maronites living in the territory under their control, but the
9
OLC 000549
treatment of these groups still falls short of Turkish Cypriot obligations under the Vienna lII
Agreement of 1975. Violence against women and trafficking in women for prostitution were
problems.
Denmark
provide effective means of dealing with instances of individual abuse. Violence against women
is a problem, but the Government took steps to deal with it. Trafficking in women for
prostitution is a problem.
problems in several areas. The principal human rights problems are occasional instances of use
of excessive force by police, poor prison conditions, societal violence against women and
children, instances of discrimination against indigenous Carib Indians, and societal
discrimination against female Caribs in mixed marriages.
Ecuador EJK/T
AA/P1VI/LPD/PJ/JC
The Government’s lluman rights record was poor in a number of areas and serious problems
remain. There were cre, dible reports that police committed extrajudicial killings. Security
forces killed severalprotesters during demonstrations. There was at least one report of a
disappearance attributed .to police. Police tortured and otherwise mistreated prisoners and
detainees, frequently with impunity. Prison conditions remained poor. In September Congress
increased the penalties for serioug offenses in an attempt to curb rising crime. Persons often are
subject to arbitrary arrest~ and prolonged detention is a problem. Once incarcerated,
persons’ without lawyers may wait years before being tried. More than one half of the
detainees in jail have not been sentenced formally. The Government failed tO prosecute and.
.punish .human :rights abusers. The legal and judicial systems are politicized, inefficient, and
sometimes corrupt. The Government began to implement a new criminal procedures code
intended to strengthen the justice system. A degree of self-censorship in the media continued.
The police used tear gas and other methods to quell protesters. The Government briefly declared
a national state of emergency at the beginning of the year that limited freedom of assembly and
movement. Violence and pervasive discrimination against women, indigenous people, and Afro-
Ecuadorians remain problems. The Government entered into negotiations with indigenous.
groups following widespread protests in January and February. The Government continued to
order public .employees in nationwide strikes back to work. Child labor is a problem, and there
were reports of trafficking in children. The media and human rights organization~ became
increasingly concerned about spillover effects, including increased crime and refugees, from the
continuing violence in neighboring Colombia. Mob violence and vigilante killings persist.
10
OLC 000550
Estonia PM
The Government generally respected the human rights of its citizens and the large ethnic Russian
noncitizen community; however, problems remained in some areas. Police continued to
mistreat prisoners and detainees and use excessive force. Prison conditions remained poor,
although there were some improvements. Some officials in the United Nations, the Russian
Government, and members of the local ethnic Russian community continued to criticize the
Citizenship and Aliens’ Law as discriminatory for its Estonian language requirements. Violence
against women was a problem, and there were reports that women were trafficked for
prostitution.
Fiji EJK1
The Government’s human rights record remained poor, although it improved somewha~ after
the elections in August and September, and some serious problems remain. The Constitution.
Contains provisions that reduce previous factors that abridged the right of citizens to change their
government; however, it also maintains a partially ethnically based electoral system. The ethnic
divide between the SDL (mainly composed of indigenous Fijians) and the FLP (mainly
composed Of Indo-Fijians) remains an obstacle to long term political stability. Ethnically based
discrimination remains a serious problem. A number of govermnent policies, including hiring
practices, education policies, and land tenure preferences continue to provide protection for
indigenous Fijian interests in accordance with the Constitution. Other human rights problems
include several political and arbitrary or unlawful deprivations of life; occasional police
and military abuse of detainees and suspects; informal and formal constraints on the freedom
of speech and the press and self-censorship; restrictions on freedom of assembly and movement;
violence and discrimination against women; instances of abuse of children; and racial
discrimination and violence.
Finland
provide effective means of dealing with individual instances of abuse. The Government is taking
steps to address the problem of violence against women. There were reports of trafficking in
¯ persons, particularly women and girls, for prostitution.
France LPD
The Government generally respected the human rights of its citizens, although there were a few
problems in some areas; the law and judiciary provide an effective means of dealing with
individual instances of abuse: There were instances of the abuse of detainees, particularly
foreigners, and reports of the use of excessive force by law enforcement officers. Long
delays in bringing cases to trial and lengthy pretrial detention were problems. Violence and.
~ There was one unlawful killing.by the government reported in 2002, but more
than a dozen in 2000.
ll
OLC 000551
some discrimination against women, as well as child abuse, were problems, which the
Government took steps to address. Anti-Semitic incidents decreased during the year. There were
instances of violence and discrimination against immigrants and religious minorities. Trafficking
in women and girls was a problem, which the Government took steps to address.
Gabon E JilT
AA/PM/LPD/PJ
The Government’s human rights record was generally poor in some areas, and some
longstanding human rights abuses continued. The ability of citizens to change their
government remained limited. Outstanding cases of extrajudicial killings by security forces
remained unresolved. The security forces beat and tortured prisoners and detainees, prison
conditions remained harsh and life threatening, arbitrary arrest and detention were
problems, the judiciary remained subject to government influence, and authorities
routinely infringed on citizens’ privacy rights. The Government continued to restrict freedom
of the press. On at least one occasion, police used excessive force to disperse a demonstration.
Violence and societal discrimination against women were problems. Forced labor by foreign
children as vendors and domestic workers remained a problem, and there were reports of
trafficking in children.
Gambia EJK/T
PM/AA/PJ
¯ The .Government’s human rights record was poor, and although there were, improvements in
several-areas, serious problems remained. Citizens exercised their right to change their
government in the October presidential election~ which most observers considered relatively flee
and fair. Security forces committed several extrajudicial killings and beat, harassed, or
otherwise mistreated journalists, detainees, and prisoners. There also were reports that
security forces beat military and security detainees. There were no reports that security
prisoners were threatened with summary execution. Government harassment of the opposition
continued. The Government established a commission to examine the findings, of a coroner’s
inquest into killings of 14 persons by security forces in April 2000;. however, the Government
rejected the commission’s findings and decided that no one .would be prosecuted. During the
year,-the National Assembly passed and the President signed a law that allows the President to
"for the purpose of promoting reconciliation in an appropriate case, indemnify any person he
may determine, for any act, matter or omission to act, or things done or purported to have done
during any unlawful assembly, public disturbance, riotous situation or period of public
emergency.". In previous years, conditions at Mile 2, Janj anbureh, and Jeshwang prisons were
believed to be very poor, based on anecdotal evidence; however, during the year, the
InternationalCommittee for the Red Cross (ICRC) visited the Mile 2 and Jeshwang prisons and
found that the conditions were good. Detainees, unlike long-term prisoners, continued to
complain that they-were tortured. Security forces arbitrarily arrested and detained
cRizens, particularly opposition politicians, human rights activists, and journalists. Some.of
the detainees alleged harsh treatment while being arrested and detained, and there were
-reports of incommunicado detention. Thecourts reportedly are subject .to executive branch
~pressure~ particularly at lower levels, although magistrates occasionally demonstrated some
12
OLC 000552
independence by ruling against the Government. There was one known political prisoner. The
Government at times infringed on citizens’ privacy rights.
The Government significantly limited freedom of speech and of the press, and security farces
arrested and detained persons who publicly criticized the Government or who expressed
views in disagreement with the Government. Journalists practice self-censorship. The
Government at times restricted freedom of assembly and association; however, there were no
reports that the Government denied opposition parties permits to hold rallies during the year. In
July the Government repealed Decree 89, which had banned three major opposition political
parties and all former presidents, vice presidents, and ministers from political activity until 2024.
Following the repeal, the parties resumed their activities. The .Constitution provides for freedom
of movement but allows for "reasonable restrictions," which the Government at times enforced.
Violence and discrimination against women persisted. The practice of female genital mutilation
(FGM) is widespread and entrenched. Child labor was a problem, and there were some instances
of child prostitution.
Germany
The Government generally respected the human rights of its citizens, and the law and judiciarY
provide effective means of dealing with cases of individual abuse; however, there were a few
problems. There were some limits on freedom of assembly and association. There was some
discrimination against Scientologists, and one regional court has upheld a ban on the wearing of
Muslim headscarves by teachers in public schools. Violence against women and children
continued to be a problem, which the Government took steps to address. Some minority religious.
¯ groups reported instances of societal discrimination. Instances of societal violence and
harassment directed at minority groups and foreign residents continued. Women continued to
face some wagediscriminati0n in the private sector, as did minorities and foreigners. Trafficking
¯ in persons, particularly women and girls, was a problem.
Ghana EJK
P1VI/AA/LPD/PJ
- The Government’s generally poor human rights record improved; although there were significant
- improvements in several areas, serious problems remained in others. Police use of excessive
force resulted in some extrajud!cial killings and injuries. Opposition activists claimed that
government security forces engaged in harassment, including, unlawful searches and detentions.
’ There continued to be credible reports that members of the police beat suspects in custody and
. other¯ citizens, and that police and some elements of the military arbitrarily arrested and
detained persons. Police corruption was a problem. Although members of the security
¯ forces ioften are not punished for abuses, the commanding officer and other members of the
64th Infantry Unit, v~hich is believed to commit many abuses, was transferred during the year.
Prison conditions remained harsh; however, according to a 2000 government inspection yeport,
conditions have improved from previous years. Prolonged pretrial detention remained a
problem. Inadequate resources and a system vulnerable to political and economic influence
Compromised the integrity of the overburdened.judicial system. At times the Government
¯ infringed on citizens’ privacy rights. The Government generally respects freedom of speech and
13
OLC 000553
of the press; however, there were occasional reports that government officials pressured
government media outlets to cease or minimize coverage of opposition politicians. Major
government media outlets exercised some restraint in their coverage. Unlike in the previous year,
only one libel suit was filed by a minister. On July 27, the Government abolished the criminal
libel law and dismissed all pending court cases related tO the law; however, government media
continued to favor government officials in their coverage. At times the Government restricted
freedom of assembly, and police used force to disperse demonstrations. The Government
generally respects freedom of association; however, in February the Government announced that
it would prohibit the existence and formation of all political groupings within the security
services. There are some limits on freedom of religion. Although the Government generally
respects freedom of movement, police set up barriers to demand bribes from motorists. Violence
against women is a serious problem. Trokosi, a traditional form of ritual servitude, is practiced
on a limited scale in one region of the country. Female genital mutilation (FGM) still is
practiced, primarily in the north. Religious differences led to tension and occasional clashes
between different groups. There were some incidents of ethnically motivated violence, and some
ethnic groups complain of discrimination. Child labor is a problem in the informal sector, and
forced child labor and trafficking in women and children also are problems. Vigilante justice also
is a problem.
Greece PM
The Government generally respected the human fights of its citizens; however, there were
serious problems in some areas. There was a report of an isolated police killing of a Rom.
Security force personnel sometimes abused persons,.particularly illegal immigrants and
Roma. Overcrowding and harsh conditions continued in some prisons. Police sweeps resulted in
the detention under otIen squalid conditions of undocumented immigrants. There are legal limits
on the freedom of association of ethnic minorities. Leaders of minority religions noted a general
improvement in government tolerance. Laws restrictive of freedom of speech remained in force,
and some legal restrictions and administrative obstacles on freedom of religion persisted.
Violence and discrimination against women were problems. Discrimination against ethnic
minorities remained a problem. Roma continued to suffer widespread discrimination. There were
reports that minority children were forced into begging, and the trafficking in women and girls
into the country for the purpose of prostitution was a problem.
Honduras EJK
PM/LPD/JC
The Government generally respected the human rights of its citizens; however, serious problems
remained. Members of the security, forces committed some extrajudicial killings. Well-
:organized private and vigilante security forces .are alleged to have committed a number of
arbitrary-and summary executions. Human rights groups accused former security force officials
and the business community of colluding to organize "death squads" to commit extrajudicial,
summary, and arbitrary executions, particularly of youth. Security force personnel beat and
otherwise abused detainees and other persons. Prison conditions remain harsh, lengthy
pretrial detention is common, and detainees generally do not receive due process.
Considerable impunity for members of the economic, military, and official elite, exacerbated by
a weak, underfunded, and often corrupt judicial system, contributed to human fights problems.
14
OLC 000554
Although the civilian courts considered allegations of human rights violations or common crimes
against armed forces personnel, and some cases went to trial, there were few, if any, convictions.
While no senior Government official, politician, or bureaucrat, or member of the business elite
was convicted of crimes, a number were under investigation during the year. The Government
removed or demoted more than-200 military officials, police officers, police agents and
investigators, and judges from office on corruption and other charges. The judicial system
continued to deny swift and impartial justice to prisoners awaiting trial. On occasion the
authorities conducted illegal searches. Individual members of the news media suffered various
forms of harassment. The Government brought questionable charges of public disruption against
a number of human fights activists. Other human rights problems included violence and societal
discrimination against women, child prostitution, abuse, of children, and discrimination against
indigenous people. The Govermnent does not enforce effectively all labor laws. Many workers in
the private sector are forced to work unpaid overtime. Child labor is a problem, particularly in
rural areas, in the informal economy, and in some export agriculture, but generally not in the
export-processing sector.
Hungary PM/LPD
serious problems in some areas. Police continued to use excessive force against~ beat~ and
harass suspects. Police also abused and harassed both Roma and foreign nationals. In
practice the authorities do not always ensure due process. Prosecutors and judges may
impose what amounts to unlimited pretrial detention. The authorities have attempted to evict
Roma from some cities. There.have been several reported incidents of interference in state-
owned radio broadcasts by politically appointed board members. Violence against women,
including spousal abuse; remained serious problems: Sexual. harassment and discrimination on
the job also remained serious problems. The Government has taken steps to improve the rights of
..persons ~ith disabilities and continued to implement legislation to improve the status of women.
Anti~Semitic and racial discrimination persisted and a number of racially motivated attacks,
particularly against Roma were reported during the year. Societal discrimination-against .Roma
remained, a serious problem. Trafficking in persons, particularly women and children, for the
purpose ofprostitution and forced labor remained a problem.
Iceland
The Government generally respected the human fights of its citizens, and the law and judiciary
provide effective means of:dealing with individual instances of abuse. Human rights monitors
expressed concern about the Government’s frequent use of solitary confinement for remand
prisoners~ The Government is taking steps to deal with violence against women. Some societal
discrimination against women persists, especially in the area of equal pay. There were reports of
trafficldng in women for prostitution.
Ireland
The Government generally respected the human fights o fits citizens; however, there were a few
problems in some areas. There were instances of police abuse of detainees and prisoners.
15
OLC 000555
Prisons were overcrowded, with substandard facilities. The use of special arrest and detention
authority and the use of non jury courts continued. Films, books, and periodicals are subject to
occasional censorship, and there were reports of some self-censorship in the media. Violence and
discrimination against women were problems, as was the abuse of children. Asylum seekers and
Travellers (an itinerant etlmic community) faced some discrimination, and there were incidents
of violence against racial minorities and immigrants.
Italy LPD
judiciary provide effective means of dealing with instances of individual abuse; however, there
were problems in some areas. There were some reports of police abuse of detainees, and use
of excessive force against ethnic minorities and demonstrators. There were reports that police
denied some detainees arrested after antiglobalization protests access to a lawyer. Accusations of
police abuse are investigated by the judiciary. Prisons are overcrowded. The pace of justice is
slow; and perpetrators of some serious crimes avoid punishment due to trials that exceed
the statute of limitations. Lengthy pretrial detention is a serious problem. The Government
has taken steps to combat violence against women and child abuse; however, they remained
problems. Societal discrimination against women and discrimination and sporadic violence
against immigrants and other foreigners continued to be problems. Child labor, mainly involving
immigrant children, continued in the underground economy but authorities investigated such
reports actively. Trafficking in persons into the country, particularly women and girls for
prostitution,.was a problem.
Jordan T
AA/PM/LPD/PJ
¯ The Government generally respected the human rights of its citizens in some areas; however,
there were significant problems in other areas. There are Significant restrictions on citizens’ right
to change their Government. Citizens may participate in the political system through their elected
representatives in Parliament; however, the King has discretionary authority to appoint, and
dismiss the Prime Minister, Cabinet, and upper house of Parliament, to dissolve Parliament, and
to establish public policy. Other human rights problems included police abuse and
mistreatment of detainees; allegations of torture; arbitrary arrest and detention; lack of
transparent~invesfigations and accountability within the security services; prolonged
detention without charge; denial of due process of law stemming from the expanded
authority of the State Security Court and interference in the judicial process; infringements
on citizens’ privacy rights; harassment of members of opposition political parties; and significant
restrictions on freedom of speech, press, assembly, and association. A law enacted by the
Government in October gave the Government broad powers to restrict and prosecute journalists
and close publications. This law effectively superseded the 1999 amendments to the Press and
Publications Law, which had reduced somewhat the restrictions in previous laws regarding the
ability of journalists and publications .to function and report freely; however, significant
restrictions continued to be in effect. The Government limits academic freedom. The
Government imposes some limits on freedom of religion~ and there is official and societal
discrimination against adherents of unrecognized religions. The evangelical Christian community
16
OLC 000556
reported fewer incidents of governmental harassment during the year. There are some restrictions
on freedom of movement. Violence against women, restrictions on women’s rights, and societal
discrimination against Women are problems. The law still allows for reduced punishments for
violent "honor crimes" against women for alleged immoral acts. Child abuse remains a problem,
and discrimination against Palestinians persists. Abuse .of foreign domestic servants is a problem,
and child labor occurs.
Latvia LPD
The Government generally respected the human rights of its citizens and the large resident
noncitizen community; however, problems remained in certain areas. Members of the security
forces, including the police and other Interior Ministry personnel, sometimes used excessive
force and mistreated persons. In most instances, the Government took disciplinary
measures against those responsible. Prison conditions remained poor. Lengthy pretrial
detention was a problem. The inefficient judiciary did not always ensure the fair
administration of justice. Violence against women, including domestic violence, was a
problem, and women were discriminated against in the workplace. There were some reports of
discrimination on the basis of ethnicity. Child prostitution and abuse were problems. Trafficking
~in women and girls for the purpose of prostitution was a problem.
Liechtenstein
provide effective means of dealing with individual instances of abuse. There were instances of
violence against women. The Government continued to work to eliminate societal discrimination
against women.
Lesotho T2
PM/LPD
The Government generally respected many of the.human-rights of its citizens; however,-there

continued to be problems in some areas. There were unconfirmed allegations of torture by
security forces, and credible reports that the police, at times, used excessive force against
detainees. Prison conditions are poor, and lengthy pretrial detention is a problem. There are
long delays in trials. Domestic violence was common, and women’s rights continued to be
.restricted severely in some areas. Societal discrimination against persons with disabilities was
common. Some worker rights were restricted. Child labor is a problem in traditional agriculture
and the informal sector.
2 There were allegations of torture, but the State.Department noted that they were
"unconfirmed."
17
OLC 000557
Luxembourg
The Govenmaent generally respected the human rights of its citizens, and the law and judiciary
provide effective means of dealing with individual instances of abuse. Domestic violence was a
problem. Women were trafficked for sexual exploitation.
Macedonia EJK
PM
The Government’s human rights record significantly worsened during the year in the context of
the ethnic-Albanian insurgency led by the NLA. Police conduct during the conflict in particular
deteriorated significantly and resulted in serious human rights abuses, and the human rights
performance of undisciplined and untrained police reservists, who formedparamilitary groups,
was poor. Police committed extrajudicial killings and killed civilians during combat
operations; in most cases, the Government took insufficient steps, or no steps at all, to
investigate and discipline responsible officers. Police often severely beat--at times, fatally--.
and otherwise abused suspects and prisoners, in particular ethnic Albanians and Roma.
Arbitrary arrest and detention were serious problems. Police continued to compel citizens
to appear for questioning, in spite of a 1997 law that requires that police first obtain a court
order. The Government restricted privacy rights, and police deliberately destroyed and looted
homes during the conflict. Police beat and intimidated journalists, and the Government restricted
ethnic-Albanian media. The Government placed some limits on religious freedom by restricting
-the establishment of places of worship. The Government restricted freedom of movement, and
thousands of persons were displaced from their homes by the internal conflict. The Government
at times limited reporting on abuses during the conflict by nongovernmental organizations
.O’,rGO’s).
Violence and discrimination against women (particularly in the ethnic-Albanian community)
remained problems. Societal discrimination against minorities, including Roma, ethnic
Albanians, ethnic Turks, and ethnic Serbs, remained a problem, and ethnic-Albanian leaders
cited widespread discrimination as the principal cause of the NLA’s insurgency. The August 13
Framework Agreement contained broad constitutional and legislative reforms focussed on
greater minority rights, as well as increased minority participation in the policeforce and other
governmental institutions. Trafficking in women and girls for prostitution was a problem.
NLA insurgents also committed serious abuses against the civilian population, including killings,
beatings, looting, and "ethnic cleansing."
Mali PIVI/AMLPD/PJ.
The Government generally respected its citizens’ human rights; however, problems remained in
several areas. In 2000 security forces reportedly tortured and killed lwo suspects in custody.
After nearly 2 years, the Government has not released the results of an investigation into
the incident. Prison conditions remained poor. Occasionally pol.~ce arbitrarily arrest and
detain persons. Prolonged pretrial detention is a problem. The judicial system’s large ease
backlog resulted in long periods of pretrial detention and lengthy delays in trials. The
judiciary continued to be subject to executive influence, and there were reports of
18
OLC 000558
corruption in the courts. The Government generally respects freedom of speech; however, in
June the mayor of Bamako was convicted of defamation. Domestic violence against women was
widespread. Discrimination against women persisted, and social and cultural factors continued to
limit sharply economic and educational opportunities for most women. Female genital mutilation
(FGM) is widespread, although educationa! campaigns against FGM are underway. Child labor
is frequent in agriculture and domestic areas. Children were trafficked into forced labor in Cote
d’Ivoire; the Government returned a number of these children to their families during the year.
Hereditary servitude relationships continued to link different ethnic groups.
Marshall Islands
The Government generally respected the human fights of its citizens, and the law and the
judiciary provide effective means of dealing with individual instances of abuse. There were
occasional instances of denial of due process for detainees. Violence against women and child
abuse were problems.
Mauritius
-The Government generally respected the human rights of its citizens; however, there were
problems in some areas. There was at !east one alleged extrajudieial killing by a government
agent, and during the year judicial inquiries were ongoing in at least seven cases of deaths
in police custody. There continued to be reports thatpolice abused suspects and detainees and
delayed suspects’ access to defense counsel. The Government’s monopoly in broadcasting, local
news and programming continued. In some cases, police restricted freedom of assembly. The
National Human Rights Commission was established and began receiving complaints, primarily
about police abuses. Violence and discrimination against women and abuse of children continued
to be problems. There were some restrictions on the rightsof workers in the export processing
zone (EPZ). Child labor and forced, child prostitution remained problems.
.Mongolia AA/LPD/RDP
The Government generally respected, the human fights of its citizens; however, problems remain
insome areas. Members of the police at times beat prisoners and detainees. Pretrial
detention conditions are poor although prison conditions are improving. There were no
deaths reported.during-the year in detention, centers but a number of prisoners died while
in prison. Arbitrary arrest and detention are problems, as is corruption. There are
restrictions on due process for persons arrested or suspected of crimes. Government
attempts to enforce compliance by newspapers, magazines, television, and radio with moral
.strictures and tax laws may have been an attempt to intimidate the media and have resulted in
self-censorship by the press. During the year, the authorities denied entry to some persons
claiming refugee status; however, the authorities determined these persons to be "economic
3 It is not clear whether this is. a systematic problem, but serious police conduct
.clearlyis one.
19
OLC 000559
immigrants" and not refugees. Official harassment of some religious groups seeking registration
persisted. Domestic violence.against women is a serious problem; however, efforts to assist
victims continued to increase during the year. Child abuse and child labor also are problems.
There were some instances of forced labor, and some women seeking work overseas may have
become victims of trafficking schemes. In February the Government established a National
Commission on Human Rights (NCHR). In October the NCHR published its first public report,
which criticized the Govenmaent for abuses and faulted the Parliament and the Courts for failure
to fully protect human fights.
Namibia EJK/T
AA/PM/LPD
serious problems in several areas. Members of the security forces committed several
extrajudicial killings while conducting extensive security operations in the Kavango and
Caprivi regions along the country’s northern border with Angola. After fighting between the
Angolan Armed Forces (FAA) and forces from the National Union for the Total -Independence of
Angola (UNITA) crossed into the country, security forces involved in anti-UNITA security
operations killed civilians. There were deaths in custody. The Government did not account
for the whereabouts of some persons detained by the security forces. During arrests and
detentions, security force members reportedly tortured and beat citizens and Angolan
refugees who were suspected of complicity with UNITA. There were other reports of police
mistreatment of suspects in detention, and refugees were denied legal protections during
:.detention. Some security force members who committed abuses were arrested and tried in
military courts or the civilian criminal justice system; however, the Government did not take
legal or administrative action in other cases. Prison conditions and conditions in military
detention facilities were.Spartan. Arbitrary arrest and lengthy, pretrial detention were
problems.. A large court backlog, due primarily to resource.constraints, continued to lead to
lengthy delays oftfials.
Nauru
" .The Government generally respected the human fights of its citizens, and the law and judiciary
provide effective means of dealing with individual instances of abuse. Societal pressures limit
women’s economic opportunities.
Netherlands
The Government generally respected the human rights of its citizens, and -the law and judiciary
provided, effective means of dealing with individual instances of abuse. Violence and
discrimination against women existed, as did child abuse. Discrimination and some violence
against minorities continued to be a concern. Trafficking in women and girls for prostitution was
a problem. The Government took steps to deal with all of these problems.
20
OLC 000560
New Zealand
provided effective means of dealing with individual instances of abuse. Police abuse, violence
against women, and societal discrimination against persons with disabilities, indigenous people,
Pacific islanders, and Asians are problems; however, the Govenmaent has taken steps to address
them. Child abuse is a problem. Trafficking in persons has been a problem in previous years;
however, there were no cases during the year. The Government generally respected the human
rights of citizens living in its territories of Tokelau, Niue, and Cook Islands.
Niger AA/PM/LPD/PJ
The Government’s human rights record remained generally poor; although there were
improvements in several areas, some serious problems remain. With the 1999 election of
President Tandja and members of the National Assembly in generally free and fair elections,
citizens exercised their right to change their government. Two prisoners remained missing
after having last been seen in the custody of military officers. Police and members of the
security forces beat and otherwise abused persons; there reportedly were no incidents of
torture by the military. Prison conditions remained poor, and arbitrary arrest and
detention remained problems. Delays in trials resulted in long periods of pretrial
confinement. The judiciary also was subject to executive and other influence. Security forces
infringed on citizens’ privacy rights. The Government limited freedom of the press. The
Government generally respected the right to association; however, several Islamist organizations
.that engaged in or threatened violence remained .banned. The Government frequently restricted
freedom of movement. Domestic violence and societal discrimination against women Continued
to be Serious problems. Female genital mutilation (FGM) persisted, despite government efforts to
.combat it. There was societal discrimination against persons with disabilities and ethnic and
xeligious minorities. Worker rights generally are respected; however, there were reports that a
traditional form of servitude still was practiced. Child labor occurs, including child prostitution.
There were reports of trafficking in persons.
Nigeria EJK/T
. AA/PM/LPD/PJ/JC
The Government’s human rights record was poor; although improvements continued in several
areas during the year, serious problems remain. The national police, army, and security forces
committed extrajudieial killings and often used excessive force to quell several incidents of
ethno-religious violence, ha the year’s most egregious case, army soldiers reportedly killed
approximately 200 unarmed civilians and destroyed much of the town of Zaki Biam in Benue
State in apparent retaliation for the killing of 19 soldiers. Army, police, and security force
officers regularly beat protesters, criminal suspects, detainees, and convicted prisoners; however,
there were no reports of torture of political dissidents. The Government continued to take
steps to curb torture and beatings of detainees and prisoners° In most cases, neither the
state anticrime task forces, the police, nor the armed .farces were held accountable for
excessive~.deadly use of force or the deathof persons in custody. Shari’a courts sentenced
-persons to harsh punishments including amputations and death by stoning. Two amputation
21
OLC 000561
-sentences were carried out during the year. In September two persons, Mohammed Wada and
Adamu Idi, were found guilty of theft and sentenced to amputation by a Shari’a court in
Katagum, Bauchi State; however, the sentences were not carried out by year’s end. No sentences
for stoning were carried out during the year. Prison conditions were harsh and life threatening,
and along with the lack of food and medical treatment, contributed to the death of numerous
inmates. Police and security forces continued to use arbitrary arrest and detention.
Prolonged pretrial detention remains a major problem. The judiciary is subject to political
influence, and is hampered by corruption and inefficiency. The judicial system often was
incapable of providing criminal suspects with speedy and fair trials. Govermnent authorities
generally respected citizens’ privacy rights, however, authorities at times continued to infringe on
these rights. The Government generally respected freedom of speech and of the press; however,
there were problems in some areas. The Government generally respected freedom of association
and assembly; however, it placed some limits on them in practice. Police and security forces
¯ banned several public meetings and demonstrations during the year. The Government restricts
freedom of religion in certain respects. The implementation of an expanded version of Shari’a
law in 12 northern states continued, which challenged constitutional protections for religious
-freedom and occasionally sparked ethno-religious violence. The Government occasionally
restricted freedom of movement, particularly during periods and in areas of unrest. In 1999 the
Government established a governmental panel, the Human Rights Violations hlvestigation Panel
(HRVIP), to review cases of human rights violations since 1966; public hearings before the panel
in Abuja; Lagos, Kano, and Port Harcourt concluded during the year, and the Panel’s report is
due in early 2002. The Federal Government inaugurated the National Action Plan for Human
Rights Steering Committee and Coordinating Committee, which is expected to assess and report
on human rights in the country, and make and implement recommendations to improve human.
rights.
Norway
¯ The Government generally respected the rights of its citizens, and the law and the judiciary
provided effective means of dealing with individual instances of abuse. Violence against women
and abuse of children existed. There were reports of trafficking in persons.
PM/AA/LPD/PJ/JC
The Government generally respected the human rights of its citizens; however, there continued
to be serious problems in several areas. PNP officers-are suspected in the deaths of two men.
Abuse by prison guards, both PNP and civilian, is a recurrent problem of the prison system.
Overallprison conditions remained harsh, with occasional outbreaks of internal prison violence.
The GOvernment took steps to reduce the number of arbitrary .detentions. Prolonged
pretrial detention is a problem. The judiciary is subject to political manipulation, and the
criminal justice system is inefficient and often corrupt. There were complaints that in some
.cases police failed to follow legal requirements and conducted unauthorized searches. The media
is subject to political pressure, libel suits, and punitive action by the Government. Police conduct
toward public protesters was restrained. Violence against women remains a serious problem.
Women hold some high positions.in Government,-including the presidency; however,
discrimination against women persisted. Discrimination against indigenous people, blacks, and
22
OLC 000562
ethnic minorities continued to be a problem. Worker fights were limited in export processing
zones. Child labor is a problem. Trafficking in persons is a continuing problem.
Paraguay EJK/T
AA/LPD/JC
The Government generally respected the human rights of its citizens in most areas; however,
serious problems continued in some areas. The police and military committed some
extrajudicial killings. Incidents of torture and. abuse of convicted prisoners and other
detainees continued. Mistreatment of conscripts and poor prison conditions were problems.
Other problems include arbitrary arrests and detention, lengthy pretrial detention,
corruption and inefficiency in the judiciary, and infringements on citizens’ privacy rights. The
Government established an Inter-Institutional Commission to review human rights matters,
particularly with regards to underage military recruits. The recruitment and conscription of
.underage minors continued, although a court convicted one military officer of enlisting minors.
Police.used force .against nonviolent demonstrators. Violence and discrimination against women,
abuse of Children, and discrimination against persons with disabilities and indigenous people are
¯ problems. Worker rights are not adequately protected, and child labor exists:
Peru EKJ/T
AA/LPD/PJ
The Government made significant institutidnal improvements during the year; however, the
. human rights record remained poor in several areas and longstanding problems remain. Police
and .prison security forces committed seven extrajudicial killings. The security forces
tortured, beat~ andotherwise abused detainees. Abuse of military recruits continued.
Impunity remained a problem, and security forces sometimes harassed victims or other witnesses
to keep them. from filing charges. Overall prison conditions remained poor and were extremely
harsh in. maximum-security facilities. There continued to be reports of arbitrary arrest and
detention. Pretrial detention continued to be prolonged, and trials are frequently subject to
inordinate delays. Despite extensive changes to reduce executive’ dominance over the
judiciary, problems persisted, including the general inefficiency of the system. The
authorities violated privacy rights. The general climate for press freedom improved during the
year, although there were some problems. Violence and discrimination against women
continued. Violence against children and discrimination against persons with disabilities,
indigenous people, and racial and ethnic minorities remained problems. Labor advocates argue
that labor laws and practices restrict freedom of association and collectiv.e bargaining rights.
Child labor remained a serious problem in the informal sector.
Poland -LPD
The Government generally respects the human rights of its citizens; however, there were
problems in some areas. There were reports that police mistreated persons in refugee camps.
Prison conditions remained generally poor. A cumbersome legal process, poor administration,
and an inadequate budget hamper the court system, and court decisions frequently are not
implemented. Lengthy pretrial detention occurred occasionally. The Government restricted
23
OLC 000563
the right to privacy. There were a few restrictions in law and in practice on freedom of speech
and of the press. Violence against women continued to be a problem. Women continued to
experience serious discrimination in the labor market and were subject to various legal
inequities. Child prostitution was a problem. There were incidents of desecration of graves in
both Jewish and Catholic cemeteries, and anti-Semitic sentiments persisted. There was some
societal discrimination and violence against ethnic minorities. Some employers violated worker
rights provided for by law, particularly in the growing private sector, and antiunion
discrimination persisted. Trafficking in women and children was a problem.
Portugal LPD
. problems in some areas. Two police officers remained under investigation for killings.
Credible reports continued that security personnel occasionally beat and otherwise abused
detainees, and prisoners. Prison conditions remained poor but improved slightly. ¯Lengthy
¯ delays in holding trials led to hunger strikes by some pretrial detainees. Violence against
women was a problem, and the Govermnent took steps to address it. Discrimination and violence
against Roma, minorities, and immigrants also were problems, The Government took active
steps to deal with the problem of child labor. Trafficking in foreign laborers and women also was
a problem.
Romania PM/AA/PJ
The Government generally respected the ,rights of its citizens; however, its human rights record
was poor in some areas. Police use of excessive force resulted in four deaths. Police officers
continued to beat detainees and reportedly used excessive force and harassed Roma. The
Government, investigated some police officers suspected of abuse and h~ some cases indicted
¯ those accused of criminal activities in military courts. However, investigations: of police
¯ "abuses generally are lengthy and inconclusive and rarely result in prosecution .or.
punishment. While some progress was made in reforming the police, cases of inhuman and
degrading treatment continued to be reported. Prison conditions, although somewhat improved,
-remained harsh, and overcrowding remained a serious problem. At times authorities violated
¯ the .prohibition against, arbitrary arrest and detention. The judiciary remained subject to.
executive branch influence. Authorities evicted a number of Roma from their homes as. part of
a program to retumillegal squatters on public land to their places of origin. Religious groups not
officially recognized by the Government complained that they received discriminatory treatment
from the authorities. Violence and discrimination against women remained serious problems.
There was a large number of ~mpoverished homeless children in large cities. Societal harassment
of religious minorities remained a problem, and discrimination and instances of societal violence
against Roma continued. Child labor was a problem. There were reports of government
interference in trade union activity. Trafficking in women and girls for the purpose of
prostitution was a problem.
24
OLC 000564
SanMarino
The Government generally respects citizen’s fights in practice; however, although the Parliament
and the Government have demonstrated strong commitment to the protection of human fights,
some remnants of legal and societal discrimination against women remained, particularly with
regard to the transmission of citizenship.
Senegal EJK/T
AA/P3
The Government generally respected the rights of its citizens in some areas; however, there were
serious problems in other areas. Free and fair presidential elections in 2000, in which the
opposition candidate won~ ended the Socialist Party’s 40-year domination of political life. In
January the new Constitution abolished the Senate, which had no members directly elected by
voters and one-fifth of the members were appointed by thePresident. Government forces
reportedly were responsible for extrajudicial ldllings, including some civilian deaths. Police
tortured and beat suspects during questioning and arbitrarily arrested and detained
persons. Prison conditions were poor. The Government infrequently tried or punished
members of the military, gendarmerie, or police for human rights abuses. Human rights
advocates and nongovernmental organizations (NGO’s) reported a decrease in arbitrary arrests
and disappearances in connection with the Casamance insurgency. Lengthy pretrial detention
was a problem. The judiciary was subject to government influence and pressure and suffers
from low salaries and insufficient resources. The Government limited freedom of speech and
of the press. There were some instances in which the Government limited freedom of assembly.
In April 2000; the Government announced the establishment of a Human Rights Office in the
President’s office to investigate complaints filed by individuals regarding human rights
violations.. In September the Government named a Human Rights Commissioner to head the
office; however, the decree appointing herwas not signed by year’s end. Domestic violence and
discrimination against women, female genital mutilation (FGM), and child labor remained
problems. There were reports of trafficking in persons..Mob violence also was a problem
Sierra Leone EJK

AA/PM/LPD
The Government’s human rights record was poor in several areas; while there continued to be
significant improvements in some areas, serious problems remained. Therewere reports that
CDF forces, operating in support o.f the Government, committed extrajudicial killings
reportedly summarily executing suspected .rebels and their collaborators and carried out
indiscriminate attacks on villages believed to house RUF members and supporters,
resulting in several civilian deaths. There were credible reports that CDF forces operating on
behalf of the Government beat and otherwise abused persons and the Government has not acted
to curb these abuses or punish those responsible. Reports of abuses by the CDF, which had
increased significantly in 2000, declined during the year. Prison and police iockup facilities
conditions generally are harsh; at best they are Spartan, and at worst life threatening. There were
numerous deaths in custody. The country remained under a State of Emergency imposed in 1998.
Under the Constitution, many civil liberties are suspended under the state of emergency.
25
OLC 000565
Government forces on occasion continued to arrest and detain persons arbitrarily. Some
prisoners were held incommunicado. Prolonged pretrial detention and long delays in trials,
due to the State of Emergency and the inability of the judicial system to function in some
parts of the country and during some parts of the year, remained problems. Freedom of the
press improved during the year, and security forces did not mxest, beat, or use libel laws against
journalists; however, government security forces on a few occasions harassed some journalists.
At times the Government limited freedom of assembly in practice. Violence, discrimination
against women, and prostitution remained problems. Abuse of children is a problem; however,
numerous children who fought with the CDF and RUF were released during the year. CDF units
continued to induct child soldiers; however, there were fewer cases than in previous years.
Female genital mutilation (FGM) remained widespread. Residents of non-African descent face
institutionalized political restrictions. Forced labor continued to be a problem in rural areas.
¯ Child labor persists.
Slovakia PM
The Government generally respected the human rights of its citizens, and showed improvement
in certain areas; however, problems remained in some areas. In at least one case, the police
¯ allegedly: killed a Rom. Police on occasion allegedly beat and abused persons, particularly
Roma. There have been allegations that surveillance continued on both opposition and
government politicians. On at least one occasion the Government used libel laws to suppress
criticism of political leaders. There were. some limits on the rights of Roma to travel. Violence
and discrimination against women remained a problem. Cases of abuse of children and
discrimination agai.nst the disabled were reported. Some anti-Semitic incidents occurred. Ethnic
minorities, in particular Roma, faced societal discrimination. Skinhead attacks on Roma and
Other minorities continued during the year. Police sometimes failed to provide adequate
protection against these attacks or to investigate such cases vigorously. Trafficking in women
and children was a problem, particularly among the Roma minority.
judiciary provide effective means of dealing with individual instances of abuse. Police .in several
cases allegedly used excessive force against detainees. An ombudsman deals with human
rights problems, including citizenship cases. Lingering self-censorship and some indirect
political pressure continued to-influence the media. Violence against women was a problem.
Minorities (including former Yugoslav residents without legal status) reported some
governmental and societal discrimination. Trafficking in women through and to the country for
sexual exploitation was a problem.
South Africa EJI4dT

P1VI/LPD
The Government generally respected the human rights of its citizens; however, although there
were improvements in a few areas, numerous problems remained in several areas, Some
members of the security forces committed killings due to use of excessive force, and there
26
OLC 000566
also were deaths in police custody. In addition to killings by security forces, there were an
estimated 44 politically motivated or extrajudicial killings during the first 6 months of the
year. The Government took action to investigate and punish some of those involved and to
prevent future abuses. Political violence remained a problem; however, it was reduced
from 2000 levels, especially in KwaZulu-Natal. Some members of the security forces were
responsible for torture, excessive use of force during arrest, and other physical abuse. Some
members of the police beat, raped, tortured, and otherwise abused suspects and detainees.
The Government took action to investigate and punish some of those involved and
committed itself to curbing future abuses. Prisons are seriously overcrowded, and prison
employees and other prisoners abused prisoners. There were occasional reports of attacks
on persons accused of witchcraft: by their rural communities. Gang violence continued to be
a serious problem in the Western Cape, and vigilante violence and mob justice increased
throughout the country during the year. The judiciary is overburdened, and lengthy delays
in trials and prolonged pretrial detention are problems. The Government generally respects
citizens’ privacy; however, the Cabinet passed the Interception and Monitoring Bill, which
provides for state monitoring of all telecommunications. Legislation still in force from the
apartheid era poses a potential threat to the independence of the media, and self-censorship
exists. Police forcibly dispersed a demonstration during the year. Violence against women and
children :remained a serious problem, while discrimination against women and persons with
disabilities also remained problems. Xenophobia continues to be a problem, and there were a
number of violent attacks on foreigners, including refugees and asylum seekers. Child labor,
including forced child labor, is a problem, and trafficking in persons is a problem.
SpMn~ LPD
problems in some areas. There were reports that at times security forces abused detainees
and mistreated foreigners and.illegal immigrants. Government investigations of such
abuses were often lengthy, and punishments were light, which contributed to a culture of
impunity, accord!rig to human rights groups. Lengthy pretrial detention and delays in
trials were sometimes problems. Violence against women was a problem, which the
Government took steps to address. Women also faced some discrimination inthe workplace.
Societal discrimination against Roma and immigrants remained a problem, as did occasional
violence against immigrants. Trafficking in women and teenage girls for the purpose of
prostitution was a problem.
The terrorist group ETA (Basque Fatherland and Liberty) Continued its campaign of shootings
and bombings, killing 15 persons during the year. ETA sympathizers also conducted a campaign
of street violence and vandalism in the Basque region intended to intimidate politicians,
academics, and journalists. Judicial proceedings against members of ETA continued, and
Spanish and French police arrested dozens of suspected ETA members and collaborators.
Sweden
provide effective means of dealing with individual instances of abuse. There were infrequent
27
OLC 000567
reports of the use of excessive force by police. There were some violent clashes between police
and protesters during the year. The Government has longstanding programs to deal with violence
against women and abuse of children. Trafficking in women for sexual exploitation was a
problem.
Switzerland
provide effective means of dealing with individual instances of abuse. There were infrequent
reports of the use of excessive force by police. There were some violent clashes between police
and protesters during the year. The Government has longstanding programs to deal with violence
against women and abuse of children. Trafficking in women for sexual exploitation was a
problem
Tajikistan E,~K/T
AA/PM/LPD/P3
The Government’s .human rights record remained poor, and the Government continued to
commit serious abuses. The February 2000 parliamentary elections represented an improvement
in the citizens’ right to change their Government; however, this ri~ght remained restricted. Some
members of the security forces committed extrajudicial killings. There were a number of
disappearances and kidnapings. Security forces at times tortured, beat, and abused
detainees and other persons. These forces also were responsible for threats, extortion,
~looting, and abuse of civilians. Certain battalions of nominally government forces operated
quasi-independently under their leaders. The Government continued to use arbitrary arrest
.and-detention. and also arrested persons .for political reasons. Impunity remained a problem,
and the Government prosecuted few of the persons who committed these abuses. Prison
conditions remained harsh and life threatening. Lengthy pretrial detention remained a
¯ problem. The judiciary is subject to political and paramilitary pressure and there often are
long delays before trials. The authorities infringed on citizens’ right to privacy. The
¯ Government continued to restrict Severely freedom of speech and the press and exercised
controls over the electronic media. Journalists practiced self-censorship. The Govermnent
¯ . restricted freedom of assembly and association by exercising strict control over political
¯ " organizations. A number of parliamentary candidates were preyented from registering for the
elections. There were some restrictions on freedom of religion and on freedom of movement.
Violence and discrimination against women was a problem, as is discrimination against persons
with disabilities and religious and ethnic minorities. Child labor was a problem. There were some
instances of forced labor, including children: Trafficking in women and children was a serious
problem.
Trinidad and Tobago
The Government generally respected the human fights of its citizens, and the law and judiciary
provide effective means of dealing with individual instances of abuse. Nonetheless, there was
one death in custody, and police and guard abuse of prisoners, poor prison conditions, and
significant violence against women remain problems.
28
OLC 000568
Uganda EJK/T
PM/LPD
The Goverm-nent’s human rights record was poor, and there continued to be numerous, serious
problems. Movement domination of the political process limited the right of citizens to change
their government. Security forces used excessive force, at times resulting in death, and
committed or failed to prevent some extrajudicial killings of suspected rebels and civilians.
Security forces killed and injured several persons while intervening in clashes between
supporters of different political candidates. UPDF forces committed fewer abuses in the
Democratic Republic of the Congo (DRC). Police, LDU, and DMI forces regularly beat
suspects and other persons, often to force confessions. There were a few reports that
security forces tortured suspects, primarily during the periods around the elections. Police
arrested several persons who later claimed to have been tortured or beaten while in custody. A
highly publicized 1999 report on police corruption released to the public in May uncovered
numerous serious abuses committed by senior officers and contributed to the arrest of several
officers on charges of extortion and abuse of office, which resulted in the.appointment of a new
chief of police during the year. There were a number of cases in which the Government detained
and charged UPDF and LDU members for human rights abuses. Prison conditions remained.
harsh and life threatening. Members of the security forces sometimes arbitrarily arrested and
detained civilians, including opposition politicians and their supporters. Authorities used
incommunicado detention. Despite measures to improve the discipline and training of security
forces, and despite the punishment of some security force officials guilty of abuses, abuses by
the security forces at times resulted in deaths and remained a problem throughout the Country.
Such abuses increased in the periods prior to the March presidential and ¯June parliamentary
elections. Prolonged pretrial detention remained a problem. Poor judicial administration, lack of
resources, a large case backlog, and lengthy trim delays circumscribed due process and the
right to a fair trial, although some.detainees secured their release by accepting amnesty. The
UPDF at times infringed on citizens’ privacy rights. Female members of the.police force no
longer are required to obtain permission from the police Inspector General before .marrying.
United Kingdom PM
The Government generally respected the human rights of its citizens, and the law and judiciary .
provide effective means of dealing with individual instances of abuse; however, there.were som~
problems in a few areas. There continued to be deaths in police custody, ,although their
number declined. Members of the police and military occasionally abused detainees and
¯ some other persons. Prison conditions, including instances of mistreatment by prison officials,
overcrowding, and prison suicides, also remained problems. There were somelimits on freedom
of assembly and association related to the security situation in Northern Ireland. Violence and
discrimination against women remained problems, although the Government continued to take
steps to combat them. Societal discrimination against nonwhite, and other ethnic minorities,
including the T.raveller (nomadic) community, were problems, as was occasional, societal
violence against minorities and asylum seekers. Trafficking in persons was a persistent problem.
29
OLC 000569
Uruguay LDP
generally provide effective means of dealing with individual instances of abuse; however, there
were problems in some areas, principally poor prison conditions, and delays in the judicial
process. Court cases sometimes last for many years, resulting in lengthy pretrial detention.
Violence against women and societal discrimination against women and the black minority are
problems. There was one report that children had been trafficked into the country.
Venezuela EJK/T
AA/PM/LPD/JC
There were improvements in some human rights areas during the year; however, the
Government’s human rights record remained poor or worsened in other areas where there
traditionally have been serious problems. In addition, problems arose in human rights
areas that traditionally have not been of concern. The police and military committed
extrajudicial killings .of criminal suspects at an increased rate. The majority of these
killings were attributed to state and local police forces that have little training or
supervision. Police also were accused of having links to a vigilante "death squad"
responsible for dozens of killings in one state. Excessive use of deadly force by police and
security forces continued to be a serious problem. The pace of investigations into the forced
disappearances of criminal, suspects by the security forces remained extremely slow.
Torture and abuse, of detainees persisted, and the Government failed to punish police and
security officers guilty of abuses. Severe overcrowding in prisons continued to decrease;
however, general prison conditions remained harsh due to underfunding, poorly trained and
corrupt staff, and violence and overcrowding in some prisons so severe as to constitute inhuman
and degrading treatment. Arbitrary arrests and detentions decreased. Lengthy pretrial
detention and corruption and severe inefficiency in the judicial and law enforcement
systems also were problems.
Yugoslavia AA!PM
The Government generally respected the human rights of its citizens in many:areas and its.
overall human rights record improved significantly over that of the Milosevic regime; however,
some serious problems remained. Police at times beat detainees and abused and harassed
citizens, particularly Roma. Arbitrary arrest and detention were problems. The
Government continued to hold numerous Kosovar Albanian political prisoners
incarcerated under Milosevic; however, it released over 1,700 of these prisoners since 2000.
The judiciary remained subject to political influence, although to a lesser extent than it had
been under the former Milosevic Government. The Government at times infringed on privacy
rights and monitored telephone, mail, and e-mail communications. Police at times intimidated
journalists, and the Government continued to exert influence over the media. Many journalists
continued to practice self-censorship. During the year, the Serbian Government transferred
indicted war criminal Slobodan Milosevic and several other indictees to the International
Criminal Tribunal for. the former Yugoslavia(ICTY) and provided access to some archives;
3O
OLC 000570
however, the Government was at times unresponsive to the ICTY°s requests for arrests and for
information. Violence and discrimination against women were problems. There were several
incidents of societal violence or discrimination against religious minorities. Violence and
discrimination against Roma and other ethnic minorities were problems. Relations between Serbs
and Albanians in southern Serbia improved following the successful resolution of the conflict in
that region. Trafficking in persons was a problem.
31
OLC 000571
Number of ICC States Parties: 76
Number of ICC States Parties Implicated in the most serious problems, i.e., EJI~UT
or PM: 40 (a majorRy)4
EJK,
T, or EJK/T: 24
PM: 16 (not counted in EJK/T total)
AA: 28
LPD: 38
P J: 18
JC: 11
Number of ICC States Parties with no, or comparatively inconsequential, judicial-system

related human rights problems: 34
Compiled by: Lee Casey
Source: U.S. State Department Country Human Rights Reports, 2001,

http://www.state.gov/g/drl/rls/hrrpt/2001/
4 This number could, in fact, be reported as 41, since Britain received a "PM" designation on account of a number of
deaths in custody in 2001.. I have not included this in the total, however, since those matters, are highly likely to be
investigated and punished in the ordinary course, and probably do not represent systemic issues.
32
OLC 000572
SUMMARY OF ICC STATES PARTIES HUMAN RIGHTS RECORDS
Number of ICC States Parties: 76
Number of ICC States Parties Implicated in the most serious problems, i.e., EJK/T
or PM: 40 (a majority)
EJK,
T, or EJK/T: 24
PM: 16 (not counted in EJKfI" total)
AA: 28
LPD: 38
P J: 18
JC: 11
Number of ICC States Parties with no, or inconsequential, judicial-system related

human rights problems: 34
Source: U.S. State Department Country Human Rights Reports, 2001.,

http://www.state.gov/g/drYrls/hrrpff2001/
ICC States Parties implicated in extra-judicial killings, or torture, or

both
Argentina
Brazil
Bulgaria
Cambodia
Central African Republic
DR Congo
Ecuador
Gabon
Gambia
Ghana
Jordan
OLC 000573
Macedonia
Namibia
Nigeria
Paraguay
Peru
Senegal
Sierra Leone
South Africa
Tajildstan
Uganda
Venezuela
(Fiji and Mauritius)
ICC States Parties with serious police misconduct issues, or with a

politicized or corrupt judiciary
Belize
Benin
Bolivia
Bosnia
Botswana
Croatia
Estonia
Greece
Hungary
Macedonia
Mongolia
Niger
Panama
Romania
Slovalda
Yugoslavia
2
OLC 000574
List of some of worst human rights abusers in ICC:
Cambodia
Central African Republic
DR Congo
Gambia
Honduras
Namibia
Nigeria
Paraguay "
Senegal
Sierra Leone
Tajildstan
Uganda
OLC 000575
THE SECRETARY GENERAL
3 July 2002
Excellency,
I am writing to you because I am seriously concerned at the development in the

Security Council with respect to the extension of the United Nations Mission in Bosnia
Herzegovina (UNMIBH) and the issue that the United States has raised in that connection
following the entry into force on 1 July 2002 of the Rome Statute of the International
Criminal Court (ICC).
The United States has put forward a proposal invoking the procedure laid down in
Article 16 of the Rome Statute of the ICC. This provision means that the Security Council
can intervene to prevent the Prosecutor of the ICC to proceed with a particular case. The
article, which is meant for.a completely different.situation, is now proposed to be used by
the Security Council for a blanket resolution, preventing the Prosecutor from pursuing cases
against personnel in peacekeeping missions. Contrary to the wording of Article 16, which
prescribes that such resolutiorts by the Council can be adopted for a period of 12 months,
which period is renewable, it is proposed that the resolution is automatically prolonged,
unless the prohibition is lifted. Any decision to this effect is subject to the necessary
majority in the Council.
I think that I can state confidently that in the history of the United Nations, and
certainly during the.period that I have worked for the Organization, no peacekeeper or any
other mission personnel have been ataywhere near the kind of crimes that fall under the
jurisdiction 0fthe ICC. The issue that the United States is raising in the Council is therefore
highly improbable with respect to United Nations peacekeeping operations. At the same
time, the whole system of United Nations peacekeeping operations.is being put at risk.
His Excellency
Mr. Colin L. Powell
Secretary of State
of the United States of America
Washington, D.C.
OLC 000576
It is of course for the United States to decide what is in its interest. But let me offer
the following thoughts.
First, the establishment of the ICC is considered by many, including your closest
allies, as a major achievement in our efforts to address the impunity that is also a major
concern for the United States. The development of this matter is followed by many and, in
particular, the States that have ratified the Rome Statute and by non-governmental
organizations. I fear that the reactions against any attempts at, as they perceive it,
undermining the Rome Statute will be very strong.
Secondly, the method suggested in the proposal, and in particular its operative
paragraph 2, flies in the face of treaty law since it would force States that have ratified the
Rome Statute to accept a resolution that literally amends tlie treaty.
My concern is that the only real result that an adoption by the Council of the proposal
would produce -- since the substantive issue is moot -- is that the Council risks being
discredited. The purpose of this letter is to ask you to consider this aspect. I am confident that
you share my view that it is not in outcollective interest to see the Council’s authority
undermined.
The members of the Council do realize -- as indeed I do -- that the united States has
a problem to which a satisfactory solution must be found. I am also aware that this may take
some time. As a.matter of fact, on 30 June, I pleaded with the members of the Council to give
themselves sufficient time find such a solution.
In order to create additional time to solve the overarching issue, may I suggest that
the United States at the present juncture relies on the fact that the jurisdiction of the ICC, as a
matter of law, is overtaken by the jurisdiction of the International Tribunal for the former
Yugoslavia. In reality, the situation with respect to international criminal jurisdiction in the
territory of the former Socialist Federal Republic of Yugoslavia isthe same after 1 July 2002,
as before that date.
OLC 000577
One solution may be for the Security Council to reconsider the extension of
UNMIBH as proposed on 30 June, adding this time a preambular paragraph, in which the
Council notes that the International Tribunal for the former Yugoslavia, which is established
under Chapter VII of the Charter of the United Nations as a subsidiary organ of the Security
Council, has primacy to exercise, On behalf of the international community, international
jurisdiction over genocide, war crimes and crimes against humanity committed in the territory
of the former Socialist Federal Republic of Yugoslavia.
However, there might also be other solutions to avoid that the Council is precipitated
into adopting a resolution, the effects of which may soon be deeply regretted by all.
Please accept, Excellency, the assurances of my highest consideration.
-Kofi A. An_nan
OLC 000578
Kathleen J. Brahney, Branch Chief, ~ Stephen M. Shaffer, Director Archived at: www.usinfo.state.gov/products/medreac.htm
Wednesday July 3, 2002
ICC: U.S. ’GOING IT ALONE’ AND BOSNIA DISPUTE SPOIL COURT’S OPENING DAY
KEY FINDINGS:
** U.S. objections to the ICC and its "threat" to veto the UNSC extension of the Bosnia
peacekeeping mission were denounced worldwide as the ultimate in U.S. "arrogance.,
** Despite efforts to forge a deal on Bosnia, European critics balked at the bid for immunity,
convinced that concessions would undermine the ICC and jeopardize UNPK missions.
** Some, mainly in conservative European outlets, found the U.S. reservations ’Justified," but
worried about this "row" widening the "gap" between both sides of the Atlantic.
** Arab writers interpreted the U.S. bid for immunity as Washington’s attempt to remain
unfettered in an anti-terror war against Arabs.
** Observers in Asia, Latin America and Africa saw the world embarking on a new era in
international law without the increasingly.."isolated" U.S.
REGIONAL VIEWS:
EUROPE: U.S. ’alone’ and put~ing itself’above the ~aw.° The most strident critics in Britain,
France, Italy, Germany, Russia, Belgium, Greece, Norway, Spain, Sweden and elsewhere
judged the U.S. action as the most "severe attack on international law so far" and as an affront
to its "international obligations." Many complained of "superpower hubris," troubled by what a
Rome daily called a "new Bush doctrine of global impunity." Papers from London to Pristina
portrayed the U.S. use of its UNSC power as tantamount to ".blackmail" and echoed Moscow’s
reformist Vremya Novostev’s conclusion that Washington was using its muscle "to dictate the
rules of the game to the rest of the world." Accusing the administration of "strangling at birth" a
UN institution "for the defense of human rights," London’s independent Financial Times led the
common charge that the U.S. move was "politically short-sighted" since it would alienate its
allies at a time when "unity is called for in the alliance against...terrorism."
.Most Say U.S. ~CC worries unfounded. A prevailing view was that there was nothing to "fear"
about the ICC exerting "undue influence"on any country, suggesting that U.S. worries about
subjecting its citizens to "random judgment" were "manufactured" and its sovereignty concerns
"exaggerated." On behalf of ICC defenders who believed that the "rules for a fair tribunal"were
in place, Berlin’s right-of-center Die Welt argued that the U.S. view was based on an
understanding of sovereignty that "has probably been overtaken by historical events." Critics on
the left charged that the president’s objections to the ICC-were not "motivated by concerns over
OLC 000579
U.S. soldiers," but by his goal of "solidifying his power" ahead of the November elections.
But some understand American opposition. Countering the charges piling up against the
U.S., some conservative and center-right dailies in Germany and Belgium aimed their criticism
at European "self-righteousness." These analysts contended that the U.S. was carrying the
greater peacekeeping "burden" to keep the world "more or less stable," suggesting that Europe-
-"incapable" of putting out fires in its own backyard-- was in no position to complain. They also
worried about the danger of a U.S.-EU divide. As Brussels’ Christian-Democrat De Standaard
put it: "Americans can be blamed, for many things," but argued that Europe’s unbelievable self-
complacency" was also at fault.
iVI~DEAST: U.S. defender Israel squares off with Arabs. Both Israelis and Arabs viewed the
ICC issue as an extension of the U.S.-Israeli symbiosis in fighting terrorism. From the Arab
standpoint, the U.S. is directing its anti-terrorism war at Arabs and is backing regional proxy
Israel in a race war against the Palestinians. Consequently, the U.S. refusal to recognize the
ICC’s authority was seen as an attempt to help Israel escape prosecution for its "war crimes" in
Palestine and for the U.S. to avoid its own "war crimes" in. Afghanistan and those it "plans to
commit in Iraq." For its part, an Israeli daily ardently defended the U.S. concern about the cour~
being a political entity as opposed to a judicial body. Political prosecutions are entirely possible,
the paper argued, ’tin the hands of bureaucrats that only the good lord knows who they actually
represent."
EAST/SOUTH AsiA: All critical, see U.S. ’losing moral authority.’ Observers in India,
Pakistan, Sri Lanka, Australia, Japan, Hong Kong (SAR) and Singapore saw a "doctrinaire"
Bush administration" again in "unilateralist overdrive" following its standoff with U.S. allies over
the ABM treaty and the environment. The universal bone of contention was that Washington is
".undermining" international principles pertaining to human rights, peacekeeping and the rule of
law that the U.S. itself was instrumental in establishing. Meanwhile, Karachi-based pro-Islamic
unity Jasarat insisted that the U.S. "be tried for war crimes for killing scores of innocent citizens
¯ participating in a wedding ceremony in Afghanistan."
AFRI.CA!LATIN.AMERICA: Disappointment in champion of human rights, rule of ~aw.

Observers in Nigeria, Senegal, South Africa, Argentina and Brazil. similarly saw "President
George W. Bush’s. unilateralism" choosing a "new target" in the ICC. All were dismayed.by
V~ashington’s "obstructionism" of the global judiciary and the U.S.’ "alignment" with the likes of
¯ Russia and China in opposing the world court. A Nigerian daily joined those in other regions¯
who accused the U.S. of pursuing a judicial "double standard" by supporting war crimes
tribunals and extraditions and then demanding immunity for its nationals in the new ICC.
EDITORS: Irene Mart and Gall Hamer Burke
EDITORS NOTE: This analysis is based on 87 reports from 39 Countries, July28 -July 3.
Editoria! excerpts from each country are listed from the most recent date.
EUROPE
BRiTAiN: "Justice For AI~ At The ~CC"
An editorial in the independent Financial Times .stated (7/2): "The sight of the U.S.
OLC 000580
administration trying to strangle at birth a United Nations institution for the defense of human
rights is deeply disturbing .... The U.S. has long feared that Americans, as citizens of the world’s
only superpower, might be singled out for malicious prosecutions... The U.S. move is politically
short-sighted since it irritates the EU and other allies at a time when unity is called for in the
alliance against global terrorism .... In the worst case, the treaty’s supporters must go ahead
without the United States. Perhaps a future American administration will treat the court with
more respect and accept its jurisdiction ....The EU must not abandon its principles.,.. Justice
has a price."
"America Is Not So Special That She Can Be Allowed To Shirk Her Obligations"
The centrist Independent commented (7/2): "Part of a diplomat’s business is to reconcile the
irreconcilable --or at least create the illusion that irreconcilables have been reconciled .... No,
this is not about the safety of US peacekeepers. Washington’s obstinacy reflects its visceral
opposition to the ICC, as a threat to the supremacy of its own judicial system. That hostility is of
the same coin as America’s refusal to submit to other international treaties, including those
covering global warming, nuclear testing, landmines, and chemical and biological weapons ....
Certainly, the U.S. occupies a unique position, in which unchallengeable power brings
unparalleled responsibilities. That, however, makes it all the more important that America
shbuld play by the international rules--above all when Washington is exhorting all and sundry to
join its ’war against terrorism’.... Washington’s behavior is both arrogant and unacceptable. Its
attempting to use the Security Council to change a properly ratified international treaty would in
:itself set an appalling precedent... With or withOut the United States, the peacekeeping
.operations must continue. And so must the new international court."
"Court politics"
An editorial in the conservative Times stated (7/2): "The argument over the standing of the
International Criminal Court (ICC) that has cast the UN mission in Bosnia into doubt will
inevitably be presented as further evidence of the alleged. ’arrogance’ and ’unilateralism’ of the
Bush administration .... There are several reasons why, as the Foreign Secretary admitted
- yesterday, U.S. concerns about the.lCC must not be dismissed lightly. The first is-the speed
With which the project has been embraced and.the extent to which the symbolism, of a global
-dock into which to place tyrants and sadists has-been put ahead of the harddetail of-the law ......
¯ :The Clinton.Administration fought hard at first.to limit the scope of.the ICC and when that failed
it moved into outright opposition. Bil! Clinton reversed his position in the dying days of his
presidency when it became clear that George W. Bush and not AI Gore would be his successor,
and out of regard for his own legacy, not legitimate American interests .... The choice for the. ..~
United Nations now is between one abstract notion of international law and the very real needs
of international order..The United States (and others) will not participate in peacekeeping
missions if the price of being the Good Samaritan is the retention of a legal adviser never more
than a few yards away."
"Contempt Of Court"
An editorial in the liberal Guardian stated (7/2): "U.S. opposition to the ICC is difficult to justify in
law and in logic... George Bush has no business trying to thwart this outcome now... The U.S.
should accept the ICC and work within or alongside it to advance its work and if necessary,
improve or adjust its legal mechanisms. Washington’s threats to wreck the UN peacekeeping
mission in Bosnia because it has not got its way over the ICC look petty; but the implications for
similar missions are serious .... The ICC is basically a permanent, global version of The Hague
OLC 000581
tribunal for former Yugoslavia which, as in Rwanda, the U.S. has supported and funded .... But
attempts to understand or explain U.S. objections can travel only so far before colliding with the
suspicious, slab-sided rightwing psyche that informs and so badly skewers Bush administration
attitudes to most international issues. This school of thought holds that an all-powerful U.S. is
not required to explain its actions, is not bound by the rules governing lesser states, has no
need to persuade or convince. The business of American leadership in this view is essentially
dictatorial, not inspirational. In this regard at least, the administration is right to gear the
judgment of its contemporaries."
"Lone Stand For Justice"
An editorial in the conservative Daily Teleclraph stated (7/1): "It may seem odd that anyone
could be against the establishment of an international tribunal to investigate war crimes and
genocide .... Clare Short, the International Development Secretary, has described Washington’s
attitude as Pan enormous disappointment’. Cherie Blair has called it ’a lost opportunity’. Surely,
they Say, ’the Americans must accept that human rights apply to everyone. The dispute here is
not about whether Washington supports human rights. America has an immeasurably better
record on freedom and democracy than most of the nations that have ratified the ICC. The
issue., rather, is: who has the authority to bring cases to trial? After all, international judges are
¯ surely likely to be more impartial than the judiciary of some tin-pot dictatorship. Don’t be so
sure. Consider just a few of the recent high-profile cases that have involved extra-territorial
jurisdiction. Seen against this background, Washington’s belief that the ICC would become a
vehicle for Left-wing jurists, radical Islamists and assorted anti-Americans suddenly seems
rather more reasonable... George Bush is quite right to stand up for the principle of national
democracy. We only wish our own Government had half as much sense."
"Human Rights, American Wrongs"
An opinion piece written by Kenneth Roth in the independent Financial Times stated (7/1): "The
most important human rights institution in 50 years comes into being today, but its future is.far
from .assured .... The move is the latest manifestation of the view in Washington that
international justice is only for others, not for Americans. Yet behind this breathtaking
arrogance, the U.S. administration is trying to determine how far it can push its allies ....
In short,
the rules for a fair tribunal are in place. The task now is to ensure.that they.are conscientiously
applied....U.S, participation in.UN.peacekeeping is small. Europe .would be better off making up
the funds than sacrificing the promise of international justice .... The [United States] crisis over
the International Criminal Court is a manufactured one .... The real reason behind Washington’s
blackmail is the most troubling. An increasingly influential faction in the Bush administration "
believes that-U.S, military and economic power is so dominant that the United States is no
longer served by international law .... No effective global system can rest solely on coercion.
Global order depends on most governments abiding voluntarily by shared norms. Exempting
America from ~he rule of law undermines those norms, leaving a more violent and inhumane
world. Europe must stand up to this superpower folly."
FRANCE: "America, Justice And Peace"
Right-of=center Les Echos asserted in its editorial (7/2): "Once again Uncle Sam has hit hard.
According to some it is self=defense. According to others it is in order to attack .... Alone against
, the world, Washington opposed renewal of the UN-led Bosnia mission .... This is serious
business, especially because, if the U.S. is set on pushing its logic to its limit, it could pull its
forces from all peace operations around the world... America’s position is ’hard to understand,’
OLC 000582
according to the French Ambassador to the UN. It is also difficult to sustain. Can the U.S.
demand that a choice be made between peace and justice? Is it in America’s interest, in its
crusade against the ICC, to jeopardize peacekeeping...in areas where its own interests are at
stake.
"Defending The ICC"
Dominique Bromberger commented on privately-run France Inter radio (7/2): "If the U.S. has
adopted such a position against the ICC it is because it does not want too many laws,
international institutions and agreements around that would hinder its freedom of action .... The
U.S. does not mind consulting with its allies, but when it comes time to decide, itwants to do it
alone, for the good of the U.S. and the world, without an ICC coming on top of the UN, Amnesty
International, the EU and all those who keep America from managing irresponsible continents.
This is why it is clear we need to defend the ICC come what may."
"The..Four Handicaps Of The ICC"
Baudouin Bollaert in right-of-center Le Fi~ (7/1): "In ’our global village,’ traditional institutions
are no longer enough .... With the creation of the ICC, one of the most important institutions
created in the past fifty years, those who criticized the ’justice of the victors,’ will have to revise
¯ their.judgment... But the ICC is already suffering from four handicaps. The first is its weakness.
and limitations because of the non-ratificationby nations such as Russia, the U.S. and Israel ....
3The,second... is that the ICC can only try suspects belonging to a UN member nation... The
third lies with the waivers which have already been granted... The fourth has to do with the open
conflictthe U.S. has entered into with the ICC about its role over peacekeeping soldiers... The
American hyperpower rejects anything that might limit its sovereignty. It does.not like the UN
any more than it likes, the ICC jurisdiction .... The ICC is nothing but an empty shell. In spite of or
because of the ideals it embodies, it will have a hard time becoming operation_al by 2003 if
’rogue states’ continue to hide behind the U.S."
"international Justice and Peacekeeping Soldie~:s"
.,Right-of-center Les Echos in its editorial (7/1): "President Bush’s latest offensive against the iCC
revolves around the status of peacekeeping soldiers. To impose its view, .the U.S..has
-threatened to withdraw all of its peacekeeping forces .... But this is nothing: but a pretext,
:because many precautions have been taken to protect them .... Washington is driven by a.
different motivation. No-jurisdiction should interfere with its international objectives. The State
.Department has clearly said that the U.S. is overseeing international security everywhere. The.
message is eminently clear."
.GERMANY: "Unjustified?"
Klaus-~Dieter Frankenberger noted in center-right Frankfurter AIIcjemeine (7/3): "The Bush

¯ administration is hearing a lot of criticism right now. Some of those who are upset about the
U.S..decision to request immunity for their UN soldiers are genuinely concerned over the. lateof
the ICC. Others, however, are interested in something completely different: keeping U.S. power
in check. These are often the same people who like to urge the United States to play the role of
global cop, knowing that there can be no stable world order without the"Unit(~d States, and
whose countries are only now taking their first steps on the global stage. Of course, there is a
double-standard at work here. Didn’t Great Britair~ insist that the members of the Afghan peace
force be exempted from prosecution?..The whole matter may be more complex .than
acknowledged, and the fear of politically motivated suits more real than imagined. Even
OLC 000583
members of the German army share many of the U.S.. concerns. Just another unjustified fear?"
"Strength Without Wisdom"
Jochen Siemens judged in an editorial in center-left Sueddeutsche Zeitung of Munich (7/3):

"The ICC is a decisive step toward replacing arbitrariness with law, but it means the partial
surrender of national sovereignty. The United States is not willing to take this step. The country
is fully aware of its unprecedented global status, and its 10ng-standing aversion to multinational
politics is undergoing a renaissance. This is’both regrettable and dangerous. After all, it is
difficult to direct and influence global political processes without the superpower. Nevertheless,
the Europeans need tostick to their efforts aimed at multinational policy-making. It is the right
decision historically. The transatlantic partners have drifted apart. Their historical and cultural
similarities are not about to disappear, but they are starting down different paths ....It will take
strength and wisdom to keep this situation from getting worse."
"Self-righteous Europe"
Alan Posener observed in an editorial in right-.of-center Die Welt of Berlin (7/3): ’tPeople in
Europe like to describe the conflict between the United States and pro-ICC countries as a
struggle between law and power, with the court representing legal and ethical concerns and the
United. States representing only thearrogance of power.-German Federal JusticeMinister
Daeubler-Gmelin.said the U.S. desire to protect its soldiers from the court wasaimed at openly
establishing two kinds of law, two different standards, and special rights for the powerful.
Nothing could be further from the truth, apart from the minister’s statement claiming that the ICC
is no political institution .... The most important argument against the court is that it claims rights
the UN charter has reserved for the Security Council. That is precisely.the reason why the ICC
is being supported by those countries which do not like the security council’s privileged position,
including the United .States’ veto right.
"Since the ICC can take action by itself if national governments are not able or unwilling to do
so, the danger of a dictatorship of the law over politics, to use Henry Kissinger’s words, is real.
That is-why already the Clinton administ~:a[ion insisted that the ICC be allowed to act-only after
receiving permission from the UNSC. This request was rejected for political reasons. Anyone
¯ who is now hypocritically asking why the United Statesis afraid of the ICC’.s becoming a.tribunal
’.against its soldiers and policies should answer: the question of who might be interested in
delegitimizing the UNSC in this fashion. The current confrontation is.not the right tool for
winning the United States cooperation. What would it cost the Europeans to embrace the
demand for the immunity of soldiers who make our world safer for democracy? :Nothing but a
slight loss of face and the acceptance that, while there may not be two kinds of law, there are
certainly "various degrees of confidence in the work of judges."
."Bush’s Foreign Policy is Domestic Policy"
Holger Schmale maintained in in left-of-center Berliner Zeitung (7/3): ’~tVith his ultimatum,
¯ President Bush is pursuing only one goal: solidifying his power. After all, the rejection of the
ICC is not really motivated by concerns over U.S. soldiers being accused of war crimes. The
focus is on the Republican voters in the United States and their distrust viso~-vis international
institutions that cannot be controlled by Washington. Bush is paying attention to these concerns
right now, not by explaining to them court’s rules, but by playing the strong world leader who will
. not blink.. After all, Congressional elections are coming up, and the mood in the country is far
-from good .... A crisis of trust is developing, and Bush is trying to co.nta~~ it with strong words. In
OLC 000584
addition, there is the weak dollar. With respect to the ICC, Washington is in the process of
cutting ties with Europe. This means that the EU must take the lead. The only problem is that
the EU is not yet able to do so."
"In Danger"
Klaus-Dieter Frankenberger noted in a front-page editorial in center-right Frankfurter AIIqemeine

(7/2): "Is this power struggle proof of the United States’ arrogance - a country whose leadership
believes itself to be above any kind of legal restriction and claims the right to take global military
action according to its own interests? .... Nobody with political experience and a sense of reality
can seriously believe that Washington wants to undermine the ICC’s authority in order to keep
its soldiers from being bothered while committing war crimes. U.S. resistance to the court is of
a more fundamental nature. It is not unreasonable to believe that U.S. military campaigns could
be followed by politically motivated suits--a situation that could arise for other countries as
well .... It would nevertheless be disastrous if the UN Security Council did not manage to find a
solution, one that will necessarily involve compromises. The situation in Bosnia does not yet
allow the withdrawal of 16,000 soldiers. The presence of U.S. soldiers plays a key role in efforts
¯ to contain aggressive regimes. This is the lesson of the Yugoslav wars...: It is only logical that
the United States wants to keep itself from being tied down. Europe should weigh what it
means to accept global responsibility."
"The United States -.An ~sland"
Stefan Kornelius observed in center-left Sueddeutsche Zeitunq of Munich (7/2): "The United
States has established a direct.link between the ICC and UNpeace missions .... This comes
. close to blackmail: Either you fulfill our Conditions concerning the ICC or the entire system of UN
peacekeeping missions will collapse .... The logic of the U..S. argument takes .aim at the whole
system of UN missions .... Ultimately, the United States’ threat to veto amounts to the most
¯ severe U.S..attack on international law so far, on the sophisticated idea that modern countries
rely.on law in dealing with one another, not on strength. Mistrust in Washington vis-&-vis this
idea.has been growing for years. It is based on a deep aversion to all multinational
t Organizations that the United States cannot control or whose procedures appear too alien or.too
.complicated to the U.S. political establishment .... The United States’ fear of the ICC.borders on
hysteria and does not hold up under careful scrutiny .... The.United States is not interested in
fine-tuning international relations; it wants to reduce its degree of dependence. Washington is
systematically reducingits international obligation, because it perceives them as a burden. 3-he
¯ Bush administration wants options, not commitments; it wants ad hoc alliances, not allies.....
There has been much speculation about the truly significant consequences of 9/11..For the
modern world and western values, these consequences are U.S. mistrust and self-importance.
Both are very dangerous, because they make the world less predictable. A final decision
against the Bosnia mission...would destabilize the entire region. The United States will pay the
highest price in that case, because it destroys the very system that used to legitimize its
strength and authority."
"The Evi~ (;an Also Sit in the Court"
¯ Michael Streck opined in leftist Die Tageszeitunq. of Berlin (7/2): "This is an outrageous attempt,
since the United States does not make anything else than using its participation in
peacekeeping missions as a weapon - a new low of unilateralism under a nagging President
George W. Bush. This is causing enormous political damage, and, with their outspoken
attitude, the Americans are burdening tense relations with Europe even more, since the United
OLC 000585
States puts the right of the stronger force before the strength of the law. it will be dangerous if
the only remaining superpower withdraws from international commitments.,. Parts of the U.S.
elite have been infected with condescension. There are people in the White House who are
convinced of their extremely moral superiority of their actions, mainly in the fight against
terrorism -- and that is why there can be no subordination for them .... President Bush has been
seized with biblical zeal to free ’God’s own country’ and the world from evil. Legal limits,
international commitments and consideration for others only jeopardize victory."
"Diplomatic Blackmail"
Roll Paasch argued in an editorial in left-of-center Frankfurter Rundschau (7/2): "The Bush
administration realized its threat and is now blackmailing the 75 member states of the ICC to
veto the extension of the Bosnia mandate. This is the hitherto low in George W. Bush’s
presidency that is so rich in diplomatic affronts. Domestically, it is nurtured by ultra-conservative
conspiracy theories and as far as foreign policy is concerned, by the hubris of a superpower for
..which there seems to be no more international binding rules since September 11 .... In Brussels
-.and in Berlin, everybody pretends that there is hope for a compromise, but the situation is clear:
-~Europe’s democracies will have to find a new legal form and additional soldiers for the mission
in the Balkans. Every further day of concessions will continue to damage the newly molded
foundations of international law."
"No World Order Without The Superpower"
Michael Stuermer maintained in an editorial in right-of-center Die We.It of Berlin (7/2): "The
United States is caught up in a serious contradiction. The shock of 9/11 worked asan antidote
to the unilateralist experiments which the Bush administration indulged in .for the first eight
.months. Nevertheless, the ideological roots supporting unilateralist thinking still run deep in the
country. At the same time, the United States is.forced to look for allies in all corners of the
.globe in its fight against terrorism - a United States that has overextended itself militarily and
.financially..In this situation, it must be the United States’ top priority to s~abilize everything
contributing to a world order, including the ICC and the United Nations...: The rest of the world-
faces the painful .realization that a world order cannot be had without the United States." "
"internationally Isolated"
R. Flocken stated on regional radio station Westdeutscher Rundfunk of Cologne (7/i): "By using
"the UN Security Council as a tool in its fight against the ICC, the UnitedStates has. isolated itself
~internationally. The country also risks triggering a Crisis in transatlantic relations. Unilateral
withdrawal Of U.S. troops from Bosnia would be a disastrous signal. With its rigid position,
Washington has joined countries like China, Iraq, Libya, and Yemen - countries which also
oppose the ICC and are hardly supporters of international law.. Even though-the United States
may be putting up a fight against the court right now, the overall course has nevertheless been.
set. In the long run, even the superpower will have to put up with the ICC."
ITALY: "~CC: Bush Looking For A Deal"
" Mado Platero filed from New York in leading business II Sole 24 Ore (7/3): "George W. Bush
said he will do his best to avoid a break with Europeans on the withdrawal of American troops
! from Bosnia .... But the President made clear that he would not sign off onthe Court.
Washington will not agree on granting the Court an extraterritorial mandate that might affect
Amedcan soldiers. A compromise is in the air, in part because of the close mediation effort by
OLC 000586
the UK .... The court came into effect on July 1st and Washington fears that political agendas
motivate possible investigations, or, even worse, incriminations, against the U.S. For this
reason, the Pentagon prefers to rely on martial court to judge alleged infractions of the code of
conduct at war times. The deadline for an agreement is today at midnight .... If the British
mediation fails, Blair fails,, and the Western Hemisphere will be perceived as increasingly
closed-off, especially since it will not even heed its traditional ally."
"The Embarrassing Battle Of U.S. Against ICC"
Gian Pietro Caliariu opined in center-right II Tem.p_9_ (7/3): "The ICC was born and the American
Administration could only play the card of boycotting it and unilaterally withdrawing from the
UNSC authorized peace-keeping missions. The mission in Bosnia-is the most evident case,
because it also involves NATO and the EU. But there are also missions in Lebanon, Western
Sahara and Sierra Leon .... and the continued presence of American representativ’es in East
Timor, Kosovo and Rwanda might become at risk. From a formal point of view, the Western
Hemisphere claims its citizens’ constitutional rights to be judged by a court from his/her
country .... Indeed, the United States shows that ’international justice’ is a (judicial) complement,
which can be assessed and adapted on a case-by-case basis in their foreign policy and that it is
not a necessary instrument of the international ,order.~’’
"The World Court And Europe’s Courage"
Guido Rampoldi opined in left-leaning, influential La Repubblica (7/3): "Two different ways of
looking at the world are at stake, and this creates a dangerous conflict within what we call the
Western world."
’!Bush: We Will Try To Find A Compromise On Bosnia"
Paolo Mastrolilli reported from New York fpr centrist, influential La StamP_a_ (7/3): "’We will try to
solve the stalemate, but, we will not.join the ICC.’ This is President Bush’s reply to the. polemics
surrounding the peace-keeping mission in Bosnia. If a compromise is not reached by midnight
today, (the U.S.) will end their mission in the former Yugoslav Republic ..... Perhaps, a ¯
compromise, might solve the stalemate on Bosnia. But, American opposition to the ICC will.
continue to be a problem that is likely to resurface every time the UN seek to renew a peace
keeping .mission, beginning with the UNIFIL in Lebanon, which wil[ expire in one month .... The.
signatories of the Rome Treaty, including Italy, maintain that the statute of the new.Court
pledges the prevention of any instrumental attacks against the United States. If this is true, the
only plausible political possibility that remains is that Washington is using the peace .keeping
missions to disrupt a court that it does not want before it begins operating?’
"The Era Of Human Rights"
Co-managing editor Gianni Riotta argued in centrist, influential La stamp_~ (7/2): "Like in all
marriages, one should try to understand the motives of their partner. The Europeans should
accept the fact that the U.S. superpower is paradoxically affected by a feeling of psychological
and military vulnerability .... But, in the nervous Washington of these days, the most .rational
members of the Administration should make President Bush consider that even loyal friends
such as Great Britain and Italy, as well.as France and Germany, have approved the
International Criminal Court. It is.difficult to imagine, that, under the aegis of U.N. Secretary
General Kofi Annan, European leaders, may be plotting against their allies across the Atlantic .....
The Americans were the first to promote the strength of internation_al law with the United Nations
OLC 000587
and the Nuremberg tribunal, inaugurated among general skepticism. Why forget that lesson?"
"This Is How The Bush Doctrine Has Humiliated The United Nations"
An analysis by Washington correspondent Vittorio Zucconi in left-leaning, influential L_g_a

Repubblica (7/2): "Less than a week after the umpteenth G-8 tragic comedy...the lie of
multilateralism and Western collaboration was dealt another deadly blow by Washington. Bush
pitted himself against the United Nations to an unprecedented extent...in order to prevent U.S.
troops and officials engaged in U.N. missions--such as the one in Bosnia--from being under the
jurisdiction (~f the new ICC. In sum, this...has become the new Bush doctrine of global impunity.
Should a compromise ever be achieved, it will be dictated by Washington, in line with the law of
the strongest."
"Global Justice Is Still Far Away"
An analysis by Alberto Negri in leading business II Sole-24 Ore (7/2): "It is legitimate to wonder
whether the ICC can survive without the United States, without the support and the participation
of the only superpower capable of carrying out military operations and possessing the
indispensable information which allows for the proper functioning of international justice.
Perhaps it is useful to recall that Milosevic was brought to The Hague as a resultof the pressure
exerted by the Americans, and not of the feeble pressure of theEuropeans. It is easy to saythat
the U.S. decision is a result of the Septembe~ 11 tragedy and the ghost of bin Laden .... The
United States is in a state of emergency, and’therefore invokes special laws against terrorism
and full immunity for U.S. soldiers engaged in missions abroad .... But, September 11 cannot
explain it all. U.S. opposition to the ICC also stems from a visceral hostility to a Court that goes
beyond the authority of the United States and risks interfering in international relations .... This
Court - which Russia, China and India also do not like - is seen as a European creature. The
United States counts on its generals, the Europeans count on their judges."
"U,S. Vetoes Extension Of U.N. Mission ~n Bosnia"
New York correspondent Maurizio Molinari writes in centrist, influential La. Stampa (7/1): ’q’he-
International Criminal Court becomes fully operational beginning today, but its inauguration is
characterized by a tug-of-war between Washington and the United Nations that first caused an
American Veto, followed by a 72-hour extension of the mission by UN peacekeepers in
Bosnia .... Secretary Powell’s decision to go to an all-out fight with the UN is born .from the shift
madeby theBush Administration last May, when President Bush announced that he would
withdraw Bill Clinton’s signature accepting the Rome Treaty.. U.S. opposition to the Court stems
from the Pentagon’s fear that, in the future, its troops may be tried by the Court for participating
in military interventions abroad which were decided by the U.S. Government."
RUSSIA: "A Case For The ~CC"
Yulia Petrovskaya stressed in centrist Nezavisima.y_~_ Gazeta (7/3): "Bombing a wedding crowd
in Afghanistan makes a perfect case for the ICC .... Tragically, the .United States, the chief
opponent of the ICC, did that but, symbolically, it will go unpunished .... Washington has
rejeCted the ICC,’hating to think of any law as prevailing over the U.S. law.. At the same time,
the United States engages :in arm-twisting with respect to countries that attempt to hedge
against ’alien’ laws. Yugoslavia (Serbia and Montenegro) is the most egregious example."
"They Can Get Away With Anything"
OLC 000588
Yevgeniy Bai in Washington remarked on page one of reformist Izvestiy_a_ (7/3): "The United
States won’t have its military on trial. Its pilots in Afghanistan will get away with any errors."
"What it Takes To Become A Real Force"
Gennadiy Sysoyev emphasized in reformist business-oriented Kommersant (7/2): "The ICC

won’t become a real force, unless recognized by all of the world’s leading powers."
"Washington Is Its Own Judge"
Vladimir Bogdanov contended in official government Rossiyskaya Gazet.__g.a (7/2): "While there is
an ardent desire for the world to have a legal agency to punish international criminals, few really
need it. The United States is a striking example of opposition to the idea. Formally refusing to
take part in this historic project is quite legitimate. Yet this is without precedent in the history of
international law. The U.S. Congress is going to adopt a law that is unparalleled in its
arrogance. It permits the U.S. administration to apply fines and sanctions not only to countries
that have ratified the ICC’s rules but also to non-members that, while not being involved in the
project, cooperate with the Court, say, by extraditing persons accused of having committed
crimes."
’,U.S. Out To Dictate To All"
Reformist Vremya Novostey. (7/2) front-paged this by Katedna Labetskaya and Andrey Zlobin:
"Washington, acting in a way that is really tough, has made it perfectly clear that it will dictate
the rules of the game to the rest of the world. This is all the more obvious because it concerns
¯ the very fundamentals of the pOst-Cold War world order--humanitarian operations and the
supremacy of international law over a national one .... Washington.does not like Europe seeking
to model the world on the EC where law takes precedence over military might."
"Price Of Justice May Prove Exorbitant"
Sergey Strokan held in reformist business-oriented Kommersant.(7/2):."The ICC idea looks

-- attractive but it may remain on paper--implementing it, among other things, means that great
..powers will have to change tack and ’forego their principles..’ The United States is far from the
only .country to strongly oppose the ICC .... To make a long story short, the priceof ’justice
¯ without frontiers’ may prove exorbitant to the powers that be in theworld."
"U.S. Seeks Exemption"
Andrey Poskakukhin filed from the Hague for reformist ~ (7/2): "The United States
supports the International Tribunal for former Yugoslavia, stressing that the purpose of the
tribunal is to make sure that no war criminal gets off scot-free. But Washington wants an
exemption for the Americans .... Russia signed the treaty on the ICC on September 13, 2000,
and hasyet to .ratify it. Moscow’s position on this matter is very important, and.politicians and
¯ :lawyers in many countries are hoping that it will soon join the treaty. Doing so would enhance
¯ Russia’s reputation as a champion of the pre-eminence of law in international affairs."
AUSTRIA: "Going it A~one Agair~°’
-Foreign editor Christoph Winder opined in liberal Der Standard (7/3): "Regarding the ICC, the
OLC 000589
current US policy is deplorable, but it’s not without reason .... No other country in the world has
got such a massive number of soldiers stationed outside its territory - so.consequently more
than anyone else they might be exposed to politically motivated prosecution .... On closer
inspection it turns out that the actual or alleged U.S. arbitrariness is a lot more limited than many
US critics would have us believe. International terrorism cannot be dealt with by one single
country, even if that country is a superpower .... No matter how ugly the controversy over the
ICC might be, no matter how many indications there are that the US is trying to go it alone
again, it is unlikely - simply for the sake of their own interests o that the Americans are going to
exclude the rest of the world."
BELGIUM: "Europe Could Learn From America’s Deeds"
Foreign affairs writer Axel Buyse in independent Christian-Democrat De Standaard opined (7/3):
"Nothing is currently easier than making the Americans the scapegoats for everything that goes
wrong in our international order. However, Europe could learn something from America’s
deeds .... To a high extent, the United -States is mistaken.about the heart of the matter. The
guarantees built-in in the statute of the new ICC are sufficiently solid to preclude biased anti-
American abuse of the new instrument:... Washington carries the largest part of the burden to
keep entire regions more or less stable. It is a fact that the Americans make the difference --
everywhere international intervention is needed .... [T]he Americans are active in parts of the ¯
globe that are of strategic importance to the Europeans. It is truethat the EU countries’ efforts
to build a constitutional world order are very laudable; but something is really wrong when they
are militarily incapable of putting an end to uproar in their own backyard .... The gap between the
United States and its main NATO allies is becoming wider .... The manner in which Washington
turns away from all forms of international cooperation--that it cannot control completely to
¯ defend its own interests--is serious and dangerous. The Americans can be blamed for many
things, but Europe’s unbelievable self-complacency with which it (blames the U.S.) routinely
barely brings us. one.steP further.".
"More Guarantees Than The U.S. Constitution"
Foreign affairs writer Frans De Smet observed in independent Christian-Democrat Het

¯ Nieuwsblad/Het Volk (7/2): "The United States.is a great advocate of international tribunals - as
long as there are no Americans involved~... However, as soon as there is a theoretical possibility
that Americans can be brought to such international courts, Washington gets angry .... In 1998,
’.the treaty that founded the ICC was signed in Rome .... The treaty guarantees .that there cannot
-be politically motivated investigations or prosecutions of Americans. In this respect, it contains
even more guarantees than the U.S. Constitution. Yet, the Bush administration views the ICC
as a stdke against America’s sovereignty ....The Bush administration is colliding with its allies
more and more seriously."
CROATIA: "Supermen in invasion"
Zagreb-based mass-circulation Vecernj[ list carries a commentary by deputy editor-imchief

Visnja Staresina (712): "Must American Ambassador to the UN Negroponte, really fear that
some future Carla Del Ponte will try to reach American officers with an indictment because of a
crime committed during a peace intervention? Of course, he doesn’t. ’Del Ponte’ will always
know the desirable candidate for an indictment. However, by requesting an exemption from
international law for Americans in UN peacekeeping missions, Ambassador Negroponte
offhandedly also kills an already deadened.UN peacekeeping role. W.hat choice does the rest
of the world have? Publicly recognize that the U.S. is above international-law in order to save
OLC 000590
dead UN missions? Or allow the missions to die with the U.S. departure and tacitly accept the
U.S. as the true owner of peace and international law..’? Both choices are awkward. However,
in a duel with the U.S., the rest of the world no longer has a suitable and principled solution."
"American Veto,’
Zagreb-based Government-owned V_j.esnik military correspondent Fran Visnar judged (7/2):

"The super-power, whose hypocrisy and respect for human rights could be discussed in a well-
argued manner, constantly reproaches others for falling to the lowest moral and ideological
levels for this or that reason. George Bush Jr. pictures very simple and conservatively clear
relations: Americans are opposed to everything they cannot control with their veto in the
Security Council, or, looking from our perspective, when America sneezes everyone else must
get a bad cold."
FINLAND: "lCC Born In Midst Of Bitter QuarreF’
Leading independent Helsinqjg. Sanomat editorialized (7/2): "The world’s_strongest and

politically most important nation, the United States does not want to have anything todo with the
new.court of justice in The Hague. Those who have ratified the treaty sayit is almost impossible
to make concessions. Washington is also rejecting the treaty with a similar attitude, on the
grounds that it is a question of principle. Washington’s arguments are not~without foundation.
¯ U.S. interests are worldwide and it has soldiers in almostevery crisis area. There is a lot of
hate directed towards the U.S. and the will exists to inflict harm to the US. Before long there
sui’ely will be an attempt to misuse the court in The Hague against the US. Therefore the worst
aspect to Washington’s attitude is not the understandable doubts, but the hypocrisy in its
.infliction of double standards- treating others differently than it expects to.be treated itself. Since
!Nuremberg .the United States has been one of the leading actors in expanding the international
court. It has been .active in campaigning to bring war criminals of the former Yugoslavia to
justice. Yet the .U.S. keeps citizens of other nations in prison in Guantanamo without clear
charges and due process. It seems apparent that the United States is only interested in applying.
the doctrine of a state’s right to protect its citizens to itself."
GREECE: "Europe is One Thing, the U.S. is Another"
The main editorial in popular, pro-government and anti-American.~ (7/3) said: ’q-he
EU’s call yesterday to all the countries of the world to ratify the Rome Treaty for the creation of "
the International Criminal Court uncovers the huge gap between Europe and the US regarding
respect of law and human rights...The function of the EU is dominated by-.rules of law which it
respects and follows, and it is important that all 12 candidates for accession, co-signed it. The
US, on the other hand, does not respect international law as long as it does not serve its
interests. Washington wants immunity for its diplomats and military who commit war crimes, but
reserves the dght to send others to special criminal courts. The UN, which the US has already
undermined, and the EU, that the US attempts to guide, can no longer yield to the US attempt to
.impose its domination and arrogance~ The US may well limit itself to war missions that will-be
referred to by their real name, and exempt itself from peace missions which, after all, don’t befit
it."
HUNGARY; "Free Choice Of Justice"
Foreign affairs writer Orsolya Ruff indicates in conservative Magyar Nemzet (7/3): "The ICC
could, have started its first official day with work, if the United States had approved to the new
OLC 000591
international court. Why? Because America fighter planes bombed a wedding ceremony in
Afghanistan on July lst...by accident, it was said. As a matter of fact hundred-twenty civilians
lost their life in the military action. The United States, it seems, considers the 1998 Rome
Treaty a catch. The US has already received sharp criticism from Europe. But it would have
tragic consequences if the United States withdrew its soldiers from the Balkans. The hidden
extremists in the region might feel encouraged to act."
~RELAND: "Out Of Step"
The conservative, progressive populist Irish Independent maintained (7/3): "The decision by the
United States to veto the renewal of the UN peace mission’s mandate in Bosnia is a serious
setback to global peace-keeping and to the principle of equal and shared .responsibilities for the
world wide policing of military excesses. The U.S...is putting unacceptable pressure on the UN
with the use of.its veto. This is a convoluted and quest!onable strategy. No nation should be
above, or outside, the law .... In world wide peace keeping the Americans .play a
disproportionately high role, and therefore are more open to action by the new International
.Criminal Court. Also, their position is of their own choosing. To create from these
circumstances a justification for placing themselves outside the controls, which other countries.
accept, is a retrograde step for world peace."
Break-is Arrogant In The Extreme"
The centrist Irish Examiner editorialized (7/2): For America to put itself beyond the realm of such
a court is arrogant in the extreme. There can be no justification for claiming its soldiers would be
the victims of what it calls ’political prosecutions’. Arguably, its global presence makes it all the
more important that the US should recognize the jurisdiction of this international judicial body."
.Irish UN Force May Have TO Leave Bosnia" .,
Deagl&n de Br6adOn declared in the liberal Irish Times (7/2): "Irish troops.and.gardai on UN
duty in Bosnia could be ordered home on Thursday morning unless the UNSC resolves a
dispute with the United States over the powers of the new International Criminal. Court
(ICC) .... Ireland voted with 12 other members of the Security Council to renew the SFOR and
UNMIBH mandates, with the U.S. voting against and Bulgaria abstaining. The U.S..veto
ensured the’ mandates were not renewed ..... Ireland’s UN ambassador, Mr Richard Ryan, said
treland’ ’supported absolutely’ the extension of the mandates. ~/Ve understand the concerns of
the U.S. regarding the ICC and U.S. personnel serving on UN missions; however we cannot
’share.the decisions of the U,S. regarding these concerns at this point."
¯ KOSOVO: "Washington’s Dangerous Game"
The leadingindependent, mass circulation Koha Ditore hada comment by the U.S. educated
political analyst Besnik Pula (7/3): "The opponents of the ICC withifl Bush administration are
showing themselves too shortsighted and with the blackmailing behavior of the United States
towards the international institutions they are damaging the American credibility in the.world.
Instead of considering the ICC as an instrument in the Amedcan attempts for global peace and
stability, the Bush administration has-made it an ideological problem by turning-it into an issue of
inviolable principles. As a consequence, it has decided to wage a policy that.will rather damage
the American long-term interests. The calculations made by the ’military heads’ in Washington
are that the United States, as a military superpower does not need anyone else and can do its.
foreign policy however it wants to. But such a thought will.just damage the American image,
OLC 000592
especially by damaging the relations with the European and other allies, without who the
achievement of the American objectives for a peaceful world is unattainable .... If developed and
used properly, the ICC will be an institution...that will add a new quality to international law. It
offers a unique opportunity in the world’s history for dumping into the past the heavy crimes
such as the war crimes and genocide .... The Bush administration must review its policy again
and see whether it is a productive one, especially with respect to the current war against the
global terrorism."
"Bush Administration Does Not Believe ~n ’Nation Building’"
Washington Correspondent of independent Zeri, Isuf Hajrizi wrote (6/28): "It is still not known
what effect will have on Kosovo the possible withdrawal of American forces from Bosnia, but the
administration of President Bush has continuously sought ways to quit peacekeeping operations
in the Balkans. His administration does not believe in such operations nor it believes in the so
called the policy of ’nation building’ like the previous administration of President Clinton did ....
If
¯ the internationals refuse to grant America immunity before the ICC, then the American
administration could use that refusal as a technicality to withdraw its forces from the
peacekeeping operations in the Balkans, something that this administration wanted from the
beginning but did not succeed in presenting it to the NATO members."
THE NETHERLANDS: "Power And Justice"
Influential liberal De Volkskrant asserted (7/2): "The U.S. demands that U.S. soldiers
¯ participating in UN peace missions be exempted from being brought to trial before the ICC has
been strongly criticized by Europe. Hewever, this Eurbpean criticism is not totally free of ""
hypocrisy given the fact that the Europeans themselves .made a similar exemption for their
participation in the peace mission in Afghanistan .... Nevertheless, it would not work. well if the
. Americans were to get their exemption because that would "undecmine the authority, of the
International.criminal Court from the very beginningS.:.. The United States is concerned about
political prosecutions...for, under whose authority will the judges operate? This is a problem that
needs to be resolved--andit can only be resolved through participation not throughopposition ....
As a strongsupporter of international legal order, the United States cannot:just arrogantly
withdraw from the ICC. That will damage its credibility. Moreover, the United States cannot
withdraw from international peace missions.... After all, power and justice do-not necessarily.
have to .clash, sometimes they can operate together."
NORWAY: "U.S. Does As it Likes-oAgain"
In conservative Afteqposten., ’~Nashington correspondent Morten Fyhn observed (7/3): "There

is no reason to be surprised that the United States used its veto in the Security Council. By now
we should have been used to the fact that the.superpower dislikes everything that can limit its
freedom of action... We are dealing with asuperpower that does not want anyone else to decide
for them .... European concerns for the United States’ unilateral behavior do not meet.with any
understanding in Washington. After the terror attacks, the U.S. feeling of being extra vulnerable
has.increased. This feeling seems to strengthen even more the need to liberate itself from
everything that might limit freedom of action ..... That others believe that this is the height of
arrogance does not change the fact that the United States is notoriously capab!~oing what it
wants, and moreover believes that.it has the dght to do what it wants."
"Laws And Rights"
OLC 000593
The social democratic Dagsavisen commented (7/2): "Yesterday the treaty on a International
Criminal Court came into force... The United States is sabotaging the Court out of fear that it
might limit the country’s sovereignty. To force through its view, the United States is using the
UN efforts in Bosnia as a lever. This is not worthy of a serious foreign policy actor."
"The Right Of The Strongest"
In independent ~, foreign affairs editor Halvor Elvik held (7/2): "The treaty regarding a
permanent International Criminal Court has come into force after that more than 60 countries,
including Norway and the EU-countries, signed it. President George W. Bush has led the USA
in the opposite direction. He made the historic move of withdrawing the USA’s signature of this
treaty. The USA has never done this before and it is in itself a serious encroachment upon the
further development of a world that is regulated through agreements and treaties instead of the
right of the strongest based on military and financial power .... It is becoming more clear that the
Bush administration opposes international cooperation when the United States is compared with
other countries."
."Unreasonable Of The US"
The regional newspaper Stavanqer Aftenblad. opined (7/2): "That the United States doesn’t
accept the ICC that is now being established is bad enough. That they are stoppingthe UN
operations in Bosnia in order to press through immunity for their own personnel against criminal
prosecution by the Court, is unreasonable."
POLAND: "Blackmail"
Dawid Warszawski wrote in liberal .Gazeta Wvborcza (7/2)~. ’,America’s reservations are not
unjustified-just!ce is fallible and can be manipulated .... But I cannot imagine a situation in which
some police force would say that if they have to comply with the provisions of a penalty code
. this would impede them from catching criminals. This exactly is what America’.s blackmail
-tOward the Security Council boils down to-either theCourt has no jurisdiction to try U..S. citizens,
or we will sabotage the international security system in the Balkans. Milosevic should pay.his
¯ .respects to President Bush. After all, he also...does not ’want to be tried by the Tribunal. whose
jurisdiction-he.does not recognize.’ .... In the future, any of Hussein’s soldiersor a Burmese
oppressor will be able to use Washingt0n’s position toward the Tribunal as his alibi.
Washington’s blackmail is a blow also to those in Bosnia who now know that from that time on
their security will depend on the security of potential American criminals .... July 1 has become
the black day in the history of international justice. It would be good if July 4, American
Independence Day, were an occasion to reflect on it."
White House Does Not Reckon With Anyone"
Lukasz Warzecha wrote in center-right ~ (7/2): "The U.S. behaves in a way we cannot help
but call arrogant. It seems that differences of opinion between, the Bush Administration and its
European allies as well as other countries-those concerning the Middle East, an attack on Iraq,
the role of NATO, the me.thod of conducting the war against terror, relations with Iran, relations
with Russia, an interpretation of free trade, and many o.ther issues-only increase President
Bush’s determination to carry out his plans at all cost and without any subtlety .... Some claim
that America by throwing the odium of a ’rogue state’ upon others has-become a ’rogue super
power’ itself. For them, the chaos around the ICC will be a perfect confirmation of this view. One
can hardly think about a more blatant example of employing .the ’double standards’ policy."
OLC 000594
"The International Court Is Coming"
Marcin Herman wrote in center-right Z_Z_Z_Z_Z_Z_Z_Z_Z_~ (7/1): "Washington threatened last week that if it did
not obtain guarantees that U.S. citizens be excluded from the jurisdiction of the ICC, the U.S.
would first torpedo the UN peacekeeping mission in Bosnia. The U.S. troops make up the core
of the 17,000-strong 13eacekeeping contingent in this country .... If a compromise has not been
reached, not only will the UN mission in Bosnia be questioned. Washington also threatens to
withdraw from all UN peacekeeping missions. The withdrawal of troops, though, would be less
severe than suspension of funds as 25 percent of the peacekeeping missions’ budget comes
from the U.S..taxpayer."
PORTUGAL: "Whom Do The Judges Answer To?"
In a signed editorial, influential center-left P~blico editor-in-chief Jos6 Manuel Fernandes

mused (7/2): "1 am among those who still believe that countries...should be governed by elected
statesmen who must answer to their voters, and not by unremovable judges who by definition
cannot be held to account for their decisions. I am also among those who believe in the
separation of powers .... It is not possible to conceive of a court that does not apply laws, and
laws have to be debated and approved in accordance with democ~-atic criteria. This is far from
the case with the ICC as one can verify by noting that it considers the installation of civilians in
.illegally occupied territory to be a ’war crime’. ’War crime’? Surely an illegality and an affront,
but this classification only comes up because the anti-Israel ’lobby’ made a conquest among the
signatory states and managed to transform the Jewish colonies in the Occupied Territories into
’war crimes’.... Because of all this I must say that I understand American opposition to the ICC.
In the end, it was the Americans who in the last few years always took on the risks of
intervening to resolve dramas like Bosnia, Kosovo and Afghanistan .... All they need now is for
some unaccountable prosecutor to try to.do what Some were calling for the Hague Tribunal for
the Former Yugoslavia to do during the Kosovo crisis: judicially prosecute the chiefs of state of
all the NATO countries, with Clinton .at the top. This is why I insist, despite being aware that it is
¯ an ultra-minority and politically very incorrect idea: .the ICC is not only a false good idea, it could
:turn into a dangerous idea."
¯ =SLOVENIA: "Americans Do Not SeeThemselves Contradictory"
,:lLeft, of:center Delo U.S. correspondent Ervin Hladnik Milharcic opined (7/2): "The Americans
.,have made a step forward. So far, no UN member has formally requested immunity from a law
or an institution established by the United Nations .... The Americans threaten to also stop other
¯ thirteen UN peacekeeping operations .... As far as the Americans are concerned...they find their
steps neither contradictory nor controversial. The United States is economically, politically, and
militarily the strongest country in the world .... In the eyes of the Americans, this means that they
have also renounced their right of judging the legality of what [the United States] does and will
do. The Americans are not bothered by the fact that they themselves participated in establishing
.of the [ICC] and that they were among the signers of the. agreement on the court’s
establishment. They are not embarrassed with their being steadfast supporters of the tribunals
¯ ~for the former Yugoslavia and Rwanda. They still consider international tribunals useful
institutions. [These tribunals] only may not try Americans because only American lawsapply to
¯ them. Europe is in an embarrassing situation. It will be difficult for it to find a reasonable
[explanation] about what it has been doing for the past ten years if the Americans find it natural
that laws passed by all European countries do not apply to them."
OLC 000595
SPAIN: "The Atlantic Cracks Open"’
Conservative La Razon reflected (7/2): The great empire that Bush governs with a firm hand...
has set out to squash the enemy that has dared to attack it in its own house, and nothing, and
nobody, will impede its soldiers from acting the way they believe they should. The unilateralism
that had been .made evident in foreign policy and economy also imposes itself on the military
field and will do everything it can to overcome an obstacle to the plans for battle against an
enemy that could attack them again at any moment... The new NATQ could have suffered a
serious blow as far as the military alliance goes, since it would not be acceptable that European
soldiers have a different juridical status than their American allies. Europe looks at the new
situation with worry... NATO cautiously analyzes the consequences of the American veto of the
mission in Bosnia, with the suSpicion that, if it widens to other UN missions, NATO would see
itself affected and transformed more into a political alliance than a military organization that
helped to win the Cold War... It not only is a blow for the progressive aspirations of universal
justice. It also could end up seriously damaging the image of the United States, which should
remember that all empires meet their doom, and their self- absorption could be the cause."
°’Blackmai~ For The Court"
Left-of-center El Pais wrote (7/2): "The Bush Administration, supported by the majority in
Congress, defends itself by its military interests and. a global military presence, but it does not
want to have obstacles. It defends itself, in addition, by saying that the ICC will not be able to
function without or against the US, even though it especially tries to shield itself with unilateral
legislation against this tribunal... If the signing countries give in to the blackmail of Washington,
¯ the new Court will lose credibility and the power to develop. The EU has a ’common position’
that requires its States to defend it and promote it, like it did again yesterday. This tribunal is a
sign of hope in a world full of unsettling signs. The US cannot be allowed to extinguish it."
"The U.S. Lets The World Down"
Conservative AB____C_C wrote (7/1): ~’The U.S.’s allies, beginning with the Europeans, did.not hesitate
in supporting the campaigns in Afghanistan and fostering the most dramatic measures in the
international arena in order to fight terrorism beyond any borders. The reasons that grounded
such support remain untouched and it would be a mistake to weaken or question them because
of the U.S, reluctance to ratify the Agreement of Rome .... The U.S. leaves solidarity aside by
not taking into account that the International Criminal Court is also a part of such global
justice .... The U.S. is not requested to assume any commitment other than those whose allies,
and among them Spain, have already undertaken."
"Bush Wants To Go it On His Own"
Centrist La Vanguardia wrote (7/1): "The International Criminal Court will get off to a bad start.
It is an ambitious, necessary and in-line-with-the-new-times p~oject .... But the Court will be born
.with serious limitations, and the most sh.ocking thing is that most of these limitations, although
¯ not all of them, come from the most globalizing country of the world -- the U.S ..... What is Bush
:afraid of? The U.S. is not Pinochet’s Chile. The bottom line is that Bush wants to go his own
way through the world. He rejected the Kyoto Protocol and has announced that he will veto the
U.N.’s mission to Bosnia if he does not manage to keep his blue helmets outside the ICC’s
jurisdiction .... The most severe thing is that an ICC without the U.S.’s participation will be born
with severe, limitations, which is a step backwards for all."
OLC 000596
SWEDEN: "The World Policeman Opposes The International Community"
Independent, liberal morning Daqens Nyheter noted (7/2): "The U.S. veto of the resolution to
extend the UN peace-keeping mission in Bosnia is said to be because of principle .... It is true,
on one level that the country’s decision must be regarded both as logical, and for reasons of
principle; as a part of the U.S. disinclination to enter binding multilateral agreements: In order to
take part in peace-keeping missions the U.S. demands immunity from prosecution of its
personnel by the International War Crimes Court, whose authority .the U.S. does not
recognize .... The U.S. action appears as clumsy and also has a clear streak of blackmailing ....
It is very sad to observe that the institution--which so many had put great hopes in and which
was set up to try international war criminals and therefore would pose a threat to international
perpetrators of violence--lacks the support of one of the greatest democracies of the world. And
even worse is that the U.S. now is using this institution of hope as a crowbar to defend its own
position of power. George W. Bush has entered a dangerous and irresponsible path."
¯ "The U.S, ~n The Corner"
The independent, liberal tabloid Expressen editorialized (7/2):"Seldom have U.S.- EU relations
been as frosty as they are now. Last week one could notice an Atlantic rift over the Mideast
.: conflict, and now the U.S.’ rejection of the new International War Crimes Court in The Hague
has stirred up feelings. Everyone was aware of the fact that the U.S. would oppose the ICC,.but
¯ few had expected that the.U.S, would go as far as to use sabotage .... The ICC would have
..provisions against political trials and it is unlikely that court would put the bar so low that a
country !ike the U.S. would not dare to liberate a terrorized people because of fear that civilian
casualties would be Subject to prosecution. War cannot be brought with surgical precision, but
at the same time it is extremely important that also the U.S. will be subject to international law,
]’he principle of legal equality must be absolute, and it would be a step forward for.humanity if,
¯ in the future, not only despots in the third world, but also NATO strategists would have to
consider the legal consequences of their decisions. It is a matter of course that Europe holds its
own and maintains that no one--not even the only superpower in the world--can be above the
TURKEY:¯ "lCC Will Be An issue For Turkey, As Well"
Izzet-Sedes draws parallel .between EU-Turkey relations and the ICC in mass appeal Aksam .
:(7/3):"’The US did not ratify the ICC, and it also stands against Europe by trying to prevent.the
:lCC.from functioning. China and Russia are two allies of the US in this, but they are not very
¯ active. However, none of these countries will face the issue that Turkey is about to face. The
EU membership, process will be a part of Turkey’s agenda in connection with the ICC, because
Turkey is the only candidate country that is not part of the ICC while other.European candidate
countries are. Just watch. As soon as the EU is done with the US on the ICC issue, it will. turn
to Turkey and bring it up as one of the conditions."
"The First Of Ju~y For US"’
Turgut Tarhanli commented in liberal=intellectual Radikal (7/2): "The date signifies the
¯ International Criminal Court becomes official. The ICC mandate covers a wide range of serious
crimes, including genocide, crimes against humanity and war crimes .... Currently, the number of
-countries recognizing the ICC-authority is 74, and interestingly enough the list includes Bosnia-
Herzegovina, Yugoslavia, South Africa and Argentina. The ones who do not recognize the ICC
are less in quantity, but more powerful. Therefore the future of the ICC is not very promising at
OLC 000597
the moment .... The reason the US is stopping the ICC from functioning stems from its intention
to be able to dominate the UN Security Council .... As a Human Rights Watch representative
noted, the United States wants to manipulate the UNSC and weaken the ICC’s capability, i.e.
turning it into a stillborn baby. If this sounds too pessimistic, here comes the optimistic
comment: The US wants ICC to function only if and when the
united States desires."
MIDDLE EAST
ISRAEL: "A.New World Disorder"
Foreign news editor Arik Bachar opined in popular, pluralist Maariv (7/2): "There is no wonder
that the center of gravity of support for this new institution [ICC] is in Europe, while the United
States is leading the opposing camp that threatens the shaky stability of world order. Europe is
in no hurry to send its finest sons to distant parts ofthe world in order to make peace. Uncle
Sam is doing it consistently .... Uncle Sam is now demanding that...his sons have immunity
against prosecutions in the new court. And if the world doesn’t like it, then the world can
manage without them [the U.S.] .... In a world so complicated and conflicted, it would have been
worthy to leave the situation as is; where the international community discusses each case of
genocide, to the point...and doesn’t leave it in the hands of bureaucrats that only the good lord:
knows who they actually represent."
WEST BANK: "War CrimesCourt,
Independent AI-Quds opined (7/2): "Amidst feeling of joy and satisfaction expressed by the
international community regarding the establishment of the War Crimes Cou.rt, which .will fill a
major gap in the international legislative system, .two countries, the United States and Israel,
~h.ave expressed extreme objection and reservations toward the court. They.both claim that the
tribunal will turn out to be a political entity instead .of a legislative body, which will, in turn, reflect
bias against their citizens. The United Statessaid its.military personnel and citizens must
receive full immunity from any charge filed against them through this court. Israel, on the other
hand, expressed concern that the court may pass a ruling deeming Israeli settlements and its
occupation of the West Bank, Gaza, and the Golan Heights as war crimes, which will eventually
lead to putting its soldiers, officials and settlers on trial. These American and Israeli objections
reflect their attitude of superiority and dominance. They also show their heedlessness toward
¯ the international community." ..-
-JORDAN:. "What Can We Do About The U.S.?"
Columnist Bater Mohammad Ali Wardam wrote in center-left, influential Arabic-language AI-
.Dustour (7/3), "Since the first day of talking about the international war crimes .tribunal, the
United States started its attempts to evaderesponsibility towards it, thereby proving that the
United States is an outlaw state that does not respect any of its commitments, and that wants to
protect its soldiers from responsibility when they commit war crimes, such .as they did in
Afghanistan, and plan to commit in Iraq. Confronting American policy will require worldwide
popular coordination that pressures effective governments, such as those of Europe and Japan,
to create a new world ruled by some elements of morality, not Washington’s law of the jungle.
Perhaps modern technology and globalization will be among the effective means to achieve
liberation from the United States that is leading the world to destruction, and that has no
compunction against committing the worst crimes againsthumanity."
LEBANON: "The New Rome"
OLC 000598
Sahar Baasiri commented in moderate, anti-Syrian An-Nahar (7/2): "There is no clearer proof for
the inclination of the Bush administration to perform single-handedly than...its position on the
new International Criminal Court and its decision to put American peacekeepers beyond the
reach of this court. The American justifications for taking this position are not convincing ....
This position even surpasses the U.S. double standard policy. The United States has approved
in the past the establishment of criminal courts in Rwanda, Sierra Leone, and Yugoslavia. Why
is it vetoing the establishment of an international criminal court today? America wants the whole
world to cooperate with it in its war on terrorism, but opposes the establishment of an
International Criminal Court that would deal with individuals that are no less criminal than
terrorists .... This is the new empire that only wants to put itself above the law."
SAUDI ARABIA: "Opposition To Law"’
Jeddah-based, moderate Saudi Gazette held (7/2): "Despite vociferous opposition from the
several countries, the ICC became a realityon Monday. The opponents of the ICC include
¯ countries like the United States, Israel, Russia, China and India. Clearly, their opposition gives
~.the impression they are involved in activities which they themselves,believe will be ultimately
classified as genocides, crimes against humanity, and war crimes .... The United States wants
peacekeeping missions outside the ICC’s jurisdiction. This raises the question about the intent
and purpose of peacekeeping, and whether the. peacekeepers’ crimes should be ignored. A
civilized world would say no. Peacekeepers involved in war crimes must be dealt with more
harshly. It’s time the opponents of the ICC review their military policies in Palestine, Chechnya,
-)<injiang and Kashmir, as well as in the superpower’s world."
"Peacekeeping’°
Jeddah-based, moderate Arab News editorialized (6/30): "Washington’s opposition to the

¯ .International Criminal Court, which comes into being tomorrow, is well-known. No less well-
known is the Bush administration’s readiness, .to use America’s superpower weight to bulldoze
the world into its way of thinking--whether the issue is fighting terror, or fighting peace. That.
latter is-what Washington seems to be set on doing in its battle to fashion the court in .away.that
.would negate the fundamental principle of justice-=equality before law. It wants to judge, but not
be judged. It.wants all war crimes to be punished, but not those committed by its,soldiers.
President Bush’s threat to veto the renewal of- the mandate of the UN mission in Bosnia, due¯to
expire today unless there is a promise by the new court of immunity from prosecution for any
peacekeepers the U.S. contributes to UN missions is nothing less than blackmail. The UN
mission in Bosnia is an issue separate from.that of the international court. Bush is threatening
¯ one to force the result he wants on the other. This is misuse of America’s privileged position as
a permanent member of the Security Council .... What Washington has a perfect right to do is to
say that it will not participate in UN missions Until the matter is sorted out. That would be an
honorable position. But to take the position that threatens a third party--in this case, Bosnia
together with its security and welfare-=is beyond understanding."
TUNiSiA: "Who ~s Against The G~obalization Of Justice?"
Manoubi Akrout wrote in independent, French-language Le Quotidien (7/2): "Why have the two
ex-superpowers (USA and Russia) and the first demographic .power (China) joined with the
main zealots of the world (Israel) to take a position against this institution (ICC) in its new,
permanent form?... Led by the United States, this pro-globalization clan is spreading terror in
the developing countries, weakening them and making their position weaker and their efforts
OLC 000599
tougher. Don’t we know that many countries will find themselves without any markets and
without any future in the coming years? Don’t we realize that those who will not accept injustice
will be referred to as terrorists? Don’t you know that only those cherished by America will reap
the benefits in this situation? Don’t you remember the violent Israeli attacks on the UNCR?
Don’t you recall the latest American ’pearls’: the rejection of Kyoto agreement and the unilateral
’adjustment’ on steel .... Won’t the Israelis be the first to be sued in this court for what they have
done to the Palestinian people? And who makes the important decisions in the States when
Israel finds itself involved? The American Israel Public Affairs Committee."
SOUTH ASIA
iNDIA: "America’s Dubious Dissent"
The centrist Hindu opined (7/3), The United States has once again revealed its unilateralist
agenda on the international stage by exercising a veto at the UN Security Council as. regards an
issue with far more serious implications than meet the eye. The Bush administration has now
set its face against the extension of a peacekeeping mission which the United States itself had
in the first place endorsed quite enthusiastically with reference-to Bosnia. However, America!s
latest action concerning Bosnia is hardly related to the direct issues of war and peace there .... It
is apparent that the United States wants to be a law unto itself as the sole superpower on the
global stage .... Washington tends to believe that it cannot prevent its detractors in the "
international arena from draggingAmerican peacekeepersto the Court in spite of their UN
mandate .... ¯ Overall, a doctrinaire Bush. administration is in no.mood to listen to political counsel
from its allies, although the movement for the International Criminal Court had at first received
support from the United States itself under an earlier President, Bill Clinton. America’s current
tendency to see itself in a ’hyper-power’ league of its own is certainly not limited to the issue of
human rights. Some. recent examples of America’s ’unilateralist overdrive’ (a West European
critique) relate to several important issues such as the abrogation of the U.S.-Soviet Anti=
-Ballistic Missile Treaty or the implementation of the Kyoto Protocol on global Climate. It is a
trend that does not bode well for the global, community."
"Towards One Law"
The centrist ~ asserted (7/3), "Universal justice sounds like an impossible abstraction.
But a ’quiet attempt is being made in The Hague, from this. month, to turn the concept into some
sort of a .reality. Bill Clinton had signed the Roman treaty, but his successor is now steadfastly
refusing to ratify it. And the American state and military establishments are squarely, behind him
in this, afraid’that their soldiers might be the subjects of politicall,j-motivated or frivolous
prosecutions in this court. The American contrariness could wreak deeper havoc.-,Washington
has threatened to pull out of UN peacekeeping in Bosnia if U.S. forcesare not exempted to
,intervene only when national authoritiescannot or will not prosecute. It can only complement,
-and not displace, a nation’s legal system, and cannot really be a threat to its sovereignty.
Surprisingly, Tony Blair understands this. A global concept therefore confronts a divided world."
-PAKISTAN: "U.S. Must Be Tried"
The Karachiobased right-wing pro-Islamic unity Urduolanguage Jasarat insisted (7/3), "The
United States must be tried for war crimes for killing scores of innocent citizens participating in a
wedding ceremony in Afghanistan. The fact of the matter is that the United States has no value
:for Muslim lives. It does not even avoid killing them for the sake of sport. The question is if the
September 1 lth attack was terrorism, then isn’t the attack on a wedding ceremony of the
OLC 000600
villagers terrorism and aggression?"
SRI LANKA: "The Judge, The Jury, All In One"’
The independent Daily Mirror opined (7/2): "On Monday the UN was plunged into one of its
gravest crises after the all powerful United States used its veto authority to block the practical
implementation of the International Criminal Court .... The key factor in this crisis as in so many
other issues during the past decade is the U.S. insistence that its self interests must take priority
over all others. It is not a request but a command .... The self righteousness, hypocrisy and
sanctimonious humbug are seen in more than one area. For instance, the U:S. State
Department annually takes the liberty to appoint itself as a world judge and issues human rights
reports on more than one hundred other countries. But the same United States is unwilling or
afraid to subject itself to trial by the ICC in instances where there might be accusations of
human rights violations against U.S. troops."
EAST ASIA AND PACIFIC
AUSTRALIA: "Peacekeeping Needs U.So Help"
The national business-oriented Australian Financial Review opined (7/3), "The practical
consequences of the U.S.’ repudiation of the International Criminal Court have been swift to
emerge. A 1,600-strong United Nations police mission in Bosnia, which among other duties
trains Bosnia’s domestic police force, may have to be withdrawnwithin days because the UN
has, quite rightly, refused a U.S. demand for immunity from the new global war crimes court ....
The sad thing about the latest impasse is that it reinforces opponents of U.S. foreign policy in
.their view that the world’s only superpower wants one set of rules for it and another for everyone
else. This is going to lead to disagreements between the United States and its closest allies that
.will not be easily resolved .... The United States cannot.always be right, and the time will come
when even a superpower needs its friends."
"The New American Unilateralism"
The liberal Sydney ~ Herald maintained (7/3), "The potential damage from the Bush
Administration’s opposition to the International Criminal Court can hardly be underestimated.
This latest and most grave manifestation of.the new American.unilateralism has not prevented
- .the opening of the ICC .... Washington continues to press for a blanket exemption for U.S.
¯ citizens from its jurisdiction. This impossible demand implies a two-tier system of justice, one for
Americans and one for the rest of the world .... The Bush administration’s use of the U.S. veto in
¯ the UN Security Council on Sunday to refuse an extension of the 1500-member UN police-
training mission in Bosnia wasa grave step .... The numbers of American peacekeepers in
Bosnia are nowhere near as important as the sinister principle behind the threats to.withdraw
them."
CHINA(HONG KONG SAP,): "Courting Trouble"
The independent English-language South China Morning_ Post commented (7/2): "The
.administration of U.S. PreSident George W. Bush is making a mockery of its supposed respect
for international law through expressing its disapproval of the International Cdminal Court by
vetoing a renewal of the United Nations .police force in Bosnia. That the world’s most powerful
nation should have resorted to frustrating a peace mission in order to impose its will on others is
a .big .shame .... Americans have to realize that their country will lose the moral authority to be
OLC 000601
the world’s policeman if they refuse to subject their nationals to the jurisdiction of a properly
constituted court that aims to deter war crimes. It is thus disturbing that a bill asserting the U.S.’
rights to use ’all means necessary’ to free any Americans detained in the court’s prison is even
making its way through Congress. Should the bill become law, the U.S. will lose all credibility as
a nation that stands for human rights. Even though it is not ready to embrace the court, the
Bush administration should at least stop its campaign to undermine it."
JAPAN: "U.S. Bid To Weaken ICC’s Jurisdiction Regrettable"
Liberal Asahi editorialized (7/3): "It has long been a dream of the international community to
bring to justice war and other inhumane crimes, including genocide. We welcome the
effectuation of a treaty that will lead to the opening of an international criminal court under the
United Nations. But it is regrettable that the U.S., which refuses to join the treaty, is trying to
weaken the proposed court’s jurisdiction. Washington has been opposed to the ICC’s opening
on the grounds that its troops deployed overseas may be tried for political reasons. Both the
U.S. insistence that it withdraw its troops from peacekeeping operations and its veto of a UNSC
resolution calling for a six-month extension of peacekeeping operations in Bosnia are too self-
righteous and violent."
"ICC Treaty, Peacekeeping Operations Should Go Hand in Hand"
.Liberal Mainichi observed (7/3),.;’The United States’ withdrawal from [Bosnia peacekeeping]
operations and its isolated move [vetoeing a UNSC resolution calling for an extension of
peacekeeping operations in Bosnia], would pose a serious problem to the world community.
The fact that only 74.nations have ratified the ICC treaty and that Russia, China, India and
Japan have yet to join it is another serious problem. The United Nations should wise up to
measures to make the significance of UN peacekeeping operations and the ICC compatible."
S~NGAPORE: "U:S. Tries New Tack"
The pro-government Straits Times opined (7/’2), "The United States has refused, to be a part of
the ICC .... The Bush administration appears fixated on the world’s America-hatred. Why? It
has not had a convincing response to the ICC’s counter of multi-level safeguards, such as a
treaty state’s jurisdictional right to prosecute an alleged war criminal first. As constituted~ the.
¯ iCC would not invoke its prosecutorial powers in such a scenario. The consistent line that U.S.
sovereignty must remain paramount betrays an emerging attitude far more disturbing: that
America would not be bound by the rules of ’others’, whether this is out of hubris or legitimate
concern. It is looking like the former. On Sunday, it challenged the ICC’s founding purpose
through the devious route of the UN Security Council .... It should reflect on the consequences
of this astounding display of provincialism. In trying to sideline the ICC, it appears prepared to
jeopardize the peacekeeping ~:ole of the UN, one core element in living up to its charter as the
basis of international law. Those nations which have ratified the ICC’s founding Rome Statute,
which include all of the European Union, cannot fudge the immunity issue without effectively
rewriting the statute and render null certain national laws that accept the ICC’s ’prosecute or
surrender’ jurisdiction. To cut through the thicket, the United States ought to ponder this: If it is
implying that not one among its legion of armed men deployed overseas, now and in the future,
is capable ofacts that are beyond the pale, can it expect to .be believed?"
AFRICA
OLC 000602
NIGERIA: "Double Standard Policy Laced With Arrogance"
The Lagos-based independent Anchor opined (6/30), "On July 1, the International Criminal
Court (ICC) will take off signaling the dawn of a new international judicial order;... But the
United States would rather wish that the ICC did not take off, even if the bulk of the international
community has insisted it should .... It is amazing how a country that is a bastion of democracy
can stoutly oppose the internationalization of the rule of law, which the ICC idea symbolizes ....
The same country would, in 2001, brow-beat Nigeria to deport Lanre Shittu, a prominent
Nigerian auto-dealer to face alleged drug trafficking charges in American courts. But this
country, ever ready to impose its will on others cannot bear its citizens to be bound by ICC
jurisdiction. Certainly, America’s conduct is double-standard laced with arrogance. We realize
there is little anyone can do about that, since the sole surviving superpower has the force to
exert its will. But since we believe in the rule of law, and not the threat of force., we call on our
own government not to have anything to do with this American gambit. We say no to any anti-
ICC pact with America."
SENEGAL: "The ICC And The African Court Of Human Rightso-The African Struggle"
Abdoulaye Seye wrote in semi-independent Le Soleil (7/3) that "while the United States has
systematically rejected the ICC, and the French are asking for a 7-year extension...there are 17
African countries, including Senegal, whoadopted the International Criminal Court. Andyet, the
African Charter implementing an African Court for Human Rights needs 15 signatures in order
to enter into effect. This situation shows once again the irresponsibly of the African countries
who are always eager to reinforce the international instruments but who ignore those of their
continent."
"Double Standard Of Justice?".
Abdoulaye Seye wrote (7/3) in semi-independent paper-of-record Le Soleil concerning the

Africanhuman rights NGO RADDHO’s press release: "The press release notes ’a concer~ over
Bush Administration attempts to kill the jurisdiction of international justice while it is still, in the
womb in order to avoid having American citizens accused of, war crimes or crimes against
humanity brought before the International Criminal Court. This goes for the French as well,
authors of ICC’s Article 124, which authorizes French soldiers to commit war crimes with
impunity for seven years. For this reason, the Secretary General fo RADDHO is-asking that
international opinion, especially in .America, rise up and demand that the United States respect
the principals upon which it was founded: freedom, justice and equality."
SOUTH AFRICA: "New World Court"
In the view of the liberal Natal Witness (7/2).: "The .new International Criminal Court opened it
doors for business in The Hague yesterday .... The United States has so far refused to ratify the
treaty..... Other nations regard [its] fears as unfounded .... The effect of the veto, however,
could be the end of the UN mission to train a new.Bosnian police force. So one has the irony of
the world’s only international .policeman halting an international police operation. The united
States under the Bush administration has been increasingly chauvinistic and unilateralist,
putting what it perceives to be its own interests again.st what is manifestly-the international good.
It claims that is own vaunted democracy is built upon a bill of dghts but it does itself no good.by
obstructionism .premised on the unspoken assumption that it and its citizens are somehow on a
higher moral plane than the rest of hum.anity and cannot be brought to account for the violation
OLC 000603
of the rights of others."
WESTERN HEMISPHERE
BRAZIL: "Undermined Court"
Liberal Folha de S. Paulo opined (7/3), "President George W. Bush’s unilateralism has just
chosen its new target: the International Criminal Court .... The United States has never liked the
idea of an autonomous global judiciary. It fears that such a court could be used politically
against Americans .... Strangely, the United States aligns itself with Russia and China [in
opposing the ICC], nations whose records in terms of democracy and human rights certainly are
not among the best... In retaliation...some have mentioned that the White House might not pay
the U.S. share of the cost of UN peacekeeping missions. This attitude can only be seen as a
badly disguised operation to undermine the ICC. Bush seems to believe that he has the power
to dictate global affairs. It is a risky step. He still needs some international cooperation to win
the war against terrorism."
ARGENTINA: "Above The Nations"
Independent Jornal do Brasil held (7/3), "The same day the International World .Crimes Tribunal
was enforced in The Hague...the Americans threatened to veto the renewal of UN’s mission in
Bosnia. Washington wants to guarantee that the tribunal.:.won’t punish its soldiers .... The U.S.
has sent the wrong message on a significant day. There would be no war in Afghanistan or
even theGulf War, if U.S. allegations, based on human rights defense (and the twin towers’
destruction in New York, and the Kuwait invasion) were refused by the international .community.
There is not enough punishment for genocide. The Hague Court cannot even condemn some
one to death penalty. -Prisons chosen by it, by the way, are comfortable, as Milosevic himself--
the first big fish caught by the:Court--was able to testify. Accusations against violence in
Burundi, Congo, East Timor continue. Atrocities committed by the Khmer Rouge in Cambodia
in the seventies may be examined some day. Other cases that should be examined are Chile,
Myamnar (Former Burma), Cambodia, places from Cold War and Sierra Leone. We are in.the
era of globalization and of law. The British, the greatest supporter of the ICC Court in the face
of the U.S. objection, joined the international tribunal without hesitation." .-
OLC 000604
From: Hugo Wheegook Kim
Sent: Monday, July 15, 2002~.1:51 PM
To: Hugo Wheegook Kim; Soon Paik; Young-chart
Yoon-Soo Park; Hang Yul Rhee
Subject: Conference Registration/Reminder
Attachments: ICKS@CCKI 2002 Program.doc; ICKS@CCKI 2002 Registration.doc; hugowkim.vcf
[CKS@CCKI 2002 ICKS@CCKI 2002 hugowkim.vcf (396

Program.doc (95... Registration.do... B)
Dear Panelists of the ICKS@CCKI Joint Conference 2002
Greetings from Washington!
Attached is the updated conference program and registration information. I would like to remind you that today is.the
last day of conference registration. If you did not submit your registration form, please take action now. If you have
submitted, please ignore this reque.st.
Your airline tickets will be arranl~ed by a travel company within a week. If you do not have any contact foryour tickets
by 5:00 PM Monday
22 August (EST), please contact either Dr. Soon Paik at . or Sharp Travel Company: Tel {703)
94:[-2323, Fax
(703). 941-2929 or E-mail to <ma I@flysharptravel.com>. If you did not register, we are unable to arrange your
transportation.. So. we are not responsible for your extra cost in your transportation caused by late purchase.
1 am also waiting for your brief biography of :[5-25 lines of sentences through e-mail. Thanks for your cooperation.. I am
looking forward to seeing you soon.
With my best wishes, Hugo Kim, Vice President International Council on Korean Studies (ICKS)
OLC 000605
ICKS & CCK~ JOINT CONFERENCE 2002
A Centennial Celebration of Korean Immigration to the United States
(As of 11:00 AM July 15, 2002, EST)
THE KOREAN ANERICANS:

PAST, PRESENT, AND FUTURE
August 16-18, 2002

Fairview Park Marriott Hotel
3111 Fairview Park, Falls Church, Virginia 22042, USA
Jointly Sponsored by
International Council on Korean Studies and
Centennial Committee of Korean Immigration to the United States
ht_~p://www.icks.org and h..ttp://www.ccki~__.92g
Conference Objectives
(a) To analyze the contribution of Korean Americans in politics, economy,

society, culture, and religion of the United States in the past century,
(b) To suggest the direction of their goals and values as well as the roles
of the Korean American communities in the coming century,.
(c) To encourage the young generation of Korean Americans to pursue
their social mobility toward the mainstream society of the United States.
Friday ’~ 6 August 2002
2:30 PM Registration
3:00-5:30 PM Panel I. Historical Perspective

of Korean Immigration to the United States
Moderator Dr. Marn J. Cha, California State University-Fresno
Papers "The First Half Century of Korean Immigrants: 1903-1953"

Dr. Wayne Patterson, St. Norbert College
"In Pursuit of Higher Education in the United States: An Early

Study Abroader, Kyu Sik Kim"
Dr. Jong O. Ra, HollinsUniversity
"The. First Koreatown on the U.S. Mainland: Reedley/Dinub.a,

California" Dr. Marn J.Cha, California State University-Fresno
"The Korean Reserves in America in the World War II"
OLC 000606
Dr. Sun Pyo Hong, Institute of Korean Independence Mov. Studies
"The Change in Immigration Law and Koreans in America"

Christine HyunSook Lee, Cln’istine Lee and Associates, LA
Discussants Floor Discussions Only
4:00-4:30 PM Coffee Break
5:30 PM Break
6:30-9:00 PM Dinner and Speech
6:30-8:15 PM Reception and Dinner
8:15-9:00 PM Dinner Speech
Introducer Dr. Hang Yul Rhee, Shepherd University

President, International Council on Korean Studies
Speaker "The Contribution of Korean Americans to the United States"

Dr. Sung Chul Yang, Ambassador (Invited)
The Republic of Korean Embassy to the United States
9:30 PM End of the First Day Conference
Saturday 17 August 2002
8:00 AM ¯ Registration/Continental Breakfast
8:45 AM Opening Remarks

Dr..Hang Yul Rhee, Shepherd University and
President, International Council on Korean Studies (ICKS)
8:50 AM Welcome Address

Dr. Yoon-Soo Park, Korea-U.S. Science Cooperation Center and
President, Centennial Committee of Korean Immigration to
the United State - Greater Washington (CCKI-GW)
9:00-9:40 AM Key-note Address
Introducer Dr. Hang Yul Rhee, President of ICKS
Speaker "The Contributions of Korean Americans to both American and

Korean Society"
Dr. Jay Keon Yoo, Member, the Korean National Assembly
OLC 000607
Chairman, U.S.-Korea Inter-Parliamentary Exchange. Council
9:40 AM Coffee Break
10:00-11:45 AM Panel II. The Politics of Korean Independence Movement

and Unification Approach (Room A)
Moderator Dr. Ilpyong J. Kim, University of Comaecticut

Vice Chairman, International Council on Korean Studies
Papers "The Korean Independence Movement in America: Syngman Rhee,

Ahn Chang-Ho and Park Yong Man"
Dr. Han-Kyo Kim, University of Cincinnati
"The Seeds of Modernity in North Korean Utopianism: Kim I1

Sung’s Re-reading of the Independence Movement in China"
K. A. (Tony) Namkung, University of California, Berkeley
"China and United States Approaches to the Unification of Two

Koreas and the Role of the Korean Americans"
Dr. Samuel S. Kim, Columbia University
Discussants Dr. Hyung Gu Lynn, University of British Columbia

¯ Dr. Woong B. Lee, Backus Hospital, Norwich, Connecticut
Dr. Bong Hak Hyun, Ajou University, South Korea
10:00-11:45 AM Panel IIL Korean .American Future Leadership:

Path Finding(Room B)
¯ Moderator Mr. Mark Lo Keam, U.S. Senate Committee .for the Judiciary
Speakers Dr. John C. Yoo, U.S. Department of Justice

Dr. Jay H. Chung, National Institute of Health
Dr. Wan Shin, Inova/Fairfax Hospital
Ms. Jin Sook Lee, Asian Pacific American Labor Alliance .
Commentators Dr. Pilju Kim Joo, University of Minnesota

Dr. Richard Dongjoon Shin, LECG Economics and Finance
11:45 Am Break
12:00-1:40 PM Luncheon and the Speeches
t2:00-1:00 PM Luncheon
1:00-1:40 PM Introduction and Luncheon Speech
OLC 000608
Introducer Dr. Soon Paik, U,S. Department of Labor
Program Chair for 2002 Annua! Conference
International Council on Korean Studies (ICKS)
Speaker Topic to be announced

Ms. Shinae Chun
U.S. Department of Labor
Topic to be announced
Mr. Moonsong Oh, California State University, Los Angeles
National Chairman, Korean American Scholarship Foundation
1:40 PM Break
2:00~3:45 PM Panel IV. Korean American Business Development

and Immigration Economics (Room A)
Moderator Dr. Youn-Suk Kim, Kean University
Papers "Challenges and Opportunities for Korean Business"

Dr. Yoon-Shik Park, George Washington University
"Korean Assimilation in American Economy"

Dr. Dong-Keun Jeong, North Carolina A&T State University
"Korean Inamigrant Entrepreneurs: An Optimistic View"

Dr. Won Taek Moon, Research Center for Entrepreneurship
"Foundation of Violence: Korean Vendors and Powerless

Customers in South Central Los Angeles"
Dr. Kyeyoung Park, University of California at Los Angeles
Discussants Dr. John Riew, Pennsylvania State University

Dr. Suk Hee Kim, University of Detroit-Mercy
Dr. Pyung I1 Yu, Korea Institute of Science and Technology
.2:00-3:45 Panel Vo Contribution of Korean American Scientists and

Engineers to Korea-U.S..Scientific Cooperation(Room B)
Moderator Dr. Moo-Young Han, Duke University

Editor-in-Chief, Society of Korean-American Scholars (SKAS)
,Papers "A Brief Highlight of Achievements by Korean American

Engineers"
Dr. Sung-Mo (Steve) Kang, University of California at Santa Cruz
4
OLC 000609
"Participation of Korean Americans in Mainstream Physics:
The Current Patterns and Future Prospect"
Dr. Yong-Wook Kim, Lehigh University
"Differences We Made to Chemistry in U.S.: A View of Korean

Immigrant Contributions in the Past Fifty Years"
Dr. Hyuk Yu, University of Wisconsin
Increasing Presence of Korean American Scientists in U.S. Higher

Education’.’
Dr. Kichoon Yang, University of Northern Iowa
"Benjamin Whiso Lee: Korea’s Oppellheimer?"

Dr. Moo-Young Han, Duke University
3:45 PM Coffee Break
4:15-6:0!) PM Panel VL The Future of Korean Americans:

Social Mobility toward the Main Stream (Room A)
Moderator Dr. Hugo Wheegook Kim, East-West Research Institute and

Vice President, International Council on Korean Studies
Papers "The Future of Korean Americans: Problems and Remedies"

Dr. Kwang Chung Kim, Western Illinois University
With Dr. Shin Kim, University of Chicago
"How to Promote Mainstream Activities of Korean Americans in

Politics, Economy, and.Society"
Mr. Mark L. Keam, U.S. Senate Committee for the Judiciary
"Korean American Journalism in the American Mainstream"

Mr. Kyung Won Lee, University of California at Los Angeles
"Social Mobility o~ Immigrants toward the Mainstream Society:

The Korean Americans and Integration of Community Resources"
Dr. Hugo Wheegook Kim, East-West Research Institute
Discussants Dr. HeeMin Kim, Florida State University

Dr. Dae Yong Kim; University of Maryland
Mr. InHwan Oh, Korean American Scholarship Foundation
4:15-6:011 PM ’ Panel V][I[o Korean Language and Cultural Education
OLC 000610
in the United States (Room B)
Moderator Dr. Young-Key Kim-Renaud, The George Washington University
Papers "Making of a Field: Teaching Korean Culture through Language,

Language through Culture
Dr. Young-Key Kim-Renaud, The George Washington University
"Aspects and Prospects of SAT 1I Korean"

Dr. Joe J. Ree, Florida State University
"Korean Community Schools"

Dr. Paul Hotak Choi, Montgomery College
"Value-added History: Teaching the Religious Beliefs and

Values Which Have Shaped Korea’s Past"
Dr. Don Baker, University of British Columbia
Discussants Dr. Gwee-sook Kim, Princeton University

Dr. Milan Hejtmanek, University of Pennsylvania
6:00 PM End of the Second Day Conference
6:30-9:00 PM Dinner and Speech
6:30-8:30 PM Reception and Dinner
8:30-9:00 PM Dinner Speech
Introducer Dr. Yoon-Soo Park, Korea-U.S. Science Cooperation Center and

President, Centennial Committee of Korean Immigration to the
United States - Greater Washington (CCKI-GW)
Speaker Mr. Donald C. Kim, Chairman

(CCKI-= USA)
9:00 PM End of the Second Day Conference
Sunday "~ 8 August 2002
8:00-9:45 AM Panel VIII, Political Empowerment and ]Involvement

of Korean Americans in the United States
Moderator Dr. Hong Nack Kim, West Virginia University .

Editor-in-Chief, International Journal of Korean Studies
OLC 000611
Roundtable Ms. Jinhee Kim Wilde, Candidate for MD House of Delegates
Ms. Julie J. K. Park, International Council on Korean Studies
Dr. Paul Jhin, U.S. Peace Corps
Dr. Wonmo Dong, University of Washington
Dr. Young Whan Kihl, Iowa State University
9:45 AM Coffee Break
10:00-11:45 AM Panel IX. Issues on Adaptive Processes of Korean Americans

(Room A)
Moderator Dr. Jai P. Ryu, Loyola College in Maryland
Papers "Koreans in the United States as Reflected in the 2000 US Census"

Dr. Eui-Young Yu, California State University at Los Angeles
"A Comparison: Generations of Korean Americans"

Dr. Jai P. Ryu, Loyola College in Maryland
"Status of Health, Morbidity, and Mortality of Koreans in

America"
Dr. Byung Dae Kim, Korean Resource Center
With Dr. Miyoung T. Kim, Johns Hopkins University
"Features of Korean Immigrant, s’ Adaptation to America"

Dr. Eui Hang Shin, University of South Carolina
Vise President, IntemationaI Council on Korean Studies
Discussants Dr. Moonsong Oh, California State University, Los Angeles
lO:OOd1:45 AM Panel X. The Korean. American Professionals:

Their Roles and Contribution to the United States (Room B)
Moderator Dr. Ki-Hyon Kim, North Carolina Central University
Papers "Korean Americans in Science and Technology Arena for the Past
Fifty Years: From the U.S.-Korea Collaboration Perspective"
Dr. Kyungsik Kang, Brown University
"The Contribution of the Korean American Medical Doctors"

Dr. Chai Chang Choi, the First President of
The Korean American Medical Doctors Association
"The Korean American Lawyers: Their Roles and Contribution"

Mr. Intak Lee, Intak Lee and Associates, Annandale, Virginia
7
OLC 000612
"The Role of the Young Korean-American Professionals in
Improving the U.S.-Korean Relationship."
Dr. Steve Y. Rhee, Atlantic Armstrong State University
"Statistical Analysis of Korean Immigrants: 1903-2002"

Dr. Chueng R. Ji, North Carolina State University
11:45 AM Break
12:15-2:00 PM Luncheon, Speech, and Conclusion
12:15-1:15 PM Luncheon
1:15-1:40 PM Luncheon Speaker
Introducer Dr. Ung Soo Kim, Chairman

Speaker Mr. Matthew D. Lee, President and CEO

Allied Technology Group Incorporated, Rockville, Maryland
1:40-2:00 PM Concluding. Remarks

Dr. UngSoo Kim, Chairman
2:00 PM End of the Conference
:DINNER (A SEPARATE PROGRAM)
7:00-10:00 PM This program is organized by The Centennial Committee of

Korean Immigration .to the United State - Greater Washington
Dr. Yoon-Soo Park, President
Mr. Sekwon KennethChong, Executive Vice President
RELIGION AND SPRITUALITY

The 35~ Annual Mee~ng of AKCS
Jointly Sponsored by
Association of Korean Christian Scholars in North America and
Friday t 6 August 2002
OLC 000613
3:00-5:30 PM Panel RS-1
Immigration Theology and Family Values
Moderator Reverend Kil Sang Yoon

United Methodist Church Board of Higher Education
Papers "Critical Reflection on Immigration Theology"

Dr. Kevin Park, Princeton Theological Seminary
"An Analysis of Korean American Ecclesial and Family

Experience: A Critical Confucian Perspective"
Mr. Kil Jae Park, Princeton Theological Seminary
"Reassessing Filial Piety in the Democratic Context: A Korean

American Perspective"
Dr. Sunju Chong, University of Illinois. at Chicago
Discussants Dr. Andrew Sung Park, United Theological Seminary, Dayton, OH

Dr. Sang Hyun Lee, Princeton Theological Seminary
Saturday "17 August 2002
10:00-11:45 AM Panel RS-2

Christianity and Culture
Moderator Reverend Young Jin Cho

Korean United Methodist Church of Greater Washington
Papers "Critical Reflection on Korean Christianity"

Dr. Kang-nam Oh, University of Regina
"Cultural Challenge for Korean American Christianity"

Dr. Young-chan Ro, George Mason University
"The Characteristics and Future of Korean American Christianity"

Dr..Yong Choon Kim, University of Rhode Island
’:Cultural Confluence of Korean Christianity in North America

Dr. Eun I-Iee Shin, Simpson College
2:30-4:00 PM Panel RS-3

History and Diaspora
OLC 000614
Moderator Reverend Hun Jung Cho
Korean Presbyterian Church of Beltsville
Papers "Political Controversies behind Korean Immigration to Hawaii"

Dr. Chan-Hie Kim, Claremont School of Theology
"Myth vs. Reality: An Ch’angho and the Korean Nationalist

Movement" Dr. Jacquiline Pak, Georgetown University
"Theological Movement and Contribution among Korean

Immigrant Communities in the United States for the Reunification
of Korea" Dr. Wi Jo Kang, University of California, Los Angeles
"A Brief History of Korean Churches in the Washington D.C.

Area" Dr. Okyun Kwon, Catholic University of America
Discussants Dr. John Goulde, Sweet Briar College
4:15-6:00 PM Panel RS-4

Unsilenced Voices of Women
Moderator Dr. Inn-Sook Lee, Princeton Theological Seminary
Papers "Theology of Empowerment"

Dr. Grace Kim, Toronto School of Theology
"A New Perspective on Korean Christian Feminism?"

Dr. Un Hey Kim, Presbyterian College and Theological
Seminary, Seoul, Korea
"Change in Female Labor Force in Colonial Korea"

Dr. Soon Won Park, Howard University
’-’The Struggle for a Total Liberation: A Korean American

Methodist Woman’s Life-Long Search for Justice, Peace and
Integration of All Creations"
Dr. Alice Yun Chai, University of Hawaii, Honolulu
Discussants Dr. Kong Dan Oh, Institute of Defense Analyses
FORUN8
: Jointly Sponsored by
The Federation of Korean Associations and
(All Forums use both English and Korean Languages)
10
OLC 000615
Saturday "17 August 2002
10:00-11:45 AM Forum 1.
"Perspective of the Korean American Community
in the Twenty First Century"
Chair Mr. Oh Young Lee, President

The Federation of Korean Associations
Speakers "Perspective of the Korean American Community

in the Twenty-First Century"
Mr. Oh Young Lee, Federation of Korean Associations
"Declaration of the Korean Americans toward 21st Century"

Mr. Young Chang Chae, Centennial Committee of Korean
Immigration to the United States-GW
Mr. Sukhee Kang, The First International Corporation
Mr. Se Ung Kim, Cosmopolitan Incorporated
Discussant Floor Discussions Only
2:15-4:00 PM Forum 2.
"Perspective of the Korean American Organizations"
Chair Mr. Byung Yong Min, Executive Director

Speakers "Perspective of Cemennial of Korean Immigration and Its Future

from the View Point of Republic of Korea"
Dr. Sung Ch0i, Korea University
"Programs of Centennial of Korean Immigration for 1.5 and 2nd

Generation and their Participation"
Mr. Charles Kim, Korean American Coalition
"Programs of Centennial of Korean Immigration by the Federation

of Korean Associations and Cooperation Structure"
Dr. Young Suk Suh; Centennial Committee of Korean Immigration
to the United States - USA
Discussants Mr. Young Whan Park, Korean American Scholarship Foundation
11
OLC 000616
4:15-6:00 PM Forum 3.
Perspective of Korean American Business and Commerce
Chair Mr. Chang Bin Yim, Chairman

Korean American Chamber of Commerce and Industry Federation.
Speakers "Operating Korean American Businesses: Experience, Lesson, and

Perspectives" Mr. Chang Bin Yim,
Korean American Chamber of Commerce and Industry Federation
"Success Story of Korean Business in Mainstream USA"

Mr. Jun Koo Rhee, New York Golf Center
Mr. Soo Dong Lee, SJG Corporation
Discussants To be mmounced
Sunday ~18 August 2002
8:00-9:45AM Forum 4.
A Regional Perspective of the Korean American Organizations
Chair Mr. Seung Nam Lee, President, President, Centennial Committee

of Korean Immigration to the United States-Atlanta
Speakers "The Korean Americans Association of Greater Washington:

Past, Present, and Future" Mr. Heung Tack Moon
The Korean American Association of Greater Washington
"The Programs of Korean Americans Association of N. Virginia"

Mr. Tae Whan Kim, The Korean Association of Northern Virginia
"The Relationships of the Korean Association With the State and

County Governments: A Case of Maryland"
Ms: Sook Won Lee, The Korean Association of Maryland
"Cooperation Of the Korean Associations with Other Ethnic

Communities and their Organizations" Ms. Okpii Kim
The Korean American .Society of Greater Richmond
"Relationships of the Korean Associations with Other Ethnic

Communities" Ms. Hale Kim, The Korean Society of Maryland
12
OLC 000617
10:00-11:45 AM Forum 5.
Perspective of the Korean American Leadership
Chair Mr. Sekwon Ke~meth Chong, Executive Vice President

- Greater Washington.(CCKI-GW)
Speakers "Fulfilling Korean Dream in the Mainstream of the United States

toward the Next Century" Dr. Ho Young Chung
The Korean Dream, Monthly Magazine, California
"The Korean American Leadership for the Young Generation"

Mr. Leonard Y. Kim, National Academy Science and Korean
American Scholarship Foundation
Reverend In Ryang Chung
Council of Korean Churches in Greater Washington
Topic to be am~ounced
Mr. Hyobum Shin, Washington State Government
Discussants To be announced
¯ NATIONAL CENT~ENN~AL COMMITTEE MEETINGS

¯ Organized by
(All National Centennial Meetings use the. Korean Language) .
Friday 16 August 2002
!)2:00-5:00 PM Meeting
Chair Mr. Donald Changwon.Kim, President

Participants To be announced
(End of the Program)
t3
OLC 000618
TH~S CONFERENCE PROGRAM
~S SUPPORTED BY
The Korea Research Foundation

The Korea-U.S. Science Cooperation Center
The Korean American Scholarship Foundation
Allied Technology Group Incorporated
The Korean American Associations of Greater Washington Area
The Korean American Coalition
REGISTRATION INFORMAT~ON AND CONTACT PONT

FOR THE ~CKS & CCKi JOINT CONFERNCE 2002
(Please Click Here)
14
OLC 000619
REGiSTRATiON ~NFORNAT~ON
~CKS &CCKI JOINT CONFERENCE 2002
August 16-18, 2002
Phone: 1-703-849-9400, Fax: 1-703-849-8692
The ICKS & CCKI Joint Conference 2002 is open to the public. Please make early
registration since available seats and conference supplies are limited.
Registration Form
Please fill the registration form below, and e-mail it to Dr. Hugo Wheegook Kim
at ~ or fax it to ICKS at. no later than
5:00 PM Friday 9 August 2002. For the panelists, the deadline of registration is
5:00 PM on Monday 15 July 2002 because of airline reservation. The registration
at the door does not guarantee your seat in the conference room.
No Registration Fee
No registration fee is charged for all participants in this conference. However, if
you want to join luncheon or dinner, you have to pay the meal cost when you
register. The luncheon price is $30.00 and the dinner price is $45.00 per person.
All panelists and speakers are exempted form this payment.
Hotel Reservation
All general participants are responsible for their hotel reservation. But the rooms
for non-local panelists and speakers are reserved by the conference. The hotel
directory is listed above, and its website provides further information as follows:
http ://www.marriotthotels.com/dpp/Property.Page.a.sp ?MarshaCode=WASFP.
Transportation
The shuttle service is provided by Blue Vans from both Reagan National Airport
and Washington Dulies Airport to major hotels in the region. If you take a cab, it
may cost around $35 to get the hotel from the both airports.
Conference Papers
All participants .who want conference papers should pay its printing cost except
panelists and speakers. Please indicate your intention to buy conference papers in
your registration form. If you want to save money, we can e-mail you files of
maximum three papers after the conference by request. The panelists need to read
"a guideline for conference papers and biographies" shown on the next page.
Conference Contact Point

Dr. Hugo Wheego0k Kim at, _ ’ ..... for the Program,
Dr. Young-chan Ro at~ ~ for Religion and Spirituality, and
Dr. Soon Paik (Program Chair) at ~ ~ for Logistics
OLC 000620
A GUIDELINE FOR
CONFERENCE PAPERS & E,~OGRAPH~ES
Exclusive Copy R~ghts
The conference .papers will be sent to the Editorial Board of the International Journal of
Korean Studies (IJKS), a biannual academic journal, which has been published by the
International Council on Korean Studies (ICKS). The qualified papers will be published
by IJKS in the coming two issues (Spring/Summer and Fall/Winter 2002). In addition to
this, the Centennial Committee of Korean Immigration to the United States (CCKI) is
planning to publish the conference proceedings. Therefore, NO conference papers can be
released to others without permission of ICKS and CCKI.
Paper Format and Volume
Please write and submit the conference papers of the academic panels in the main
program as well as religion and spirituality based on the following guideline:
Paper Size: Letter Size (8 ½ x l 1 inches)

Margin: 1 inch from all sides (top, bottom; left, and right)
Font Size: 12
¯ Style: Time New Roman
Line Space: Single Space like academic journals (to save printing cost)
Paragraph: 7-Character Tab (MS Word Default) and a line space between paragraphs
Notes and References: Use Endnotes Only (No References Needed)
Page Sign and Headline: Bottom Center (No personal headline allowed)
Paper Volume: No less than 15 pages but No more than 20 pages EXcluding endnotes
Word Process: Use the Microsoft Word 1997 or later versions Only
Paper Submission
All paper presenters should transmit their Electronic Files of conference papers NO later
than 5:00 PM on August 1, 2002 (U.S. Eastern Time) to Dr. Hugo Wheegook Kim at
_ _: as well as to all of your panel members. No hard copy is
necessary. If you do not receive a responding e-mail of confirmation from Dr. Hugo Kim
within 24 hours, your transmission must be unsuccessful. Please note that your paper
may not be printed for conference distribution if you miss the deadline. Due to lack of
administrative supports, we are unable to provide partial revision for your submi.tted
paper version. If you want to revise your submitted paper, please send a new electronic
rite for replacementbefore the deadline.
Submission of Brief Biography
All panelists and speakers should submit their brief biographies to Dr. Hugo Wheegook
¯ Kim at _ _ . by July 20, 2002¯ The bio should be written by normal
sentences, and its volume is limited to minimum 15 lines and maximum 25 lines.
OLC 000621
REGISTRATION FORM FOR GENERAL PARTICIPANTS
ICKS &CCK{ JOINT CONFERENCE 2002
August 16-18, 2002
Directory Information
Title Dr. ( ), Mr. ( ), Mrs. ( ), Ms. ( )
Name Last ( ), First ( ), Middle ( )
Affiliation
Mailing Street:
Address City, State, Zip:
Telephone
(Daytime) .,
Telephone
(Evening) (Optional)
Fax Number
E-mail
D~mand for Logistics
Dinner onFriday 16 August ($45.00) ( )

Meal Plan Luncheon on Saturday 17 August ($30.00) ( )
Participation Dinner on Saturday 17 August ($45.00) ( )
Luncheon on Sunday 18 August ($30.00) ( )
Total Amount for the Meal Plan: ( )
Conference I need a package of entire conference papers ( )

Papers I need selected papers specified in the attached list (Pleaseattach)
*Tlie printing cost for a paper of 20 pages: $2.00
Please fill. the form and e-mail to i: . i .... :. or fax to .... " If
you join a Meal Plan, please mail the registration form with a check payable to ICKS,
¯ The deadline of this registration is
5:00 PM on Friday 9 August 2002 (EST).
Registrant Signature: Date:
OLC 000622
REGISTRAT~ON FORN FOR PANELfSTS ONL
ICKS &CCKI JOINT CONFERENCE 2002
August 16-18, 2002
Directory Information
Title Dr. ( ), Mr. ( ), Mrs. ( ), Ms. ( )
Name Last ( ..... ):. First ( ), Middle ( )
Affiliation
Mailing Street:
Address City, State, Zip:
Telephone
(Daytime)
Telephone
(Evening) (Optional)
Fax Number
."
E-mail
Demand for Logistics
Dinner on Friday 16 August ( )

Meal Plan Luncheon on Saturday 17 August ( )
Participation Dinner on Saturday 17 August ( )
Luncheon on Sunday 18 August (
Flight Home Departure Time & Date:

Schedule Home Departure Airport:
& Hotel Check-In Time & Date:
Hotel
Check-In Returning Time & Date:
and Out Returning Departure Airport:
Hotel Check-Out Time & Date:
Please fill the form and e-mail to .... i 2 .... or fax to . The
deadline of this registration is 5:00 PM on. Monday 15 July 2002 (EST).
Registrant Signature: Date:-
OLC 000623
Full Name: Hugo Wheegook Kim
Last Name: Kim
First Name: Hugo Wheegook
Job Title: President
Company: East-West Research Institute
Other Address:
United ~tates
Business:
Business Fax:
E-mail:
E.mail Display As:
OLC 000624
From: Stephanie Wiederhold
To: Yoo, John C
Subject: 11/11/02 - International Law Workshop talk title & CV
Dear Mr. Yoo:
My name is Stephanie Wiederhold, and I work with Virginia Gordan, Assistant Dean of International Programs, Center
for International & Comparative Law, University of Michigan Law School.
I am writing to please ask that you submit to us by July 3:[, 2002, your talk title for your International Law Workshop
presentation scheduled for Monday, November 11. This will enable us to advertise the Fall 2002 Workshop schedule in
a timely manner. Please also submit a current copy of your CV by July
We schedule the talks for the International Law Workshop series to be videotaped and put on reserve in our Law
Library. If you do not want your Workshop taped, that is fine, just please be sure to let me know.
Thank you.
Sincerely,
Stephanie L. Wiederhold
CoordinatOr
Center for International & Comparative Law University of Michigan Law School
TEL:
FAX:
OLC 000625
Page 1 of 1
From: John Choon Yoo: ~

Sent: Tuesday, July 16, 2002 6:54 PM
To: Yoo, John C
Subject: Fwd: International Law Conference
Attachments: International Law Conference
OLC 000626
" 7/14/2010
Attached is the latest contact information for the November 15, 2002 Research
Conference on Explorinl~ the Limits of International Law.
OLC 000627
Reseerch Conference On
F.xplorlng The Limits of International Law - November ’~5, 2002
.Contect Information
FRES~TERS
a~ ~. proposed To~ c ~ Address
Kenneth Anderson American University Amedcan University
~
Washington College of Law Washington College of Law
Lee A. Casey Baker & Hostetler, LL.P. {ntemational Cdmina[Court: The Limits of, ~
Washington, D.C. Legitimacy
Sam Est’reicher New York University Rethinking Intemationat Customary Law New York University Scho01 of Law
Jack L, Goldsmith Ill University of Chicago Law S~hool A Defense of U.S. Human Rights L~iversity of Chicago Law School
Exceptionalism
John McGinnis Northwestern Law School The Metastasis of the ’Precautionary -

Principle’ In Trade Law: A Window on
Customary International Law
(Unfit Aug, 26)
(After Aug. 26)
Northwestern Law School
Joel R, Paul University Of California The Irreverence of Comparative Unlversit~-o~ ~aiifornla

~
Hastings College of the Law Advaptage: International Trade Law in Hastings College of the Law
Theory and Practice
Eric Posner University of Chicego School of Law Do States Have an Obligatien to Comply Eric Posner
with International Law? r~ Professor of Law
University of Chicago School of Law
8 Paul B. Stephan III University of Virg n a Sohoo of Law The Intellectual Origins of the Third ......... University of Virginia gcho(~l of Law
Restatement of Foreign Relations Law ~
Ruth wedgwood Yale Law School / TBD* Yale; Ruth Wedgwood
The Johns Hopkins University John HopkinS:
Paul H. Nitze School of Advanced Home:
International Studies Bpr:, ~
The Johns Hopkins University
Paul H. Nitze School of Advanced Int’l Studies
Department of International Law
Yale Law School
(On Leave ~f Absence)

John C. Yoo Eoalt Hall School of Law, University International Law and the War On _ : ......... John C. Yoo
of California at Berkeley / ~
Terrorism
Office of Legal Counsel, ~1~
U.S. Department of Justice "
CQMMENTATORS/pARTICIPANTS ?
Ptlilip Alston
Lynn Beret (confirmed)
Eleanore Fox
Ben Kingsbury
Andy Lowenfeld
Ted Meron
Rick Pildes
Linda Silberman
Richard Stewart
INVITED SPEAKERS
John Bolton Under Secretary of State forArms ~ ....................... State Department
Control & International SeCudty
~ ~
OLC 000628
* To Be Determined
From: Institute of Bill of Rights Law
sent: Wednesday, July 17, 2002 8:~7 PM
To: Yoo, John C;. Devins Neal;
Subject:
Attachments: tmp.htm; 1st e-mail to participants Cong&constl .wpd; 1st e-mail to participants
Cong&constl .doc
tmp.htm (3 KB) 1st e-mail to 1st e-mail to

participants Con... participants Con...
Dear Symposium Participant;
The attached letter has information about transportationand your stay in Williamsburg. The letter is in both Word and
WordPerfect. It also asks for some information, and I would love to hear from you by the :[st of August.
Please send me a brief bio to be included in the Notebook. If we have your bio, you will find it below.
Thank you,
Melody Nichols
MICHAEL GERHARDT, Professor of Law at William and Mary, has served as a Special Consultant to the Clinton White
House on judicial selection and to the National Commission on Judicial Discipline and Removal.He was a professor at .
the Wake Forest University School of Law before joining the William and Mary faculty of law in 1989. Professor
¯ Gerhardt visited at Cornell University during the 1994-95 academic term and at Duke .Law School in the spring of 2000.
He received his B.A. from Yale, his M.Sc. in Political Philosophy from the London School. of Economics and his J.D. from
the University of Chical~o Law School. He :is the author of the second edition of The Federal Impeachment Process: A
Constitutional and Historical Analysis (U. of Chicago Press, 2000} and of the book, The Federal Appointments Process,
(Duke University Press, 2000}. He is also the co-author of the second edition of Constitutional Theory: Arguments and
Perspectives (with Tom Rowe, Rebecca Brown & Girardeau Spann}, and numerous articles on constitutional law. During
the impeachment proceedings against President William Clinton in 1998-99, Professor Gerhardt consulted widely with
members of Congress from both parties. He also served as the only joint witness to have appeared before the House
Judiciary Committee in its special hearinl~ on the impeachability of the President’s misconduct and as CNN’s full-time,
designated expert on the federal impeachment process
:Michael Klarman joined the Virginia faculty in 1987. He teaches criminal .law, constitutional law, constitutional theory,
and constitutional history.
¯ He held the Class of 1966 Research Professors.hip from 1993-96, received the first Roger and Madeleine Traynor Faculty
Achievement Award for Excellence in Lel~al Scholarship in 1996, and is a 1997 recipient of the All-University Teachinl~
Award, One of the University’s highest honors for excellence in teachinl~, research, and service. He currently sepJes on
the editorial board of the Law and History Review.
OLC 000629
..... At Stanford Law School, Klarman won numerous awards and served as senior articles and symposium editor of the
Stanford Law Review; he also is a member of the Order of the Coil and Phi Beta Kappa. After I~raduation, Klarman
clerked for Judge Ruth Bader Ginsburl~ of the U.S. Court of Appeals for the D.C. Circuit. He then completed his doctoral
thesis in lel~al history as a Marshall Scholar at Mal~dalen College, Oxford.
OLC 000630
Page 1 of 1
Dear Symposium Participant;
The attached letter has information about transportation and your stay in Williamsburg. The letter is in
both Word and WordPerfect. It also asks for some information, and I would love to hear from you by the
1st of August.
Please send me a brief bio to be included in the Notebook. If we have your bio, you will find it below.
Thank you,
Melody Nichols
MICHAEL GERItARDT, Professor of Law at William and Mary, has served as a Special Consultant
to the Clinton White House on judicial selection and to the National Commission on Judicial Discipline
and Removal. He was a professor at the Wake Forest University School of Law before joining the
William and Mary faculty of law in 1989. Professor Gerhardt visited at Comell University. during the
1994-95 academic term and at Duke Law School in the spring of 2000. He received his B.A. from Yale,
his M.Sc. in Political Philosophy from the London School of Economics and his J.D. from the
University of Chicago Law School. He is the author of the second edition of The Federal Impeachment
Process: A Constitutional and Historical Analysis (U. of Chicago Press, 2000) and of the book, The
Federal Appointments Process, (Duke University Press, 2000). He is also the co-author of the second
edition of Constitutional Theory: Arguments and Perspectives (with Tom Rowe, Rebecca Brown &
Girardeau Spann), and numerous articles on constitutional law. During the impeachment proceedings
against President William Clinton in 1998-99, Professor Gerhardt consulted widely with members of
Congress from both parties. He also served as the only joint witness to have appeared before the House
Judiciary Committee in its special hearing on the impeachability of the President’s misconduct and as
CNN’s fu!l-time, designated.expert on the federal impeachment process
Michael NJarman joined the Virginia faculty in 1987. He teaches criminal law, constitutional law,
constitutional theory, and constitutional history. He held the Class of 1966 Research Professorship from
1993-96, received the first Roger and Madeleine Traynor Faculty Achievement Award for Excellence in
Legal Scholarship in 1996, and is a 1997 recipient of the All-University Teaching Award, one of the
.University’s highest honors for excellence in teaching, research, and service. He currently serves on the
editorial board of the Law and History Review.
..... At Stanford Law School, Klarman won numerous awards and served as senior articles and
symposium editor of the Stanford Law Review; he also is a member of the Order of the Coif and Phi
Beta Kappa. After graduation, Klarman clerked for Judge Ruth Bader Ginsburg of the U.S. Court of
Appeals for the D.C. Circuit. He then completed his doctoral thesis in legal history as a Marshall
Scholar at Magdalen College, Oxford.
OLC 000631
file://C:kDocuments .and Settings\dbrinleykLocal Settings\Temporary Internet Files\OLK6C... 7/14/2010
WILLY.MARY
Melody S. Nichols Phone:

Program Coordinator FAX:
Institute of Bill of Rights Law Email:
School of Law
July 17, 2002
Dear Conference Participant,

I understand that you have accepted Neal Devins’s invitation to participate in the symposium, Congress and
the Constitution at William & Mary School of Law. My name is Melody Nichols and I am the conference
coordinator for the Institute of Bill of.Rights Law. I am. writing to give you information about travel and
accommodations, and to get some informationfrom you. I know Neal has sent information to you too.
The conference will be taking place at the William & Mary School of Law in Williamsburg, Virginia, on
Friday, October 18 and Saturday, October l 9, 2002. The program will begin at 2:00 pm on Friday in room 239
followed by a dinner for conference participants. The Saturday sessions will start at 9:00 am in room 239 and
will recess at 2:00 pm. A continental breakfast and buffet lunch will be available on Saturday.
We have reserved rooms for you at the Williamsburg Hospitality House Hotel, (415 Richmond Road, phone:
1-800-932-9192), about a 20 minute walk to the Law School. We will also be happy to make your airplane
reservations for you. We ask that you consider staying over Saturday night, October 19, if possible, to help
us keep our costs down. It is our policy to cover airfare only for 21-day-in-advance coach class tickets,
selected hotel for the weekend, and to reimburse panelists for receipted expenses fo.r ground transportation,
.parking, and meals en route and during your visit tha.t are not included in the conference. Transportation from
¯ the.’Richmond airport can beprovided by Groome Transportation, which leaves on the hour, .or you can rent
a car. I can arrange to have Groome bill us directly after your airplane reservations .are made. We also have
arrangements with taxi services from Newport New Airport and Norfolk.
Please reply to this e-mail message by August 1, 2002 with the following information:
1. The day and date you are planning to arrive and the number of nights you will be staying at the selected
hotel.
3. Your social security number (for reimbursements).
4. E-mail address, if the one used here is not the most convenient, phone, fax, and mailing address (you may
have all of this in your e-mail signature).
5. A briefbio to be-included in the program.
6. Any special needs.
If you would like to h~ve us make your flight reservations, send me the dates and times you prefer to fly, as
from by the t~
well as the airport you will be flying 9 of September. You are welcome to make your own flight
.arrangqments and turn in the receipt you receive when you check in for your flight. For those who might be
interested: Amtrak serves Williamsburg.
Please be sure to save-all receipts for reimbursement.
¯ I look forward to working with you on this conference.
OLC 000632
Melody Nichols
OLC 000633
Melody S. Nichols Phone:
Program Coordinator
Institute of Bill of Rights Law Email:
School of Law
July 17, 2002
Dear Conference Participant,

I understand that you have accepted Neal Devins’s invitation to participate in the symposium,
Congress and the Constitution at William & Mary School of Law. My nan’re is Melody Nichols
and I am the conference coordinator for the Institute of Bill of Rights Law. I am writing to give
you information about travel and accommodations, and to get some information from you. I know
Neat has sent information to you too.
The conference will be taking place at the William & Mary School of Law in Williamsburg,
Virginia, on Friday, October 18 and Saturday, October 19, 2002. The program will begin at 2:00
p.m. on Friday in room 239 followed by adinner for conference participants. The Saturday sessions
will start at 9:00 am in room 239 and will recess at 2:00 p.m. A continental breakfast and buffet
lunch will be available on Saturday.
We have reserved rooms for you at the Williamsburg Hospitality House Hotel, (415 Richmond
Road, phone: 1-800-932-9192), about a 20 minute walk to the Law School. We will also be happy
to make your airplane reservations for you. We ask that you consider staying over Saturday night,
October. 19, if possible, to help. us keep our costs down. It is our policyto cover airfare only for 21-
day-in-advance coach class tickets, selected hotel for the weekend, and to. reimburse panelists for
receipted expenses for ground transportation, parking, and meals en route and during your visit
that are not included in the conference. Transportation from the Richmond airpor(can be.
provided by Groome Transportation, which leaves on the hour, or. you can rent a car.. I can
arrange to have Groome bill us directly after your airplane reservations are made. We also have
arrangements with taxi services from Newport New Airport and Norfolk. ..
Please reply to. this. e-mail message by August 1, 2002 with the following information:
1. The day and date you are planning to arrive and the number of nights you will be staying at the
selected hotel.
3. Your social security number (for reimbursements).
~. E-mail address, if the one used here is not the most convenient, phone, fax, and mailing address
(you may have all of this in your e-mail signature).
5. Abrief bio to be included in the program.
6. Any special needs.
If you would like tO have us make your flight reservations, send me the dates and Omes you prefer
.to fly, as well as the. airport you will be flying from by the 9~ of September. You are welcome to
:make yourown flight arrangements and turn in the receipt you recdve when you check in for your
flight.. For those who might be interested: Amtrak serves Williamsburg.
Please be sure to save all receipts for reimbursement.
OLC 000634
Melody Nichols
OLC 000635
From; Christopher J. Borgen ~.
Sent: Wednesday, July 17, 2002 11:37 AM
To: Yoo, John C;
Subject: Attendees for Tomorrow’s briefing
Attachments: Briefing Detainees Attendees.doc
Briefing Detainees
Attendees,d...
<<Briefing Detainees Attendees.doc>>
John & Sean:
Attached please find the attendee list for tomoErow’s briefing. As you can see we expect a full house and responses are
still coming in. Anne-Marie Slaughter will be in town and will do the introduction. Charlotte will moderate the O.&A
with the audience.
As mentioned, I will be heading up to NJ at 1:00 today and won’t be around tomorrow. I am in the office until $:00 and
afterwards can be reached on my
cell:.
Once again, thank you very much for kicking off our Briefing Series in the renovated Tillar House. We have been waiting
one year for this and we are all excited that you will be starting things off. I am sorry I’m going.to miss it, but I look
forward to talking with you afterwards.
All the best,
Chris
OLC 000636
nternational Law
2223 Massachusetts Avenue, NW Washington, DC 20008-2864 Phone (202) 939-6000 Fax (202) 79%7133
The War on Terrorism, ~nternafionall Law

And the Treatment of Detainees
A Briefing Sponsored by
The American Society of Iritemational Law
July 18, 2002
Cynthia Abelow Jennifer Bradely-Swift

Shea & Gardner Jtistice Department
Marina Abrosimova Todd Bradley

Atlantic Council of the United States University of California, Berkeley
Julie Ajinkya Kate Brown

Shearman & Sterling
Monica Anatalio
Center for Defense Information Neil R. Brown
Center for Strategic and International
Tom Antkowiak Studies
State Department
Christopher Camponovo
Jongin Bae State Department
Embassy ofKorea
Burros Camahan
Kush S. Bambrah State Department
National Asian Pacific American Legal
Consortium Ami Carpenter
Jocelyn S. Batoon-Garcia Studies
Embassy of the Philippines
Mike Castellano
Robert Boone House of Representatives
People for the American Way
Sign Chabvongo
Loft Borgen Embassy of Zimbabwe
Lawyers’ Committee for Civil Rights
Under Law
OLC 000637
Peter Choharis Milton Hoenig
George Washington University Law
School Marci Ho ffman
Georgetown University Law Library
MelanneCivic
Matthew Hoffman
Haylee Cohen Shea & Gardner
Studies Michael H. Hoffman
American Red Cross
John Cooke
Federal Judicial Center Kristine Huskey
Sheannan & Sterling
Mary Daughtrey
PHR Consulting/Marymount University Alison Igoe
Justice Department
Christina DeConcini
Catholic Legal Immigration Network, Brad Jansen
Inc Free Congress Foundation
Shej al Desai Heather Lamberg Kafele

National Asian Pacific American Legal Shearman & Sterling
Consortium
Chris Kilmer
Arthur Downey Free Congress Foundation
Baker Hughes Inc
Shyla Kinhal
Jyldyz Eshimkanova
Georgetown University, SFS Mr. Kraska
U.S: Navy
Vannina Ettori
Antonia Kuppers
Funmi Feyide Embassy of Germany
George Washington University Law
School Rodrigo Labardini
Embassy of Mexico
Cara Fineman
Lawyers’ Committee for Civil Rights Sophia Lai
Under Law National Asian Pacific American Legal
Consortium
Tsebai Habtemariam
Embassy of Eritrea Ms. Langewin
U.S. Navy
Jacqueline Harned
Center for Strategic and International ~Gordon Lederman
Studies Arnold & Porter
2
OLC 000638
Thomas Lynch Chris Nosko
International Human Rights Law Group Free Congress Foundation
Christine MacAulay Chad Oppenheimer

Center for Strategic and International Shea & Gardner
Studies
Cindy Owen
Dan MacMeekin George Washington University Law
School.
D. Manning
State Department Margaret K. Pfeiffer
Sullivan & Cromwell
Michael Mattler
State Department Kerry-Ann Powell
Lawyers’ Committee for Civil Rights
Jennifer Haworth McCandless Under Law
Sidley, Austin, Brown and Wood, LLP
Todd Ptak
Kristen McDonald Defenders of Property Rights
ABA/CEELI
Pa Puteh
Molly McKenna Embassy of Brunei
Catholic Legal Immigration Network,
Inc Tim Radcliffe
Alexander Melikishvili Peter Raven-Hansen

Center for Strategic and International .George Washington University Law
Studies School
Robert Milbourne Mr. Ri.’ggs

Chadbourne & Parke U.S. Navy
Caroline Moats Thibaut Revenaz

Center for Strategic and International Center for Strategic and International
Studies Studies
Brian Morgan Sara Robinson

Justice Department Verner Lupfert
Matthew Movick Shannon Roe
Babur Nazarov Shannon Roesler

Embassy of Uzbeldstan
Dillon Ross
Ly Nguyen U.S. Navy
Washington and Lee School of.Law
OLC 000639
Arthur Sadiq James H. Thessin
Georgetown University State Department
Janet Sarver Petra Ticha

George Washington University Law Social Science Research Council
School
Major Carl Tiemey, USAFR
Francesca Schoenwandt Department of Defense
Skadden, Arps, Slate, Meagher & Flom
LLP Ariana Torchin
Maggie Schuppert Studies
Social Science Research Council
Eliot Walker
Meeth Soni Center for Strategic and International
Social Science Research Council Studies
Milena Staneva Leora Ward

Center for Strategic and International International I~Iuman Rights Law Group
Studies
Edwin Williamson
Jonathan Stanewick Sullivan & Cromwell
Free Congress Foundation
Tom Wilner
Charles W. T. Stephenson Shearman & Sterling
USAID, retired
Tsegay Wolde-Georgis
David Stewart Embassy of Ethiopia
State Department
Zhunus Yergariyev
Mallory Stewart Embassy of Kazakhstan
Sullivan & Cromwell
Mark -Yo st
Laurence Storch Justice Department
Dilworth Paxon PLLC
Karim Youssef
David Sullivan Social Science Research Council
State Department
Ilma Zhidkova
A~hrak Swelam Embassy of Russia
Embassy of Egypt
Mark Tanney
Shearman & Sterling
4
OLC 000640
~rom: Amy Tilson ~ _
Sent: Thursday, July 18, 2002 4:02 PM
To: Yoo, John C;
Subject: from Hong Nack Kim
tmp.htm (2 KB)
Dear Colleagues:
¯ I am pleased to inform you that our panel on "Political Empowerment and Involvement of Korean Americans in the
U.S." will consist of the following panelists who will speak on the specific topic or theme listed under each panelist’s
name. Since we have to have a roundtable discussion following initial presentation of the remarks by the panelists,
each panelist will have approxiamtely 10 mnutes for the presentation of prepared statement. If you need more than 10
minutes, please let me know in advance.
"Korean Americans’ Struggl efor Democracy and Human Rights in South Korea", Dr. Wonmo Dong, Un versity of
Washington
"Korean Americans’ Involvement in the Asian American Coalition Movement in the United States", Dr. Paul Kyo Jhin,
U.S. Peace Corps.
"Korean American’s Participation in American Politics"~ Dr. Young Whan Kihl, Iowa State University
"To Run as a Candidate for hte Maryland State Legislature: Challenges and Opportunites", Jinhee .Kim Wilde, Candidate
for the Maryland House of Delegates
"The American Korean Coalition Movement: the Past, Present and Future", Julie J.K. Park, Korean American Coalition,
Washington D.C. Chapter
"Challenges and Opportunities for Serving in the Executive Branch of the U.S. Government", Dr. John Choon Yoo, U.S.
If further information is requires, please let me know. With best regards,
Hong Nack Kim

West Virginia University
OLC 000641
Page 1 of 1
Dear Colleagues:
I am pleased to inform you that our panel on "Political Empowerment and Involvement of Korean Americans in the U.S." will £onsist of the following
panelists who will speak on the specific topic or theme listed under each pan~list’s name. Since we have to have a roundtable discussion following
initial presentation of the remarks by the panelists, each panelist will have approxiamtely 10 mnutes for the presentation of prepared statement. If you
need more than 10 minutes, please let me know in advance.
,Korean Americans’ Struggl efor Democracy and Human Rights in South Korea", Dr. Wonmo Dong, University of Washington
"Korean Americans’ Involvement in the Asian American Coalition Movement in the United States", Dr. Paul Kyo Jhin, U.S. Peace Corps
"Korean American’s Participation in American Politics", Dr. Young Whan KiN, Iowa State University
"To Run as a Candidate for hte Mmytand State Legislature: Challenges and Opportunites", Jinhee Kim Wilde, Candidate for the Mar,Jland House of
Delegates
"The American Korean Coalition Movement: the Past, Present and Future", Julie J.K. Park, Korean American Coalition, Washington D.C. Chapter
"Challenges and Opportunities for Serving in the Executive Branch of the U.S. Government", Dr. John Choon Yoo U.S. Department of Justice
If further information is requires, please let me know. With best regards,
Hong Nack Kim

West Virginia University
OLC 000642
file:ffC:kDocuments and Settings\dbrinleykLocal Settings\Temporary Intemet Files\OLK6C... 7/1¢/2010
From: James C. Ho
Sent: Sunday, August 04, 2002 6:45 PM
Subject: Jack Rakove: Who Declares a War?
http://www.nytimes.com/2OO2/OS/O4/opinion/O4RAKO.html?todaysheadlines
August 4, 2002
Who Declares a War?
New York Times
By JACK RAKOVE
. STANFORD,. Calif. ~- Last week’s Senate hearings on military action against Iraq mark a welcome step toward, maintaining
constitutional government in a time of national emergency. But this process will be incomplete if Congress shirks the
two fundamental questions it must ultimately face: Can the Bush administration unilaterally decide when to go to war
against Iraq without seeking the assent of Congress? And can a Congress in which each party narrowly controls one
house effectively, discharge its constitutional duties?
since1973, most discussions about the powers of the executive and Congress on the question of military interventions
have been framed by the War Powers Act. That law was designed to. prevent presidents from exploiting or creating
situations in which Congress would be able only to accede to military actions that had already been. taken without its
approval. The. remedy, was to. require American forces to withdraw, within 60 days, extendable to 90 days, if Congress
did. not quicl~ly, vote its approval.
But the debate now unfolding raises a more profound constitutional dilemma than the one Congress addressed, in 1973.
An. invasion of Iraq. would amount to war in its fullest scope, in the extent of the preparations required and especially in
its object,, which involves crushing a regime and. its. army and. liberating a nation. It will. not be a humanitarian
’~ interventibn on the m0del-of Somalia. or Kosovo, or a military lark like. Grenada or Panama, but an offensive that will
.. ’ revealfar ’m0reaboUt the new world order of the. 21st century than did our last war against Iraq a decade ago. Perhaps
most important,~ it will.not, take. place suddenly, without advance notice, under conditions that preclude prior
Congressional conSultation.
In. the Persian Gulf war,. the first Bush administration was poised to act without Congressional approval. In the end,
cooler heads prevailed, and. approval was sought and granted. But prominent members of both Bush administrations
seem to regard that gesture.as superfluous. The current administration has not yet stated, its. view. But its unilateralist
attitude on foreign, relations and the war on terrorism may well Carpi over to its policies on Iraq. Vice President Dick
Cheney, in particular, has long held that there is an "inherent presidential power to act" in defense of "vital national
interests" that "comes directly from the Constitution and not from Congress."
Yet the Constitution offers very little support to this view. Most of the national security powers ? for example, the
power to raise and support an. army ? that the Constitution vests in the national government are delegated to Congress,
not the president. Nor does the maddeningly brief debate of August 17, 1787, when the framers substituted "to declare
war" for. "to make war" in the clause, establishing Congressional war. power, support the idea that the president can
unilaterally initiate, hostilities. As James Madison noted,, the. president retains the power to repel~ sudden attacks when it
would be absurd to wait for Congress to assemble. Once the nation is. attacked ? as at Pearl Harbor ? it is at war, and a
Congressional declaration only facilitates its conduct.
OLC 000643
Had the Constitution’s framers viewed executive power generously, they would have allowed the president, not
Congress, to grant letters of marque and reprisal. We no longer charter private boat owners to prey on enemy shipping.
Yet letters of marque and reprisal are the closest 18th-century analogue to the methods of retaliation that might be
used in the low intensity conflicts that the War Powers Act sought to regulate. The fact that the framers withheld even
this minimal power from the president shows their reservations about unrestrained executive war-making.
Finally, the case for unilateral presidential authority loses all force when our intention to take military action has already
been declared far in advance. Nothing in the Constitution or the history of its adoption suggests that a president can
carry the nation into war when Congress has time for deliberation. Were President Bush to launch a massive attack on
Iraq during Congress’s August recess on the general ground that Saddam Hussein is a menace, it is a fair bet that the
framers would have regarded impeachment, rather than a vote of thanks, as the appropriate response when Congress
returned.
Of course, a sense of constitutional duty alone does not necessarily give Congress the confidence and backbone to insist
that a military action of this nature must receive its prior approval. Republicans have a natural inclination to support
giving President Bush broad authority, and Democrats a natural caution about challenging a popular president on major
questions of national security.
Yet thiS is dearly a time when. members of both parties in Congress must t’ake their constitutional duties seriously. For
inthe open-ended emergency that looms before us, the abdication of CongreSsional responsibility risks erasing every
constitutional standard against which the military decisions of any president can be judged. If an invasion of Iraq on the
scale contemplated does not represent a decision for war within the meaning of the Constitution, it is hard to imagine
any other military action that would ever again be subject to Congressional approval or restraint.
Jack Rakove is a professor of history and political science at Stanford University and the author of "Original Meanings:
Politics and Ideas in the Making of the Constitution."
Copyright 2002 The New York Times Company
OLC 000644
From: _.
Sent: Monday, August 05, 2002 9:56 AM
To: Yoo, John C
Subject: AALS Panel
tmp.htm (2 KB)
DearJohn:
It was nice. speaking with you the other day, and I’m very happy you will be joining the AALS panel, "How Big is the
Constitutional Universe: Discrete
National or Global Order." at 3:30 on January 5th. I will ~)e in touch with
more details later, but I wanted to send you the panel description.
Again, it was nice speaking with you.
Best Regards,
Andrew Strauss
PS Your Berkeley E-mail does not seem to be working.
How Big is the Constitutional Universei Discrete National or Global Order
With the rise of globalization and the proliferation of international regimes, the long-standing question of the.role of
international law in do.mestic courts has reemerged as a hot topic in US international law circles.
Bringing together a distinguished group of ideologicallY diverse international and constitutional law scholars, this panel
will address the largely unexplored foundational question of whether the domestic constitutional order is better viewed
today as self-contained, or as a part
of a larger global political-constitutional structure. Employing both
normative theoretical as well as positivist historical/sociological analysis, the panel will examine the extent to which the
answer to this question is found more in political and economic realities or in ideological belief structures. It will also
explore the implications of this question for the ways gpon which constitutional law questions are resolved as well as
for how Constitutional law and other.related courses should be taught.
OLC 000645
Page 1 of 1
Dear John:
It was nice speaking with you the other day, and I’m very happy you will be joining the AALS panel, "How Big is
the Constitutional Universe: Discrete National or Global Order." at 3:30 on January 5th. I will be in touch with
more details later, but I wanted to send you the panel description.
Again,, it was nice speaking with you.
Best Regards,
Andrew Strauss
PS Your Berkeley E-mail does not seem to be working.
How Big is the Constitutional Universe: Discrete National or Global Order
With the rise of globalization and .the proliferation of international regimes, the long-standing question of the role
of international law in domestic courts has reemerged as a hot topic in US international law circles. Bringing
together a distinguished group of ideologically diverse international and constitutional law scholars, this panel will
address the largely unexplored foundational question of whether the domestic constitutional order is better viewed
today as self-contained, or as a part of a larger global political-constitutional structure. Employing both normative
theoretical as well as positivist historical/sociological analysis, the panel will examine the extent to which the
answer to this question is found more in political and economic realities or in ideological belief structures. It will
also explore the implications of this question for the ways upon which constitutional law questions are resolved
as well as for how Constitutional law and other related courses should be taught.
OLC 000646
file://C:~Documents and S ettings\dbrinley~Local Settings\Temporary Internet Fiies\OLK6C... 7/14/2010
~rom Neena Ganguli Shenai ~
Sent: Tuesday, August 06, 2002 11:45 AM
To: Yoo, John C
Subject: RE: Federalist Society Event at Vanderbilt
Thank you for your reply. Our dates are very flexible. We can accomodate you pretty much any time you are available.
Exams begin on Dec. 9, so the first week of December (early in the week) is possible. If there is any time suitable for you
prior to then, however, it might be better since the. week before exams can get a tight for people. But, if this is the only
time you would be able to come, I think it would be fine. Please suggest some dates which would work for you.
Neena
Neena Ganguli Shenai

Vanderbilt University Law School
Phone: ++
Emaih
Email.
> It is 8o0d to hear from you. What are the best dates for you all? My
> calendar has already become pretty booked. Do you do events in early
> December at all?
>
> John Yoo
>.Office of Legal Counsel
> Department of Justice
> 202.514.2069
> 202.305.8524 (fax)
--i--Original Message .....

From:. Neena Ganguli Shenai

To: Yoo, John C
Subject: Federalist Society Event at Vanderbilt
> Dear Mr. Yoo,

>
> You might remember that we had the chance to speak again at Ted Olson’s
> picnic
> after having met at Leonard Leo’s International Law and American
> Sovereignty
> working group meeting. I was very happy to hear you are still
> interested in
> speaking at a Vanderbilt Federalist Society event this fall. Do you
> have any
OLC 000647
date~ we can try to schedule? Or, how do you recommend we proceed?
I look forward to speaking with you soon.
Best regards,
Neena
> Neena Ganguli Shenai

Vanderbilt UniverSity Law School
Phone:
Email:
Email.
OLC 000648
Yoo, John C
Tuesday-Thursday (Jan. 28-30) would be best. Friday is also possible (though usually not best in terms of attendance), if
it would be more convenient for you with travel, etc. How do any of those days work for you?

Vanderbilt Universitv Law School
Phone:
Email: :
Email. ~
How about the 4th week of January? Any specific day?
John Yoo
.Office of Legal Counsel
202.514.2069
202.305~8524. (fax)

From: Neena Ganguli Shenai

To: Yoo, John C
Sure. Let’s plan on the spring then. Would either the third or fourth
week of
January work for you? Is early in the week or later in the week better?
If we
could set something up tentatively, it would be great. I am really
looking
forward to the event! Thanks.
> .Neena Ganguli Shenai

> Vanderbilt University Law School
> Phone:
> Email: :
> Email. ~
>
>
OLC 000649
Quotin8 "Yoo, John C" <John.C.Yoo@usdoj.8ov>:
> The other possibility would be the sprins. Right now my calendar
for
> the spring is relatively free.
>>
> John Yoo
> Office of Legal Counsel
> 202.514.2069
> 202.305.8524 (fax)
>>
Original Message--~--
> From: Neena Ganguli Shenai
>>
> Sent: Tuesday, August 06, 2002 :[:[:45 AM
> To: Yoo, John C
> Subject: RE: Federalist Society Event at Vanderbilt
>>
> Thank you for your reply. Our dates are very flexible. We can
> accomodate you
> pretty much any time you are available. Exams begin on Dec.. 9, so
the
> first
> week of December (early in the week) is possible. If there is any
time
> suitable
> for you prior to then, however, it misht be better since the v~eek
> > before exams
> > can set a tisht for people. But, if this is the only time you would
> be
> > able to
> > come, I think it would be:fine. Please susl~est some dates, which
> would
> > work for
> > you.
>>
> > Neena
>>
> > Neena Gansuli Shenai

> > Vanderbilt University Law School
> > Phone: ~
>>
>>
>>
>> -
> > Quotin8 "Yoo, John C" <John.C.Yoo@usdoj.gov>:

>>
> > > It is 8ood to hear from you. What are the best dates for you all?
OLC 000650
>>My
> > > calendar has already become pretty booked. Do you do events in
> > early
> > > December at all?
> > > John Yoo

> > > Office of Legal Counsel
> > > Department of Justice
> > > 202.514.2069
> > > 202.305.8524 (fax)
>>>
> > > From: Neena Ganguli Shenai
>>
> > > Sent: Tuesday, August 06, 2002 11:03 AM

>> >To: Yoo, John C
> > > Subject: Federalist Society Event at Vanderbilt
> > > Dear Mr. Yoo,

>>>
> > > You might remember that we had the chance to speak again at Ted
> > Olson’s
> > > picnic
> > > after having met at Leonard Leo’s International Law and American
> > Sovereignty
> > working group meeting. I was very happy to hear you are. still
> > interested in
> >.speaking at a Vanderbilt Federalist Society event this. fall. Do
you
> > have any
> > dates, we can try to schedule? Or, how do you recommend we
proceed?
>>>
> > I look forward to speaking with you soon.
> > Best regards,

>>>
> > Neena
> > Neena Ganguli Shenai

> > Vanderbilt University kaw School
> > Phone:
> > > Email: :
> > > Email..,
>>
OLC 000651
OLC 000652
Mark L. Keam .
Sent: Monday, August 12, 2002 12:34 AM
To: Yoo, John C; ~ Wan Shin;
Cc: Kieun Rachel Oh; Soohyun Julie Koo
Subject: Korean American Panel
Hi everyone,
I believe you have all been in contact with Rachel Oh about the upcoming panel discussion at the Korean American
conference on Saturday, August 17, at 10:00 a.m., at the Fairview Park Marriott Hotel in Falls Church, Virginia. I have
been tasked to moderate the panel, and I look forward to seeing you there.
This is what I found as a description of the panel in the conference

program:
10:00-11:45 AM Panel III. Korean American Future Leadership: Path

Finding
Organizers Ms. Soohyun Julie Koo, District of Columbia

Government
.Ms. Kieun Rachel Oh, National Committee to Preserve Social Security and Medicare
Moderators Mr. Mark L. Keam, U.S. Senate Committee for the Judiciary
Speakers "Korean American Future Leadership for

Political Appointees"
Dr. John.C. Yoo, U.S. Department of Justice
"Korean American Future Leadership for Scientists"
¯ Dr. Jay H. Chung, National Institute of Health
"Korean American Future Leadership for Medical Doctors"
Dr. Wan Shin, Inova - Fairfax Hospital
OLC 000653
"Korean American Future Leadership for Non-Profit Organizations"
Ms. Jin Sook Lee, Asian Pacific American Labor Alliance
Discussants Dr. Pilju Kim Joo, University of Minnesota
Dr. Richard Dongjoon Shin, LECG Economics and Finance
It looks like we have been allocated 1 hour and 45 minutes with 4 panelists, which, I think, is more than adequate time.
I plan to start with a brief statement on what the panel hopes to achieve,.which is to introduce and highlight some
Korean American professionals who are excelling in fields where KAs have traditionally been underrepresented. -My
understanding is that the organizers of this conference have specifically invited high school and college age students to
attend this panel as a way for them to expand their career options and future outlook as young KAs. I would assume
many other conference attendees and speakers will be in the audience as well.
In this regard, let me note that I think the title of this panel as the organizers have labeled it, is quite misleading. First, I
don’t agree that we are talking about "future leadership" because each of you are already leaders in your own right and
currently working in leadership capacities in very important and interesting fields. Second,. I resent the implication that
somehow this panel is about the "young" generation as compared tothe rest of the 3 day conference where the topics
deal with other facets of the Korean American community. I only know acouple of you personally, but I would venture
to guess that you do not view yourselves as representatives of a "future generation" of KAs or as "junior" members of
our community. I hope to correct any such impression that might have been presented by this conference to you or to
the public at large.
Anyway, as for your role, I think it would be helpful to have each of you spend about 15 minutes to briefly share.your
background on how you came to where you are today, what interests and motivations led you. to choose the fields you
are working in now, what obstacles, if any, you encountered as a KA or a minority in your career, your thoughts on why
it is important for KAs to work in your field, and where you believe you will be in the next 5 to 10 years. Of course you
should feel free to discuss any other aspects of your background or your work as you wish.
After the short intro and the four of you speaking for about 15 minutes each, there will be a couple of "discussants"
who are supposed to comment on what was presented. To be honest, I don’t understand why they threw in discussants
on this panel since this is not an academicdiscussion or paper presentation! Anyway, since they are on the program, I
guess we should give them about 5 minutes each.
Following that, we should have about 15-20 minutes of time for Q&As from the audience, or from me if there isn’t
much audience participation. I hope to structure the panel in a fairly informal way that allows for conversations to flow
among panelists.
Can I ask each of you to send me .a bio that I can use to introduce you at the beginning of the panel? I don’t know if the
conference booklet will include speaker bios, but please send me a copy anyway.
I will call each of you this week to see if you have any questions about the panel. If you wish to contact me, please feel
free to call ~ anytime.
See you this weekend,
Mark Keam
OLC 000654
From: Neena Ganguli Shenai ’
Sent: Sunday, August 25, 20(~2 5:55 ~M -
To: ¯ Yoo, John C
Cc: Neena Ganguli Shenai
Subject: Re: Federalist Society Event at Vanderbilt
DearJohn,
Sure. January 30 is fine. I will be in touch in a few weeks to confirm the details.
Best,
Neena

Email.
Tel. ++
..... Oril~inal Message .....
From: "Yoo, John C" <John.C.Yoo@usdoj.gov>
Sent: Thursday, August 08, 2002 9:38 AM
> Let’s say the 30th for now.

>
> John Yoo
> Office of Lesal Counsel
> 202.5:[4.2069
> 202.305.8524 (fax)
>
> ..... Orisinal Message .....
> Sent: Wednesday, August 07,2002:11:34 AM
> To: Yoo, John C
>
> Tuesday-Thursday (Jan. 28-30) would be best. Friday is also possible
(though
> usually not best in terms of attendance}, if it would be more
> convenient
for
> you with travel, etc. How do any of those days work for you?
>
.> Neena Ganguli Shenai

> Vanderbilt University LawSchool
> Phone: ++ ~
OLC 000655
Email:
Email.
> How about the 4th week of January? Any specific day?
>
> John Yoo
202.5:14.2069
202.305.8524 (fax)


To: ¥oo, John C
Sure. Let’s plan on the spring then. Would either the third or
fourth week of January work for you? Is early in the week or later
in the week better?
> > If we
> > could set something up tentatively, it would be great. I am really
> > looking forward to the event! Thanks.
>>

> > Vanderbilt University Law School
>> Phone: ++
> > Email:
>>
>>
>>
> > Quoting "Yoo, John C" <John.C.Yoo@usdoj.gov>:
>>
> > > The other possibility would be the spring. Right now my calendar
> > for
> > > the spring is relatively free.
> > > John Yoo

> > > Office of Legal Counsel
> > > Department of Justice
> 202.514.2069
202.305.8524 (fax)
..... Original Message

OLC 000656
>>>
> > > Sent: Tuesday, August 06, 2002 11:45 AM
> > > To: Yoo, John C
> > > Subject: RE: Federalist Society Event at Vanderbilt
>>>
> > > Thank you for your reply. Our dates are very flexible. We can
> > > accomodate you pretty much any time you are available. Exams begin
>>>onDec. 9, so
> > the
> > > first
> > > week of December (early in the week) is possible. If there is any
> > time
> > > suitable
> > > for you prior to then, however, it might be better since the week
> > > before exams can get a tight for people. But, if this is the only
> > > time you would
>>be
> > > able to
> > > come, I think it would be fine. Please suggest some dates Which
> > would
> > > work for
> > > you.
> > > Neena
> > > Neena GanguliShenai

> > > Vanderbilt University Law School
>>>Phone: ~
> > > Email:
> > > Quoting "Yoo, John C" <John.C.Yoo@usdoj.gov>:
> > > > It is good to hear from you. What are the best dates for you all?
>>>My
> > > > calendar has already become pretty booked. Do you do event.s in
> > > early
> > > > December at all?
>>>>
> > > >John Yoo
> > > > Office of Legal Counsel
> > > > Department of Justice
> > > > 202.514.2069
> > > > 202.305.8524 (fax)
> > > > ..... Original Message .....

> > > > From: Neena Ganguli Shenai
>>>
OLC 000657
> > Sent: Tuesday, August 06, 2002 11:03 AM
> >To: Yoo, John C
>> > > Subject: Federalist Society Event at Vanderbilt
>> >>
> > Dear Mr. Yoo,
>> > > You might remember that we had the chance to speak again at Ted
> Olson’s
picnic
after having met at Leonard Leo’s International Law and American
Sovereignty working gro.up meeting. I was very happy to hear you
> > are still interested in speaking at a Vanderbilt Federalist
>> > > Society event this fall. Do
>> you
> > have any
>> > > dates we can try to schedule? Or, how do you recommend we
>> proceed?
>>
> > I look forward to speaking with you soon.
>>
> > Best regards,
Neena

>.Vanderbilt University Law School
Phone:
Email: ~
OLC 000658
Bruce Ross.
To: Yoo, John C
Subject: INVITATION TO SPEAK TO UNIV OF WASHINGTON FEDERALIST SOCIETY
tmp.htm (4 KB)
The Federalist Society
For:Law & Public Policy Studies
University of Washington School of Law
Seattle, Washington
August 27, 2002

> Dear Professor Yoo,
> On behalf of the University of Washington School of Law chapter of

> the Federalist Society, I would like to invite you to speak to our
> members and the.wider law school community. As you are likely aware,
> The Federalist Society is a group of conservative and libertarian law
> Students and attorneys interested in the current state of the legal
> order, our chapter sponsors debates and speeches on campus to further
> the intellectual discussion of topics such as separation of
> governmental powers, the ruleof law, and individual freedomand i’esponsibility..
>
> Our chapter would be honored to host you as part of our fall
> speaker program. We are.particularly interested .in hearing your
> insights on the administrationlslegal responses to 9-:[:~ and the war
> on.terrorism, Specific topics of interest include military
> commissions, military detentions in Guantanamo (and of Hamdi &
> Padilla), immigration detentions, and presidential authority to
> initiate hostilities against Iraq. Some of our members are already
> aware of your scholarship in this area from your article in the Harvard Journal of Law & Public Policy. You were also
recommended to us by Mr.
> Eugene Fidell, of the National Institute of Military Justice. Of
> course, we would be pleased to hear your remarks on any topic of your
> choice. And if you are amenable, we will gladly arrange for another
> speaker to advocate a contrary position ? perhaps from our own
> faculty, or the local ACLU. If youprefer to give a solo speech,
> however, we will understand and welcome your presentation.
>
> The best opportunity for our students to hear you speak would be
> an afternoon, after 3:30 on a Tuesday, Wednesday or Thursday. Since UW
> classes start relatively late in the year (September 30), we would
> welcome your visit any time in October through the first week Of
> December. We will be happy to cover your travel and lodging expenses,
OLC 000659
> and we would hope your schedule would permit a reception or luncheon
> with our chapter members and members of the faculty. Additionally, if
> you would prefer to extend your trip slightly, I can help arrange
> engagements with other Federalist Society chapters in Washington
(Puget Sound Lawyers1 chapter, Gonzaga Univ.), Oregon (Lewis & Clark
U., U of Oregon, Willamette U.), Idaho, or northern California (UC
Davis, McGeorge). If it makes your trip to Seattle more worthwhile, I am glad to accommodate.
I will follow up shortly with your office to discuss this matter further.
Should you wish to contact me, please feel free to call me at home,
_~l~llll~. on my mobile, ~, or email me at
I look forward to hearing from you, and thank you for
your consideration of our invitation.
> Sincerely,
> Bruce Ross
> University of Washington School of Law Federalist Society Chapter
> President
OLC 000660
The Federalist
For Law & Public Policy Studies
University of Washington School of Law
Seattle, Washington
August 27, 2002
Dear Professor Yoo,
On behalf of the University of Washington School of Law chapter of the

Federalist Society, I would like to invite you to speak to our members and
the wider law school community. As you are likely aware, The Federalist
Society is a group of conservative and libertarian law students and
attorneys interested in the current state of the legal order. Our chapter
sponsors debates and speeches on campus to further the intellectual
discussion of topics such as separation of governmental powers, the rule of
Iaw, and individual freedom and responsibility.
’Our chapter .would be honored to host you as part of our fall speaker
program. We are particularly interested in hearing your insights on the
administration’s legal responses to 9-11 and the war on terrorism.. Specific
topics of interest include military commissions, military detentions in
Guantanamo (and of Hamdi & Padilla), immigration detentions, and
presidential authority to initiate hostilities against Iraq. Some of our
members are already aware of your scholarship in this area from your
article in the Harvard Journal of Law & Public Policy. You were also
recommended to us by Mr. Eugene Fidell, of the National Institute of
Military Justice. Of course, we would be pleased to hear your remarks on
any topic of your choice. And if you are amenable, we will gladly arrange
for another speaker to advocate a contrary position -- perhaps from our
own faculty, or the local ACLU. If you prefer to give a solo speech, however,
we will understand and welcome your presentation.
The best opportunity for’ our students to hear you speak would be an
afternoon, after 3:30 on a Tuesday, Wednesday or Thi2rsday. Since UW
classes start relatively late in the year (September 30), we would welcome
your visit any time in October through the first week of December. We will
be happy to cover your .travel and lodging expenses, and we would hope
your schedule would permit a reception or luncheon with our chapter
members and members of the faculty. Additionally, if you would prefer to
extend your trip slightly, I can help arrange engagements with other
’ Federalist Society chapters in Washington (Puget Sound Lawyers’ chapter,
Gonzaga Univ.), Oregon (Lewis & Clark U., U of Oregon, Willamette
Idaho, or northern California (UC Davis, McGeorge). Ifit makes your trip to
¯ Seattle more worthwhile, I am glad to accommodate.
OLC 000661
file://C:kDocuments and Settings\dbrinleykLocal Settings\Temporaw Intemet Files\OLK6C... 7/14/2010
I will follow up shortly with your office to discuss this matter further.
Should you wish to contact me, please feel free to call me at home, ~
~ , on my mobile, , or email me at -~
I look forward to hearing from you, and thank you for your consideration of
our invitation.
.Sincerely,
Bruce Ross
University of WaShington School of Law
Federalist Society Chapter President
OLC 000662
.file://C:kl)ocuments and Settings\dbrinleykLocal Settings\Temporary Internet Files\OISK6C... 7/14/2010
From: Joel Pardue ........
Sent: Friday, September 13, 2002 4:48
To: Y0o, John C; ..........
Cc:
Subject: Keswick Hall Session
Attachments: tmp.htm; KeswickAttendee2.doc; KeswickAgenda.doc
tmp.htm (2 KB) KeswickAttendee2. KeswickAgenda.doc

doc (54 KB) (26 KB)
Attached to this email you will find the agenda and an updated
attendee list for the "International Law & American Sovereignty" session at Keswick Hall On September 20th. In
addition to giving some advance thought to the questions on the agenda, we need you to produce a short one-page
summary (bullet-point style if possible) of the kinds of specific issues addressed by your organization’s projects and
programming. What treaties, organizations and international topics has your organization addressed? Has your
organization participated in any international conventions or conferences, and, if so, in what capacity (e.g. NGO,
observer status, etc.)? Have enough copies for the 22 folks in attendance. Try to keep you comments to five minutes.
The attire for the meeting is flexible-whatever the dress code typically would be in your office on a Friday is fine
(probably coat and tie for some, business-casual for others). Coat and tie will be the attire for dinner.
Again, thanks for al~reeing to participate in this colloquium. I want to emphasize that this is strictly off the record
so we .want you to feel freeto voice your opinions and concerns on all the issuesraised.
Joel PardUe
Assistant Director Lawyers Division
OLC 000663
Page 1 of 1
Attached to this email you will find the agenda and an updated attendee list for the
"International Law & American Sovereignty" session at Keswick Hall on September 20t.. In
addition to giving some advance thought to the questions on the agenda, we need you to
produce a short one-page summary (bullet-point style if possible) of the kinds of specific issues
addressed by your organization’s projects and programming. What treaties, organizations and
international topics has-your organization addressed? Has your organization participated in
any international conventions or conferences, and, if so, in what capacity (e.g. NGO, observer
status, etc.)? Have enough copies for the 22 folks in attendance. Try to keep you comments
to five minutes.
The attire for the meeting is flexible-whatever the dress code typically would be in your
office on a Friday is fine (probably coat and tie for some, business-casual for others). Coat and
tie will be the attire for dinner.
Again, thanks for agreeing to participate in this colloquium. I want to emphasize that this
is strictly off the record so we want you to feel free to voice your opinions and concerns on all
the issues raised.
Joel Pardue
Assistant Director Lawyers Division
OLC 000664
file://C:kDocuments and Settings\dbrinleykLocal Settings\Temporary Internet Files\OLK6C... 7/14/2010
International Law & American So--Session
Attendee List
Mr. Wayne T. Brough

Chief Economist
Citizens for a Sound Economy
Phone:
Fax: ~
¯ Ms. Helle Dale

Deputy Director
Davis Institute for International Studies
The Heritage Foundation
Phone: ~
Fax:
Honorable Paula Dobriansky

Undersecretary of State
Office of Global Affairs, U.S. Department of Justice
Phone: ~
Fax:
Mr. John Fonte

Director, Centerfor American Common Culture
Senior Fellow
Hudson Institute
Phone: ~
Fax: ~
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Mr. Frank ,L Gaffney, Jr.
President
Center for Security Policy
Phone: ....
Fax: ~
Mr. Michael Gleba

Executive Vice President
Sarah Scaife Foundation
Phone: ’~’~,
Fax:,
Mrs. Shara Haden

U.S. Department of State
Office of Global Affairs
Phone: ~
Fax: ....
Mr. Brian Hook

Federalist Society, Advisor for Intemational Law & American Sovereignty Working Group
Hogan & Hartson
Phone:
Fax: ~
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Mr. Robert Huberty
Executive Vice President
Capital Research Center
Phone:
Fax:
Mr. Leonard A. Leo

Vice President, Lawyers Division
Phone:
Fax:
Mr. Tod Lindberg

Research Fellow
Hoover Institution
Stanford University
Phone.:
Fax: .....
Ms. Holly MeMahon

StaffDirector
The .American Bar Association Standing Committee on Law and National Security
Phone:,
Fax:
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Professor John Norton Moore
Director, Center for National Security Law
Phone:
Fax: ........
Mr. Grover G. Norquist

President
Americans for Tax Reform
Phone: ~
Fax: --
Mr. Joel Pardue

Associate Director, Lawyers Division
Phone:
Fax: ~
Ms. Danielle Pletka

Vice President, Foreign and Defense Policy
American Enterprise Institute
Phone ..... .
Fax: -
Professor Jeremy Rabkin

Federalist Society, Advisor for Imemational Law & American Sovereignty Working Group
Department of Government
Comell University
Phone: ~ .....
Fax: "
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Mr. William Saunders
Senior Fellow for Human Life Studies and Human Rights Counsel
Family Research Council
Phone: .........
Fax:
Mr. Fred L. Smith, Jr.

President
.Competitive Enterprise Institute
Phone:
Fax: ~
Professor Robert F. Turner

Center for National Security Law
Phone:
Mr. Nikolai Wenzel

Director of Academic Programs
Atlas Economic Research Foundation
Phone:
Professor John Yoo

Deputy Assistant Attorney General
Office of Legal Counsel, U.S. Department of Justice
950 Pennsylvania Ave.,NW
Washington, DC 20530
Phone: (202) 514-2069
¯ Fax: (202) 305-8524
john.c.yoo@us~
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THE FEDERALIST SOCIETY
INTERNATIONAL LAW & AMERICAN SOVEREIGNTY SESSION
SEPTEMBER 20, 2002
AGENDA
7:30 am Continental Breakfast & Meeting [Boardroom]
8:45 am Welcome and Introduction

Leonard A. Leo, Vice President, Lawyers Division,.Federalist Society
9:00 am Briefing on current international issues of importance.

-The Honorable Paula Dobriansky
Undersecretary of State, Office of Global Affairs, U.S. Department of StaW
9:45 am Break
10:00 am Session One: How groups committed to preserving American sovereignty

as envisioned and directed by our constitutional structure are currently
addressing international issues in their programs and projects agendas.
Each group in attendance should be prepared to address the following
questions:
What projects are presently under way or in progress within your

organization that touch on international law and policy or that
address the impact of international law on American sovereignty?
How does your organization decide what relative priorities to place
on international versus purely domestic issues?
To what extent, if at all, has your organization sought to coordinate
international law and policy work with other groups orwith the
.government?
What are each group’s current capabilities.for effectively
addressing threats to American. sovereigntyand questions about the
impact of international law and policy on our domestic political
and judicial regimes?
12:30 pm Luncheon (no speaker;-interaction amongst organization representatives)

[Garden Room]
2:30pm Session Two: What more the groups can (or should) do to address
international law and policy issues as well as potential threats to American
sovereignty. Each individual in attendance should be prepared to address
the following questions:
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What new capabilities or resources should groups try to develop
that would facilitate addressing questions about the relationship
between American sovereignty and the globalization of law and
policy?
What specific international issues (social, economic, legal,
security) are of importance right now and therefore should be the
focus of activity?
5:00 pm Briefing on international / national security issues, the role of private

organizations in the international policy making arena, and the ways in
which the private sector can communicate or interact more effectively
with government on international issues.
-Professor John Yoo, Deputy Assistant Attorney General
Office of Legal Counsel, U.S. Department of Justice
5:45 pm Closing Remarks
6:30 pm Cocktails [Garden Room]
7:00 pm Dinner (no speaker) [Garden Room]
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~rom: Terry Hong
Sent: Monday, September 16, 200) 11:52 AM
To: Yoo, John C
Subject: KoreAm Journal
tmp.htm (3 KB)
KoreaAm Journal is the largest Korean American publication in the U.S.
It is a monthly magazine, with an circulation of almost 37,000. Its mission is "to be a publication that provides depth and
insight into the evolving Korean American experience."
We would like to do a feature prdfile on you for the November issue, highlighting your career, your achievements, how
you became to deputy assistant attorney general, what your thoughts are about the current political climate, etc. etc.
My deadline is October :1. I would like to arrange a phone interview, lasting approximately 30 - 45- minutes, at your
earliest convenience. An email interview is also possible, if you would prefer that.
Please let me know if we may interview you.
I look forward to hearing from you.
Thanks much for your attention.
Best,
Terry Hong
P.S. Here’s the link to a recent profile I did for KoreAm on Linda See
Park: http://www.koreamjournal.com/ArtistsTrax.asp So you can get an idea of how our profiles work.
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Page 1 of 1
KoreaAm Journal is the largest Korean American publication in the U.S. It is a monthly
magazine, with an circulation of almost 37,000. Its mission is "to be a publication that provides
depth and insight into the evolving Korean American experience."
We would like to do a feature profile on you for the November issue, highlighting your career,
your achievements, how you became to deputy assistant attorney general, what your thoughts
are about the current political climate, etc. etc.
My deadline is October 1. I would like to arrange a phone interview, lasting approximately 30 -

45- minutes, at your earliest convenience. An email interview is also possible, if you would
prefer that.
Please let me know if we may interview you.
Best,
Terry Hong
P.S. Here’s the link to a recent profile I did for KoreAm on Linda Sue Park:
http:llwww.koreamjournal.comlArtistsTrax.asp_ so you can get an idea of how our profiles work.
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From: Terry Hong. ..........
Sent: Wednesday, September 18, 2002 11:11 AM
To: Yoo, John C
Subject: RE: KoreAm Journal
Just to recap from our morning conversation, here’s how I understand our
schedule:
IF next Tues at 1:30-2:15 does NOT work because you are called out of town, we’ll reschedule for Thursday same time,
1:30 - 2:15.
And the photographer, Edu. Bernardino, will be coming with me.
Thanks much.
Have a good rest of the week. Talk soon.
...... Original Message .....

From: Yoo, John C [mailto:John.C.YooOusdoj.gov]
Sent: Wednesday, September 18, 2002 10:05 AM
To: ’TerW H0ng’
Cc: Goodling, Monica
SQbject: RE: KoreAm Journal
1:30 would be fine.
John Yoo
202.514.2069
202.305.8524 (fax)

From: Terry Hongi
Sent: Tuesday, September 17,2002 6:26 PM
To: Yoo, John C
I have another appointment that morning, and a lunch thing. Could we do

1:30, perhaps? 30-45 min tops as I have to do pick-up anyway at my
.daughter’s school.
And we need to get a "distinguished" photo of.you. I’m wondering if I

.can send the photographer at 1:1 that morning? His name is Edu.
Bernardino and a wonderful friend of mine. The office would like
some{hing maybe in your office, at your desk perhaps?
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Let me know what works for you.
P.S. Am going to be out of town tomorrow for rest of week, and will NOT
be on email. Will try and call tomorrow to finalize time. Feel free to
give me a jingle.

Sent: Tuesday, September 17, 2002 12:06 PM
To: ’Terry Hong’
Next Tuesday would work fine. We are located at 950 Pennsylvania Ave.,
NW, between 9th and 10th streets. What time suits you best? Say 11 am?
John Yoo
202.514.2069
202.305.8524 (fax)
.....Original M.essageI ....

From: TerryHong
Sent: Monday, September 16, 2002 5:47 PM
To: Yoo, John C
Just left you a message about setting up time¯ [My daughter shouting in
the background.] I’m going to be away Wed-Sun. Could we do something
early next week? Mon or Tuesday? Where is your office -- I’m assuming
it’s somewhere near the mall, if memory serves me right.
l’m at ¯ I should be in most of the morning. Hope to talk

soon.

From: Yoo~ John C [mailto:John.C.Yoo@usdoj.gov]
To: ’Terry Hong’
Ms. Hong:
Our public affairs office has approved the interview. A representative

2 OLC 000675
of their office, whom I am copying on this message, will come along.
When would you like to do the interview? We would probably prefer that
the interview be in person, if possible.
John Yoo
202.514.2069
202.305.8524 (fax}
..... Original Message

From: TerryHong
Sent: Monday, September 16, 2002 11:52 AM
To: Yoo, John C
Subject: KoreAm Journal
<< File: tmp.htm >> KoreaAm Journal is the largest Korean American
publication in the U.S. It is a monthly magazine, with an circulation of
almost 37,000. Its mission is "to be a publication that provides depth
and insight, into the evolving Korean American experience."
We would like to do a feature profile on you for the November issue,

highlighting.your career, your achievements, how you became to deputy
assistant attomeygeneral, what your thoughts are about the current
political climate, etc. etc.
My deadline is October 1. I would like to arrange a phone interview,

Jasting approximately 30 - 45- minutes, at your earliest convenience. An
email interview is also possible, if you would prefer that.
Please !et me know if we may interview you.
I look.forward to hearing from you.
Best,
Terry Hong
P.S. Here’s the link to a recent profile I did for KoreAm on Linda Sue
Park: http://www.koreamjournal.com/ArtistsTrax.asp so you can get an
idea of how our profiles work.
OLC 000676
From: Kris, David
To: Yoo, John C; Eisenberg, John; OIson, Theodore B
Subject: FW: JICI Transcripts and Statement of FBI Agent
Attachments: 09.20.02 JICl. Hearing (Panel I).doc; 09.20.02 JICI Hearing (Panel II).doc; 09.20.02.fbi.pdf
Here are the statements and transcripts of the FBI agents who testified Friday.

From: Rybicki, James E
To: Kris, David
Cc: Brown, Jamie E (OLA)
Subject: JICI Transcripts and Statement of FBI Agent
Per your request to Jamie. Please note that the transcripts are from Federal News Service and are not the official
Committee transcripts (Those generally are not available until a few months after the hearing).
09.20.02 JICI 09.20.02 JICI 09.20.02.fbi.pdf

Hearing (Panel I.;. Hearing (Panel I... (179 KB)
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PANEL I OF A JOINT HEARING OF THE SENATE AND HOUSE SELECT INTELLIGENCE
COMMITTEES SUBJECT: THE MALAYSIA HIJACKING AND SEPTEMBER IITH CHAIRED BY:
SENATOR BOB GRAHAM (D-FL) WITNESS: ELEANOR HILL, STAFF DIRECTOR, JOINT INQUIRY
COMMITTEE LOCATION: 216 HART SENATE OFFICE BUILDING, WASHINGTON~ D.C. TIME:
10:06 A.M. EDT DATE: FRIDAY, SEPTEMBER 20, 2002
Copyright (c) 2002 by Federal News Service, Inc., 620 National Press Building,
Washington~ DC 20045 USA. Federal News Service is a private firm not affiliated
with the federal government. No portion of this transcript may be copied, sold
or retransmitted without the written authority of Federal News Service, Inc.
Copyright is not claimed as to any part of the original work prepared by a
United States government officer or employee as a part of that person’s official
duties. For information on subscribing to the FNS Internet Service, please
email to info@fednews.com or call (202)824-0570
SEN. GRA]iAM: Call the Joint Inquiry Committee to order. This is the
third public hearing of the House Permanent Select Committee on. Intelligence and
the Senate Select Committee on Intelligence in our joint inquiry into the
terrorist attacks of September Ii, 2001.
Today the joint inquiry will receive testimony regarding three of the
19 hijackers. These three are notable because they had come to the attention of
the intelligence community at least 20 months before the September ii attacks.
We will review what actions the intelligence community and the law enforcement
agencies took or failed to take with respect to these individuals. Today’s
proceedings will be in two parts.. First, the committee will hear from Eleanor
Hill, the staffdirector of our joint inquiry, who will present ~ staff
¯ statement on this portion of our inquir~. We will then ask the public and
rep~esegtat~ves of. media or~ani~a~iQn~ ~o !e~ve_the_room.briefly while we
prepare it for the second panel of witnesses. I will explain the purpose of
doing so afte9 the room is reopened for the testimony of that panel.
Are there any opening statements by Chairman Goss?
REP. PORTER GOSS (R-FL) : No thank you, Mr. Chairman.
SEN. GRAHAM: Senator Shelby?
SEN. RICHARD SHELBY (R-AL) ~ Mr. Chairman, I’ll try to be brief, if I

can, in an opening statement.
We’re holding a hearing today on, in large part, based on what our
intelligence agencies knew about two specific people before they participated in
the September llth .attacks.
In our first open hearing on Wednesday, several members complained

about how much information the administration has been willing to declassify.
That issue, of course, is a concern to all Of us. I would like to point out,
however, that there is vital information about these two peoPle, hijackers, that
the administration has shared with the joint inquiry staff, but which the
chairmen have.ordered be concealed not only from the public, but also from
members of these two committees and from committee staff.
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Mr. Chairman, in the Senate Select Committee on Intelligence, we have
certain rules that govern how we do business. Among those rules is the
requirement that information in the possession of the committee be shared
between the two sides of the aisle. This rule prevents the majority from taking
advantage of its status to hide information.
As you made clear in our first closed hearing, Mr. Chairman, we do not
sit here as a joint committee.
The joint inquiry is being run concurrently by the Senate and House
oversight committees as two separate committees acting jointly. All records of
the joint inquiry are simultaneously the investigative records of each
committee. I believe it’s a violation of the Senate committee rules, Mr.
Chairman, to conceal information in the committee’s possession from members of
this committee and from properly cleared minority staff.
Unfortunately, this is not the only problem. In discussions with my

staff, the. FBI has indicated that it has been instructed by the two chairmen not
to share this same vital information with members or staff of these two
¯ committees, the House committee and the Senate Intelligence Committee.¯ I do not
.know What legal authority the chairmen have to tell the FBI to withhold
information from senators and congressmen, but these are apparently the
instructions given to the Bureau.
I do not necessarily propose that we make the information inquestion

about these two people -- hijackers -- public at this time. I think it would be
.dangerous. That’s a matter for the proper declassificati0n authorities to
determine. I must insist, Mr. Chairman, that we end this policy of withholding
crucial information from committee members and our staff. Conducting an
investigation and pursuing leads, without full informing the members of the very
committees who are supposedly in charge of the inquiry is not a precedent any of
us should every condone.
I do not know how many members of these committees are aware that
information about these two hijackers have been concealed.from them by the
committee leadership. Members of these committeesare privy every day to
enormously sensitive compartmented information from across the intelligence
community. I doubt that they will understand why there may not be -- they may
not be permitted to know this information. Before members of these committees
can consider themselves properly informed about the subject at hand, I think,
Mr. Chairman, we must end this practice of.withholding information from
committee members and staff. If we need.to discuss this matter in closed
session, we should do that. But we must not conduct infestations, I believe,
out of the full view of our members.
..With that, Mr. Chairman, I believe that.this still promises to be a

very productive hearing, and I’m looking forward to the testimony. I’m
concerned, however, that the topics we’re about to explore involve a great deal
Of classified and sensitive law enforcement information. When~we began
questioning witnesses, the possibility of an inadvertent disclosure of.
classified information was very real, and we should -- we would not serve the
public interest -- such a disclosure took place.
I strongly support your efforts, Mr. Chairman, to share as much

information with the public as possible, but I’m afraid that we -- waken -- we
may be walking a fine line in this instance. I think we have to be very, very
careful. I believe we should conduct this hearing in a secure facility where we
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have a full and unrestricted discussion without the risk of an inadvertent
disclosure. After the hearing, we can review the transcript, redact classified
and sensitive law enforcement information, then release it to the public. I
wish you’d close this hearing, Mr. Chairman.
SEN. GRAHAM: All right. Let me comment on those suggestions and

observations.
First, as to the very sensitive information, without elaborating,

this information is not only extremely sensitive relative to the events leading
up to September the llth but has very -- potentially adverse effects on U.S.
current policies.
Two, at the request of the Federal Bureau of Investigation, this

information was made available to the chairs and the two ranking members of the
committee, with the understanding that it would not be made further available
until we could do so at a closed session of this committee.
We have been endeavoring for the past several weeks to make

arrangements for that closed hearing of this committee, where this matter will
be fully discussed, with appropriate safeguards. It had been my hope that we
would-be able to do that as early as next week. I -- basedon information that I
have received this morning, I doubt that we will be in a position to do it next
week. But I can assure you, .Senator, that it is my desire to have this made
available to the committee at the earliest possible moment. And I believe when
the committee hears the information, they will be seized with why the FBI felt
that this had to be treated with such special precaution.
Second, as to t:he.hearing we’re going to have today, as with the

hearings thatwe had Wednesday and Thursday, and as those we’ll have in the
future, the staff report is submitted to the classifying agencies, which in this
case included the FBI and the CIA. Those agencies have the responsibility of
reviewing it and declassifying. We may at some points disagree with their
standards, but in all cases We observe their standards and recognize their
ultimate authority to do so.
And this hearing is being conducted under those same ground rules, so
that all the information that will be presented in the joint staff report will
have been previously declassified by the appropriate agencyand the witnesses,
all~of whom are agents of.that -- of those two agencies, plus one witness from
the. State Department, are aware of the lines of demarcation between classified
and declassified, as it relates to this subject matter.
So I believe that it is not only possible but.highly appropriate that

we hold this hearing in public today, so that the American people can become
better informed as to the events leading up to September the llth. Ms. Pelosi?
REPo NANCY PELOSI (D-CA): Thank you very much, Mr. Chairman.
I just want to make one point in welcoming our witnesses and commending
once again our -- Ms. Hill for the excellent work of the -- her excellent work
and that of the staff.
And I would reiterate some Of what my chairman, Mr. Goss, said a

previous -- I don’t know whether it was yesterday or the day before, that we are
all committed to having as much information available to the public as is
possible, and the only limitations would be not to reveal sources and methods,
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plans and intentions and any matters that we couldn’t release because of Justice
Department activity. That we all value the work of the people at the Federal
Bureau of Investigation and the Central Intelligence Agency and others in law
enforcement and intelligence gathering; that they’re brave and courageous; and
that something went wrong here and we want to findout what it is.
And that any information, just to -- not respond, but just comment on
what my distinguished vice chairman from the other body said, that we would not
be going down a path that would be dangerous to our national security, reveal
sources and methods, plans and intentions, or jeopardize a prosecution, but that
we understand our responsibility for the safety of these people and the
importance of this information.
And I think that we should feel quite comfortable proceeding under the
arrangement that is there, with all due respect to the concerns, always
legitimate, raised by my distinguished colleague.
With that, Mr. Chairman, I yield back the balance of my time.
SEN. GRAHAM: Thank you very much, Ms. Pelosi.
Ms. Hill.
MS. HILL: Thank you, Mr. Chairman.
Good morning. I am pleased to be here this morning. And this morning

I have a statement, as you’ve alluded to, that describes what our review has
found regarding what the government knew about the hijackers prior to September
llth,2001. ¯
I am going to summarize this in an oral statement, but I do have and

would offer for the record a full written~statement that, as the chairman has
mentioned, has been declassified through, again, a long and arduous process with
the working group set up by the intelligence community to declassify our work.
They have done so, and I would offer for the record a copy of that statement,
written statement, which is certified by the lead member of that
declassification group as being cleared for public release, and also certified
separately by the Justice Department representative as being cleare~ for public
release in terms of their concerns about ongoing.litigation.
And I would also mention that they.have initialed u- both of those

individuals have initialed each page of the written statement, indicating that
in toto it is appropriate for public release. So I would offer that for the
record and then proceed to offer a summarized version for the hearing.
My testimonytoday will focus on the inteiligence community’s knowledge

prior to September llth, 2001, of the hijackers, particularly three of the five
individuals who hijacked American Flight 77, which crashed into the Pentagon.
Later in this inquiry we will focus on the July 10th, 2001, electronic
communication from the Phoenix field office of the FBI to FBI headquarters and
on the FBI’s investigation prior to September llth of Zacarias Moussaoui.
While each of these areas is individually important, I do want to

emphasize the significance of these matters when viewed collectively. The
information regarding all three matters was available in the same section at FBI
headquarters in August 2001. The first and third matters were addressed in the
DCI’s.Counterterrorist Center at approximately the same time° In neither unit
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did anyone see the potential collec<ive significance of the information, despite
increasing concerns throughout the summer of 2001 about an impending terrorist
attack.
In each of these areas, there were missed opportunities by the

intelligence community. In each area, there were indications of larger systemic
issues that, at least in part, drove those missed opportunities. And finally,
in each area there were individuals within the intelligence community who did
recognize the importance of. what was potentially at stake and tried, though
ultimately without success, to get organizations within the community to do the
same.
Of particular interest to this inquiry is the extent to which the

intelligence community had any intelligence or law enforcement information
linkingany of the suspected hijackers to terrorism or to a terrorist group
prior to the llth of September. To date, the joint inquiry staff has determined
that prior to September llth, the intelligence community possessed no
intelligence or law-enforcement information that would have linked 16 of the 19
hijackers to terrorism or terrorist groups.
The three remaining hijackers, all of whom were aboard American Flight
77, did come to the attention, of the community prior to September llth. The
three hijackers in question are Khalid al-Midhar, Nawaf Alhazmi and Nawaf’s
brother Salem Alhazmi. What follows, and what I’m going to present this morning
is a description of how the community developed information on these individuals
and: when the intelligence community had, but missed, opportunities both to deny
them entry into the United States and subsequently, to generate investigative
and surveillance-action regarding their activities within the United States.
At .this stage, we must also reiterate that this is only an unclassified

summary of our work today regarding these events. The staff is, at this point,
continuing its review of other information pertaining to the hijackers, and some
information and areas under review remain classified. A separate and more
detailed classified statement will be submitted for inclusion in the sealed
record at a later point.~
The story begins in December 1999, with the intelligence community on

heightened alert for possible t~rrorist activity as the world prepared to
celebrate the new millennium. A meeting of individuals believed at the time to.
be associated with 0sama bin Laden’s terrorist network took place in Kuala
Lumpur, Malaysia, from January 5th to January 8th, 2000. Khalid al~Mihhar and
Nawaf Alhazmi were among those attending the meeting, along with an individual
later identified as Khallad bin Attash, a key operative in Osama bin Laden’s
network.
-Although it was not known what was discussed at the Malaysia meeting,
the CIA believed it to be a gathering of al Qaeda associates. Several of the
individuals attending the meeting, including al-Midhar and Alhazmi, then
proceeded to another Southeast Asian country. By the time these individuals
entered Malaysia, the CIA had determined Khalid al-Midhar’s full name, his
passport number and his birth information. Significantly, it also knew that he
held a United States B-l, B-2 multiple-entry visa that had been issued to him in
Jeddah, Saudi Arabia, on April 7th, 1999, and would not expire until April 6,
2000.
Soon after these individuals departed Malaysia, on January 8th, 2001,

the CIA also received indications that Nawaf’s last name might be Alhazmi.
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Unbeknownst to the CIA, another arm of the intelligence community, the National
Security Agency, had information associating Nawaf Alhazmi with the. bin Laden
network.
NSA did not immediately disseminate that information, although it was in

NSA’s database.
At this stage Salem Alhazmi was known to the rest of the intelligence
community as an associate of Khalid’s and Nawaf’s, And that he was possibly
Nawaf’s brother.
Ai-Midhar and Nawaf Alhazmi’s names could have been -- but were not --
added at this time to the State Department, INS and U.S. Customs Service watch
list denying individuals entry into the United States.
A CIA communication in early January 2000 states that al-Midhar’s

travel documents, including his multiple-entry visa for the United States, were
shared with the FBI for further investigation. We have interviewed the
supervisor of the unit in which this document was written, and that individual
has no independent recollection of the documents being sent to the FBI. No one
at the FBI recalls having received such documents at the time. No confirmatory
record of the transmittal of the travel documents has yet to be located at
either the CIA or the FBI.
In addition, while the Malaysia meeting was in progress, a CIA employee

sent an e-mail to a CIA colleague, advising that he had briefed two FBI agents.
about what the CIA had learned about al- Midhar’s activities. The CIA employee
told us that he had at the time been assigned to work at the FBI’.s Strategic
Information Operations Center to fix problems, quote, ~’in communicating between
"the CIA and the FBI," clo~e quote. His e-mail, however, makes no mention of the
CIA’s determination that al-Midhar held a U.S. multiple-entry visa.
The CIA employee noted in his e-mail that he told the second FBI that -
-~.and I quote --."this continues to be an" -- in brackets -- "intelligence
operation. Thus far, a lot of suspicious activity has been observed, but
nothing that would indicate evidence of an impending attack or criminal
enterpri~se..- Told" -- and he refers to the first FBI agent -- ~that as soon as
something concrete is developed leading us to the criminal arena or to known FBI
¯ cases, we will immediately bring FBI into the looP, like" -- and he refers, to
the first FBI agent. "Yesterday" the second FBI agent "stated that.this was a
¯ fine approach and thanked me for keeping him in the loop.
The CIA employee told our staff that he does not recall telling the FBI
about Midhar’s visa information and potential travel to the United States. When
interviewed by our staff,.neither FBI agent initially recalled discussions with
the CIA.employee about al-Midhar. The first agent did locate his own
handwritten notes that indicated that he did speak with the employee about
¯ Malaysia activities, probably in early January 2000. The second agentknows the
CIA employee but does not recall learning about al-Midhar or the Malaysia
meeting until after September llth, 2001.
An e-mail from the second FBI agent to a superior at FBI headquarters"

has been located that relates the basic facts of the conversation with the CIA
employee° The e-mail~ however, makes no mention, of al-Midhar’s visa information
or possible travel to the United States. It concludes with -- and I quote --
"CIA is reporting relevant information as it becomes available," close quote.
OLC 000683
In early March 2000, CIA headquarters, including both the CTC and the
special Bin Laden unit, received information from an overseas CIA station
involved in the matter that Nawaf Alhazmi had entered the United States via Los
Angeles International Airport on January 15th, 2000. No further destination for
Khalid al-Midhar was noted in the CIA cable. The cable carrying the information
was marked, quote, "Action required: None. FYI." Close quote. The following
day, another overseas CIA station noted, in a cable to the bin Laden unit at CIA
headquarters, that it had, quote, "read with interest," close quote, the March
cable, quote, "particularly the information that a member of this group traveled
to the U.S." Close quote.
So CIA did not act on this information, nor did it consider the
possibility that because Nawaf Alhazmi and Khalid al-Midhar had been together in
Malaysia and continued on together to another Southeast Asian country, that
there was a possibility that they would travel further together. In fact, al-
Midhar, who had traveled with Alhazmi, continued on with him to the United
States on January 15th, 2000.
Again, at this point these two individuals could have been added to the
State Department’s watch list for denying individuals entry into the United
States. i Although they had already entered the United States, the sharing of
this information with the FBI and appropriate law enforcement authorities could
have prompted investigative efforts to locate these individuals and possibly
surveil £heir activities within the United States. Unfortunately, none of these
things happened.
The joint inquiry staff has interviewed the individual at CIA

headquarters who had direct responsibility for tracking the movement of
individuals at this meeting in Malaysia. That person does not recall seeing the
March message.
In his testimony-before the joint inquiry on June 18th, 2001, the

director of Central Intelligence acknowledged that the CIA should have acted to
add these individuals to the State Department’s watch list in March 2000, and
characterized this omission as a mistake.
During the course of our interviews, we attempted to identify the

reasons whyt’hat mistakeoccurred. We were told that there was, at .the .time, .no
formal .system in place at the CTC for watch-listing suspected terrorists with
indications of travel to the United States. CIA personnel also told us that they
received no formal training on watch-listing. One CIA employee said they
learned about the watch- listing process through, quote, "on-the~job training."
Another CIA employee who had been aware of al-Midhar’s participation, in the
Malaysia meeting told us that prior to September llth, 2001, it was, quote, "not
incumbent," close quote, on CTC’s special bin Laden unit to watch-list such
individuals.
Finally, a CTC employee who in 2000 handled the cable traffic on the
Malaysia meeting told us that the meeting was not considered, quote,
."important," close quote, relative to other counterterrorist activities
Occurring at the time and that there were not enough people to handle CTC’s
workload at the time. As a result, informational cables such as the March 2000
.message received less attention than action items. Several other CIA employees
-told us that they typically did not have time to even read informational cables.
SEN° FEINSTEIN: Mr.. Chairman, when will We recess for the vote? What’s
the --
OLC 000684
SEN. GRA]iAM: We have I0 minutes left on the vote.
Ms. Hill, this -- there’s is a vote on in the Senate. We’re going to

have to leave. Is there a point that would be better in terms of your
presenting the story that you’re going to reach in the next five minutes, for us
to --
MS. HILL: If you -- like to break, you can -- if you want to break, we
could break now, or we could -- or I can continue -- however you want me to do
it.
SEN. FEINSTEIN: Let’s break now. How do you want to do it?
SEN. GRAHThM: The meeting will be suspended for such time as it takes
the members of the Senate to vote and return. And I would urge expeditious
return. (Sounds gavel.)
(Recess.)
REP. GOSS: Thank you. Chairman Graham had asked me to start the
continuation of Ms. Hill’s presentation to.us, because of the urgency, of some
other scheduling matters that some of our lead.questioners have. And I see
Senator Levin has returned. So, in that case, Ms. Hill, would you continue,
please?
MS. HILL: Yes, Mr. Chairman. Thank you. I’ll continue right where I
left off.
The failure to watch-list al-Midhar and Alhazmi or, at a minimum, to

advise the FBI of their travel to the United States is perhaps even more
puzzling.because it occurred shortly afterthe peak of intelligence Community.
alertness to possible millennium-related terrorist attacks. In the fall of
1999, there was a debate within, the community about whether intelligence
information that had been collected earlier that year meant that bin Laden’s
terrorist network intended to carry out attacks in the midst of the celebrations
ushering in the new millennium. Intelligence information, a.long with the arrest
of-:Ahmed Ressam at the U.S.-Canadian border, prompted the U.S. government and
various foreign governments to arrest, detain and otherwise disrupt numerous
individuals associated with bin Laden’s network in various locations around the
world. These disruptions occurred between December 1999 and February2000.
Thus the Malaysia meeting of ganuary 5ththrough 8, 2000, and the March
2000 information that Alhazmi had entered the United States developed at a time
when the intelligence community had only recently confronted the real
possibility of a bin ~aden attack. However, it apparently was still focused on
the organization and aftermath of the previous operations.
In interviews with the staff, a number of working-level CIA personnel

who were following the Malaysia m~eting and other terrorist activities in the
millennium time frame have characterized, the Malaysia meeting as just one of
many counterterrorist efforts occurring at the time. In contrast, documents
reviewed by the joint inquiry staff show that the Malaysia meeting was deemed
sufficiently important at the time that it was included, along with several-
other counterterrorist activities, in several briefings to the DCI in January
2000.
OLC 000685
We were told, however, that the matter was, quote, "dropped," close
quote, when the CIA employee handling the matter moved on to other issues, and
as a result, no CIA officer was following the al-Midhar group by the summer of
2000.
By March 2000, al-Midhar and Nawaf Alhazmi had settled into a residence
in San Diego. In the course of their time in San Diego, they used their true
names on a rental agreement, as al-Midhar also did in obtaining a California
motor vehicle photo ID card. In May 2000, they took flight lessons~in San Diego
but abandoned the effort. On June 10th, 2000, al-Midhar left the United States
on a Lufthansa. flight from Los Angeles to Frankfurt. Nawath Alhazmi remained in
the United States.
On July 7th, 2000, a week shy of the expiration of the six-month visa
to stay in the United States, Alhazmi applied to the INS for the extension to
his visa. He used on his INS application the Lemon Grove, California, address
for the residence that he shared with al- Midhar before the latter’s departure
in early June 2000. The INS recorded.receipt of the extension request on July
27th, 2000. The INS has advised the staff that it assumes a receipt was
generated.and sent to Alhazmi at the address he listed. ’The INS does.not have a
record of a further extension request by Alhazmi, who remained in the United
States illegally after his initiai extension expired in January 2001.
On October 12, 2000, two individuals with ties to bin Laden carried out
an attack on USS Cole as the Navy destroyer was refueling in Aden, Yemen. In
the course of its investigation of the attack, the FBI developed information
indicating that an individual named Tawfiq Mohammed Saleh Atash also known as
Khalad, had been a principal planner in the Cole bombing and that two other
participants in the Cole conspiracy had delivered money to Khalad at the time of
the January 2000 Malaysia meeting.
The FBI shared this information with the CIA, and it prompted analysts
at the CIA to take another look at. the January 2000 me~ting in Malaysia. In
that process, the CIA acquired information in January of 2001 indic&ring that
Khalad had attended the meeting in Malaysia.~ This information was significant
because it meant that the other attendees, including al-Midhar and Nawaf
Alhazmi, had been in direct contact with the key planner in bin Laden’s network
behindth~ Cole attack. However, CIA again, apparently, did not act ~anddid not
add Khalid al-Midhar and Nawaf Alhazmi to the State Department’s watch list. ¯ At
this time, Khalad (sic) al-Midhar was abroad, while Nawaf Alhazmi was still in
the United States. In May 2001, personnel at the CIA provided an intelligence
operations sbecialist at FBI headquarters with photographs taken in Malaysia,
including one of al-Midhar. The CIA wanted the FBI to review the photographs to
determine whether an individual in custody in connection with the Cole
investigation could be identified in the photographs.
When interviewed, the FBI operations -- intelligence operations

specialist who received the photographs told the staff that the CIA told her
about Midhar’s meeting in Malaysia and traveled to another Southeast Asian
country but said nothing abouthis potential travel to the United States. Nor
did the CIA advise the FBI that the photographs were from a meeting that it
believe Khalad had attended. Again, no action was taken to watch-list al Midhar
or Alhazmi.
On June llth, 2001, FBI headquarters representatives and CIA

representatives met with the New York FBI agents handling the Cole
investigation° The New York agents were shown but not given copies of the
OLC 000686
photographs and were told they were taken in Malays.ia. When interviewed, one of
the New York agents recalled al-Midhar’s name being mentioned. He also recalled
asking for more information on why the people in the photographs were being
followed and for access to that information. The New York FBI agents were.
advised that they could not be told why al-Midhar and the others were being
followed.
An FBI headquarters representative told us in her interview that the

FBI was never given specific information until it was provided after September
llth0 2001. The CIA analyst who attended the New York meeting acknowledged to
the joint inquiry staff that he had seen the information regarding al-Midhar’s
U.S. visa and Alhazmi’s travel to the United States. But he stated that he
would not share information outside of the CIA unless he had authority to do so
and unless that was the purpose o~ the meeting.
On June 13th, 2001, Khalid al-Midhar obtained ~ new U.S.. visa in

Jeddah, using a different passport than the one he had used to enter the United
Stateson January 15th, 2000. On his application, he checked "No" in response
to the question of whether he had ever been in the United States.
On July 4th, .2001, al-Midhar re-entered the United States. On or about

July 13th, 2001, a CIA officer assigned to the FBI, who I believe will testify
this morning, accessed CIA’s electronic database and located a CIA cable for
which he had been searching that contained information the CIA had acquired in
January 2001 indicating that Khallad had attended the meeting in. Malaysia. The
presence of lihallad in Malaysia deeply troubled the CIA officer, who immediately
~sent an e-mail from FBI headquarters to the DCI’s CTC, saying of Khallad, and I
quote, "This is a major-league killer who orchestrated the Cole attack and
possibly the Africa bombings." ~ A review at the CIA of al! prior cables
concerning the Malaysia meeting was launched, a task that fell to an FBI analyst
assigned to the CTC. On August 21st, 2001, the FIB analyst put together two key
pieces of information. Thesewere theintelligence that the CIA had received i~
January 2000 that al-Midhar hada multiple-entry visa to the United States and
the information the CIA had received in March 2000 that Nawaf Alhazmi had
entered the United States on January 15th, 2000.
Working with an INS representative assignedto the CTC, the analyst

obta~nedinformation that al-Midhar had enteredthe United States on.January
15th2000 and had departed on June l0th 2000. Additional investigation revealed.
thatal-Midhar had reentered the. country on July4th 2001 with a visa that
allowed him to stay through August 22nd. CI~ suspicions-were further aroused by
the timing of al-Midhar and Alhazmi’s arrival in Los Angeles in the same general
time frame in which Algerian terrorist and bin Laden associate Ahmed Ressam was
to have arrived in Los. Angeles to conduct terrorist..operations:
On August 23rd 2001, the CIA sent a cable to the State Department, the
INS, the Customs service and the FBI requesting that bin Laden-related
individuals, Ai-Midhar, Nawaf Alhazmi and two other individuals at the Malaysia
meeting be watch-listed immediately and denied entry into the United States,
quote, "due to their confirmed links to Egyptian Islamic Jihad operatives and
suspicious activities while traveling in East Asia." Close quote. Although the
CIA believed al-Midhar was in the United States, placing him on the watch list
would enable authorities to detain him if he attempted to leave.
Meanwhile, the FBI headquarters.bln Laden unit sent to the FBI’s New
York field office a draft document recommending the opening of an intelligence
investigation on al-Midhar to determine if al-Midhar is. still in the United
OLC 000687
States. It also stated that al-Midhar’s confirmed association with elements of
bin Laden’s terrorist network, including potential association with two
individuals involved in the attack on the USS Cole, quote, "make him a risk to
the national security of the United States," close quote. The goal of the
investigation was to locate al-Midhar and determine his contacts and reasons for
being in the country.
New York FBI agents told us that they tried to convince FBI
headquarters to open a criminal investigation on al-Midhar. Given the
importance of the search and the l~mited resources that were available to
intelligence investigations, FBI headquarters declined to do so because there
was, in its view, no way to connect al-Midhar to the ongoing Cole investigation
without using some intelligence information.
At the State Department, a visa revocation process was begun

immediately. Al-Midhar, Nawaf Alhazmi, Khalad, and the other individual who had
been~at the Malaysia meeting were added to the watch list. The FBI contacted
theBureau of Diplomatic Security at the State Department on August 27th, 2001
to obtain al-Midhar and Nawaf Alhazmi’s visa information. The visa
information revealed that on entering the U.S., al-Midhar had indicated on his
¯ application that he would be staying at a Marriott hotel in New York City.
An FBI agent, working, with a Naval Criminal Investigative Service agent,

determined on September 5th that al-Midhar had not registered at any New York-
area Marriott hotel.
On September 10th, 2001, the New York FBI field office prepared a
request that the FBI office in Los Angeles check all Sheraton hotels located in
the L.A, area. The request also asked thatthe Los Angeles field office check
with United Airlines .and Lufthansa for travel and alias information, since al-
Midhar and Alhazmi had used those airlines. The Los Angeles FBI office
c6nducted the search efter September llth; 2001, with negative results.
In short, the CIA had obtained information identifying two of the 19

hijackers, al-Midhar and Alhazmi, as suspected terrorists carrying visas for
travel to the United States as long as 18 months prior to the time they. were
eventually watch-listed. There were numerous opportunities during the tracking
of these two suspected terrorists when the. CIA could have alerted the FBI .and
other u.s. law enforcement authorities to the probability that these individuals
either were or ~would soon be in the United States. That was not done, nor were
they placed on watch lists denying them entry into the United States.
It is worth noting that the watch lists mentioned aboveare aimed at

denying named individuals from entering, the United States. Prior to September
llth, 2001, these watch lists were not used to screen individuals boarding
domestic flights within the United States. Thus even though al-Midhar -and
Alhazmi had been placed on watch lists two weeks prior to September llth, this
did not prevent them from boarding American Fl’ight 77 on September llth.
Beyond the watch list issue, the story of al-Midhar and Alhazmi also
graphically illustrates the gulf that apparently existed, at least prior to
September llth, between intelligence and law enforcement counterterrorist
efforts.
There are a number of factors that make effective integration of law

enforcement and intelligence investigation against terrorism difficult. These
¯ include differences in experience, tmctics~, objectives, legal authorities and
OLC 000688
concern for protecting intelligence sources and methods. For example,
limitations on the flow of information to criminal investigators from ~
intelligence agencies can be imposed to protect foreign intelligence sources and
methods from disclosure in a criminal prosecution. In the case of al-Midhar and
Alhazmi, even the importance of the U.S. Cole -- USS Cole criminal
investigation was evidently deemed insufficient to justify the full sharing of
relevant intelligence information with the agents handling the criminal case.
On August -- an August 29th, 2001, e-mail exchange between FBI

headquarters and an FBI agent in New York is illustrative. The agent, who had
been involved in the Cole criminal investigation since the day of that attadk --
and who, I might add, is present here today to testify -- asked FBI headquarters
to allow New York to use the full criminal investigative resources available to
the FBI to find al- Midhar.
Headquarters responded that its National Security Law Unit advised that
this could not be done. The headquarters’ response -- and I will read it -- is
as follows: ~ "~ crimina! agent CANNOT’"-- in caps .... be present at the
interview. This case in its entirety is based on intelligence. If at such time
aJ information is developed indicating the existence of a substantial federal
crime, that information will be passed over the wall, according to the proper
procedures and turned over for follow-up criminal investigation." I will
refrain from reading the agent’s response in his e-mail,, because I believe he’s
¯ here today, and he will read that to you himself, whichois certainly more
appropriate than me reading it.
Within two weeks after the September llth attacks, the FBI prepared ~n
analysis of bin Laden’s responsibility as part of the State Department’s
development of a white paper that could be shared with foreign governments.
That analysis relied atleast: in part on the connection between the attack on
the USS Cole and al-Midhar and Alhazmi. Quote, "Even at this early stage in the
investigation, the FBI has developed compelling evidence which points to Osama
bin Laden and al Qaeda as the perpetrators of t~is attack. By way of
illustration, at least two of the hijackers met with a.senior al Qaeda terrorist
-- the same al Qaeda terrorist which reliable information demonstrates
orchestrated the attack on the USS Cole and who was involved in the planning of
the:East Africa bombings."
The two hijackers referred to were al-Midhar and Alhazmi. The senior
al Qaeda terrorist was Khallad. The place that they met was Malaysia. Thus the
facts linking these two individuals to Khallad and to bin Laden formed the crux
of the case made to governments around the world after September llth that bin
Laden should be held accountable for those attacks.
September -- in closing I would just say we have a few preliminary

conclusions, and they are as follows: September llth hijackers Khalid al-Midhar
and Nawaf Alhazmi came to the attention of the intelligence community in early
2000 but entered the United States unobserved soon after. The intelligence
community succeeded in determining that these bin Laden operations -- operatives
were in Malaysia in January 2000 and in obtaining information about.them. The
system broke down, however, in making the best use of that information and in
ensuring that it was effectively and fully shard with agencies like the FBI, the
State Department and the INS that could have acted on it to either.prevent them
from entering the United States or surveil them and uncover their activities
while in the United. States. In addition, the. FBI and. CIA had responsibilities
to respond to the October 2000 attack on the USS Cole. Each had information
that the other needed to Carry out those responsibilities. But at a key meeting
OLC 000689
in New York on June llth, 2001, the CIA did not provide to the FBI information
about the Malaysian meeting and its participants that could have assisted the
FBI in their investigation. These events reflect misunderstanding that have
developed over the last several years about using information derived from
intelligence-gathering activities in criminal investigations.
The problems of communications between organizations that are

demonstrated by the al-Midhar/Alhazmi situation existed not only between the CIA
and the FBI, but also within the FBI itself. Once it was determined, in late
August 2001, that Khalid al-Midhar was in the United States, the search to
determine his whereabouts was limited by U.S. government policies and practices
regarding the use of intelligence information in FBI criminal investigations.
This limited the resources that were made available for the FBI to conduct the
search during a time in which al-Midhar and Alhazmi were purchasing their
September llth tickets and traveling to their last rallying points.
Mr. Chairman, that concludes the statement. I would only add one minor
correction. I believe when I read it, I noted that Director Tenet had testified
before these committees on the June 18th, 2001. That was in error. It should be
June 18th, 2002. So thit needs to be clear for the record.
Thankyou.
SEN. GRAHAM: Thank you, Ms. Hill.
As I indicated earlier, at the conclusion of Ms. Hill’s staff

presentation, I’m going to ask the room be cleared briefly, and then we will
make necessary arrangements within the room’and resume with the three witnesses.
I’d ask that all.~but approved personnel leave.
END.
OLC 000690
PAIqEL II OF A JOINT HEARING OF THE SENATE AND HOUSE SELECT INTELLIGENCE
COMMITTEES SUBJECT: THE MALAYSIA HIJACKERS AND SEPTEMBER IITH CHAIRED BY:
SENATOR BOB GRA/4AM (D-FL) WITNESSES: A CIA OFFICER; AN FBI OFFICER; MICHAEL
ROLINCE, FBI SPECIAL AGENT IN CHARGE, WASHINGTON FIELD OFFICE; AND CHRIS KOJM,
DEPUTY FOR INTELLIGENCE POLICY AND COORDINATION, STATE DEPARTMENT BUREAU OF
INTELLIGENCE AND RESEARCH LOCATION: 216 HART SENATE OFFICE BUILDING, WASHINGTON,
D.C. TIME: 11:25 A.M. EDT DATE: FRIDAY, SEPTEMBER 20, 2002
Copyright (c) 2002 by Federal News Service, Inc., 620 National Press Building,
Washington, DC 20045 USA. Federal News Service is a private firm not affiliated
with the federal government. No portion of this transcript may be copied, sold
or retransmitted without the written authority of Federal News Service, Inc.
Copyright is not claimed as to any part of the original work prepared by a
United States government officer or employee as a part of that person’s official
duties. For information on subscribing to the FNS Internet Service, please
email to info@fednews.com or call (202)824-0570
SEN. GRAB_AM: As we commence the witness testimony, I would ask that

all members of the committee refer to the two unidentified witnesses as being
either the FBI officer or the -- excuse me -- the CIA officer or the FBI agent.
The two other witnesses will be Mr. Michael Rowlands (sp), special agen~ in
charge of the Washington Field Office, and Chris Kojm, deputy for Intelligence.
Policy and Coordination of the State DepartmentBureau of Intelligence and
Research. We very much appreciate all of your participation in this important
hearing.
The hearing is now reopened to the public and the press.
(TO staff) Have all.of the public and press been returned?
Two of our witnesses, one from the CIA and one from the FBI, will be
shielded by the screen during their testimony. Neither of these witnesses are
to be.addressed by name. This is necessary because-both are currently engaged
in sensitive counterterrorism activities. We have introduced the other two open
witnesses.
I would ask that the witnesses be called upon to make your oral
statements in the following order. First, the CIA officer; second, Mr. Rowlands
(sp); third, the FBI agent; and then -- and finally,. Mro Kojm.
~.The CIA officer.
CIA OFFICER: Mr. Chairman, members and staff. I am a senior officer

attached to the DCI’s Counterterrorist Center, currently assigned to the FBI.
From September 1998 until May 2001, as an operations manager, I was privileged
towork alongside a group of extraordinary officers from the CIA, the FBI and
other agencies who were and remain committed to combatting the threat posed by
bin Laden and those he has inspired.
In May of 2001, i moved over to the Federal Bureau of Investigation,

whereI have since Worked as a CIA detailee in the Counterterrorism Division, a
position in which I’ve also focused on the bin Laden menace°
OLC 000691
I would like to read a short statement, and then the written version
will be submitted for the record.
SEN. GR_A/£AM: Thank you.
CIA OFFICER: Before we begin, I would like to observe that even after
I0 months of incredible effort by the U.S. military and others in Afghanistan,
and by the agencies you see represented before you here today, and others here
and abroad, al Qaeda remains poised to strike again.
What we say in this venue over the coming weeks will be closely followed
by the very people who are just trying to destroy you, me, our families and our
way of life. I want to stress, speaking on behalf of those still carrying the
battle to al Qaeda, inside Afghanistan and out, that we do not and cannot for
the foreseeable future view this group as anything -- excuse me -- view this
group and its emulators and sympathizers as anything less dangerous than they
were at this time last year. While we have an obligation to ensure that our
flaws are identified and corrected, we must also take great care that we not
educate the enemy while we are at it.
With those comments, I now turn to the specific topic we have been
invited here to review. Your Staff has laid out the basic facts, so I won’t
repeat them in detail, but I’d like to walk through the most significant
elements in summary form.
I-n late 1999, the U.S. counterterrorist community launched a global

effort aimed at disrupting terrorist operations we knew were being planned for
the millennium turnover and that we suspected would carry over into the Muslim
month of Ramadan, which was to occur in early January 2000. Dozens of
terrorists and terrorist support nodes were disrupted. Both CIA and the FBI as
well as other members of the intelligence community surged large numbers of
officers for this effort, and they worked around the clock through -- roughly
mid- ~anuary, through 15 January 2000. During that heightened alert, the CIA,
the FBI and other members of ~the intelligence communitywere also working over
data they :had shared relevant to the Nairob{ and Dares Salaam embassy bombings
that had occurred in August 1998.
In December 1999, this intelligence provided a kind of a tuning fork

that buzzed when two individuals reportedly planning atrip to Kuala Lumpur were
linked indirectly to a support element that we suspected had played a rolewith
the Africa bombers. A CTC officer, noting the linkage, set in motion a complex
series of operations aimed at determining their identity, their contacts and,
ideally, what they were doing.
The operation succeeded in its first phase. Within a very short period
of time, we learned the name of one of the travelers, Khalid al:Midhar. We
learned where they were staying and the name ofseveral of their local contacts.
We were unable to complete the second phase of the operation, however. We did
not learn the identities of the other participants in the meeting at the time,
and were unable to determine and still do not know what they discussed during
that meeting. While the meeting was in progress, the CIA officers detailed to
the FBI, CTC kept the FBI advised .of developments via verbal briefings. As you
know, for a number of years the FBI has had agents and analysts working
integrally with CTC, including in the CTC’s bin Laden element; and CIA officers
in turn have also served in various components of the FBI, including also in the
.bin Laden unit of the FBI headquarters° Part of the job on either side,
OLC 000692
especially during moments of crisis, is to provide verbal briefs on the fly
before shifting attention to the next facet of the crisis.
We prefer to document significant transfers of information, both to

assure ourselves that it was passed and also to create a detailed record for our
own operations officers and analysts who at a later date draw on such data to do
a variety of tasks. In this case, CTC did not formally document to the FBI the
conversations between the CIA referrants and the FBI supervisors they briefed.
CTC did note in a cable to the field that al-Midhar’s passport information had
been passed to the FBI, but to date, we have been unable to confirm either
passage or receipt of the information, so we cannot say what the exact details
were that were passed.
As the operations unfolded, a piece of data that in hindsight

turned out to be critical revealed al-Midhar’s passport information, then -- and
"that. he had earlier obtained a visa to the United States. Under ideal
conditions, that passport data should have been provided to the State
Department’s TIPOFF program, which is designed to help keep terrorists from
entering the U.S. from abroad. At this point, both al-Midhar and his companion,
who would turn out to be another hijacker, Nawaf Alhazmi, had their visas.
Later, in early March 2000, long after the dust had settled in
Mal:aysia, information surfaced indicating that al-Midhar’s partner was named
Nawaf Alhazmi. In early March the CIA also received information indicatin~ that
Alhazmi had booked a flight that terminated in Los Angles on 15 January 2000.
Again, the new information on Alhazmi was not disseminated.
After the October 2000 bombing of the USS Cole, the al-Midhar and
Alhazmi data resurfaced when the FBI learned that an individual alleged to have
.been a. key planner of the Cole attack had been in Southeast at the same time as
the Malaysia meeting. This raised the possibility that the planner of the Cole
attack had been at the meeting. The person I’m dSscussing -- it Was this person
Khallad, who was mentioned in the previous testimony. I, at the time I wrote
this, did not have the full declassified version.
Seeking to develop more information on that hypothesis that Khallad had

been at the meeting, and related to other information linking some Cole
operatives to possible unknown contacts in Malaysia, the FBI and the CIA sought
to develop ~more information about the other people at the meeting. Early in
2001 more intelligence was developed that strengthened the hypothesis that this
’key .Planner had been one of the participants in the January 2000 meeting with
al-Midhar and Alhazmi. At the time, the focus was on the USS Cole investigation
and understandfng what had occurred in Malaysiat not on whether these
individuals had been watch-listed.
In midsummer 2001, although the presence of the key planner in Malaysia

had yet to be confirmed, while burrowing through intelligence related to other
terrorist activity in Malaysia, the data from January 2000 and January 2001 was
put together in a different way, and both the FBI.and the CIA began to work to
flesh out their understanding of all the people linked to the key planner of the
Cole attack, of all the people linked to Khallad. In the course of that work,
in mid-August 20011CIA and FBI learned that al-Midhar had entered the U.S. in
January 2000, departed at a later date and then reentered in July 2001. CTC
notified a number of agencies officially within a short time, and the FBI began
.an investigation to backtrack from al-Midhar’s immigration documents, in an
effort to find him. But he had not registered at the hotels indicated on his
~forms, andtime ran out before other venues could be searched.
OLC 000693
How could these misses have occurred? I do not want to speculate at
a~y great length about this at this point, because I really don’t have a
definitive answer. But I should try to put the events into some kind of
context.
The events, as summarized above, took place in the context of a

worldwide campaign that also focused on people we knew were trying to kill
Americans. The CIA operators focused on the Malaysia meeting while it occurred.
When it was over, they focused on other, more urgent operations against threats,
real or assessed.
Of the many people involved, no one detected that the data generated by
this operation -- the Malaysia meeting -- crossed a reporting threshold. Or if
they did, they assumed that the reporting requirement had been met elsewhere.
In a later session, officers who served in the CTC after 9/11 will
expand on their revisions and new training that had been put into :place to
reduce .the chances of this happening again. There are new types of watch lists
and new, very low thresholds for entering names onto them. They will be
discussed by others more familiar with the details and the protocols. What I
¯ will say here is that new procedures and training aside, they are also the kinds
of misses that happen when.people -- even very competent, dedicated people, such
as t~he CIA-~fficers and the FBI agents and analysts involved in all aspects .of
this story -- are simply overwhelmed.
The counterterrorism business often does not feature a large team going
after a single target, but rather, one or two officers juggling multiple
activities against many people, simultaneously trying to. make sens.e of what it
means, which target deserves priority attention and balancing the interests of
multiple stations, liaison services and U.S. agencies. I would like to say that
we will get it right i00 percent.0f the time. And in fact, we’re in a business
here where we have to get it right i00 percent of the time, because the enemy
only has to get it right once. While I can’t promise that we’ll ever completely
reach that goal of perfection, I have no doubt that those working in
counterterrorism will never stop trying to get there.
A~d I’ll just add a little statement that’s not in my prepared

statement:We appreciate the help.
Thank you.
SEN. GRAHAM: Thank you.
Mro Rolince.
MR. ROLINCE: Thank you, Mr. Chairman.
Before I begin my prepared remarks, I would just like to say for the
record that I am honored and proud to follow an individual with whom I worked
closely for the past several years and whomI consider to be one of the finest
counterterrorism experts in the world. Mr. Chairman, members of the
committees, I am pleased to appear before you today to describe the FBI’s role
within the intelligence community and our knowledge and actions from
approximately December .1999 through September llth, 2001. My testimony will
cover the knowledge of and adtions taken by the FBI pri0rto September llth,
2001, regarding Khalid al-Midhar and Nawaf Alhazmi, as well as information
OLC 000694
learned about them after the attack. I will touch upon the issue of the FBI’s
investigation of al-Midhar as an intelligence case versus a criminal target. I
will discuss the interaction between the FBI and CIA, as well as others in the
intelligence and law enforcement community. I would also like to provide an
overview of the makeup of the international jihad movement and explain how it
encompasses many groups and organizations, to include bin Laden and the al Qaeda
network.
As members of the Intelligence Committee -- intelligence community, we

have been asked to discuss the exchange and flow of information within the
community and its impact into the events leading up to September llth. In that
context, we’ve also been asked to discuss specifically the investigative efforts
into two of the September llth hijackers. The investigation into the activities
of Khalid al-Midhar and Nawaf al-Hazmi illustrates with acute clarity that
considerable individual effort and collective resources will not always result
in a ~successful outcome. Notwithstanding improvements over thelast few years
within the intelligence community in exchange personnel and information and
despite the extensive work performed by many individuals -- the various
intelligence community, agencies in the war on terrorism -- the desired goal to
protect our country was not realized.
We have all learned that isolated events and unintentional incidents of

inaction do not remain in a vacuum. Individually, and certainly collectively,
they have consequences. Through a collaborative effort within the community,
the CIA received information that a meeting of individuals possibly associated
with Osama bin Laden’s terrorist network took place in Kuala Lumpur, Malaysia,
in early January 2000.
Among those attending themeeting were Khalid al:Midhar and Nawaf ~.

Alhazmi, along with key UBL operative Khallad. .At the time al-Midhar and
Alhazmi were arriving in Malaysia, the CIA advised the FBI of their interest in
these two individuals .and indicated they would keep the FBI advised of further
developments, if warranted. In March 2000, the CIA received information
concerning the reentry -- or the-entry of-al-Midhar and Alhazmi into .the United
States.
In January 2001, the CIA obtained information which indicated a key

individual associated with .the USS Cole bombing had also attended the
aforementioned Malaysia meeting. This was important, because it.placed al-
Midhar and Alhazmi in direct contact with a key operative of UBL.
During the spring and summer of 2001, analytical personnel from the CIA
and FBI were working together to pursue avenues into the bombing of the USS
Cole. On August 23rd, 2001, the CIA advised FBI HQ, Then, on June 13th, 2001,
al-Midhar obtained a U.S. visa in Jeddah, Saudi Arabia, using a Saudi Arabian
passport and provided his intended address as the Marriott Hotel,New York’Cityo
This visa wasvalid until October 3rd, 2001.
The same day, the FBI received a copy of a CIA communication to watch-
list al-Midhar. This information was e-mailed to ~BI New York on August 24th,
2001. On August 24th, 2001, EBI HQ received a copy of al-Midhar’s visa
application, the United States in Saudi indicating al-Midhar had sponsored his
own travel to the United States. The application listed al-Midhar’s plans to
remain for one month, to depart ~August 4th, 2001. Subsequent information
received from INS determined al-Midhar returned to the~United Sta£es on July
4th, 2001, on a B-1 visa, flying to New York City, and that he would stay at the
OLC 000695
Marriott Hotel in New York. This information was immediately relayed verbally
to the CIA and FBI New York.
On August 27th, 2001, headquarters verbally advised New York of the

information contained in the headquarters e-mail to FBI New York on August 24th,
2001, and further informed FBI New York that headquarters strongly suggested the
initiation of a full intelligence investigation to locate and fully identify the
individual. The FBI possessed no information relevant to al-Midhar’s possible
involvement .in a terrorist attack but focused on al-Midhar because he had
attended a meeting with a key individual associated in the USSCole bombing. On
August 28th, 2001, a full briefing was provided to FBI New York in order to
initiate that full field investigation to locate a~d identify al-Midhar. On
August 30, 2001, FBI agents contacted security for the Marriott Corporation,
which agreed to do a search of all guests registered at the Marriott hotels in
the entire New York metropolitan area. On September 5th, 2001, they advised
their search for al-Midhar was negative. On September 10th, 2001, based upon
previously received intelligence, a lead was sent to FBI Los Angeles to conduct
a similar search with a security officer from the Sheraton Corporation. This
lead was not covered until after September llth attacks and was also negative.
As you’re probably aware, there was a debate between headquarters and

Uhe FBI New York personnel on whether to open an intelligence or criminal
investigation on Ithalid al-Midhar. There are two important points to be made in
response to this issue. First, the decision to handle al-Midhar investigation
as an-intelligence investigation was made under procedures which were designed
to prevent terrorist acts.
.Second, although it is not uncommon to open a parallel criminal

investigation, we did not have specific, credible evidence of criminal activity
to do so.
The restrictions of intelligence agencies and foreign services in the

sharing of information within our agency limited the free flow of that
information. This contributed to our inability to pull together related
information. It was frequently difficult to obtain the originating agency’s
concurrence to pass the information to criminal investigators, even for lead
purposes.
Īn terrorism cases, this became so complex and convoluted that in some.
FBI field’offices, FBI agents perceived walls where none actually existed. In
fact, one New York-supervisor commented that, quote, "So many walls had created
a maze," unquote, which made it very difficult for the criminal inves:tigators.
Internally, the FBI adheres to the restrictions and caveats placed on

intelligence information by the originating agency or foreign services. The
need for these restrictions and caveats to protect sources and methods of
intelligence information is obvious and needs no further explanation.
Routinely, intelligence agencies evaluate their disseminable

information to determine whether protections basic classification are required.
If caveats are required, such as originator controlled, or ORCAN, the classified
information remains under the control of the originating agency. The FBI is
prohibited from disclosing information originally classified by another agency
without its authorization.
At times, criminal investigators are also frustrated by wall procedures

imposed by the Foreign Intelligence Surveillance Court. In a class by itself,
OLC 000696
FISA information is controlled by statute. Although the statute does not
preclude the passing of information to criminal investigators, there are
restrictions on the use of the information.
The FISA Court and Department of Justice have been cautious through the
years of permitting intelligence and criminal investigators to become closely
associated, for fear their cooperation would be interpreted as an attempt to
circumvent the criminal process. Accordingly, the FBI has been required to
maintain a certain degree of separation between intelligence and crimina!
investigators. With the enactment of the Patriot Act after September llth, it
is much clearer that the sharing of information is a government policy issue.
Some procedures were relaxed, and the policy to share was codified. Post-
Patriot Act, the only sharing obstacles relate to the possibility of
prosecutorial control over the FISA process. By court order, the FBI is
prohibited from discussing a substantive FISA issue with prosecutors unless the
Department of Justice Office of Intelligence Policy and Review is invited to
:participate. The same requirement does not pertain to contact between
:intelligence and criminal agents, although criminal agents cannot control the
FISA or the FISA process.
Mr. Chairman, the remainder Of my statement as regards the

~nternational jihad movement will be submitted for the record, in the interest
of time., That concludes my oral remarks, and I’ll be happy to answer questions.
SEN. GRAHAM: Thank you, Mr. Rolince.
The FBI agent.
FBI AGENT: Mr. Chairman, .Vice Chairman Shelby, Ranking Member Pelosi
and members of the committees, I’m a special agent of the Federal Bureau of
Investigation assigned to the New York field office. I appreciate your
invitation.to appear before your committees today in connection with your joint
inquiry into the tragic events of September llth, 2001. I fully understand the
~espon~ibility with which~you have been charged.. I intend to cooperate with you
and answer, your questions to the best of my ability.
I am speaking to "you today as an individual agent. The views I

express, therefore, are my own, not necessarily those of the~FBI, although I
believe.that-my concerns are~shared by many fellow agents. I hope by appearing
here today that I might, in some small way, to assure the men and women of.the
¯ FBI-and others in the intelligence community have access to the information
necessary to carry out their sworn duty to protect the people of the United
States.
I have no wish, in the remarks that follow, to be critical-of any

person. Whether they are at FBI headquarters or in the field, FBI personnel
work their hearts out to perform their mission. I am before you today to
address practices that frustrate us all.
Much has been written about how the FBI does not share information with
local law enforcement agencies. But the American people must realize that the
FBI does not always have access to the information itself, nor is all the
information the FBI possesses available to all of its agents. It is my belief
that the former problem is due to fear that the bureau may run ahead or mess up
current or future operations of one of o~r sister agencies, and the latter
primarily due to .decisions that have snowballed out of the Foreign Intelligence
Surveillance Act, FISA court.
OLC 000697
A concept known as "the wall" has been created within the law
enforcement and intelligence communities. From my perspective, in the broadest
sense, "the wall" is an information barrier placed between elements of an
intelligence investigation and those of a criminal investigation. In theory,
again, same perspective, it is there to ensure that we, the FBI, play by the
rules in our attempts to gather evidence in a criminal case and federal
prosecution.
I have tried to write this statement knowing full well that its
contents and my testimony will be studied by the enemy. Along those lines, much
detail has been left out. And if I may humbly remind everyone that questions
regarding sources, other possible operations, investigative methods in this
forum should be approached with extreme cautionJ
As an aside, may I say I firmly believe prevention is best served by

allowing the law enforcement community, federal and local, to conduct sound,
sometimes exigent investigations with access to’all information that the U.S.
government and liaison governments possess. These investigations build sources,
evidence, connections, and information, and are not simply reactive. I would
like to assure the American people that in my almost seven years in the bureau,
the FBI has always been in the prevention-- if I may -- game.
Before going further, I would like to offer a few words of introduction

so you’re aQare of the background that I bring to the questions before the
committee.
Between 1985 and 1993, I served in the military. .After a brief stint
in the private sector, I joined the FBI in December 1995 and was assigned to
¯the New York Field Office’sJoint Terrorism Task ForGe in July 1996. From July
1996 through October 1997, I served on the TWA Flight 800 investigation. On
October 1997, I.was assigned to the squad that had responsibilities for Taliban
and Pakistan matters. Following the East Africa embassy bombings in August 1998,
¯ I.waspart of the first team on the ground, spending a cumulative total of Over
30 weeks abroad investigating the bombings. In early 1999, I joined the New
York Field Office’s overall Osama bin Laden case squad, which is responsible for
theoverall investigation of UBL and al Qaeda. Immediately after the attack on
the USS Cole in Aden, Yemen, on October 12th, 2000, I was assigned as one of the
-case agents who worked on that case, Aden Bomb, until the.attacks of September
llth, 2001. Since then, I have also worked on general UBL matters and have been
deployed 12 weeks overseas, working alongside other intelligence community
components. I mention this fact because although there are issues about the
sharing of information with FBI investigators by the CiA, my experience between
the FBI and the intelligence community is that we have worked success.fully
together. The people of the United States should take great pride in the
s.ervice and sacrifice of the men and women of all the U.S. agencies in DOD
deployed overseas, many of whom I’ve had the privilege of working with overseas.
Briefly, "the wall," and implied .... interpreted, c~eated or assumed

restrictions regarding it~ prevented myself and other FBI agents working a
criminal case out of New York Field Office from obtaining information from the
intelligence community regarding Khalid al-Midhar and Nawaf Alhazmi in a meeting
on June llth, 2001.
At the time, there was reason to believe that al-Midhar and Alhazmi had
met with a suspect connected to the attack against the USS Cole. The situation
came to a head during the fourth week of August 2001 when, after it was learned
OLC 000698
that al-Midhar was in the country, FBI HQ representatives and the FBI New York -
said that FBI New York was compelled to open an intelligence case and that I
nor any of the other criminal case investigators assigned to track al Qaeda
could attempt to locate him.
This resulted in a series of e-mails between myself and the FBI HQ

analyst working the matter. In my e-mails, I asked where this new wall was
defined. I wrote on August 29, 2001: "Whatever has happened to this, someday
someone will die, and, wall or not, the public will not understand why we were
not more effective in throwing every resource we had at certain problems. Let’s
hope the national security law unit will stand behind their de~isions then,
especially since the biggest threat to us now, UBL~ is getting the most
protection." I was told in response that we at headquarters are all frustrated
with this issue; these are the rules, and SLU does not make them up.
I hope, Messrs. Chairmen, these proceedings are a time to break down

the barriers and change the system which makes it difficult for all of us,
whether we work at FBI HQ or in the field, at the FBI or elsewhere, to have and
be able to act on information that we need to do our jobs. Personally, I do not
hold any U0’S. government-affiliatedindividual or group of individuals
.responsible for the attacks on September llth, 2001. I truly believe that if
given a chance, any one of them would give or sacrifice anything to have
prevented what occurred. Then and now, I hold the system responsible.
Information is power in the system of intelligence and law enforcement. This
will never change, nor could or should it.
In addition to the wall, the system as it currently exists, however,

seduces some managers, agents, analysts and officers into protecting turf and
being the first to know and brief those above. Often, these sadly mistaken .
individuals use. the wall described herein and others, real and imagined, to
control that information.
I myself still have two key questions today that I believe are
important for this committee to answer. The detailed answers to them will
deserve and beafforded the scrutiny of a nation and must stand the test of time
and exhaustive investigation.
First,. if the CIA passed information regarding al-Midhar and Alhazmi to

the FBI prior to J~ne ii, 2001 -- prior to that June ii, 2001, meeting, in
either January 2000 or January 2001, then why was that information not passed,
either by CIA or FBI headquarters personnel, immediately to the New York .case
agents, criminal or intel, investigating the murder of ~7 sailors in Yemen when
more information was requested. A simple answer, "the wail," is unacceptable.
Second, how and when did we, the CIA and the FBI, learn that al- Midhar
came into the country on. either or both occasions in January 2000 and/or in July
2001, and what did we do with that information? On September ilth, 2001, I spent
the morning on the streets with other agents and Joint Terrorism Task Force
personnel around the World Trade Center, providing whatever help we could. I
and several of my co- workers were within blocks when both towers came down.
Within minutes of the second strike on the southern tower, we asked

(the/a ?) senior fireman heading towards the south tower what we could do. At
the time, he was getting out of his fire truck, looking at the towers. By the
grace of God, he turned to us and replied that he did not know what we could do,
.but’that we were not going anywhere close to the buildings wi~thout a respirator.
I do not know who he was, ~but I truly believed he saved our lives. I also
OLC 000699
believe that, based on the direction that he was looking, toward the southern
tower, that moments later he entered that tower and perished in the attack.
It’s taken a while for a response, but I believe that the task before
this committee, in some small way me being here today is what the brave fireman
is telling us, all of us, what we can do.
If we do not change the system, if I might say again, someday, someone

wil! die, and wall or not, the public will not understand why we were not more
effective in throwing every resource we had at certain quote/unquote "problems."
Thank you for this opportunity and privilege of appearing before you
today. I would, of course, welcome your questions.
SEN. GRAHAM: Thank you, sir. Mr. Kojm. Have I come close to
correctly pronouncing your name?
MR. KOJM: Mr. Chairman, you’ve hit it exactly correctly. Thank you.
Mr. Chairman, Mr. Vice Chairman and Madame Ranking Member, the
Department of State is pleased to testify this morning about the Inte!ligence
and Research Bureau’s TIPOFF program.
SEN. GRAHAM: Mr. Kojm0 could you bring your’mike a little bit closer?
MR. KOJM: Let me begin, if I may, by discussing the development and

mission of the TIPOFF program. Each year, the United States welcomes millions
for foreign visitors, but entry into this country is a privilege for which
foreigners must qualify when they apply for a visa or arrive at.]~_U.S~ port of
entry. This screening is necessary to keep out undesirable foreigner~,
certainly including those with terrorist affiliations. This screening relies
largely on visa and border lookout systems maintained by the Department of
State, INS and Customs.
TIPOFF was created in 1987 for the express purpose of using biographic
information drawn from intelligence products for watch- listing purposes. In
1987, TIPOFF began keeping track of suspected terrorists literally with a
shoebox-~nd 3X5 cards. Since then, the program his evolved into a sophisticated
interagency counterterrorism to01 specifically designed to enhance ~the security
Of our nation’s borders.
TIPOFF’s mission today is to protect the United States by drawing upon

diplomatic, intelligence, law enforcement and public-source information to
watch-list, detect and prevent known or suspected terrorists and others from
~obtaining visas or from entering our country. Because TIPOFF is part of the
intelligence community, it does not maintain records on u.s. citizens and
permanent resident aliens. When it is discovered that the subject of a TIPOFF
record is a U.S. citizen or a legal permanent resident, the information is sent
~to the FBI, which has jurisdiction over investigating such.persons. And that
record is expunged from the TIPOFF system.
Now, the TIPOFF watch-list system works in the manner of providing

operational support to the Bureau of Consular Affairs at the Department of State
and to the U.S. Immigration and Customs officers at ports of entry. TIPOFF
accomplishes this by making available declassified biographic information, name,
date and place of birth, nationality and passport number drawn from highly
OLC 000700
classified intelligence products or sensitive law enforcement or diplomatic
reports.
Consular officers abroad have on-line access to the Consular Lookout

and Support System, or CLASS, as it’s known, which contains the unclassified
names and other biographic data supplied by TIPOFF, among other items. These’
officials are required by law to check CLASS to determine if a visa applicant
has been watch-listed. If that check of a name produces a hit against the
applicant’s name, the consular officer may not issue the visa until the
department has responded to the officer’s electronic message requesting guidance
as to whether or not the applicant may be ineligible for a visa.
Back in Washington, the TIPOFF staff then makes the highly classified
information underlying the !ookout entry available to authorized consular and
legal experts in the department so that they can make a reasoned determination
as to whether the U.S. government has sufficient information available to deny
the suspected terrorist’s visa request.
TIPOFF follows a similar process to assist INS in deciding if an alien

should be prevented from entering this country through border inspection points.
Now, the TIPOFF..st~ff coordinates all hits on names it has placed in

CLASS with the FBI and other agencies, alerting them that a suspected terrorist
has applied for a visa. In some cases, this process has enabled the
exploitation of operational opportunities obtained through foreknowledge of
pending terrorist travel and has resulted in the surveillance or arrest of
suspects upon their entry into the country. Most often, however, there is
inter-agency agreement that the applicant’s visa should be denied on terrorism
grounds.
The consular officer has ultimate authority in determining an

applicant’s admissibility, but the consular officer will, in these cases, rely
heavily on the securi.ty advisory opinionrendered by the department’s Bureau of
Consular Affairs, which is often a product of inter-agency consultation.
in. some cases, the entry may indicate past terrorist activity but no
current threat, and a waiver of ineligibility may be requested from the attorney
general; for example, to admit someone for important U.S.- government interests~ "
.such as to facilitate peace negotiations. But, in point of fact, in most cases
the personis denied.
From its inception in 1987 to September 2002, information shared by the

intelligence and law enforcement communities with the TIPOFF program has enabled
the Department of State to detect and to deny visas to nearly 800 hijackers,
hostage-holders, assassins, bombers and other terrorists or to facilitate law
enforcement action upon their arrival in the United States.
Since the ~IPOFF interface with INS and Customs began ~during the Gulf
War in 1991, INS has been able to intercept and deny entry to or arrest an
additional 290 terrorists from 82 countries at 84 different ports of entry. The
cooperation exhibited in the TIPOFF program has thus been a joint success Story
for the diplomatic, law enforcement and intelligence communities in enhancing
the security of our nation’s borders.
Now, turning to the hijackers under discussion today, late on August

Z3rd, 2001, after normal closing hours, the State Department did receive a
request to watch-list four bin Laden-related individuals in the TIPOEF data
OLC 000701
base, two of whom later were identified as hijackers -- Khalid al-Midhar and
Nawaf Alhazmi.
The communication suggested that both al-Midhar and Alhazmi were in the
United States on that date, August 23rd. The communication included the
information that al-Midhar and Alhazmi had arrived in the United States on
January 15th, 2000 at Los Angeles Airport and that al-Midhar had departed the
United States on June 10th, 2000, but returned to the United States at JFK in
New York City on July 4th, 2001. There was no record that either al-Midhar or
Alhazmi had thereafter departed the United States. There was no record of the
arrival or departure of the other two individuals watch-listed.
On the morning of Friday, August 24th, the TIPOFF staff saw the report
for the first time and created records on all four of the suspected terrorists.
TIPOFF watch-listed them in CLASS and tagged the records for review by an INS
officer later that day. That afternoon, a TIPOFF staff member hand-carried the
report to the Bureau of Consular Affairs with the request that they consider
revokin~ the visas of al-Midhar and Alhazmi.
The visa office in turn confirmed that both had, in fact, received
visas as reported and that another of the four individuals cited in the
communication had been denie~ visas several times at different posts because
consular officers believed him to be an intending immigrant. The multiple
denials were not based upon any information that he was a terrorist. There was
ino consular record that the fourth person watch-listed had ever applied for a
visa.
No actions could be taken on Alhazmi’s visa because records indicated

that. it had expired. The visa office revoked al-Midhar’s visa on Monday, August
27th. It is important to note and has already been stated here that the
important derogatory information in this communication was simultaneously
provided to other federal agencies.
¯ .. TIPOFF was originally designed to help prevent precisely what occurred.

on September llth. TIPOFF has consistently demonstrated that if it obtains .
~information on which it can take action to watch-list suspected terrorists, it
has.the mechanisms in place to ensure those suspects can be detected as they
apply for visas or arrive at ports of entry.
To that. end, since September llth TIPOFF has been receiving information
on terrorists from ~all sources at a rate far greater than before the attacks.
¯ The tremendous increase in TIPOFF’s workload is largely a function of the
intelligence community’s war footing that has produced ever-increasing amounts
of terrorist reporting, much of which has been derived from documents retrieved
in Afghanistan, from numerous al Qaeda suspects captured by the U.S. and other
forces.
The CIA in particular is bringing information to TIPOFF’s attention

through use of the Visas Viper program reporting channel, an adjunct of the
TIPOFF program. The Visas Viper program was started after the 1993 bombing
of the World Trade Center as a means of assuring the proper flow of information
concerning individuals linked to terrorist activities. About 34,000 of TIPOFF’s
nearly 80,000 records are now comprised wholly or in part of data from the ViSas
¯ Viper program°
TIPOFF is now the primary focal point for entering intelligence

community information on know~ or suspected terrorists into CLASS, the consular
OLC 000702
lookout system. However, TIPOFF is not adequately staffed to handle the
increased workload. The current small, dedicated staff of TIPOFF come in
frequently after hours, nights, weekends, wee hours, in response to operational
requirements, particularly when TIPOFF receives urgent inquiries from ports of
entry where aliens are arriving on a continuous basis.
Senior levels of the Department of State and the intelligence community

are in discussions about how to expand TIPOFF to become a national lookout
center. This would enable TIPOFF to do all the things it has successfully done
to date/ but more importantly, also to interface with more agencies to do more,
to do it better, and to do it faster.
I appreciate this opportunity to explain the TIPOFF prOgram and I look

forward to your questions. Thank you.
SEN. G~: Thank you, sir. In the hearings of the joint inquiry, we
use a procedure in which four lead questioners are identified, two from each
committee. Each of the questioners will have 20 minutes to present their
questions and receive responses.
The designated lead questioners for today’s hearing are Senator Levin,
Representative Burr, Senator KyI and Representative Peterson, and th~y will
question in that order. After they have completed their questioning, we will
proceed to other members of the committees, five minutes each, with additional
¯~ro.unds as necessary.
SEN. DIANNE FEINSTEIN (D-CA) : Mr. President? Mr. Chairman?
SEN. GRAHAM: Yes.
SEN. FEINSTEIN: May I ask, is there going to be a lunch break? Some of

us have --
SEN. GRAHAM: It was our intention to break at i:00 and reconvene at

2:00~
SEN. FEINSTEIN: Thank you.
SEN. GR!hHAM: Senator Levin. SEN.’CARL LEVIN (D-MI): Mr. Chairman, -

thank you.: I want to focus on the 18-month period, starting in January of 2000.
But I want to spend a few minutes describing the environment leading-up to that
¯ date. Ms. Hill began her very, very thorough and very thoroughly discouraging
presentation with a statement that the story begins in December 1999 with the
intelligence.community on heightened alert.
And I prepared a chronology which I.’ll share with all of the members,
which, to summarize, go back a few years before her beginning of the story, in
January of ’96, when the CIA created a sp@cial unit to focus on bin Laden; in
February of ’98, when bin Laden issued a public fatwa authorizing and promoting
attacks on U.S. civilians anywhere in the world; May 1998, in a press conference
when bin Laden says he’s going to bring war to America; in June 1998, when the
intelligence community obtains information from several sources that bin Laden
is considering attacks in the U.S., including Washington and New York; August
1998, when the intelligence community obtains information that an unidentified
group from the Middle East are going to fly an explosive-laden plane from a
foreign country into the World Trade Center; September 1998, when the
intelligence Community obtains information that bin Laden’s next operation could
OLC 000703
possibly involve flying an aircraft loaded with explosives into a U.S. airport;
October 1998, when the intelligence community obtains information that al Qaeda
was trying to establish an operative cell within the United States; the fall of
1998, when the intelligence community obtains information concerning a bin Laden
plot involving aircraft in New York-Washington areas; and then, in December ’98,
as we heard yesterday or the day before, when DCI Tenet provided some written
guidance to presumably everybody in the CIA declaring that the United States is
at war with bin Laden and al Qaeda. That’s December 1998, before the story
begins.
The spring of ’99, when the intelligence community obtains information

about a planned al Qaeda attack on a United States government facility in
Washington; August 1999, when the intelligence community obtains information
that bin Laden has decided to target for assassination the secretary of State
and secretary of Defense and the DCI; December 1999, when Ainmed Ressam is
arrested as he attempts to enter the United States in the State of Washington
from Canada with chemicals and detonator material -- his intended target is Los
Angeles Airport; December 1999, when the DCI communication to CIA employees
warns of mounting threat of al Qaeda attack to U.S. interests abroad and in the
United States, urging them to do whatever is necessary to disrupt bin Laden’s
plans.
That’s the background. That’s what happens when, in December of 1999,

the CIA gets information from its own sources that two men -- the men we’re
fol!owing, al-Midhar and Alhazmi, are coming to Malaysia. That is not rumors.
That is confirmed by the CIA’s own people.
And then they come to Malaysia in January of 2000. And the CIA, we
know, monitored the al Qaeda members, there, including the two people at
issue. They knew that these two people had, at least in one case, already had a
visa to go to the United States. That information was not put into the watch
list. It was not shared with the FBI. It knew that al-Midhar had a multiple-
entry visa, as a matter of fact, and knewof his ties to al Qaeda. Two failures ¯
there -- not placed on the watch list, not shared with the FBI.
Then in March of 2000, the CIA found out that Alhazmi had entered the
United States at Los Angeles International Airport.on January 15~h, not shared
-with the FBI, even though they knew he entered the United States; not shared
with the watch list.
Then another event Occurs in October of 2000. This is a watershed

event. This is the Cole being blown up. And by January of 2001, the CIA knows
that the Cole planner was at that January 2000 meeting in Malaysia. They knew
that a man named Khallad had been the center of that attack and a planner and
that Khallad was at the January 2000 Malaysia meeting with the two people we’re
talking about, al-Midhar and Alhazmi.
CIA stilldid not place either individual on the watch list; still no
notice of known visas -- and I emphasize that -- known visas to the FBI. They
may or may not have shared with the FBI earlier that one of them had a passport.
But in terms of visas to enter the UnitedStates, and the fact that one at least
had entered the United Shates, still CIA doesn’t place names on the watch list;
still no notice to the FBI.
And now we have a direct link to the killer or the killers of Americans
on the USS Cole, direct link between, these two men, al-Midhar and Alhazmi, to
the planner Khallad of the al Qaeda attack on the USS Cole.
OLC 000704
I want to proceed now to the June llth, 2001 meeting, because that’s
what I really want to focus on, and then the events after that. But that’s a bit
of the background. And if I’m wrong on any of that, I would assume that our
witnesses would correct me.
On page nine, at the bottom of Ms. Hill’s report, it stated the

following: "On June llth, 2001, FBI headquarters representatives and CIA
representatives met with the New York FBI agents handling the Cole
investigation. The New York agents were shown but not given copies of the
photographs that they -- and told that they were taken in Malaysia." They
weren’t told that; still information being withheld. This is after the Cole;
information withheld from the FBI.
One of the New York agents recalled that al-Midhar’s name was being
mentioned. He also recalled asking for more information on why the people in
the photographs were being followed. So we had the FBI now asking the CIA, "Why
are you following these folks?" He recalled asking for more information on why
they were being followed and for access to that information. The New York
agents were advised they could not be told why al-Midhar and the others were
being followed. This is truly unbelievable, I’ve got to tell you all. This is
extraordinary. This has got nothing to do with information which can’t ~ross a
wall. This has to do with leads which are not shared.with the FBI, just simple
leads, information which is so critical.
Now, an FBI headquarters representative told us in her interview

that the FBI was never given specific information until it was provided after
September llth, 2001, and here’s where I want to pick up with our witnesses.
The CIA analyst who attended the New. York meeting, acknowledged to the
joint inquiry staff that he had seen the information regarding al- Midhar’s U.S.
visa and Alhazmi’s travel to the U.S., but he stated that he would not share
information outside of the CIA unless he had authority to do so and unless that
was the purpose of the meeting.
Now, June llth, New York: Now we’ve got the FBI asking the C~A, "Would
you tell us why you’re following these two guys?" And according to the CIA.
¯ analyst to our staff, that information was denied because no authority to do. so,
unless that’s the purpose of the meeting.
So I ask our CIA officer, as far as you know is our staff report
correct?
CIA OFFICER: I wouid -- the whole staff report?
SEN. LEVIN: No. What I read to you.
CIA OFFICER: Could I just limit my comment to the June llth meeting
for right now?
SEN. LEVIN: Yes. Just on that.
CIA OFFICER: Okay.
SEN. LEVIN: Is that correct what I just read?
OLC 000705
ClA OFFICER: First of all, I would distinguish between one CIA officer
saying I don’t feel comfortable with sharing this information with a particular
FBI individual from the entire corporate body of the CIA and its policy.
The second thing I would say is that the CIA officer --
SEN. LEVIN: I’m just asking you if this happened.
CIA OFFICER: Not exactly that way. SEN. LEVIN: Okay, then tell us
how it happened.
CIA OFFICER: I wasn’t there, but what I will say is that when the CIA
officer said, "I’m not going to give you, Mr. FBI Agent, this information," he
was in the company of an FBI headquarters analyst who had the information. The
information was in the hands of the FBI. My interpretation of this event at
which I wasn’t there is that the analyst was being conservative ~nd basically
all I can do is go into a dangerous kind of speculating with his head, but --
SEN. LEVIN: No, no, I’d rather you not speculate. You weren’t there.
CIA OFFICER: I wasn’t there.
SEN. LEVIN: All right, well let me ask you --
CIA OFFICER: But this is important, because he was there with FBI
people and this is not CIA withholding information from the FBI. There was
something else at work here ~that I’m not quite sure of, because we were in
support of the Cole investigation while this exercise was involved.
SEN. LEVIN: Yeah. I just want to move to the FBI agent, who I believe
was there.
FBI AGENT: Yes, sir.
SEN. LEVIN: Before you begin I just want to say something~ that you
¯ will never receive the public recognition that you deserve for What you tried to
do; for your e-mails, for your efforts to break down walls,~ real ~and imaginary,
for your.effort to break through bureaucracy. And~if I have time, I want to.ask
you about What happened on 9/11.
But in any event, I just want you to know that you deserve that
recognition, and I’m sorry it can’t be public recognition°
Having said that and not knowing how you’re going tO answer the
question, you were at this meeting?
FBI AGENT: Yes, sir. First off, I’d like to acceptthat but on behalf
of all the agents that I work with.
SEN. LEVIN: And I knew youwould do that. I expected no less from

you. You were at the meeting. Was that accurate, that staff report?
FBI AGENT: As best as I can recall, sir. I wouldn’t be able to add
anything to your comments. Fromwhat I reme~er, it’s exactly how it occurred.
And there is still some disagreement. However, my belief of how events happened
to this day are that the analyst herself did not know all the information that
the CIA had at that time, and I know there are different versions of that so
OLC 000706
I don’t want to speculate about that. But my understanding of events today is
that the analyst did not have access to that information either, because we had
intelligence agents from the bureau that were in the room at the time and the
rest of us criminal agents, even though we were frustrated, could have walked
out of the room and then received that information.
SEN. LEVIN: Did someone at the meeting say he could not share
information outside of the CIA unless he had authority to do so and unless that
was the purpose of the meeting? Do you remember that?
FBI AGENT: Not those exact words, but I was told that he could not
share that information with me and my agents at the time and that that
information would be attempted to be passed in the following days, weeks or
months.
SEN. LEVIN: Do you know whether it ever was passed in the succeeding
days?
FBI AGENT: No. In fact, I’ve had several conversations with the
analyst after that, because we would talk on other mattersi and almost every
time I would ask her, "What’s the story with the Midhar information, when is it
going to get passed, do we have anything yet, when is it going to get ~passed,,,
and each time I was told that the information had not been passed yet. And the
sense I got from here, based on our conversations, was that she was trying as
hard as she could to get the information passed or at least the ability to tell
us about the information.
SEN. LEVIN: Mr. Rolince, do you know whether or not the FBI agents
were told by the CIA officials at that meeting that they could not know why the
CIA was following al-Midhar and the.others that met in Malaysia? Do you know
whether that information was passed at that time, and if not why not?
MR. ROLINCE: No, sir. I was not at the meeting. I have talked
extensively to our analyst that was there and as my coileag~e noted she is of
the position, and I know your staff has talked to her, that she,. in fact, gave
~our New York. agents everything that she had.
SEN. LEVIN: She said that she did give?
MR. ROLINCE: In other words, what was ~assed at that meeting

information --
SEN. LEVIN: Well, according to our staff report, she stated -- excuse
me -- he stated he could not share information outside of theCIA unless he had
authority to do so. Do you know if that’s accurate or not?
MR. ROLINCE: No, sir. I don’t know if that’s accurate.
SEN. LEVIN: Okay, when you said "she" that was an FBI analyst. You
don’t know what the CIA analyst said at that meeting? MR. ROLINCE: That’s
correct.
SEN. LEVIN Okay.
Now we’ll move -- and I have to rely on the staff report as being
accurate that there was a denial of information at that time.
OLC 000707
Now we move onto August 22nd. An FBI analyst assigned to the counter-
terrorist center there is now working and also assigned to the CTC, determined
that Alhazmi and al-Midhar had entered the U.S. in January 2000 and al-Midhar’s
June 2000 reentry visa allowed him to stay until August 22, 2001 and at that
point they were watch listed. Is that correct, as far as you know?
MR. ROLINCE: Yes, sir. That’s correct.
SEN. LEVIN: That is when it happened.
I think we have to know precisely, and perhaps we have to talk to the

people other than the FBI agent who is here who confirms what our staff report
says to the best of his knowledge. I think this is such an important question
that if there’s any difference on this from the staff report we should hear from
the CIA, and I would ask our CIA officer who is here to take that request back
and if there is a difference that that officer had recollection-wise as to what
happened at that meeting, whether or not she did, in fact, refuse to let the FBI
know in June of 2001 why the CIA was tracking these two men, why they didn’t say
at that time that we knew that these two men had visas to the United States, the
FBI:still didn’t know that, that still wasn’t on the watch list as of June of
¯ 2001. NOW, this is 16 months after the CIA knew that these men had visas to
come to the United States, had entered the United States. Still, according to
our staff report, there is this refusal on the part of the CIA to share this
information. And this is critically important information.
I ~think We’ve got to have accountability in this system~and that

failure is massive. And if that information should have been shared and should
have been shared a lot earlier and if watch list should have been entered, and
if.FBI Should have been notified, which it seems to me it’s clear al~ <hat
should ~ave happened, then we’ve got to know who is responsible for those
failures. If we’re going to really break down walls., real and imaginary, we’ve
go to have accountability.
If I have one minute left, I’d like to ask our FBI agent .to tell us
what~happened on 9/11 as to what he tried to do and as to a passenger list, I
understand, if this is okay, non-classified.
FBI AGENT: No, we had come back from the buildings all in a state of
shock and there was~a brief at that time by the analyst at headquarters over who
was-actually on the manifest. And when we heard the name-Khalid al-Midhar
obviously I was upset, made no bones about saying the fact that I was upset,
and I know the analyst was very upset also, so it wasn’t just necessarily on one
side but it. was in the afternoon during our conference call that we -- and I
remember explaining this is the same Khalid al-Midhar that we had talked about
for three months and I remember a supervisor at the time saying, and rightly so,
that they had done everything by the book with regards to at least what the FBI
could do based on current understanding of what the law were, but at the same
point in time realizing how ludicrous that statement sounded to meo It just
didn’t sit well.
SEN. LEVIN: From what I know of the information that was being
sough~, there is no barrier to that information being.shared, that these persons
were suspected of being terrorists -- that could have been shared with the FBI;
the fact that they were suspected of being in the United Stat.es -- that could
have been shared with the FBIo I don’t know of any prohibition in law in terms
of messing up criminal investigations for that information, just that
information not to have been shared.
OLC 000708
The reason that June meeting is so critical -- there are many reasons
why it’s critical, but one of them is, Mr. Chairman, that al- Midhar was out of
the United States in June of 2001, he came back in, as I understand it, in July
of 2001. If he had been put on the watch list then at that. June meeting he
could not presumably have come back into the United States and I think that
there is -- you know, it’s one thing to say that the dots weren’t connected, and
they weren’t. Even when there was an effort made to connect them at a June
meeting the effort to connect the dots was frustrated.’ It’s another thing when
the dots aren’t even put into the file, when the dots aren’t put into the watch
list, when the information isn’t even shared. That’s even preliminary to
connecting dots is simply to get the dots in place where someone can connect
them. We didn’t even see that, so we have failure piled upon failure here I
believe. I hope there’s going to be some accountability and some answers where
there so far are none, but again I want to thank our witnesses, all of them, and
I want to thank Ms. Hill and her staff for an extremely thorough report, which I
hope will shake up some things.
Thank you, Mr. Chairman.
SEN. GRAHAM: Thank you, Senator Levin.
Congressman Burr.
REP. BURR: I thank the chair.
Let me take the opportunity to thank Senator Levin for a very thorough
¯ chronology. I think it’s safe to say that all of us will deal in this same
’ ~ timeframe, though we’ll choose specific areas hopefully to highlight and to
-.detail. The work of the inquiry staff is, in fact, very detailed but it’s very,
very helpful on many of these issues, if, in fact, we can get succinct answers
from you on specific questions. I’d like to personally start with the period
December 1999 When al-Midhar and Alhazmi are connected for the first time with
individuals suspected in the 1998 East African bombing. It’s .this connection
¯ -that suggests or exposes a plan to meet in Malaysia with a group of unknown
individuals. On January the 5th and 6th of 2000, as we know, these individuals
did meet in Malaysia. Photos were taken, numerous photos of the participants.
On January the 8th Midhar and Alhazmi departed Malaysia. After several
days and additional stops on or around the 15th of January their direction was
the United States, bo£h with valid passports, both with approved visas.
Let me ask our CIA officer, were officials notified of al-Midhar and
Alhazmi’s plans to enter the United States?
CIA OFFICER: As. I noted in my statement, the answer to that is no.

It’s very difficult to understand what happened with that cable when it came in.
I do not know exactly why it was missed. It would appear that it was missed
completely.
REPo BURR: The cable arrived what date?
CIA OFFICER: ~March 5th.
:REPo BURR: March 5th. What transpired between January and the
transmission of that cable being March, that 60-day period?
OLC 000709
CIA OFFICER: Maybe I misunderstood your question; I’m sorry.
REP. BURR: You answered the question. This is a follow-up.
CIA OFFICER: Oh, okay. In January they were the focus of the
operational activity until they left the country for another country. I think it
was the 8th when the sort of crowd broke up, the 8th of January.
And then there is more effort to find out what they were doing next and
then they -- and to understand that, but I can’t deal too much in the detail
between what happened between that point and further on. We had the basic visa
information on Midhar and that wasn’t passed, and the focus is still on trying
to find out what they were up to. When they arrived at their next destination
we were unable to mobilize what we needed to mobilize.
REP. BURR: At this time there was no attempt to put these individuals
on the watch list, correct?
CIA OFFICER: That’s right.
REP. BURR: No discussion. To the best of your knowledge was the EBI
ever notified? CIA OFFICER: The best of my knowledge the intent was to notify
the FBI and I believe the people involved in the operation thought the FBI had
been notified. Something apparently was dropped somewhere and we don’t know
where that was.
REP..BURR: Was there any confusion over the connection of al- Midhar
and Alhazmi with individuals tied to the ’98 East African bombing?
CIA OFFICER: The reason that we were curious about them was we were
trying to understand their connection to the East Africa bombing structure. We
didn’t know what it was. They were new players.
R-EP. BURR: But We knew there was a connection?
CIA OFFICER: We knew there was a connection, an impersonal connection

tothe bombing structure. What you have is a ~hypothesis. You have the
connection to part of it and so we have two first names and then we go off and
we try and find out more about them.
REP. BURR: I realize that from the chronology that Senator Levin had
put together.
Let me ask this though. Was there not an active investigation still
underway to the East African bombing?
CIA OFFICER: Yes.
REP. BURR: So the fact that these individuals were connected could
have.been and probably was pertinent to the current investigation that was
triggered in 1998 with the East African bombing?
CIA OFFICER: Certainly. That,s why, and I would submit that’s why
that information was documented as having been passed to the FBI, and then I
can’t explain why it was not, but the intent was to pass it.
OLC 000710
REP. BURR: Okay. So in March 2000 we have two individuals, al- Midhar
and Alhazmi, with known connections to suspects of the East African bombing that
have now entered the United States. They’ve been there for over two months.
The FBI doesn’t know that they’re in the country. These individuals have not
been added to the watch list.
Let me ask you, Mr. Rolince, whose responsibility is it to track and/or

find these two?
MR. ROLINCE: If we don’t know that they’re in the country?
REP. BURR: Correct.
MR. ROLINCE: If I understand your question -- REP. BURR: It’s an

easy one.
MR. ROLINCE: -- we would have liked to have had that information. I

accept the fact that someone thought that it was passed. It would appear, based
on what we know now, that perhaps it wasn’t. But essentially our counterparts
at the CIA and a number of different services, both law enforcement and
intelligence around the world with whom we work on a regular basis, if given the
opportunity, would track those people.
REP. BURR: In the absence of a verification of a transfer of this

information, the. answer is nobody’s in charge. Is that correct? If the FBI does
not know, if that information is not verified that it was transmitted to you,
then, in fact, you can’t be in charge of tracking these folks?
MR. ROLINCE: I agree with that, Senator, but I would also point out
that on a regular sustained basis, because of.my interaction with the agency
over the years and hav~ng a deputy from the agency in my section, I don’t want
to discount the effort that they make on a. daily or regular or routine basis to
track people that we the FBI are interested ins
REP. BURR: And I realize that our focus here is on this one instance
add I think we all know that there are success stories.
In June of 2000 al-Midhar.depagts the United States. He applies for.a

neQ passport. He applies for.a new visa into the United States and he.simply
checks one box, "I haven’t had a visa."
Mr. Kojm, is it that simple to create new paperwork, new dacuments, new
official documents and to receive official entry into the United States just by
checking that little box, "I haven’t done this before"?
MR. KOJM: Congressman, that’s a consular affairs question and I would

like to ask a colleague of mine from the consular affairs bureau to step up ~o
the mike, if he can~
REP. BURR: Very quickly, if we could.
SEN. GRAPuAM: And under our rules I would like to ask if the individual
on whom you are now calling would please raise his right hand.
(Witness is sworn.)
REPo BURR: Would you step up to the microphone as quickly as you can?
OLC 000711
CONSULAR OFFICER: Your question, sir? REP. BURR: The question was if
this individual, in this case al- Midhar, simply checks the box that says "I’ve
never applied for a visa," yet he had, do we have a process to search and is it
likely that that search took place in this case?
CONSULAR OFFICER: Well, we have an automated process to search to see

if he had been denied a visa previously.
REP. BURR: But if he had had a visa, yet he checked in this particular
case in his application that he had never applied for a visa, do we check for
that?
¯ CONSULAR OFFICER: At that time, no, there was no way to

instantaneously verify whether he had a visa before.
REP. BURR: So he created with the same name,, ultimately the same birth
date on identical application, the only difference was he checked, "I have never
had a visa" and a passport and a new visa was processed for al-Midhar?
CONSULAR OFFICER: That’s correct.
REP. BURR: And, in fact, he came back into the country, correct?
CONSULAR OFFICER: Yes.
REP. BURR: If he had been on the watch list, what would have happened?
CONSULAR OFFICER: When we ran the automatic name check at the time we
processed the application the officer.would have been advised about the results
of that name check to defer all action, to defer the case to Washington°
REP. BURR: how about when he left the United states? If he was on the
watch list, would we have caught him leaving the United States?
CONSULAR OFFICER: Well, I don’t believe so, because the INS normally
does not check individuals upon departure.
REP. BURR: Okay~ To make things worse, in .July of 2000 Alhazmi files
an application for a Visa extension. That extension is for six months. He
lists his Lemon Grove, California address. And that extension is granted, am I
correct?
CONSULAR OFFICER: I believe that would be the proc.ess. Of course,

that’s extensions of stay for individuals already in the United States, which is
under the purview of Immigration and Naturalization Service.
REP. BURR: Would Ohat extension have been approved if Alhazmi had been
on the watch list? CONSULAR OFFICER: Well, certainly if INS had access to such
information at the time they adjudicated his request for an extension --
REP. BURR: Did INS have access at that time to watch list information?
CONSULAR OFFICER: I don’t believe so, but I can’t say for sure. I
don’t believe so, no.
OLC 000712
REP. BURR: The INS at this point in time did not have access to check
the watch list individuals in determining visa extensions?
CONSULAR OFFICER: Well, they had access to it at the ports of entry

when they’re inspecting the individual for admission.
But this is a different process, not at the POrt of entry.
REP. BURR: So an individual in the United States that’s on the watch

list could file for a visa extension and that extension be granted. Is that
what you’re telling me?
CONSULAR OFFICER: Well, again, the INS would have to provide the
definitive answer, because they’re the agency that handles extensions of stay
for individuals already in the United States.
REP. BURR: Let me just point out to the committee and to the joint
inquiry staff that this is something that we need a more thorough understanding
--I hope that’s not the case today, if it was the case then, then we had a
tremendous flaw in our system.
Let me accelerate ahead, if I could, to the Cole bombing in October of

2000. This -- is it safe to say, to our FBI agent, this begins an exhaustive
investigation?
FBI AGENT: Yes, sir.
REP. BURR: In January 2001 thephotographs from the January 2000

Malaysian meeting were shown to an individual who was frequented by the CIA and
mlso by the FBI for their help. The -- this individual identified one of the
people in the photograph as in fact Khallad bin Attash, an individual that is
.now tied to playing a large 6rchestrating role in the Cole bombing. To the FBI
agent, is that correct?
FBI AGENT: Sir, I don’t know about that -- those photographs. We had
two photographs of Khallad. one was a photograph that we had derived from
investigation. And I understand your concerns -- and I can hearit in your
voice -- trying to protect certain things about this with regards to source
information.~ But that photograph; that -- which was an identification
photograph, was shown to the source, and he identified the individual as.
Khallad.
But the two photographs -- the other two photographs are the
photographs taken from prior meetings --
REP. BURR: You’re in fact correct.
FBI AGENT: -- we do not -- I had not -- I’m unaware of that, if those

photographs -- REP. BURR: Let me. ask our CIA officer if in fact that
identification was made.
CIA OFFICER: I don’t believe this has been declassified, sir, and I
have a hard time talking about this in public. I would be happy to talk about
it in closed session in detail.
REPo BURR: Well, I wilI trust that you’re accurate on that.
OLC 000713
CIA OFFICER: As I said in my statement -- maybe I can help with the
answer a bit. As I said in my statement, we had intelligence that supported the
hypothesis. It was not a confirmation, it supported the hypothesis. And in
fact I would prefer to answer the rest of it --
REP. BURR: Is it in fact factual that we now have a photographs --

photograph, that we know one of the individuals is Attash or an individual who
orchestrated, we think, the Cole bombings?
CIA OFFICER: That was a differend photograph.
REP. BURR: I realize that. I’m talking about --
CIA OFFICER: A different individual.
REP. BURR: We have a -- we have photographs that show Khallad bin

Attash, as well as al-Midhar and Alhazmi. Am I correct that there’s a
photograph with all three?
CIA OFFICER: Yes, sir. Yeah.
REP. BURR: Did any of these three go on the watch list at that time?
connections to the East African bombing by two of them and connections to the
Cole bombing by a third. Did any of the three go on the watch list?
FBI AGENT: From what occurred, there actually -- it turns out there’s
-- and I’m -- I know my CIA colleague doesn’t want to get into it too much --
there’s a little bit of confusion. There were four photographs that were taken
out of a certainoperation.
CIA OFFICER: Sir, this shouldn’t be talked about in public. I’m

sorry. It should not be. It’s not -- we can’t go there.
REP. BURR: I will move on, then.
CIA OFFICER: I apologize, but we just can’t --
SEN. GRAHAM: Congressman, if needbe, we will arrange to have further

exploration of this in a closed session. .
REP. BURR: I thank the chairman. I will move forward.
I thin]< there’s some confusion about specific photographs, and I’m

certain.~y.not trying to go to any that are already known and part of, in fact,
the joint inquiry investigation. But" because there’s confusion, let me move
forward for the purposes of all the members. The fact is that at this period,
though/ we still have.three individuals that are targets of investigations, are
connected to investigations, that are not on a watch list.
CIA OFFICER: That’s correct. REPo BURR: Let me go to Mr. Kojm

again. At this period -- between the bombing of the USS Cole but prior to
September the llth, do you have any idea how many people went on the watch list?
MRo : (Aside°.) I thought they made a recommendation that you --
MR. : Yeah.
OLC 000714
MR. KOJM: I believe that information is in Ms. Hill’s statement. And
if that can be passed to me, I can provide that to you.
REP. BURR: While he’s looking for that,, let me move forward, in May
2001. I am told that the May 2001 meeting between the CIA and the FBI, where
they shared photographs is, in fact, an area we can go to.
CIA AGENT: Yes, sir.
REP. BURR: Would the CIA agent agree? Thank you.
Was there any discussion or questions relating to al-Midhar or Alhazmi

at this meeting on May 2001, when these photographs were discussed?
And let me ask Mr. Rolince that.
MR. ROLINCE: I don’t have the substance of exactly what was discussed
in that meeting, sir. I don’t know if al-Midhar and Alhazmi were in fact topics
of that meeting or not.
REP. BURR: Do we have anybody here that was a participant in that

meeting?
CIA OFFICER: To the best of my recollection, I believe I probably

helped to organize the meeting. I don’t remember if I was there or not. But
the purpose was to start going over the -- the FBI had some leads that they were
interested in checking in the course of the Cole investigation, and so the
Midhar and Hazmi thing resurfaced. And this was the beginning of ~the discussion
between the FBI and the CIA that led to sort of the work between them to
resurrect the file, which had been dormant.
REP. BURR: On June the llth, 2001, the CIA went to the New York office
of the FBI and, in fact, passed on to the New York agents who led the Cole
investigation. Am I correct?
FB~ OFFICER: Yes, sir.
REP. BURR: As again .these photographs were shown and discussed, the
records show that Midhar’s name did comeup, yet we’re unclear in the context
that it came up. Can you help to clarify that at all.?
FBI AGENT: Yes, sir. When these photos were shown to us, we had
information at the time that one of our suspects had actually traveled to the
same region of the world that this might have taken place, so we presse~ the
individuals there for more information regarding the meeting. Usually what I’ve
found is coincidences don’t occur too much-in this job. Usually a lot of times
when things are the way they are, it’s because that’s pretty much the way they
are. So we pressed them for information.
Now, the other agents in the meeting recall -- they don’t -- one agent
does not recall the name being given up in the big meeting. There were numerous
sidebars that happened. Regardless of that, at the end of that meeting -- (some
of them say ?) it was just because I was able to get. the name out of the
analyst, but at the end.of that day, we knew the name Khalid al-Midhan, but
nothing else. The context of that meeting was we continued to press them, two
or three times, on information regarding "Why were you looking at this guy? You
couldn’t have been following everybody around the millennium; what was the
OLC 000715
reason behind this?" And we are told that that information -- as I recall, we
were told that information could not be passed and that they would try to do it
in the days and weeks to come. And the end of that meeting was -- I wouldn’t
say it was very contentious, but we certainly were not very happy -- the New
York agents at the time were not very happy that certain information couldn’t be
shared with us.
REP. BURR: In an effort to acknowledge to the chair that I see that my

time has expired, with the indulgence of the chair if I could use the
opportunity to cover several more points without asking questions, it would just
take -- it would be a very brief thing.
~On July the 13th, I think it was an important day because in fact our
CIA officer began to put some of the pieces together that had bugged him. And
that led to finding some of the lost cables or the misfiled cables. That led to
decisions, decisions that did put people on watch lists, decisions that did
begin the ball rolling towards an all-out press by the bureau to look for
individuals that, for numerous reasons, we had not been able to raise to this
profile at that time. But yet in this period, even with the efforts, we
overlooked simple things like the fact that on the application extension,
Alhazmi:had put his real California address, a starting point that might have
led us to his movement somewhere else in the United States and potentially where
he was in that two-week period.
It’s important that we remember that our CIA officer said in his
testimony that this had to do with the threshold for entering names on the watch
list. And I think it’s incredibly important that everybody within the
communi.ty, everybody who has the ability to enter a name on the watch list
Understand what that threshold is; and. if it’s so damn high that what we’ve
looked at in this investigation doesn’t trigger getting over that wall and
putting the name on, then that may have been the first mistake in thisoverall
process.
Mr. Chairman, you have been very generous with your time. I.thank
the witnesses for their willingness, and I hope that the other members can get
into more detail of the last several months.
SEN. GRAHAM: Great. Thank you for -- thank you, Congressman Burr, for
exCellent questions.
Senator Kyl.
SEN. JOHST KYL (R-AZ) : Thank you, Mr. Chairman.
The first thing I’d like to.do is to thank the four gentlemen --five,
now -- who are at the dais, both for their work on the behalf of the American
people and as representatives of the three entities now for which they work.
And I’d like for them to know how much we appreciate their work. I’d like to
have them pass it on to the agents and officers, into the field.
It is Very easy for people to be brilliant Monday-morning quarterbacks

after the fact, when we’ve gone back and tried to piece everything together.
But when you’re in the middle of a battle, it’s not always easy.
Everyone agrees that mistakes were made, that things weren’t done that
could have been done° And in fact some of you have indicated that was a great
frustration to you.
OLC 000716
I suggest that especially during the last decade one of the reasons --
and it’s our job, really, to ask the reasons why -- there are at least three or
fou~ reasons that our committee has begun .to come up with.
Obviously, everybody can make mistakes; I make about 400 a day myself.
And we’re never going to change human nature; we will always make mistakes. But
are there in -- systemic things that resulted in more mistakes than should have
ordinarily been made? And a couple of things that we’ve heard from these
witnesses here today point us in the right direction: one, a lack of resources
-- I’ll get into that in a moment -- and two, risk aversion due to the creation
of walls and misunderstandings about authorities.
And Mr. Chairman, to a large extent, policymakers, including members of

the United States Congress and the executive branch, are responsible for both of
those. And I’m going to get into that in a little bit, too. So I just want to
put that in perspective. But there are two preliminary things I’d like to
comment on. First, I want to note that I share Senator Shelby’s concerns about
sensitive information being revealed in these open hearings. Two of the
witnesses have made the same point, one saying that our testimony will be
studied by our enemies. A~d that’s absolutely true. We are revealing in open
session today a lot of information about how we operate, which will be very
useful to our enemies. That’s not good, and it’s not necessary.
Specifically, with respect to the witnesses before us today, they’ve

all been interviewed by our staff, and we’ve had conversations with some of them
as members. The story has been written. It was presented very nicely by the
~head of our staff here today. So this hearing is for show. This isn’t to
6btain information ....
Now there’s a point at which it’s important for us to present the

information that we’ve derived to the American people, but it should be when
we’re all done. And it shouldn’t be in a setting in which the witnesses are
having.to be. very careful about what they say because they may say something
that’s.classified.
The second thing i’d like to say is that there’s been an implication
that this committee would be a lot more effective if only the FBI and ~he
Department of Justice and the CIA and others would just cooperate with us.
And Mr. Chairman, to some extent, there may be some validity in some of
that. But the other side of the story is that as far as I know, they’ve been
very cooperative.
And to some extent, I think we’re over-reaching. Let me give you an

example° I -- reading through the clips of the Arizona Republic, my home pajer,
today, "FBI agent is asked to testify publicly on Phoenix memo." And I quote
the story in part: "A joint House-Senate intelligence panel" -- that’s us --
"is calling Phoenix-based FBI agent Kenneth Williams to testify next Thursday
for the first time publicly about his July 2001 memorandum warning that
potential terrorists were attending U.S. flight schools.
"Senate Intelligence Committee chairman Bob Graham also says the joint
committee is intending to release its findings on exactly what happened to that
memo after it was sent to headquarters in Washington°" Quote~ " ’The report is
done’ " -- end quote -- " said ~raham, in an interview on Thursday." Going on
OLC 000717
down the story, "Williams has already testified behind closed doors to the
Senate Judiciary Committee."
We already have all of the information that we can possibly get from
Agent Williams. It is absolutely unnecessary to have him testify publicly, and
yet this committee is making a show out of it, and the Department of Justice,
naturally, is pushing back against that. Here’s a letter dated September 17th
from a representative of the Department of Justice to Chairmen Graham and Goss -
and I just read in part from the letter: "
"Yesterday the FBI learned that the Middle East television network AI-
Jazeera recently broadcast the name and face of at least one FBI employee,
Kenneth Williams, whom the committee seeks to present as a witness in an open
hearing next week. As you know, Agent Williams has been interviewed by GIC
staff and has provided a closed briefing to members" -- two of them, as a matter
of fact. "Agent Williams recently asked that his concerns be brought to the
attention of the committee. His comments include concerns about the handling of
his closed-door appearance before the committee’s joint inquiry."
Here’s what he said: " ’Reporters showed up at the front door of my

resident (sic), and my piCture and personal information appeared in the national
news. I can only imagine that a public session will result in even greater
exposure. If the reporters could locate my,residence, so could al Qaeda or any
other terrorist organization.’ " Then the letter proceeds, "He also expressed
concern for the safety of himself ahd his family, saying~ ’I sincerely believe
that my appearance in a public session would be detrimental to my personal
safety and the safety of my family.’ Nonetheless, Agent Williams concludes by
noting ~is willingness to appear again before the committee’s joint inquiry, in
closed session to cover any issues left unresolved or thaiare newly de~eloped
since his last appearance.’" And he notes that and says he’d !ove to return and
answer any questions we might have in closed hearing.
Part of this, in other words, is theater. And Mr. Chairman, i just

can.’~t express strongly enough that we’re asking these people to put their lives
on the line, and I think we’d ought to be a little bit.careful about throwing
around accusations that people are not cooperating with us whenpart of the
reason is for their own safety.
More6ver, any disputes we are having about what’s:in the material

that he produced, the so-called Phoenix memo, we know everything we have to know
about that memo -~ and when I say "we," the public. The stuff that hasn’t been
declassified yet nobody needs to know. It’s names, dates, places that have no
bearing on the ultimate issue but are very important in the intelligence
Context. So I want to make that point, make it Clear that there is a-difference
Of opinion here about just what this committee ought to be doing publicly.
Now let me get to the questions. As I said, it seems to me that there

are two themes that derive from both our report and the witnesses who have been
here, namely that we didn’t have the resources to do what needed to be done;
and,~ secondly, there was a lot of confusion about what our legal authority was.
And I just now want to quote briefly from the testimony here -- first with
respect to the resource issue. This is the testimony of.our CIA witness. "What
I will say here is that new procedures and training aside, they are also the
kinds of misses, the mistakes in other words, that happen when people who are
very competent, dedicated people, such as CIA officers and FBI agents and
analysts involved in aspects of the story, are simply overwhelmedo The
counterterrorism business often does not feature a large team going after a
OLC 000718
single target, but rather one or two officers juggling multiple activities
against many people simultaneously trying to make sense of what it means, which
target deserves priority attention and balancing the interests of multiple
stations, liaisons, services and other agencies." Mr. Kojm said -- just to
quote one statement: "The TIPOFF is now the primary focal point for entering
intelligence community information on known or suspected terrorists into CLASS.
However, TIPOFF is not adequately staffed to deal with the increased workload."
He talks about the small, dedicated staff frequently coming in after hours, and
on nights and weekends and so on.
In the testimony that was presented by our staff -- and I’ll just
mention a couple of these -- there are numerous references to the lack of
resources. For example, on one of the statements it said, "There were not
enough people to handle CTC’s workload at the time. As a result, informational
cables, such as the March 2000 message, which was much the subject of our
discussion here, received less attention than action items. Several other
employees told us that they typically~ did not even have time to read information
cables."
Another: "We were told that the matter.was dropped because the agent
had to move on to other things." New York FBI agents told us they tried to
convince FBI headquarters to open a criminal investigation on al-Midhar, given
the importance of the search and the limited resources that were available to
all intelligence investigations. We are going to get into that more in a little
bit. I could go on and on.
Let me just ask the first question here, because of a comment that the
CIA agent here made during his testimony. We know that while we had some
contact with these people while they were in Malaysia that thereafter there was
less contact. And I believe you testified, sir:, that we were unable to mobilize
what we needed to mobilize, to remain in -- that was your direct quotation, and
I’ll paraphrase -- to remain in the kind of contact that would have been useful
with those people. Isthatan accurate statement of wh~t you said?
CI~ AGENT: Yes.
SEN. KYL: Zs that an example of having resources stretched too thin to

the job that you would have liked to have been able to do?
UI~ AGENT: " Unfortunately, not that particular instance. There was a
separate reason for that -- a larger part of the community wasn’t ableto --
they were busy doing Other things related to terrorism. -But that’s -- I think
the --
SEN. KYL: Excuse me. Well, you’re too busy to attend to this because
you’re busy focused on Other things --it might suggest that you are
prioritizing.~
CIA AGENT: It wasn’.t -- I guess what I am.saying is it wasn’t

necessarily the CIA’s choice. It was the U.So choice.
SEN. KYL: Okay, and I know where you are going with that. Go ahead
with the rest of what you wanted to say.
CIA AGENT: That was it.
OLC 000719
SEN. KYL: Okay. Well, let me just ask you a general question then
whether you found occasions in which the lack of resources inhibited you from
doing with your job. Let’s start with the CIA agent.
CIA AGENT: Yes. I think that -- thank you -- I am not going to make
a speech, I promise. The lack of resources is critical. And if I could shift
the context just a tiny bit, I made mention in my testimony of ten months of
pounding in Afghanistan, and yet we still regard al Qaeda as a threat. Before
the llth of September what the United States government basically had were the
resources overseas offensibly were the resources of the CIA, alongside the FBI
in many cases, as an intelligence problem. It’s fairly clear that the
directors’ discussion about declaring war on al Qaeda is not something that he
is empowered to do officially by the Constitution. That choice, remains
elsewhere. A1 Qaeda in fact had declared war on the United States, and nearly
sank a billion dollar warship in the process of doing that.
What you had facing a vastly more (fit ?) al Qaeda, in other words, or
a few civilians who were, as I’ve heard it recently described, a platoon in a
brigade-sized field, and doing the best they can. So, yes, there was a lack of
resources~
SEN. KYL: Just to any of the other witnesses -- I quoted Mr. Kojm --
talked about his people being stretched pretty.thin.. Do any of.you want to
comment on this issue of resources?
MRo ROLINCE: Senator, I couldn’t possibly let that pass. I think that
as my agent colleague would attest, I spend a fair amount of time at CTC, and h~
spends a fair amount of time in our headquarters, for a lot of different
reasons, part of which are competing priorities, but a .big part o~ which is in
the year 2000, 2001, the FBI was not allowed<to hire to attrition. We have more
agents and man hours walking out the door than we have coming in. And you don’t
have to do the math to figure out that at some point in time that is going to
have a deleterious effect on all your criminal investigations as well as your
counterintelligence and counterterrorism investigations.
The support people in particular who have worked these attacks -- and I
think it’.s important to put into context not just the past three and a half
years, but we talked about the African embassy bombings -- if you start there,
the same people responsible for investigating the African embassy bombings and
then ion to the deployment of Kosovo and the downing, of Egypt Air~ neither of
which were terrorism, but it got handed to us -- you work on up to the fall and
the build-up to the millennium, you have people who literally are, as someone
told me, just learned to work tired, ahd I saw it every single day. And I
cannot pass up the opportunity to commendthem and to state for the record, for
us the American people, how much credit they deserve for this fight. They go
months at a.time without time off~ long nights, long weekends, holidays, et
cetera, without a single complaint by any of them. You roll that on into the
millennium event, and it’s another month without time off. And this is
pertinent to the discussion today~ because there is a tremendous effort underway
to try to figure out whether or not Ahmed Ressam is tied to some other network,
or is this the kind of ~roblem we are going to have to deal with in the future?
And there’s a hand-in-hand effort between the bureau and the agency, and others
aroundthe world, to try to figure that out° We now know that that was going to
Coincide with serious attacks in Jordan and the attack on the U.S.S. The
Sullivans -- within a very short timeframe, which would have stretched our
resources incredibly. But they are patient. This is what they do for a living.
So i0 months later, when 17 sailors die, when they find the opportunity to
OLC 000720
attack the U.S.S. Cole. So you have all of those investigations, and then
leading on up to 9/11, being worked by an increasingly depleted supply of
analysts, officers, agents and managers. There are fewer FBI agents assigned
on 9/11 worldwide to the terrorism problem than there were the week of the
African embassy bombings. The director has noted that. He has corrected that,
and we are going in the right direction. But I just think it’s important to put
that in context.
And, if I could say one more thing, we talk about bin Laden, and we
move forward from September llth, or I’m sorry, from the embassy bombings, don’t
forget about the people who died in ones and two. Don’t forget about our
soldiers, our airmen who died at Khobar Towers, the Marines in the barracks
bombing, Zack Hernandez (sp) who died in Panama because he was an American
soldier. Don’t forget about the victims of 17 November, that has gone on for
decades without resolution until recently; or the Americans kidnapped by Abu
Sayyaf and killed; and the Americans kidnapped by the FARC and killed. In
addition to all that, five of your seven state sponsors counterintelligence
responsibilities fall to that same international terrorism operation section.
They’re working tired, and doing a beck of a job.
SEN. KYL: I appreciate that very much, and if very briefly the others
on the panel would like to comment, b~cause I do want to go to the next subject.
Go ahead.
FBI AGENT: Yes, sir. From a field agent’s perspective I could

probably talk for an hour on resources. The comment in there is mainly due to
the fact that criminal resources and criminal agents --it’s so manpower
intensive, and with the possibility of somebody being let go because you miss
~something with regard to one of the trials, unfortunately our .managers -- I can
only try to comprehend their job-- they try to leverage their assets as best as
they can. So most of the manpower ends up falling on the criminal agents as
opposed to intelligence.
Pragmatica!ly, when I stressed that to headquarters, it was just as a

matter of being pragmatic. This is I only know it’s going to work just because
of the fact our intelligence investigators were absolutely overworked -- less
weekends off than I myself probably had in the last few years. But --
SEN. KYL: And this is one of the reasons we’re trying to -- some
people are trying to move the investigation into the criminal area from the New
York office on al-Midhar, because of the greater resources in the criminal area
than in the investigative area. ~Is that correct?
FBI AGENT: Yes, sir. I would say a couple of weeks later when we were
-- after everything had happened, and we had ramped up, where thousands of FBI
.agents all over the world were trying to Lind somebody, I thought to myself --
and I don’t necessarily know how to do that, but we got to be able to get there.
When we find out Khalid al-Midhar is in the country, intelligence, criminal or
whatever, we have got to be able to get to the level we were at September 12th,
the afternoon of September llth -- not -- we have got to be able to get there
before September llth, not September 12th. SEN. KYL: Let me go right to this,
and I am obviously going to be able -- er, not be able to get into the second
area that I wantedto, but this is important. Mr. Rolince, I think this
question is for you, because in Your Opening statement you talked about the
desire to go to a criminal investigation, but you said we did not have specific
credible evidence of crimina! activity to do so. My question really is whether
-- and that’s FBI information. But what about the CIA? If you had had the
OLC 000721
information -- if the CIA had been able to convey to you the information that
they had, would that perhaps have sufficed to enable you to begin a criminal
investigation?
MR. ROLINCE: I’m not necessarily sure that it would, sir, only because
in order to open that criminal investigation, that just as a counterintelligence
investigation, is regulated by attorney general guidelines. And what we have,
to the best of my knowledge, is an individual, two individuals, of great
interest to us at a meeting with another individual that you tied to the Cole.
Can you make the inference that they are tied to it as well? Given what these
people do for a living, you can probably suppose that, but I am not sure that
suffices to he specific and credible enough.
With that said, and in somewhat disagreement with my colleague,

resources in the New York office are larger than the resources anywhere else in
the country, to include counterintelligence resources. So it’s --
SEN. KYL: That’s the head -- excuse me, that was the headquarters for
the terrorist investigation, wasn’t it?
MR. ROLINCE: It’s a matter of management allotting resources in

accordance with the importance of the.case. It’s as simple as that.
SEN. KYL: Well, and believe me, I am not criticizing anybody for the
management of what. they have. But as my colleagues here on the dais will
attest, every time we go someplace and ask, Is there anything else we can do for
you? -- inevitably one of the things is, Well, we could always, use more help.
But was part of the problem here the fact that the CIA information could not be
given to the FBI, because .of the wall? I mean, your testimony is that these
restrictions limited the free’flow of ±nformation. Yo~ couldn’t even for lead
purposes transfer that -- or get that information transferred over to you.
FBI AGENT: Sir, if I could comment on that real quick, because I was
part :of the conversation trying to get that information downgraded. What we
will do is -- FBI agents wear both hats, intel and criminal, depending on what
is given to Us, we try to do whatever we can, even when we are on the criminal
side -- and we can go into more detail of that in the closed committee hearing.
But with regard to that, what our attempt would have been -- and it might have
been struck down -- and even if it had all. gone through, we might not have.ever
found Midhar beforehand --.was to go to the CIA, ~have this information
downgraded, ~take what we knew criminally from the C01e, then go to a. judge and
say, This is what we have, judge, can you help us out here? You know, we’.ll --
SEN. KYL: At.least try, in other words?
FBI AGENT: At least try to do it~ And that was the main impetus
behind going to them, or at least bring up the conversation of having certain
information downgraded,.realizing that we were in an exigent circumstance and
this individual had come into the country.
SEN. KYL: Right. Well, I’ll just conclude by saying that we need to
get into this whole question of the risk aversion due to the either real or
imagined walls -- or I shouldn’t say imagine, but the either proper
understandings or misunderstandings about the application of the laws under
which both FBI and CIA operated, and the confusion and misunderstandings that
resulted from that, and perhaps in some cases the inability to pursue things
that might have been productive, had they been pursued.
OLC 000722
CIA AGENT (? : Could I address a minute just to address this one
issue, because it’s come up about four times just as the light has gone red, and
oI would really like to just address it just for a second for the process part of
it. The New York -- as I think it’s become clearer to the joint inquiry staff,
every place that something could have gone wrong in this over a year and a half,
it went wrong. All the processes that have been put in place, all the
safeguards, everything else -- it just -- they failed at every possible
opportunity. Nothing went right.
In this particular case -- and that’s one of the reasons why they have
an exchange program at the national level between the FB! and CIA, is when
there’s an issue like this there are usually procedures for getting the
information cleared rapidly. And part of what was going on in the Cole
investigation at that time, there were some other information not pertaining to
photos, not pertaining specifically to Midhar to Hazmi, but pertaining to
Malaysia that the FBI was attempting to get cleared to use in their interviews
- various persons who could help them with the Cole investigation. And what the
agency was trying to do was to get that stuff cleared, was to get it in a
position where it could be used.
What we are also, I believe, trying to do through that summer that

culminated in kind of the rediscovery of the thing in July, was to stimulate the
dialogue between the FBI and the CIA on this issue. And normally -- and, again,
nothing normal happened -- but normally what happens is if they run into a
conversation block where you have to stop, you need to take steps to get it
cleared. And then it moves on. So there was no -- so the reluctance to pass
the information was not a deliberate thing. It was, A, we didn’t know if we
knew at the time,, so all the information that could have been passed wasn’t,
because we hadn’t" done it. But, also, the~e was a movement to get it cl~ared to
pass, but it just didn’t complete.
SEN. KYLt Thank you.
o~. ~ CIA AGENT (?) : Thank you very much.
SEN. GRA!{AM: Our next questioner will be Congressman Peterson. But, if

I could, first, as the clock indicates, we are working through lunch, and we
will continue until we complete the questioning. After Congressman Peterson has
completed his 20 minutes as a lead questioner, the question order will be
Senator DeWine, Mr. Reyes, Senator Rockefeller, Senator Inhofe, Senator Wyden,
Mr. Roemer, Mr. Bishop, Senator Feinstein, Senator Mikulski, Mr. Bereuter and
Senator Hatch.
I would like to make a couple of comments in reference to the comments

Senator KyI has just made -- first about the open hearings. We have held I0
closed sessions of the joint committee. Our first open hearing was held on
Wednesday of this week, and we have had now with this hearing three open
hearings. It is a matter of judgment as to whether it was wise or not to have
open hearings. I believe that it is i~portan£ and that it is a right of"the
American people to know .what their government is doing. And those American
people also include our colleagues who have a right to know, and to assess the
severity of the problems to justify the reforms that I anticipate we are going
to be recommending. So in terms of achieving one of our primary objectives,
which is to reform the agencies where we have found that such reform is called
for, the greater degree of public awareness and colleagueunderstanding will
enhance the prospects of accomplishing that objective.
OLC 000723
I also believe that democracy is a public enterprise. It is just not
gratuitously for theatrical purposes that most of the things we do are in the
public. We believe as a society that the right to know of the public of what
their government is doing is a fundamental right. There are clearly areas in
which there are other interests, including national security interests, that
will require some modification of that broad principle. We are very sensitive
to that. The statement that Ms. Hill presented today was the product of several
weeks of close scrutiny by the agencies who have responsibility for classifyin9
the information that appeared in the original report, and so the information
that was presented today by Ms. Hill is information that the agencies believe no
longer justifies being classified.
I will note that we have concurred with the final judgments of the
classifying agencies. Where we~have disagreed, we have done so by respectfully
noting those areas of disagreement, but still complying with the declassifying
agency’s judgment. As to the security of agents, we are following a practice
that has been used for many years in the United States Senate, where there are
important witnesses who also are -- have a variety of security concerns, to do
so in the manner that we are doing today with our agent from the FBI and officer
from the CIA. And, again, this was done in consultation with the agencies and
with the two individuals involved.
I recognize that all those points are -- did not come down from Moses
with the tablets. They are matters of judgment.’ But we are trying to be as
sensitive as we can to the concerns, and are fully cognizant of the importance
of all of our responsibilities.
SEN. KYL: Mr. Chairman, might I just~make one quick response, since
you referred to my comments? No one disputes the public’s right to know. Our
difference is merely one. of how and when. ’ There will be a final report, it will
be made public. It.will be as open as possible. We all agree with that. I
hope my comments about the how and the when were not misinterpreted. Thanks.
SEN. GRAHAM: Congressman Peterson.
REP. PETERSON: Thank you, Mr. Chairman. And thank you, gentlemen, for
your testimony and responses, and thank you for what you are doing for the
country -- we appreciate the job you are doing.
I woul~ like to first of all flesh out this watch list issue a little
bit.. As I understand it, being put on the watch list once you’re in the United
States really doesn’t have much effect -- am I correct?
MR. KOJM (?) : That is correct. The TIPOFF watch list is visas and
ports of entry. It’s a border function, not an internal function --
REP. PETERSON: And if you leave the country there probably isn’t any
process to check at that point that would have picked up these folks?
CIA AGENT (?) : Not upon departure, no.
REp. PETERSON: .That hasn’t changed? That’s still the same today as it
was September llth?
CIA AGENT (?) : Well, I believe there are some revisions that are
worked out through the Immigration Service for certain individuals who Will be
OLC 000724
required to check upon with the Immigration Service upon departure from the
United States.
REP. PETERSON: I don’t know if any of you would know this, but if
somebody was put on the watch list, obviously at that time it wasn’t made
available to the airlines, local police, because some of these guys got stopped
for speeding. Has any of that changed? Has this watch list information, is it
now being made available to the airlines, to local law enforcement, so that they
are alerted if somebody tries to get -- if somebody isin the United States and
they are traveling around, and we know they are bad guys -- there is some way
within the country that we can pick them up, and they don’t have to be either
coming in or going out?
CONSULAR AID (?) : To the best of my knowledge, just from an

investigative standpoint, without going too much into detail to give away, there
are some watch lists that are out there that are being used to try to do what
you are talking about. I don’t know how macro in concept it is or how
interoperative it is with other watch lists, but there are things like that that
~are being utilized. And I defer to my colleague from the FBI that might know
more about --
MR. KOJM (?) : Yes, two points to make. We do provide the unclassified
data elements from TIPOFF to the foreign terrorism tracking task force. That’s
an interagency group -- INS and FBI claim key ~leadership roles in that task
force. We do provide .that information to them.
In addition, we have provided now, on a real-time basis, through

Intelink, top secret CIA connection, to five sister intelligence community
elements, real-time information on everything that is in our database, and that
does include the FBI
: REP. PETERSON: Well, I want to get into a little bit into this whole
issue of assembling, this data and maybe focusing on what we are doing with
databases and technology, but you know finally in the summer of 2001, witnesses
from the CIA and FBI took actionto kind of pull all this stuff together. And
once all the available intelligence was gathered together, the reaction is
inte~esting~.and important. When they see all the data together, they realize
that these two guys are connected to the embassy in Malaysia, are connected to
the embassy bombings through the LrBL facility in Yemen, organized and attend the
terrorist meeting in Malaysia, are cOnnected with the planners of the Cole
bombings, and have extended visas to the United States and entered, the United
States after the Malaysia meeting. They realize at this point that these two
guys are dangerous and must be found. It’s at this point that the two suspects
are placed on a watch list and the FBI isasked to search for them in the United
States. The obvious point is that a CIA officer and FBI analyst pre-9/ll see
the threat of the situation exactly as we do today post-9/ll. Their actions
prove that. If only the CIA’s data management system had permitted everyone to
see all thedata available, analysts and managers probably could have perceived
the need for action on Midhar and Hazmi long before. 9/ll. So our focus today on
this matter is not -- my focus is not a case of hindsight so much as trying to
look at where we are going and whether we are making some progress.
And to try to set the stage, I would like to ask the CIA officer how
hard it is, or was, to find and assemble intelligence data on Midhar and Hamzi.
Is that an easy prodess, or --
OLC 000725
CIA OFFICER: To reconstruct the file is not that difficult an issue,
if one has the time and the people to do it. If the question -- I mean, this is
a difficult one to say just the right way, but I am going to give it a shot,
because it’s important.
There was a miss in January, there was a miss in March. We acknowledge

that. What happened after that was I think in part a function -- stuff like
that should normally emerge during the course of a file review, if something
provokes the final review. Once that file review is provoked, the information
is~ readily recoverable. That’s how I found what I found when I found it kind. of
thing. But the story kind of emerged in dribs and drabs, because there was no
one person who reconstructed the whole file. And --
REP. PETERSON: Right, and there were different people that saw this
stuff --
CIA OFFICER: Right.
REP. PETERSON: -- at different times, but it took, well, quite a while

before everybody pulled this together. I guess -- so, your current system it
seemed then to me that you have got a system that is -- sounds like .it’s
antiquated. It’s still filed on a flat basis, and it is not necessarily
collated together. There is now technology where you can build a data file where
anybody who looks at it -- all of this stuff is going to come up. And if you
would have had something like that, somebody that wasn’t even experienced --~
that if all of a sudden something went off in the back of their mind that
triggered this, would see this because everything would pop up. Is -- are we
moving in that direction? Is there going to be better technology put in place,
both in the CIA and the FBI tO try to make sure something like -this doesn’t
happen again in the future?
CIA OFFICER: I am not actually qualified to answer the. technology

question, I am sorry. I. think other --
REP. PETERSON: But you work with it now. Has anything, changed from
9/.117. CIA OFFICER: I actually have no complaints about CTC’s data system right
nOW.
¯ ’ ~REPI. PETERSON: But you have to know how to go. in.thereand ¯what to
look for, and you .have-to actually be looking for something in order .to
:. CIA OFFICER: And you have to have a little~bit of time to do it, and
you have to have a reason to do that¯instead of something else.
REP. PETERSON: Right, right.
CIA OFFICER: But the information is there. It’s recoverable.
¯ REP. PETERSON: It’s there, right.. But -- and it was there all for 18
months prior to 9/11.
CIA OFFICER: Right.
REP. PETERSON: And it took somebody who happened to remember something

who just, you know, finally put this together on August 23rd, that seems to ms
~didn’t give us enough time by 9/11 to track these guys down. You know, if We
would have -- if this all would have come together earlier, we might have.been
OLC 000726
able to track them down. And I guess my question is why don’t we have a system
where this guy’s name is in there, and everything that comes in on this guy gets
put into that file, and so whoever accesses that name it pops up and it shows
all this stuff in one place, so you don’t have to be a rocket scientist or you
don’t have to be involved in this stuff to understand that when you see all this
that this is a big problem.
CIA OFFICER: As I say, someone else will need to answer that question.
REP. PETERSON: How about the FBI? Are you --
FBI AGENT: I’m in total agreement with what you’re saying and where
you are trying to go. And it dawned on me over the years, as we went from no
relationship with the CIA to what I consider to be one that I would brag about,
and do brag about anywhere anytime. But the exchange of personnel, which has
done as much as it has, only gets us so far. The information exchange I think
is the next piece. The bureau’s technological woes are out there. Our efforts
to correct that are certainly well known to all. What I would personally like
to see is an ability .for analysts to exchange information and be able to get on
that system within the operations center, within the bin Laden unit ~t
headquarters, and access information that is available to their agency
~analytical counterparts. I’d like to be able to e-mail my counterpart at the
Department of Justice. There’s a lot of things I would like tobe able to do.
I thin]< all of them are technologically practical~ It’s a matter of I think
putting the time and the energy and the money and the smart people in the right
direction. And I believe we are doing that. REP. PETERSON: Is that going on
now?
FBI AGENT: It’s moving in that direction. I don’t know how long it is
going to take.us to get there.
REP. PETERSON: But as of today it.is not too far from where it was on
9/11 apparently? As somebody who uses the system, it’s not much different? Is
that what you’re saying?
. ,FBI AGENT: As.someone who uses the system, I would agree. But in
terms of the progress being made --
REP. PETERSON: There are probably some people working on this, trying
to improve it?
EBI AGENT: Yes, sir.
MR. KOJM: Sir, if I may, in my experience just since September llth

there is a technological barrier, but there’s also still gatekeepers with
regards to certain information. And I’m not naive enough to think that the FBI
-should be privy to every ounce of information that is out there. But I try to
think of it in simplest forms. In that first day at Quantico, or second day,
CIA handles world intelligence, the U.S. handles domestic intelligence. In
.today’s, for lack of a better term, "global village community," we have got to
make sure that that domestic intelligence and world intelligence is transparent
-- physically, technologically, and also in mind-sets of certain individuals.
So I don’t think it’s just a technological solution.
REP. PETERSON: No, I understand what you’re saying and there

probably Would be some resistance, but I know enough about these databases and
computers to know that this system could be put Zegether and it could be shared
OLC 000727
by-all of you. And we’ve been doing this for years and you’re not the only
folks in government to have this problem. The USDA has this problem and all
kinds of other people and I don’t know how we fix it.
MR. KOJM (?) : If I could, just one more thing that Director Mueller --
I’m speaking now in my FBI hat, not in my CIA hat, has said several times that
the kinds of things we described, the objectives that he’s taking the FBI
towards, and I thin]< it’s critical to note that part of that objective is to
transform the way the FBI handles its information, that part of this information
that other agencies would define as intelligence, intelligence is often
collected as a by- product of investigations and unless it’s filed and kept and
distributed, it may not be used.
So I challenge this direct of taking on and of moving the FBI toward is

doing that what you have said in our intelligence. And that’s a critical piece
of the bilateral flow, because there’s no reluctance, all issues aside, there’s
no real reluctance on the part of counters and professionals to talk to each
other about issues of common concern. Oftentimes what you have though is this
giant anvil of information going through one person. And we’ve got to change
that part of it in the computer system. You’re absolutely right.
REP. PETERSON: That’s something computers could be a huge help to get

you sort of through I think.
I don’t know if anybody asked it, but are you or are you considering
making some of this information available to airlines? Is it now, Mr. Rolince,
is that stuff on these bad guys, is that somehow or another transmitted to the
airlines so they have some kind of a system that they pop up when they try to
buy a ticket? ~
MR. ROLINCE: I’m aware that that possibility has been discussed, how
do.you run the names of tens or hundreds of thousands of travelers, be they
international or domestic, against the available databases, be it a watch list
or your files on whom you have information that might be of.interest to them in
making a determination as to whether a person does or doesn’t get on. I know
it,s been talked about, sir. I’m not sure exactlywhere it is in.terms of
actually happening. MR. KOJM (?) : I can’t entirely -- I shouldn’t speak for
homeland security, but I know that that process is go±ng on and that there .are
¯ review and coordination processes that do go on so that the airlines do get
critical information and they’re improving that as they go.
REP. PETERSON: As I talked about before, you know, we had all this
information out there and until somebody kind of remembers something and pulled
all this stuff together we didn’t really realize what these guys, how bad these
guys were and the threat they were.
My question is how many other people like Midhar and Alhazmi are in the
system? That’s what concerns a lot of us. Maybe you can’t answer that, but are
there other folks in there and is there any. way that we can get at them?
MR. ROLINCE (?) : That’s an issue that does preoccupy us quite a lot
and as I said we’re doing the best we can to do that through a variety of
different means.
I think the thing that also bothers us a great deal is that the other
16 were completely invisible -- completely invisible. So there is a dual
challenge there as well.
OLC 000728
FBI AGENT (?) : Congressman, if I could jump in for a second, I was
passed some information that goes to the heart of your question. Apparently the
TSA, the newly formed agency maintains two lists, a no- fly list, which would be
analogous to our armed and dangerous warning, as well as a select delist of
people that we have an interest in and we may wish to detain for questioning and
we do have the ability to contribute both names and information into both of
those lists.
REP. PETERSON: Mr. Kojm, you were acting like you wanted to say
something.
MR. KOJM: Yes, Congressman. You had asked about how many names there
are in the system. We have 80,000. We’re adding approximately 2,000 names each
month.
In answer to Congressman Burr’s question earlier between the Cole

bombing and September llth we added about 4,000 names.
And as the staff report identified, since September llth.our work is up

about 450 percent.
So there are a lot of names out there. We add them as best we can. We
try to add them every day. We don’tmeet that standard, but we want to.
In relationship to the FAA we do work with them and they provide data
that we put in our database and we do respond to their telephone requests for
name checks through diplomatic security,, so we’re in contact with them but we
would certainly concur with your observation that we need to have closer,
better electronic contact with FAA and other domestic agencies and we are
working with them, with the homeland security people.
Thank you.
¯ REP. PETERSON: Thank you.
Mr. Rolince, could you clarify for me how these cases are designated
:either a criminal investigation or an intelligence investigation. .Midhar and
<Alhazmi in 2001 are known to be connected with people involved in the Cole and
the embassy bombings, which would appear to make them proper objects of.a
criminal investigation as potential and material witnesses, but the headquarters
was adequate that a criminal investigation was not warranted.
Can you explain why? Was it simply because all the data we had on
Midhar and Alhazmi at the time was from intelligence sources or what was going
on there?
MR. ROLINCE: That is the core element of the decislon-making process

that the relevant information that came forward was, in fact, all in an
inteIligence channel. And the meeting that these individuals attended we did
not have reporting on in terms of exactly what was said or transcripts of what
was said. So although we certainly suspect and rightfully so that they were
probably en~aged in past and future acts, criminal acts, the information brought
to us came essentially in total in the intelligence channel, so an intelligence
investigation was opened.
OLC 000729
You don’t always have to have a criminal, a parallel criminal
investigation and both criminal and intel are monitored, are regulated by the
Attorney General guidelines.
I think what’s important is do you have the ability to check every

record, every source, DMV, local police, NCIC0 past warrants, banks,
neighborhoods, et cetera within an intelligence investigation, which mirrors
what you can do in a criminal investigation and the answer is yes you do.
REP. PETERSON: So just to get a better sense, so does that have a big
part of the decision about how this gets structured and where this comes from?
I mean, is that what you’re saying, if it comes out of intelligence then that’s
likely to push it to an intelligence?
MR. ROLINCE: It’s likely but if there is a logical reason or specific,

articulated facts out there that would also indicate participation in a criminal
enterprise then you would open up a parallel criminal investigation.
CIA OFFICER: If I may, sir, one point on that, because I was part of
the conversation that took place with regards to opening a crimina! or
intelligence matter, not only do these things restrict us in What we can do
today, but the possibility of what might happen in the future are also
restricted. So the example that was give~ to me that day on the telephone was
if we try to go criminally and we do not find this individual, if in the future.
we try to go intel a FISA court judge will say, "Hey, you struck out criminally;
that’s why you’re coming to me intel-wise." So not only do we have to take a
snapshot of what we look now where we make these decisions, but management is
trying to project ahead.
Let’s say we subpoena everything and nothing is in there, we can’t find

this individual. But we find him one day and we want to then open an intel
investigation. We’re. prevented from doing it because then the judge is going to
say, "Oh, you struck .out cr.iminally.; that’s why you’re coming back intel-wise."
So that’s just another thing that was used.
REP. PETERSON: Well, unfortunately I’ve heard that story before in

-some other situations.
For you again, you wrote an e-mail that predicted people would die and
the public would not understand why every resource was not thrown at the certain
problems. What~ decisions would the National Security Law Division make today
given the same circumstances? In other words, have things changed over there?
FBI AGENT: I can’t speculate~ I know the walls have come down with
regards to FiSA. information and the snowball effect that occurred after that.
Where the wall used to be between criminal investigators.and intel investigators
it’s back where I personally believe it should be, which is between prosecutors
and the FBI, in addition to that, with regard t~ FISA information and the .~
direction Of those FISAs with criminal investigators. So I have seen firsthand
that that wall has come down and it’s been a big help and that happened
immediately following.
And my recommendation from an agent’s perspective, a field agent’s

perspective would be make sure those walls never go up again with~regards to
sharing information between at least different elements of an intel
investigation and a criminal investigation.
OLC 000730
REP. PETERSON: Thank you and I’ll thank the witnesses and than]< you,
Mr. Chairman.
SEN. GRAHAM: Thank you, Congressman Peterson.
Senator DeWine.
SEN. DEWINE: Mr. Chairman, thank you very much.
SEN. GRAIiAM: Senator, before you start i’m going to announce that as
soon as Senator DeWine has finished his questions, the next questioner will be
Congressman Reyes, but we are going to take a short break, which will
necessitate clearing the room so that the screened witnesses can have some
mobility, so those of you who are going to have to leave, if you might get
prepared because we’d like to make this break as short as possible.
SEN. DEWINE: Thank you, Mr. Chairman.
¯ Let. me just first say how much we admire all of you and appreciate what
you do for our country every day.
We’ve talked about a wall and to our FBI agent, I hope you’re right, I
hope that wa.ll stays down and I think we in Congress have an obligation to
monitor this and just make sure that wall does, in fact, stay down.
I believe that part of the problem has been, and we really have two
kinds of w~lls. One is a wall that’s there to protect foreign intelligence
sources and methods and we all understand that. That has to be dealt with on a
practical basis by those of you who are the professionals in the field. But the
other fs a Congress created law with the FISA law. And I will say quite
candidly that fo~ many, many years we did not do our job in monitoring how that
law was being interpreted by the court and how that law was being interpreted by
the mourt and how that law was then being interpreted down into the field. I
think that’s our responsibility. ...
And, Mr. Chairman, I think that we began to change it and. improve it "
with the Patriot Act. We came a long way. with that. We now have had a FISA
court opinion, which I don’t particularly agree with, but at least it is a
public Opinion and at least we can see where the court is going. Apparently, of
course, there has been .an appeal. I assume that. the appellate decision will be
¯ published. It will give us some guidancethen to see where that court is going
so’that we can make whatever changes that we think need to be made.
So I think we have to follow what the court is doing, see how it’s
being interpreted and also see how it’s being implemented down into the field
.and that’s our obligation to do it.and I think, Mr. Chairman, we. can do that
consistent with national securityconcerns.. It’s our committee’s’job. We ought
to do it. Let me just ask the question to our CIA officer. You’ve had, as all
our witnesses have had,. a great, great experience and great background and it’s
Clear that you are a real expert in intelligence. You’ve had. experience in the
Counter-Terrorism Center. You now have testified that you are a detailee to the
FBI so you,ve seen it in a sense from both sides.
Again, I know you don’t want to get into this in great.detail in a

public session, but do you have. any guidance for us in regard to the Counter-
Terrorism Center, how are we doing,.what else do you need there, how is the
interface between the FBI and the CIA coming, does that need any more.
OLC 000731
improvement; just kind of give us a quick, in the little time I have, a quick
snapshot, if you could?
CIA OFFICER: It’s going to be quick because I’ve been away from the
Counter-Terrorism Center for quite some time now and they’ve evolved in a
revolutionary way since I’ve left and certainly since September llth. It’s very
difficult to talk about today the CTC in terms that are relevant to before
September llth because it is so changed, and I don’t know the details of all the
changes.
I think in terms of any recommendations that might be made it might be

better to come from somebody who’s attached to it right now rather than myself.
As far as the relationship between CIA and FBI, there is a move afoot
to exchange personnel between the two. That’s critical as that continually
expands.
SEN. DEW!NE: Anybody else from counter-terrorism, any other thoughts,

want to jump in? Mr. Rolince?
FBI AGENT: I would say just from my perspective in stories that I hear
is that we have come a long way. I think we need to go that much further not:
only exchanging management but also exchanging the field agents at some level
and guard against the fact that once an individual goes to the FBI or vice ve~sa
that individual becomes beholden just to that institution that they’re going to,
that they continue to be able to flow the information back and forth inside a
system of checks and balances that allows that information to be shared between
both organizations. The first step might have been management and maybe the
next step is actual agents and officers from both sides being exchanged. .
SEN. DEWINE: Mr. Rolince?
MR. ROLINCE: In order to do that, Senator, I totally agree with my

colleagues; it becomes a resource issue. I know in talking to past chiefs of
-station, to include my friends who are here, we have to be where theyare in
¯ --terms of going after the enemy. I .kn0w we’d like to all have.officers and
-agents in everyone else’s field offices and stations. That’s not practical.
But to begin to go down that road, I don’t want to speak for my colleagues
but I :certainly think I can, we need more people.
SEN. DEWINE: Thank you, Mr. Chairman.
SEN. GRAHAM: Thank you very much, Senator.
As previously indicated, we are now going to take a very short break.

Those who were asked to leave the room earlier, would you please exit again and
would.Mr. Wolf tell me when the room is clear? -
(Recess.)
SEN~ GRAHAM: i call the meeting to order and Congressman Reyes.
REP. REYES: Thank you very much, Mr. Chairman. I appreciate the
opportunity and also would like to echo the sentiments of my colleagues .in
appreciation of the work that you do for our nation.
OLC 000732
And I’d like to -- well, I also would like to comment, Mr. Chairman,
that I wholeheartedly support open hearings. As I travel back to my district,
know there’s been great anticipation about it, at least some component, two
questions regarding 9/11. One is that we do open hearings so the rest of the
public knows the work that we’re doing, and the second thing is that there be
commission, an independent commission that looks at this simultaneously or
subsequently. So for whatever it’s worth, Mr. chairman, I appreciate the
opportunity to do open hearings.
I’ve got a couple of venues that I’d like to pursue. First of all, Mr.
Rolince, do you agree with the FBI agent’s statement that you could not pursue a
FISA order after you have begun a criminal investigation?
And the second park of that is couldn’t .the FBI disclose the criminal
investigation to the FISA court and still ask for an order under FISA?
MR. ROLINCE: The answer to your first question is I don’tagree that

you could never do it. I agree entirely that historically that has been a
significant concern of the Department of Justice and of FISA court judges in.
particular.
And you’ve heard it said that there was a concern that we’re
circumventing the judicial process orgoing around the Fourth Amendment. For
the record, sir, I’ve been doing this 28 years and I can’t cite a single example
¯ of an agent trying to circumvent the process in order to get a FISA just so he
or she could get criminal information; and I would hope that that would never
happen.
To answer your second point, yes, you can do that. What they want to
know in total is the extent to which you had conducted any prior criminal
investigation and those were some of the errors cited that you heard referred
to recently where either through omission or a poor record check or whatever
reason there had been a prior .criminal investigation or perhapsa concurrent and
thatlwasn’t reported and it needs to be, it has to be so that.the judge can make
a decision based on the totalityiof the facts that we bring forward.
But, yes, if we had a criminal investigation of someone, let’s say, for

something totally unattached to a subsequent intelligence investigation we. would
make a strong argument, especially if you had the probable cause for ~that FISA,
essentially that that was then and this is now. You’d have to make the argument
that that criminal activity has no.thing to do with the intelligence information
available to us and our belief that we have probable cause to, in fact, obtain a
FISA.
REP. REYES: Any comments?
CIA AGENT (?)
REP. REYES: Thank you.
The other question I have is why couldn’t the investigation of Midhar

been folded under the Cole criminal investigation? You know, one of the things
that for me makes sense is that it was suspected that he was an associate of the
lead planner of the Cole attack and weren’t associates of Khalid investigated in
the Cole investigation as well?
OLC 000733
FBI AGENT (?) : Sir, I believe with regards to, and I confuse this all
the time and it’s taken me years, there~s Khalid al-Midhar and then Khalad.
Khalad is actually one of the individuals that was the mastermind behind the
Cole. Khalid al-Midhar was one of the individuals that he was going, in fact,
to meet, unbeknownst to us at the time, so that we didn’t know that Khalid al-
Midhar was the mastermind behind the Cole. The only information we had is that
he might have been meeting with one of the suspects of the Cole in a Far East
country and in opening a criminal case against him we had to show that
criminally. There are two separate things I’ve learned. Unfortunately, as an
agent you might know something to be true but being able to show it criminally
to open a criminal case in intel are two separate matters. So I hope I answered
your question with regards to that.
REP. REYES: Yes. And only because my time is brief I want to leave
that and go to Mr. Kojm.
Can you tell us how the TIPOFF program is funded?
MR. KOJM: Yes, Congressman. It’s funded entirely by the Bureau of

Consular Affairs. In essence, it’s a service that INR provides to the Consular
Affairs Bureau and it’s funded by machine readable visa fees. REP. REYES: ¯So
the obvious question is if it’s an integral part of this nation’s ability to
identify terrorists, why isn’t it part of the regular budget process so it can
be done adequately and successfully?
CIA OFFICER: Well, this is a question that we are wrestling with, and
the senior leadership in our building has addressed this question as well, and
we are~ seeking to identify other sources of funds for what we believe is
becoming a national program.
REP. REYES: And where would the national database be located? And, in
particular, I have advocated, and.the chairman knows, advocated to consider the
E1 Paso Intelligence Center, who already does a lot of this, and it is well
.known nationally and internationally for that capability -- so where¯ would you -
~ CIA OFFICER: Well, we .have approached the director of central

intelligence. Webelieve funds that he controls would be very helpful in
support Of¯ this intelligence function. We do believe that it iS proper to . ~
maintain a strong and close connection in support of consular affairs, even as
it needs to take on additional purposes for a¯national mission.
SEN. GRAH!IM: Thank you, Mr. Congressman.¯
REP. REYES: Thank you, Mr. chairman.
SEN. GRAHAM: Congressman Roemer, and then the next questioner will be
Senator Feinstein.
REPo ROEMER: Mr. Chairman, I want to begi~ by thanking you two for
your expert sense of fairness and balance in conducting these hearings. I just
want to say that I think it is critical from a perspective of the jurisdiction
of this committee for us to do our work. Much of it will take place in private.
But some¯ of it should take place in public. And you have held off on the public
settings to get¯the right balance, to make sure that delicate information is
protected¯ and that sources and methods are protected, and I think you have done
an expert job on that front. I hope we continue to have that balance and to
OLC 000734
have public hearings, so that the American people can get the information, so
that they can feel more comfortable with access. So thank you again for your
balance in this.
Mr. Kojm, I come back to one of the most disturbing things that I’ve
heard today, and there have been a litany of disturbing things. But one of the
most disturbing for me is the fact that a couple of years ago you could be in
America, you could be on a watch list, you could apply for a visa extension, and
get it. Is that true?
MR. KOJM: Congressman, I am going to ask my colleague Richard Bier

(ph) from Consular Affairs to help with that question.
MR. BIER (ph) : Again make the distinction that this application for
someone already in the United States to extend their stay is communicated --
REP. ROEMER: Is it true -- I only have about four minutes -- is it

true that you could do that --
MR. BIER .(ph) : Yes.
REP. ROEMER: -- prior to September llth?
MR. BIER (ph) : Yes.
REP. ROEMER: So you could be on a terrorist watchlist, you could

simply apply for extension, receive the extension, and stay in the United States
for whatever your visa extension was permitted?
MR. BIER (ph) : Yes.
REP. ROEMER: Has that been corrected?
MR. BIER (ph): That I am not prepared to answer. I don’t know what
the Immigration Service is doing now in terms Of -- I believe --
REP. ROEMER: You’re~in a few weeks after September llth. We sti.ll

cannot answer the question of whether or not that deficiency.has been addressed?
MR. BIER.(ph) : I can’t answer it.
REP. ROEMER: Anybody in the room can answer that question? Well, I
would hope we would get an answer to that question very quickly. And, more so
than an answer to the question, a way to solve the problem. So that one of the
.places for a terrorist to be safe is not the United States of America.
I want to ask our dedicated people here from the FBI and the CIA --
thank you again for coming today. To the CIA officer I want to ask -- I’ve had
concern about not enough emphasis on analysts. You in your good work at CIA put
some clues together, I understand, in May of 2001, after this situation had been
missed for a while. You started a ball rolling. It’s my understanding that
with the clues finally put together in May of 2001, that was turned over to an
analyst who then put it together by August of 2001. Is that correct? CIA
OgFICER: Not entirely. There was a small team probably working this --
separate people. " There was an analyst. There was also an FBI analyst --
REP. ROEMER: Okay.
OLC 000735
CIA OFFICER: -- on detail to CTC who was working on this.
REP. ROEMER: So there was an analyst from CIA and an analyst from FBI?
CIA OFFICER: Within CTC. And then they were working with their
colleagues --
REP. ROEMER: My q~estion would be, sir, how many analysts did we have
working this in CIA altogether -- the total number of analysts in CTC in May of
20017
CIA OFFICER: I don’t have an answer for that. I was at the FBI at the
time.
REP. ROEMER: How many in the FBI?
CIA OFFICER: I would say roughly -- what -- again, as I said before in

my statement, what you don’t have is a large team working a single problem.
Here you have people who are working multiple problems --
REPo ROEMER: My question --
CIA OFFICER: -- coming together periodically to look at it.
REP. ROEMER: I understand, I understand. My question though is how

many analysts are working UBL in CIA, and how many analysts are working UBL in
EBI? It is my understanding from a previous hearing that there was one analyst
in FBI working UBL full-time. Is that oorrect?
FBI AGENT: If I can take that, senator, that is not correct.
REPo ROEMER: That’s not? How many were there?
FBI AGENT: Going back to the fall of 1999, when the decision was made
to create the Counterterrorism Division separate from the old Nat±onal Security
Division, there was also a decision taken to create an information .resources
division. It was not necessarily popular, but the theory held that if you want
to do strategic intelligence, weneed-to have a majority, if not all the
analysts in the FBI,. in one division. I understand that an analyst within that
division was working strategic intelligence° In the .immediate aftermath of~the
Africa bombings we created a bin Laden unit, and it is.within that-unit -- the
only unit at headquarters that is responsible for one group,.and one group only,
that initially for, in addition with several investigative operational
specialists, work with the agent supervisors and the unit chief in the UBL. ~
Could we use more? I think I made that case, and we certainly coDld, and we
certainly hope for your support on that°
REP. ROEMER: I know my time has. expired, and the senator from
California has waited patiently for her turn. But, Mr. Chairman, I would hope
that since we had a host of different answers to this question over the last
several days that for the record we could get with certainty how many full-time
analysts were working the UBL situation for the FBI, how many for the CTC within
CIA, and how that had changed over this critical three-year period. And I thank
the chairman.
OLC 000736
MR. KOJM: I would just like to add to that it is also critical that we
understand what we mean by "analyst," because there are a lot of different
functions these people perform, depending on where they work. So some people
are analysts working in operational capacity; some people are analysts who write
memos for the president; some people are supporting operations -- they are
performing an analytic function, but it’s different. So it is a very difficult
question to answer in general. And there are a lot of other people working on
the bid Laden issue who are not analysts -- who perform a similar function in
terms of operational guidance and targeting and that kind of thing. So it is a
hard question to answer directly.
MR. BIER (PH) : Congressman -- excuse me, Mr. Chairman. I do want to

respond to Congressman Roemer’s previous question. I have at least a partial
answer, and that is that every name in the tip off database, and every new name
that is put into the database is run against records of visa holders, both
current and expired. And if any name a is a match, we do initiate a revocation
process. So if it’s in our database, and they are a visa holder, and we believe
they are here, we do pass that information on to domestic law .enforcement. It
gets passed on.
¯SEN. GRAH/iM: In reference to the question about personnel, on June

18th of this year, Senator Shelby asked Director Tenet to provide numbers
relative to the personnel within the CIA committed to various functions,
including ’the Osama bin Laden account. On August 28th, the joint inquir~y staff
reiterated that request for a detailed breakdown of personnel who were focused
full-time on bin Laden -- those who responsibilities involvedwork on al Qaeda
on a less than full-time basis. We have not yet received a .response from the
CIA on either of those two requests, and ¯ would particularly reference that to
the representative of CIA. I have asked Ms. Hill if we could make the same
request of the FBI, so that we will have comparable data from the two agencies.
REP. ROEMER: Thank you, Mr. Chairman.
SEN° GRAHAM: Senator Feinstein. SEN. FEINSTEIN: Thanks very much,

Mr. Chairman. I think Congressman Roemer raised, a good issue~ -And because some
Of Us worked on the Border Security and Visa. Entry Reform Act, we just pulled
the law:an’d it’s -- as you know, there wasn’t an interoperable database. My
understanding is that the law provides that now there should be one. .Whether
all the security databases provided for in this law are now..operable is a
question I’d like to. ask. ~
MR. KOJM (?) : Senator, is that addressed --
SEN. FEINSTEIN: If you don’t mind.
MR. KOJM (?).: I can answer that in part, and that is that we do provide
to the Foreign. Terrorism Tracking Task Force -- we began providing data on all
the unclassified data elements of every individual in the tip off database. So
that is provided, to domestic law enforcement.
Moreover, we do provide --
SEN. FEINSTEIN: No, is it provided to INS, so if an individual asks

for an extension on the visa, and that watch list -- and theyare on the watch
list -- that INS has that data at their fingertips now?
OLC 000737
MR. KOJM (?) : INS would have access to that information through the
Foreign Terrorism Tracking Task Force, in which INS is an integral member. That
is my understanding, senator.
SEN. FEINSTEIN: I think we ought to check that one ought. Mr.

Chairman, I just wanted to state publicly -- and then I wanted to ask the two
agents a quick question. One thing that comes through to me very strongly from
the staff report is how easy it is for those who would do us harm to use our
system falsely to game it to get into the country, and how much they knew about
our system. You know, it’s amazing to me that when the expedited access program
went into play in May of 2001, the very next month five of the hijackers avoided
a personal interview by using that speedy access system in Saudi Arabia, which
has been since, as I understand it from the staff report, done away with. They
knew How to get multiple entry visas. They knew how to get a new passport to
avoid saying where they traveled and how often they traveled. Six of them knew
that they could go to a bank and actually make up a Social Security nulnber, and
that the bankwouldn’t check that number, which they did do, and an FBI agent in
-- as a matter of fact, my subcommittee at Judiciary came in and testified to
that. So I think what we really need to know is that we reilly have got to keep
going over our systems and making recommendations of how they can.be
strengthened to avoid just this kind of thing.
I wanted to talk just for a moment with the two agents, if I could,
about the wall, because this is something that many of .us on Judiciary have been
interested in. And, as you well know, it involves FISA. And.in the Patriot
Act we-madeia couple of amendments. We changed the primary purpose having to be
from an intelligence point of view to a significant purpose being from an
intelligence point of view. And we also enacted a section, which is called a
new coordination provision that provides for coordination in the law with law
enforcement. And I want to just read to you m couple of the points and see if
you believe it covers what we need to cover.
Federal officers -- well, in other words, the FISA act is amended by

adding federal officers to conduct electronic surveillance to acquire foreign
intelligence information under this title may consult] with federal law
enforcement officers to coordinate efforts to investigate orprotect against
actual ’or potential attack or other great hostile acts of a foreign power or an
a:gent;of a foreign power, ’sabotage or international terrorism by.a. foreign power
or an agent, clandestine intelligence activities .by an intelligence service or
network of a foreign power or by an agent, and coordination authorized under
other sections. So clearly there is a very clear consultation that is
permissible now under FISA between the intelligence community and the so-called
Title 3 law enforcement community.
My qdestion to you -- and I am sure you probably reviewed this -- is

does -- do the agents for the most part that you come into contact with believe
that this is a significant improvement, and that thit wall -- you mentioned
something about the all being broken down -- but is down sufficiently so that
you are not hampered when you have to perform one of these investigations?
FBI AGENT: Yes, senator. With regard to some wall, that wall, it
definitelY has helped. I will submit to you that even since the Patriot Act, of
which I requested a copy, so I had it in writing, I have read on more than one
occasion to some individual who was attempting to withhold information, from me
just what you just read right there. -So old habits die hard I think with
regards to certain things° It has certainly helped to this point. With regard
to the other wall that Senator DeWine had mentioned earlier, I believe there’s
OLC 000738
certain -- there are so many different types of walls with regard to
intelligence and criminal, but with regard to the FISA specifically that one
seems to have helped. With regards to what Senator DeWine talked about the
other wall, we still have to deal~with that on pretty much a daily basis.
SEN. FEINSTEIN: Because we just had a hearing in Judiciary, and the

Justice Department, as you know, the FISA court I think only for the second time
in its history, has just produced a hearing -- produced an opinion saying to the
Justice Department where they tri~d to sort of entirely break down the wall in
terms of the application for a VISA process that significant purpose test
remained. And the Justice Department apparently did not want it to remain. The
FISA court had an unanimous opinion. That opinion is now on appeal. Do you
have a view on that subject? FBI AGENT: No, ma’am. I think there is some
document that I .was handed within the last week that talks about that
specifically, and is going to be circulated to the field. But I don’t have any
knowledge of that.
SEN. FEINSTEIN: Thank you. Do the other agents have any knowledge of
that?
CIA OFFICER: I’m from the CIA. Most of this is Greek. I’m sorry,
with all respect I don’t.
SEN. FEINSTEIN: Well, it was -- it still is to some extent with me.

Mr. Rolince, do you have a view on that?
MR. ROLINCE: Senator, let me start at the beginning end move forward.
I am not a legal expert. And, as you know, Spike Bowman, the deputy general
counsel, will be with you next week to walk through this. But unquestionably
the concerns thatmy colleagues raised about the issue of opening criminal or
intel goes by the wayside with the Patriot Act. And it’s probably one of the
most substantial positive changes that. you could have put into place to allow us
to move information as quickly as we possibly can in situations like that. In
addition to that, the change from a tw0-pronged task to just relevancy in order
.for us to get national security letters, (PIN. ?) registers, information like
¯ that, it is also a help, as are the expanded timeframes for which the FISA on
~bo[h United States persons and non- U.S. persons are in effect. There is one
area that we are still on debate on, and that is our ability to use the roving.
We are trying to work throughthat. We would like in counterintelligence and
c0unterterrorism the exact same capabilities we have if we are working public
corruption or organized crime cases. I think there is still an issue to be
worked out there.
Finally, as regards to the last piece, my understanding of it is the

degree to which criminal prosecutors will be able to guide, direct and manage
the. FISA process --and I think that is part of what is still being adjudicated,
if I have it right.
SEN. FEINSTEIN: Thank you very much. Thanks, Mr. Chairman.
SEN. GRAHAM: Thank you, senator. Senator Shelby.
SEN. SHELBY: Mro Chairman, I’ll try to be brief. These witnesses have
endured a lot with us today, and we appreciate that. And I am going to add to my
--add to th9 fact that the FBI agent and the CIA officer -- we appreciate what
you are doing, and we want you to continue to do that. But we should give you
OLC 000739
the tools and the resources to complete the job. And I think we understand
that.
This is directed to the bureau. As I understand it, Ai-Midhar and

Alhamzi, is that right, did not use aliases when they were in the U.S. They
lived in San Diego under their real names, signed rental agreements. And one
even obtained a California motor vehicle photo ID card. According to your
testimony, the CIA told the FBI that it was interested in these two terrorists
as early as January of 2000. In March the CIA apparently learned that the
terrorists had entered the United States. If the FBI had known that these
suspected terrorists were in the U.S., would it have been difficult to track
them down given that they were living entirely at that point in the open? You
recounted that after the CIA told you in AUgust of 2001 that these two should be
watch listed -- that the FBI tried to locate them in New York and Los Angeles by
searching for them under their real name. Did anyone at the bureau think to use
the Internet to conduct a national search for them, in local phone books and
other public records or commercial databases?
Further, if the CIA had watch listed these two terrorists inearly
2000, and they had been identified at the border, or if the FBI had managed to
find them living openly, as they were in San Diego, might you have been able to
conduct some surveillance or something of them?
You know, I know a lot of this is hindsight, but as we look back, I

think it’s worth bringing up -- especially where they live in the open. They
were living under their own names. You want to --
FBI AGENT: Yes, Senator. I will say, as part of that conversation, I

talked to Congressman Reyes about --
SEN. SHELBY: Right.
FBI AGENT: I was told that my name specifically could not be on any
paper regarding al-Midhar or, in the future, we would lose that. But the night
of September ilth, I submitted a request at that.time to our information center
-- technology center. And they came back within hours with at least one address
with regards to Khalid al- Midhar in San Diego through public resources. Now I
will caution saying that the names are unbelievable dealing with sometimes --
SEN. SHELBY: Oh, I know.

FBI AGENT: -- and with just the names, that it’s difficult to just
take a name and run a check. But it turns out.that what came back with regards
to that address was an accurate address for him, and in San Diego. And that was
part of my concern voicing with regards to ihtelligence agents and the case
assigned -- was that it was Probably going to be assigned, at least initially,
to not enough people. The guys that were trying to track them down were busy
with all the advanced techniques at the time to try to go -- to try to get a
hold of them.
SEN. SHELBY: (Inaudible) -- resources, too, don’t you?
FBI AGENT: Yes, Sir.
SEN° SHELBY: (Inaudible; aside.)
MR. ROLINCE: Sure, Senator.
OLC 000740
It is speculative as to what would have been done, had we found him.
Let me just put it in a context. As of September --
SEN. SHELBY: Well, I put it in that context --
MR. ROLINCE: Right, SEN. SHELBY: -- because I think it’s fair to do

that.
MR. ROLINCE: I was interested to know just how many people are out
there that we are looking for, and I asked. And ironically, as of September
ist, there are 7,295 FBI fugitives, most of them probably in this country, on
whom we have a process. Sort of a sobering thought that there are in excess of
830,000 local, state and federal subjects who are being looked for for various
number of crimes.
With that said, had we been able to find them, there would have
followed, I think, a pretty serious debate on exactly how far do you.take this.
The reason that we put people into the watch list and databases, quite frankly,
is to keep them out. So if now you find yourself in a position where a serious
terrorist is in the country, I’m speculating, but I don’t believe we would’ve
followed, monitored, covered ad infinitum. A point in time would have had to
come where probably 7th-floor decision-makers would have said, like we did.in
recent cases of people who we have arrested coming into this country, "Stop him,
pick him up, question him."
SEN. SHELBY: Well that’s a judgment call, and we understand that.

Sometimes it’s the right thing to do, sometimes we find that you stop them.and
arrest them too fast.
One last comment, Mr. Chairman, if you’ll indulge me.
Yesterday we had two.former national security advisers --Mr. Sandy

¯ .Berger, Mr. Brent Scowcroft. Mr..Scowcroft is no stranger to security knowledge
Of the world and others. But his statement that concerned me, but.didn’t Shock
me, said -- and I’ll try and paraphrase him, but I hope it’s verbatim. He said
basically that the safestplace for a terrorist anywhere in the world Was in th~
United States of America. And that concerns us all,- and it should.concern.the
CIA and the FBI and ~ii the locaI people and the citizens. We know we have a
challenge ahead of us, and we know we’ve got to have you to meet that challenge.
SEN. GRAHAM: Thank you.
Senator Rockefeller?
SEN. JOHN ROCKEFELLER (D-WV) : Thank you, Mr. Chairman. I think these
have been very, very useful, and serve, I think, a variety of purposes. And I
think that the two co-chairmen of this committee have been extremely careful in
making sure that everything was clear, that everybody was secure. I think it’s
been quite flawless that way.
I think all Americans, all government officials, all people who do

public service, and others who just might be well known or whatever, are at
risk. And one of the --~ it occurs to me that one of the -- one of the things
that a hearing like this, which is in public -- and I -- when I was first
OLC 000741
confronted with this, I wasn’t enthused about the idea of public hearings. On
the other hand, I’ve changed a bit because I think that’s one of the ways one
educates not only the American people but, frankly, the intelligence community
as a whole, as well, as Senator Graham -- Chairman Graham said, our colleagues.
And the end process here is really to make it better and more efficient for all
of us so there’s less frustration for all of us; that we develop an ability to
dialogue with each other; that you’re more confident the system is working which
protects and helps you and propels you forward in your work rather-than the
walls and all the rest of it. So that I’m glad of these hearings, and I
congratulate Chairman Graham and Chairman Goss. My two questions are very
simple. One is to you, Mr. Kojm. You talked about a -- I think about a 455
percent increase in the TIPOFF database money. And the committee added some
money for this program for this -- for fiscal 2003 in, I think, the intelligence
authorization bill.
That doesn’t mean it’s happened yet. In view of what you told us this
morning, does that in fact give you what you need? I mean, you know, if you. say
455 percelnt, people say, "Wow." It could, however, in view of what you, Mr.
.Rolince, said in terms of, you know, 7,800 or 8,700 people loose in this
country, .not necessarily all terrorists, but people that have committed serious
crime. Everything was within a context, and I need to have a sense of
satisfaction that if this money is forthcoming, it will be sufficient to your
purposes.
MR. KOJM: Senator, thank you very much for the question. I hope it’s
not any misimpression that I left, but the nature of the 455 percent really is
the increase in our workload since September llth. Our funding would be as
follows. That prior to September llth, the program was funded .at roughly a
little over a million dollars a year. Obviously --
SEN. ROCKEFELLER: I~’ve rather reversed the tasks, have I not?
MR. KOJM: And the funds have increased some, but not proportionate to
the w0rk~~ With the support of --
SEN. ROCKEFELLER: Well, then let’s talk about that~ because that makes
my-question much more important.
~ MR. KOJM: Funding post-9/ll increased to slightly over 3 million. So

it’s a sfgnificant increase in a tiny program. But it is not sufficient to the
workload. At the worker level, we would believe that funding ought to increase
several-fold to accomplish the task. Now, our building support staff, the source
of funding heretofore~has been machine-readable visa fees. And what has
happened since September llth is those fees are going south and have decreased,
and the requirements for those funds, because State is a player in homeland
security, particularly with Mexico and Canada, the funding requirements are
going north. So this is why our senior, leadership has been in contact with the
director of Central Intelligence about a signifcant increase in resources for
what is a national inelligende mission.
SEN. ROCKEFELLER: With any response?
MRo KOJM: Yes. I think we can say there is considerable interest and
a favorable disposition. But to speak beyond that, I really can’t, Senator.
SEN° ROCKEFELLER: Understood.
OLC 000742
There was some discussion -- my final question, Mr. Chairman .-- there
was some discussion not only in Ms. Hill’s excellent report this morning but
also amongst the five witnesses that are before us, or at least four of them,
about walls, lack of communication, and this is the essence of everything. I
mean, it’s the whole concept of -- so many of our national security agencies
have their own campuses, and sometimes,when, you know, Senator Graham and I are
talking, we’re talking about going abroad somewhere. "Going abroad" could be
visiting within a six-mile radius of the United States Capitol, those being sort
of, you know, different cultures, different people that speak different
languages or don’t speak to each other or have bad histories or whatever.
And I don’t want overemphasize that, but one -- I don’t think -- unless
I missed it, in which case I apologize, but I’ll ask it anyway -- involves the
NSA. A lot has been written about the NSA. The NSA is not famous for sharing
information. And I just -- I’m interested in terms of whether I might ask that
of our two gentlemen that I’m looking at now. Have you had any problems with
that from them, the sharing of critical information?
FBI AGENT: Before September llth, thrown into this whole FISA question
¯ ~-the question Of whether or not we could read SIGINT. And.what-happened was,
criminal investigators were prevented, before 9/11 -- and again, the only way I
can describe in this short time period is a snowball event --that they could
not read any SIGINT., because of the fact that some of the information that was
being fed to them and that they were utilizing was FISA-derived information.
~The NSA had decided that all information, then -- since it’s possible, then some
criminal investigators might read FISA information, that all criminal
investigators cannot read any SIGINT whatsoever.
So prior to September llth, besides not be±ng able to talk about the
information that we have already talked about here today, no criminal
investigator was able toread any SIGINT information. And that was, i~ my
personal oPinion, way too high of a wall with regard to that, .because that wa~
something that we relied on from a perspective -- just to kind of point us in
the right direction, if you will, realizing at the same time we knew any --any
Criminal investigator six months out of Quantico realizes you can never use that
information in an affidavit or a subpoena or anything like-that-at ~ii. And
.that wall has come down~ but there’s rumors that it might go back up with
.rggards to SIGINT information, since a lot of it is derived or Could be derived
-from FISA. So that is a part of the problem, too, and I think it’s a good
’t~ing, Senator,.that you brought that up, because criminal investigators need to
:be able to look at that information.
SEN. ROCKEFELLER: Since I’m not looking at the lights, I don’t

know whether or not the red light is on.
SEN. GRAHAM: It is, Senator. (Laughter.)
SEN. ROCKEFELLER: But I had --
SEN. GRAHAM: And it has been.
SEN. ROCIiEFELLER: But I had such a good, short question. Quite

extraordinary. Because we are compassionate --
SEN. GRAHAM: Go ahead.
SEN. ROCKEFELLER: It really is Short.
OLC 000743
And it’s to both of you gentlemen. Is there a general sense in each of
you that what happened on 9/11 -- that whether or not this was a happy or an
unhappy event -- this open hearing -- the fact that so much attention has been
focused, the fact that people are talking about communication walls and all
kinds of things -- we’re saying every -- you know~ NSA was "No Such Agency" for
years, and maybe some people are beginning to learn about it. Is there a sense
that there’s a brighter future out there, or is there - are you -- the
"overwhelming" factor that one of you used -- does that predominate? Are you
looking, do you think, at an improving situation? Do you feel that the Congress
and that your supe~iors and those that you work with are going to be able to do
their work better because of the attention post-9/ll?
CIA OFFICER: I will basically just say that the comment that I hear
most often, without having a personal opinion about resources at this point --
but the comment I hear most often from working-level people on both sides -- the
CIA and FBI -- involved directly in this bin Laden business is, one, with a
panic-stricken look in their eyes saying that "We’re going to miss stuff; we’re
missing stuff."
SEN.. ROCKEFELLER: We’re going to what?
CIA OFFICER: "We are missing stuff. We can’t keep up."
So I believe the resources -- I know the resources are being shifted to

meet this, and they’re continuing to be shifted. I know that technology
continues to be modified. And sort of the nightmare scenario is that the
modifications and the resources won’t get there in time. We also understand
that we can’t do this in five minutes. We can’t fix it in five minutes. .But I
will tell you right now from the front linesis that the feeling isone that
there’s just too much information still to handle and not enough people to do
it.
SEN. ROCKEFELLER: Some foreboding.
:CIA OFFICER: Yes.
FBIAGENT: I would say most field agents are :still frustrated. They
realize we’ve come, with regards to the FISA issues that we discussed, with the
wall~being re-set down -- that we’ve come a long way. But we also realize, with
th~ magnitude of what happened September llth in trying to prevent that in the
future, we need to go further. We need to make sure that all the walls that we
talked about here today continue to come down and that when information is
compartmentalized, that somebody’s accountable for that -- why that reason is --
all agencies, not just the FBI or CIA or anything. So we have some sense that
we’ve made some progress.
But, Senator, it’s my estimation, just from being where I am, ~is that we
need to continue that and go a lot further.
SEN. ROCKEFELLER: -I thank you, and I thank both chai.rmen very much.
SEN. GRA!{AM: Thank you, Senator Rockefeller.
I am going, to have to leave. I’m turning the chair over to my

colleague, Congressman Goss. I would like to express, as so many of my
colleagues have, our appreciation of your participation today, but more so the
OLC 000744
long service that each of you have given to the American people. We are deeply
in your debt.
MR. ROLINCE: Thank you.
MR. KOJM: Thank you, Senator.
SEN. GRAHAM: Senator Wyden.
SEN. RON WYDEN (D-OR): Thank you very much, Mr. Chairman.
Gentlemen, I was able to add an amendment to the intelligence

authorization -- and I think you’re aware of it, those of you at State -- tO
create a terrorist tracking system, a terrorist tracking system. And
particularly given what we heard from Ms. Hill today, it seems to me just
stupefying to hear today that a year after 9/11, discussions are essentially
only underway -- I mean that’s how it’s constantly described; I mean,
discussions are "underway." But here, Ms. Hill today has outlined all of the
problems that were associated with some of the past failures. In the
intelligence authorization, the leadership of this committee worked very closely
with me so that we’re trying to do it in legislation.
And I think the ~question I would ask, Mr. Kojm, is what is it going to
take to actuallyget this done? I mean, we’ve got the documented failures.
We’ve got a bipartisan effort in this committee to be supportive of your agency
and others. And I think I’d like to begin by having you all just give me a
sense of what is it going to take to actually get this done?
MR. KOJM: Senator, thank you for your question. I think the short
answer, with all due respect, Senator] is funds. And the department does not
have them. Consular Affairs has funded this .program almost in its totality
from the outset. It does not have the funds to provide for this purpose. For
this reason, the senior leadership at the Department of State is seeking funds
from elsewhere, from the DCI. And we believe that will be forthcoming. But
beyond that, I really can’t speak in detail.
SEN. WYDEN: I think that is a legitimate concern. But when I heard

Eleanor Hill this morning -- and I’ve discussed it in the past -- I’ve not had
cited as the primary reason for this a lack of-funds. :
I mean, what we heard this morning is that it just seems like.somehow

the left hand is reluctant to share with the right hand or they simply don’t
know about it. I’ll .be very supportive of the request:for additional funds.
But I will tell you, the more I learn about this, the more convinced I am that
there are a set of forces operating in the various agencies that have
responsibilities here, in the law.enforcement and intelligence agency.
And I’m just committed to getting at the bottom of this so it happens.

You have a commitment on my part and, I know, from others for the necessary
financial support, but I didn’t get the sense, listening to Ms. Hill, that the
central problem was funds.
When you talk about a nationai lookout center, how would that work?
And what agencies and levels of government Ought to have access to this
information?
MR. KOJM: Senator, thank you.
OLC 000745
I thin]< to help in responding to your question, it’s useful to just
enumerate how tiny the TIPOFF program is. We’re talking about five federal
employees, six full-time contractors, three part-time contractors and some
computer support people. It is a tiny program. To fulfill the purpose that you
have stated and which we believe it needs to fulfill as well, it needs to become
a much larger entity. And it needs to have representation from other agencies.
As my colleagues have spoken about how it’s so critically important for FBI and
CIA to live and work with each other, we believe as well that for a national
watch-list center to work effectively, it would need representation from CIA,
FBI, NSA, Transportation Security Administration, FAA, Immigration and
Naturalization Service, Coast Guard, probably other agencies that I haven’t
named.
SEN. WYDEN: How many more people do you thin]< are needed to do this,
do this right?
MR. KOJM: It is a planning figure. If our current number is II, it

would be several times that number. Probably less than a hundred, but it would
be considerably more than now work. And I hope I’ve made clear in my testimony
that this small number of people cannot do 24- by-7 work. And that is,one of
the initial requirements, that we need to have a 24-by-7 presence rather than
calling in people, as we do now, at every odd hour to come in and handle a case.
SENI WYDEN: With the passage of the legislation -- and as you know~ we
consulted wi~h a variety of the agencies that you mentioned -- how soon could we
get this in place, particularly if the funds are forthcoming?
MR. KOJM: Well, planning is underway. We do believe that within a

year, certainly within two, we can.have a center that we believe is equal to the
task.
SEN. WYDEN: Well, I hope so, because I ]<now that when I went home,
after we dealt with the authorization, and people would as]< what was going on,
and I said I had worked very closely with my colleagues on a terrorist tracking
system, and essentially something that really sort of very much is structured
along the lines of TIPOFF, they say, "Good job, Ron. Why do we need something
like that? Why wasn’t something like that in.place, say, by December Ist, a few
months after September llth?" And it is very hard to .give an answer.to that
question, and particularly when you listen to some of the comments of Ms. Hill
today, who basically took sort of step by step how somehow some of these people,
who could inflict such harm on this country, somehow fell between the cracks.
And you’re forced to conclude that we just can’t make the Wheels of government,
with all of the inertia that seems to accompany it, so often work very well.
And I want it understoo~ that I am very much committed to your getting

the resources that you need. I hope that you will continue to work With us to
try to refine the legislation because, in effect, our (TIC ?) system is on all
fours with what is, you know, now considered the TIPOFF program. And I want to
leave here, this Session, with a sense of how on a date certain we’re going~to
have this expanded program in place. Because to hear Mso Hill -- to hear what
we heard~today, with Ms. Hill outlining all the problems, and then to juxtapose
that alongside the testimony -- "Well, discussions are underway" -- I just think
we’ve got to work together and do better. And I’m committed to making sure that
the Congress gets you the tools, and you give us your sense of what it’s going
to take to get an expanded program in place quickly~
OLC 000746
REP. GOSS: Thanks, Senator Wyden.
MR. KOJM: Than]< you, Senator.
REP. GOSS: Senator Rockefeller, are you finished? Thank you very
much.
I wanted, then, very much to thank the United States Senate staff here,
and the joint staff, the people who made this work, and particularly our
witnesses today. It’s been extremely helpful for several of our objectives.
The staff has inevitably given me a couple of sweep-up questions, which

I will try and get properly stated.
Mr. Rolince, I think they’re probably both for you. And the .first one
-- and it occurred to me myself as you were talking: Is it ever possible to
open a criminal investigation on an individual if the only ~nformation comes
from intelligence?
MR. ROLINCE: Yes, sir. If that intelligence information touches on

criminal activity, then it becomes incumbent upon us to go back through the
system -- in fact, we do this with the British all the time.
I’ll give you a classic example: to go back to the security services to

see if they can’t give that same information to Scotland Yard or to the police
so that they can pass this to us in a criminal channel, and we can open a
criminal investigation. So yes, that is possible.
REP. GOSS: It is possible. It did appear, from the way the.statements

appeared today, that it’s a bit of a hindrance, however -- this whole problem
that has been brought up before us. And one of the things that occurred to me
- if I were a defense attorney, I would be doing my darnedest’to try and predict
that my client really shouldn’t be here because.much of this is coming, from
intelligence sources, and it’s not a criminal dealo And I can understand your
--problem -~sounds to me like that’s something we as a society, and the Congress,
perhaps, as the law-making body, .is going to have to deal with. Do you disagree
with~that?
MR. ROLINCE: I don’t disagree with it, but I would tell you, from my
~past experience, that, lawyer jokes aside, the competence and quality of people
within our organizations andwithin many, many districts -- and I would
ce~tainly highlight the Southern District of New York and the Eastern District
of Virginia -- in past dealings are smart enough to get us through those
problems..
REP. GOSS: That is good. I think what we need to be reassured is that

if there is some piece of legislation that’s in the way or some regulation
that’s in the way that is causing people who are out in the field, who are
testifying here today -- causing the frustrations we’ve heard expressed -- that
we need to take the appropriate action. That would be fixable, in my view, and
should be fixed if it continues to be a problem.
MR. ROLINCE: I appreciate that, Senator, and the Legal Counsel

Division representation here. And I’m sure next week we’ll be happy to talk
more on that topic.
OLC 000747
REP. GOSS: Think I will not hold it against you that you called me a
senator; I’m a mere congressman. Than]< you very much. (Isolated chuckle.)
MR. ROLINCE: Sorry, Congressman. My apologies.
REP. GOSS: The second question was -- also occurred to me, but it’s a
very good question. In the Cole investigation -- I think my colleague Mr. Reyes
asked this question -- about Khallad bin Attash. During the investigation, I
think there may been a mistaking with Khalid al-Midhar, and I just want to make
sure I understand this and understand the reasoning of it. My guess is that it
was known to the FBI in June 2001 that Khalid al-Midhar was an associate of
Khallad’s. Is that accurate?
FBI AGENT: No, sir.
REP. GOSS: It is not accurate?
FBI AGENT: Based on our knowledge, no, that was not accurate.- We had
reason to believe that another suspect that was traveling to deliver money to
Khallad had actually met with Khalid al-Midhar. And we can go into that detail
on a closed session, but that is -- as of that time, we did not. In fact,
that’s the type of thing that we were absolutely looking for in that meeting.
That would have been a home run for us.
REP. GOSS: That is -- was my assumption on it, and my thought was that
you actually had the association. Had you had the association, you would not
have run into all .these problems in that meeting. Is that correct?
FBI AGENT: Well, there -- I d~n’t know. I don"t want to specu!at:e,

but it would have kicked it up to the notch of certainly a higher level than
maybe .a lot of other avenues for us to pursue.
REP. GOSS: What I think our staff is trying to understand is, as you -
¯ -..pUrsuing a particular case and, in the.expansion of that case, following where
it goes, are there hindrances that need not be there once you’ve got the green
light to start .do~n~ that case every time a new name comes in?
FBI AGENT: With regard to certain information, just from my
standpoint, as a case agent, yes, there are hindrances. Some Qf~them are there
for very good reasons. What we need them -- help is just making sure that the
criminal agents are aware of all U.S. government information that is out there
regarding the people that they’re trying to pursue criminally and through intel
investigations within the bureau, if that answers your question.
REP. GOSS: Mm-hmm.
CIA OFFICER: Could i contribute, two cents in the CIA side of that --
REP. GOSS: Of course.
CIA OFFICER: -- and having observed this in the FBI side as well?
First,-in the order of events, I don’t believe that it was rediscovered.

-- because it had been lost in kind of the file -- that Khallad wassuspected to
have been at that meeting° I think that was not in anybody’s head who was up at
OLC 000748
this meeting in New York. That didn’t resurface again until later. Had it
resurfaced, it would have immediately been passed to the bureau.
And in general, speaking as somebody who’s been doing this kind of for
a long time, working with the FBI on terrorism cases and, you know, arguably
should probably knew better, but in general, what happens is, is that when a CIA
CTC person deals with the FBI on a terrorism issue, they don’t distinguish
between criminal and non; they just say, "You’re my FBI counterpart. Here’s the
information." Or they pass it formally.
So I would just again caution that there’s a difference between -- that

there’s not a CIA policy so much, that I’m aware of, to refrain from passing to
certain parts of the FBI information in general, unless it’s specifically noted
right there, and there’s a clearance process. But when you’re doing operational
sort of coordination -- I know in the Cole bombing nobody ever thought to ask,
"Excuse me, are you criminal? We can’t give this to you." It was very much,
you know, "This is the Cole bombing, and how can we help?"
So there’s a -- what happens in one meeting maybe we should take -- be

-- just be a little cautious about generalizing the practice, I guess, is what
I’m trying to say. Thank you.
REP. GOSS: While I think that’s a very good observation, I think there
may be a general observation that’s, more relevant, and that is, there probably
is a.greater difference at -- in the Washington area, in the headquarters area,
these dist±nctions are made with greater attention to detail than they are in
the field, where you’re really doing the urgent, necessary work in a very
different climate, which we understand.
And I’m trying to make sure that not only is the cooperation in the-
field working, but that we are not creating any impediments to that cooperation
back home, because I think we all understand there is a healthy fr±ction between
the field and headquarters.
¯. FBI AGENT: And just -- I do have to say this, and. I’m violating my
own common sense by goingtoo far, I think, bu~ I .will say it. .The key area~to
look out here, having watched the amount of pain that my colleagues in the FBI
go through on this subject, is the FISA process. Without being an expert in the
detail, tha.t is the key domestic pain issue that I see at FBI headquarters.
REP.~ GOSS: Well, you’ve noticed the Congress has taken a cut at that
already. And we didn’t get it exactly right the first time, apparently; the
courts are suggesting some things. And so this is not a closed book, byany
means. But I think we share the frustration and agree, with the observation.
I had a question, for Mr. Kojm, and that is basically this. -Even if we
had watch lists.that had the right criteria that stopped a lot of these people
trying to come in legally, would we then have solved the problem of would-be~
terrorists or others coming into the country illegally?
MR. KOJM: M~. Chairman, the answer, I think, is clear; we would not~
It clearly would be helpful to have comprehensive databases with excellent
information and low thresholds for putting that in, but if you enter the country
illegally, you would not be captured in any way, shape or form by such a
process.
OLC 000749
REP. GOSS: And then you would have to break a law, presumably, to come
to the attention of the law-enforcement authorities.
MR. KOJM: That’s my impression.
REP. GOSS: Since we don’t have any intelligence activity in this

country, that seems to be where we are, which is a very interesting question for
us to ponder as we go forward.
The last question I had I wanted to state in a cultural way. We’ve

heard a whole list of reasons why the system doesn’t work up to the expectations
we all had to prevent a 9/11, and there’s quite a number of them. They’re all
justifiable in terms of what things can go wrong, do go wrong. I think the most
impressive, to me, is the continuous statement about how. overwhelmed our people
are and don’t have time to do their job. It’s not just resources, it’s time, as
well. That the regulations -- sometimes the death of common sense actually did
happen; it died. The guyin New York who wrote that book was right that the
regulations go haywire on us. The culture is another area that I’m very
’concerned about: I know that there are many who feel that the culture of the
intelligence community is compartmentation and need to know, and that in its own
way seems to run directly counter to coordination and sharing information.
On the other hand, I well understand in law enforcement, prosecutions

are a great way to get a career advancement -- successful prosecutions. So
we’Ve got a cultural problem to deal with too. And we don’t want to take the
esprit away from anybody on the one hand, but we’ve got to work at better
efficiencies on the other.
Assigning priorities to resources is an incomplete skill and science~

it~ seemS. And I know quite often that agencies don’t get the same satisfaction
out of OMB that they’d like to get. And we on the Hill have different points of
view sometimes about both what the agencies and OMB think.
The management decisions. We find unevenness in management. In some

cases, brilliant management; in some cases, not so brilliant. Failing to
~recognize changed times and changed threats.
Communications requirements, which go beyond culture into.techno!ogy --

secure communications.
And personnel exchanges we’ve talked about.
All of these things are fixable, and all of these things need to be
’fixed for the American people, who it’s our mission to provide the greatest
amount of security for.
And for you folks doing the work, I want to assure you, the whole
purpose of thesA 9/11 joint investigations for us, to the greatest degree
possible, is find out what we can do better so we can fix it. That is not going
to be done in one set of hearings, it is going to take continuous time. So do
¯ not feel that when we put the gavel down to close this hearing that that’s the
end of this. It is going to go forward, because until we finish, the process of
making the fixes, we haven’t done our job. And I want to thank you very much
for you~ part in that today°
If there’s no further comment., we will call this session adjourned.
OLC 000750
(Sounds gavel.
END.
OLC 000751
PREPAREDSTATEMENT OF
A NEW YORK SPECIAL AGENT
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE

UNITED STATES. SENATE
PERMANENT SELECT COMMITTEE ON INTELLIGENCE

HOUSE OF REPRESENTATIVES
SEPTEMBER 20, 2002
Messrs. Chairmenl Vice Chairman Shelby, Ranking MemberPeiosi, and Members of the
Committees:
I am a Special Agent ofthe Federal Bureau of Investigation (FBI) assigned to the New York
Field Office. I appreciate your invitation to appear before your Committeei today in eonneefion with
your Joint Inquiry into the tragic events of September 11,2001. I fully understand the responsibility
with whi~h you have been charged. Iirt~end to cooperate with you and answer your questions to the
best of my ability.
I am speaking to you today as an individual agent. The views I express, therefore, are my
own, not necessarily those o fthe FBI, although I believethat myconcerns are shared by many fellow
agents. I hope by appearing here today I might help in a small Way to assure that the.men and
women of the FBI and others" in the Intelligence Community, .have access to the-information
necessary to carry out their sworn duty to protect the people of the United States.
I have no wish in the remarks that follow to be critical of any person. Whether they are at
(FBI) Headquarters or in the field, FBI personnel work their hearts out t.o perform our mission. I am
before you today to address practices that fr~. trate us all. Much has been written about how the FBI
does not share information w.ith local law enforcement agencies,, .but the American people must
realize that the FBI does not always t/ave acces~ to the information itself, noris all information the
FBI possesses available to all of its agents. It is my belief that the former problem is due to fear that
the Bureau may "run ahead" or "mess up" a current or future operation of one of our sister agencies -
OLC 000752
and the latter primarily due to decisions that .have snowballed out of the Foreign Intelligence
Surveillance Act (FISA) Court. A concept known as "The WalP’ has been created within the Law
Enforcement and Intelligence Communities. From my perspective, and in its broadest sense - "The
Wall’.’ is an information barrier placed betw.een elements of an intelligence investigation and those
of a criminal investigation. In theory - again sameperspective - it is there to ensure that we, the FBI,
play by the rules in our attempts to gather evidence in a criminal case and Federal prosec~ation.
I have tried to write this statement knowing full well that its contents and my testimony will
be studied by the enemy. Along those lines - much detail has been left out and if I may, humbly
remind everyone that questions regarding sources, other possible operations, attd investigative
methods in this forum should be approached with extreme caution.
As an aside, may I say I ftrmly believe prevention is best served by allowing the Law
Enforcement Community- Federal and local - to.conduct sound, sometimes exigent investigations,
with access to all information that the US Government and Liaison Governments possesses. These
investigations build sources, evidence, connections and information - and are not simply reactive.
I would like to assure the American people that in mY almostseven (7) years in the Bureau, the FBI
has always been in the Prevention ~ ifI may - "Game".
Before going further, I would like to offer a few words of introduction so that you aware of
the background that I bring to the questions before the Committees. Between I985 and 1993, I
served in the mifitary. ¯ After a brief stint in the private sector, I joined the FBI in December 1995,
and was assigned to the New York Field Offtce’s Joint Terrorism Task Force in July 1996.. From
July 1996 through October. 1997, I worked on the TWA Flight 800 investigation. In October 1997,
I was assigned to the squad that had responsibilities.for Taliban and Pakistan matters: Following the
East Africa Embassy bombings in August 1998, I Was part of the first team. on the grotmd, spending
a cumulative total of over 30 weeks abroad investigating the bomb~gs.
In early 1999, I joined the New York Field Office’s Usama Bin Laden (UBL) case squad,
which-is respons.NIe for the overall investigation of UBL and Al-Qaeda./mmediately at~r the attack
on the USS Cole in Aden, Yemen on October 12, 2000, I was assigned as one ofthe ease agents and
worked on that case - Adenbom - until the attacks of September 11, 2001. Since then I have also
worked on .general UBL ma¢ters an~l have been deployed 12 weeks overseas, working along side
other Intelfigence Community components. I mention this. fact because, although there areissues
about the sharing of information with FBI investigators by the CIA-- my experience is the FBI and
the Intelligence Community have worked successfully together. The people of the United States
should take great pride in the service and sacrifice of the men and women o f all the US Agencies and
DOD deployed overseas~ many of whom I have had the privilege of working with overseas.
Briefly,"The Wall," and implied, interpreted~ created or assumed restrictionsregarding it,

prevented myself andother FBI Agents working a criminal case out of the New York Field Office
OLC 000753
from obtaining information from the Intelligence Community, regarding Khalid A1-Mihdhar and
Nawaf Al-Hazmi in a meeting on June tl,2001. At the time, there was reason to believe that Alo
Mihdhar and At-Hazmi had met with asuspect connected to the attack against the USS Cole. The
situation came to a head during the fourth week of August 200t, when, after it was learned that
Mihdharwas in the country; FBI HQ representatives said that FBI New York was compelled to open
an "intelligencecase" and that I nor any of the other "criminal case" investigators assigned to track
AI-Qaeda could attempt to locate him. This resulted in a.series of e-mails between myself and the
FBI HQ analyst working the matter.
In my e-mails, I asked where this "The New Wall" was defined. I wrote on August 29, 2001:
"Whatever has happened to this - somedaysomeonewill die - and wall or not - the public will not
understand why we were not more effective and throwing every resource we had at certain
~problems’. Let’s hope the National Security Law Unit will stand behind their decisions then,
especiallysince the biggest threat to us now, UBL, is gettingthe most ’protection.’" I was told in
response that "we [at Headquarters] are all frustrated with this issue," but "These.are the rules..
NSLU does not make them up."
I hope, Messrs. Chairmen, these proceedings are the time to break down the barriers and
change the system which makes it difficult for all of us, whether we work at FBI HQ or in the field,
at the FBI or elsewhere, to have and be abte to act on the information that we need to do our jobs.
Personally, I do not hold any US Government afftliated individual or group of individuals

responsiblefor the attacks on September 11,2001.. I truly believe that if given a chance, anyone of
them would give or sacrifice anything to. have prevented what occurred. Then, and now, I hold the
system responsible. Information is power in this system of Intelligence and Law Enforcement. This
will never change --nor.could or should it. In addition to "The Wall", the system as it currently
exists, however, seduces some managers, agents, analysts, and o~cers intoprotecting turf and being
.the first to .knoW and brief those above.¯ Often these sadly mistaken individuals, use "The Wall"
:described here in, .and others-.real and imagined - to .control that information.
I, .myself, still have two key questions today that I believe are important for this committee
¯ to answer. The detailed answers to them will deserve, and be afforded, the scrutiny of a nation, and
must¯ stand the test oftime and exhaustive invegtigation. First, if the CIA passed, information
regarding AI-Mihdhar and AI-Hazmi to the FBt prior to the June 11, 2001 meeting - in either January
2000 or January 2001 - then why was that -information not passed, either by CIA or FBI
Headquarters personnel, immediately to the New York case agents, criminal or ."Intel",.
investigating themurder of 17 sailorsin Yemen When more information was requested? A simple
answer of"’The Wall" is unaccep!table. Second, how and when did we, the CIAand the FBI, learn
that Al~Mihdhar came into the coumry on either or both occasions, in January 2000 and/or in July
2001 and .what did we do with the information?.
OLC 000754
On September 1 l, 2001, i spent the morning on the streets with other agents and Joint
Terrorism Task Force (JTTF) personnel around the World Trade Center, providing whatever help
we could. I and several of.my co-workers were witlfinblocks when both towers came down_ Within
minutes of the second strike on the Southern Tower; we asked a senior fireman heading towards the
South Tower what we could do. At the time, he was getting out.0fhis fire truck and looking at the
towers. By the Grace of God he mined to us and replied that he did not know what we could do -
but that we were not going anywhere close to the buildings without a respirator. I do not know who
he was but I truly believed he saved our lives. I also believe that based on the direction that he was
looking, towards the Southem Tower, that moments later he entered that tower and perished in the
attack. It’s taken a while for his response, but Ibelieve that the task before this committee, and in
some small way - me being here today - is what that brave fu-eman is telling us, all of us, "what we
Can do".
If’we do not change the system - if I may say aga’.m -"someday someone will die - and wall
or not - the public wili not underst.and why we were not more effective and throwing every resourc.e
we had at certain ’problems’."
Thank you for this opportunity and privilege of appearing before you today. I would, of
course, welcome your questions.
OLC 000755
From: Institute of Bill of Rights Law [ibrl@wm.edu]
To: Yoo, John
Subject: Updates..
tmp.htm (2 KB)
Hi all:
We wanted to update you on the plans for the conference.
Papers are due Oct 1. When you send the paper (or paper abstract) to us, please send it to all of the other participants.
If you would like us to forward your paper, that is fine. "
The plan is to allot each presenter thirty minutes (we are expecting twelve presenters to attend the.roundtable). If at :all
possible, please try to limit your opening remarks to 10 minutes.
Also, we would like for each of you to ask the first question of one of the presenters. That means that you will need to
read that person’s paper before the conference. If that is problematic for any reason, let us know.
We anticipate sending a conference schedule to each of you a week or so before the conference. If you plan to arrive
late on Friday or leave early on Saturday, let us know (so that we will be sure to slot you at a time that works).
The conference dinner is Friday night. If you intend to stay in town Sat nil]ht (and would like to 1~o out to dinner with
other folks who are spending Sat night in Williamsburg), please let us know.
Also, we were thinking of starting the conference at 1:30 Friday afternoon.

If that time is problematic, let us know. FYI there will be a buffet lunch on Friday. If you cannot make it to that lunch, let
us know.
Weare looking forward to seeing you next month.
Regards,
¯ Neal Devins & Keith Whittington
OLC 000756
Hi all:
We wanted to update you on the plans for the conference.
Papers are due Oct 1. When you send the paper (or paper abstract) to us, please send it to all
of the other participants. If you would like us to forward your paper, that is fine.
The plan is to alloteach presenter thirty minutes (we are expecting twelve presenters to attend
the roundtable). If at all possible, please try to limit your opening remarks to 10 minutes.
Also, we would like for each of you to ask the first question of one of the presenters. That
means that you will need to read that person’s paper before the conference. If that is
problematic for any reason, let us know.
We anticipate sending a conference schedule to each of you a week or so before the

conference. If you plan to arrive late on Friday or leave early on Saturday, let us know (so that
we will be sure to slot you at a time that works).
The conference dinner is Friday night. If you intend to stay in town Sat night (and would .like to
go out to dinner with other folks who are spending Sat night in Williamsburg), .please let us
know.
Also, we were thinking of starting the conference at 1:30 Friday afternoon. If that time is
problematic, let us know. FYI there will be a buffet lunch on Friday. If you cannot make it to
that ItJnch, let us know..
We are looking forward to seeing you next month.
Regards,
Neal Devins & Keith Whittington
file://C:kDocuments and Settings\dbrinleykLocal Settings\Temporary.Internet Files\OLK6C... 7114/2010

OLC 000757
Thursday, September 26, 2002 2:15 PM
Yoo, John’C
Yale Federalist Society
Mr. Yoo:
Greetings from the Federalist Society at Yale! We are wondering whether you would be willing to come debate
federalism:and the tenth amendment in November or December of this fall. While we haven’t nailed down someone
for the oih~r side~ I would approach Prof. Paul Kahn if you’re interested in coming. Prof: Kahn, though he doesn’t seek
the limelight at YLS, is an excellent speaker and thinks the lOth Amendment doesn’t apply after the Civil War (and even
if it did apply, he argues that political safeguards provide enough protection for federalism). So he would provide a
good match.
Last year the YLS Federalist Society hosted a drug legalization, debate, between then-Drug Czar Asa Hutchison and Gov.
Johnson of New Mexico as well as the National Student Symposium, whose speakers included Hon.
Ted Olson, Hon. Guido Calabresi, and Hon. John Walker. In short, we make up for our small membership by being active
and hosting top-not~ch, well-attended events. To continue that tradition, we would be greatly honored if you would
come deba’te at your alma mater.
Should you have any questions, please email me or call me ate. Thank you very much, and I look forward
to hearing from you.
Sincerely yours,
Alex Cooke
OLC 000758
From: Bruce Ross
To: Yoo, John C
Subject: Re: FEDERALIST SOCIETY AT UNIV OF WASHINGTON EVENT
Professor Yoo,
How about any time in January after the 6th? Mid-week (Tue, Wed, Thu) is preferred. The Puget Sound Lawyer’s
Chapter would still like to host you for something like cocktails/dinner in the evening, downtown. Since we would prefer
to host you at the University for an afternoon event (4:00-5:30), you can run them back to back, or choose to stay an
extra day and do them separately.
I’ll be in touch to see when will be convenient for you.
Thanks,
Bruce Ross
On 9/26/02 6:2:2 AM, "Yoo, John C" <John.C.Yoo@usdoj.gov> wrote:
> That is fine. Please suggest dates that works for you all John Yoo
> Office of Legal Counsel Department of Justice
> 202.514.2069
> 202.305.8524 (fax)
OLC 000759
From: Bruce Ross,
Sent: Friday, September 27, 2002 5:30 PM
To: Yoo, John C
Co: Jeanette Petersen
Subject: Re: FEDERALIST SOCIETY AT UNIV OF WASHINGTON EVENT
Sorry - quick correction: I should have said Monday the ~13th¯ of January for the Lawyers’ Chapter, and Tuesday the *
14th~ of January for UW (I must have been looking at Feb when I said :17 & 18).
Thanks,
Bruce Ross
On 9/27/02 11:31 AM, "Yoo, John C" <John.C.Yoo@usdoj.gov> wrote:
Great. Let’s be in touch as we get closer to the event.

John Yoo
202.514.2069
202.305.8524 (fax)
OLC 000760
Ffo~ Christopher J. Borgen.. "
Sent: Tuesday, October 01,2002 9:58 AM
To: Yoo, John C
Subject: Invitation to ASlL Rededication Symposium
Attachments: Reded Yoo invite.doc
Reded Yoo
invite.doc (40 KB)
<<Reded ¥oo invite.doc>>
Christopher J. Borgen
Director of Research and Outreach
The American Society of International Law
e-maih ~
OLC 000761
nternational Law
2223 Massachusetts Avenue, NW Washington, DC 20008-2864 Phone (202) 939-6000 Fax (202) 797-7133
Mr. John C. Yoo

October 1~ 2002
Dear John:
As we discussed on our phone call, I am writing on behalf of the American

Society of International Law to invite you to participate in the Symposium Panel on legal
issues related to the War on Terrorism that we are having in relation to the annual
meeting of the Advisory Board of the ASIL’s Judicial Outreach Program and the
Rededication of Tillar House. J?he panel will be from 3:30 p.m. - 4:30 p.m. on Friday,
November 1st at the ASIL’s offices at -Tillar House, 2223 Massachusetts A’cenue, NW.
The lunch meeting would last from 12:30 - 2:00 pm.
This would be a discussion panel and would n6t require a prepared speech. The
audience would be comprised of members ot~the JudicialProgram Advisory Board, the
Board of Editors of the American Journal of International Law and the Executive Council
of the ASIL.
Please Feel free to contact me to discuss any questions you may have; I can be
reached either by telephone at ~, by e-mail, to ;or by fax ~
to ~
Sincerely,
OLC 000762
Tuesday, October 01, 2002 6:12 PM
Yoo, John C;’
Co: Charlotte Ku; Richard LaRuei Sandra Liebel; Christopher J. Borgen

Subject: Tillar House Rededication Symposium Panel: Contact Info
Rededication Symposium Panel

"The Rule of Law versus The Age of Terrorism"
Friday, November :[, 2.002

3:30 pm- 4:30 pm
Moderator:
Dean Anne-Marie Slaughter

Woodrow Wilson School for Public and International Affairs Princeton University
tel:
fax:~
e_mail,:~ .........
Panel:
David A. Martin-
Henry L. and Grace Doherty Charitable.Foundation Professor of Law; F. Palmer Weber Research Professor of Civil
Liberties and Human Rights University of Virginia School of Law
tel: ~
fax:
e-mail:
Sean Murphy
¯ Professor of Law
George Washington University Law School
tel: ~
fax:
e-mail: - .........
Lt. Colonel Jeffrey K. Walker

U.S. Air Force
tel: ~
fax: ~
e-mail: ~
John Yoo (invited)
OLC 000763
tel: 202-514-2069
fax: 202-305-8524
e-mail: john.c.yoo@usdoj.gov
OLC 000764
Page l of 1
From: John Choon Yoo ~

Sent: Tuesday, October 01,2002 9:16 PM
To: Yoo, John C
Subject: Fwd: Laws of War Discussion on Iraq War
Attachments: Laws of War Discussion on Iraq War
7/1.4/2010 OLC 000765

September 29, 2002
MEMORANDUM TO (in no particular order): John Bolton (State), Tod Lindberg

{Hoover/Policy Review), Jack Goldsmith (Chicago), Madeline Morris (Duke), John
Yoo (Justice), Paul Stephan (UVA), Jerem. y Rabkin {Cornell), Ruth Wedgwood
(Yale-SAIS), Charles Krauthammer, Einer Elhauge {Harvard), Christopher Caldwell
{Weekly Standard), Edwin Williamson (S&C), Robert Turner (UVA), Diane
Orentlicher {WCL), Hays Parks (Defense), Lee Casey (B&H), David Rivkin {B&H),
Robert Goldman {WCL), Paul Williams {WCL), Charles Fried {Harvard), Abraham
Sofaer (Hoover), Samuel Estreicher {NYU), William Bradford {Indiana), David
Rieff.
FROM: Kenneth Anderson, Professor of Law, Washington College of Law (WCL),

American University, Washington DC
RE: Breakfast Discussion of Bush Administration Responses to Laws of War

Issues in Any
Upcoming Iraq War
SUMMARY:
I Propose to convoke a private, off-the-record breakfast discussion at

Washington College of Law, American University on wednesday, October 30,
2002, 8:30-11:00 am, in. order to bring together a small group, generally.
sympathetic to the Bush administration’s Iraq policies to identify issues that will
face the Bush administration, in. case of an Iraq war and begin framingresponses.
The group would be about a dozen or so people, drawn mostly from the. DC area,
and. would be people sympathetic to the Bush administration’s war aims. (with a
couple, of exceptions o distinguished, law of war experts from the WCL faculty
although, not necessarily sympathetic to the administration’s views ~ in order to
provide some critical, contrast) and, I would hope, would includesome.people
able to. articulate the discussion’s conclusions to pertinent members, of the
administration. The issues that I have in mind. include the legal methods of
.fil~hting an enemy that has decided to locate itself among civilian
noncombatants; POW status and its implications for detainees, especially the
form of trials; trials for those, accused of atrocities and other war crimes; the.
laws of war consequences of using WMD; pressures to turn suspects over to the
ICC, especially in a transitional, possibly European-led post-Saddam Iraq;. and
other topics that other people may want to address. The rationale for this
discussion is that there are laws of war issues which the Bush administration can
and should anticipate now arisinl~ out of an Iraq conflict, some of which it should
both think throul~h and formulate answers and policy about now and some of
which it ought to address now, rather than be put on the defensive by a barrage
of hostile criticism. At a minimum it ought to have its answers prepared, and
this discussion is intended to propose some of them. Out of this meeting I
would hope to have. at least a handful of people willinl~ to form a working group
on such issues with the intent of pressing these matters.
OLC 000766
ATTENDEES:
The list above is simply those I was able to think of, but I would welcome other
suggestions, especially with their email addresses, and especially those in the
administration. My request is that they be generally sympathetic to the
administration’s war aims; what I intend is not a public debate between the
administration and its critics - that is a useful exercise but not what this is about
- but instead a chance for friends of the administration’s policies to articulate
answers to questions that are likely to arise and to help the administration to
think through the complexities of the laws of war in such conflicts. Most of
those I have listed above are here in the DC area, as the proposed meeting is
relatively short and I am unable to provide a travel budget, but those able to
come from farther away are certainly welcome and in any case I thought might
be interested either to read the agenda or send comments by email. I would
particularly welcome any contacts who might be able to attend from the White
House Counsel’s Office and other relevant offices within the administration.
(You will see that I have listed more people on this memo than I have addressed
in the email - if you have current email addresses for any of those missing, I
would be grateful to receive them.)
DATE, TIME, AND PLACE: Wednesday, October 30, 8:30-11:00 am, Washington
College of Law, American University, 4801 Massachussets Avenue, NW,
Washington DC, 20016 (at the corner of Fordham Road. near the edge of the
District,. parking underground in WCL parking lot; bring ticket for validation).
Please RSVP to my email to. let me know if you are able to attend. Even if you
are not, I would welcomesuggestions of others to join us, and views or topics to
be addressed in the discussion..
INITIAL ISSUES:
1. Urban. warfighting among civilians. A constant refrain in news reports on war

preparations is the possibility of US forces having to fight Iraqi forces in Baghdad
or other cities, where the. enemy has deliberately mingleditself among the
civilian population for protection itself but greatly endangering the civilian
population. While US forces are taking steps to find ways to fight in such urban,
intermingled civilian environments, the question of the legality of using
noncombatants effectively as shields has not really been raised with .the public.
Itlis certain that in any case of urban warfare, the leading human rights monitors
will place the burden of protecting civilians from harm squarely upon US forces
and, consistent with past reporting .patterns,. tend to ignore the fact of enemy
forces having deliberately hidden, among civilians, by burying it deep in reports,
not making it a central point of media releases and interviews, etc.; Human
Rights Watch, Amnesty International, and European governments will attack the
United States for having failed to meet its. burden under IHL to take precautions
to protect civilians. It is true - and appropriate o that the obligation to protect
civilians from harm is independently upon.both defenders and attackers. It is
also true, however, that it falls more heavily on defenders if only because they
OLC 000767
make the first choice in where to locate themselves - among civilians or not. It
seems to me very important that the Bush administration make clear that IHL,
while placing a burden on attackers to minnimize collateral damage to
noncombatants, in no sense renders a target off-bounds because of the
presence simply of noncombatants. Indeed, as Tod Lindberg has pointed out,
the Bush administration ought (it seems to me anyway) to be stressing that the
criticism followed by the leading monitors and other governments tends to
increase risks for noncombatants over time because it practically excuses co-
location of military targets among civilians; just as Bush said that the UN could
only remain relevant by enforcing its resolutions, so too IHL can remain relevant
only by being something more than an erosion of noncombatant protections - a
message that in my view ought to be announced sooner rather than later.
2. POW status and its implications. The Bush ~dministration view that AI Qaeda
fighters are illegal combatants seems to me amply justified under IHL; it is worth
recalling why it mattered practically, which was that it spared the US the
necessity of court martials for anyone the US sought to try under the expansive
rules of the Uniform Code of Military Justice and its nearly full constitutional
protections for US military personnel. It seems to me unlikely, however, that the
Iraqi army, including its command, can be considered illegal combatants under
¯ IHL, notwithstanding that their atrocities include, at least according to Human
Rights Watch, genocide against the Kurds. There are a variety of matters for
which¯ the United States might want to try members of the Iraqi military. Some
of these might be handed off to a future Iraqigovernment, and there might be
pressure to turn them over to the ICC, especially if they were in the hands of
European¯ government forces in a post-war environment - but I would think that
the use. of prohibited chemical or biological agents against US forces would be
something that the United States would insist on trying directly, itself. In that
case, the question of the rules under which the accused would be tried would be
of immense, importance,a and their legal status under Geneva III would¯ be
directly controlling. It does not seem to me possible under Geneva III simply to
declare them illegal¯ combatants, even for the use of a prohibited weapon¯such
as sarin Or mustard¯ gas; Geneva III contemplates that enemy soldiers¯ will be
tried even¯ for war crimes as POWs, not declared to be illegal combatants. The.
lei~al difficulty lies, rather, in the. level of protection accorded to US soldiers
which carries over to enemy POWs.. One possibility might be a declaration in
advance of hostilities that US soldiers detained in the conflict zone and accused
of war crimes would be tried by military commission rather than under regular
UCMJ procedures, thus opening the way for similar treatment of enemy POWs.
But this obviously raises many questions of its own.
3. Trials of Iraqi civilians or soldiers for war crimes or other atrocities. Who
should try Iraqi civilian leaders or military commanders for atrocities, war
crimes, use of prohibited weapons, genocide against Iraq’s own Kurdish
population, etc. What parts of this should be conducted by (i) ~he US under
court martial rules: of one kind. or another, (ii) a future Iraqi court system, (iii) an
ad hoc tribunal such as the Yugoslavia or Rwanda tribunals, (iv) the ICC, or (v) no "
trials at all? The practicalities here are considerable. For exampe, European
OLC 000768
states such as France or Germany - and even perhaps Britain - would exert, and
be under, enormous pressure to turn any suspects that they had under their
jurisdiction, in the course of a UN-mandated post Iraq world, over to the ICC,
which would see it as an opportunity to give itself legitimacy even in a US-run
war. I think the US should resist all such attempts, but the pressures to give way
are immense. Under what circumstances should the US conduct its own trials -
surely for war crimes against US forces, but under what other circumstances, if
any?
4. The use of chemical or biological weapons. Ought the United States to

announce in advance of any conflict that any soldier, senior or junior, who used
CBW against US coalition forces would be tried for war crimes, including in court
martial in the field? It is important to note that the use of nuclear weapons is
not actually prohibited by IHL; it is important to distinguish WMD from weapons
prohibited by IHL.
5. Pressures to legitimize the ICC. See above for possible scenarios. What
should the US response be?
6. Other issues, for which I hope to have your input.
I hope you will agree with me that it is important to discuss these and other IHL
issues now, rather than waiting on events and criticisms that create an.
unnecessarily defensive, posture. I hope you are able to.join us for this meeting,.
and will share your views and suggestions on discussion .topics. by email in order
to develop a broad agenda. Please be in. touch, with me at your earliest
convenience, a’nd as it appears useful, I will. circulate an updated agenda and
participant list.
With best regards.
Kenneth Anderson
OLC 000769
Page 1 of 3
September 29, 2002
MEMORANDUM TO (in no particular order): John Bolton (State), Tod Lindberg (Hoover/Policy Review), Jack Goldsmith
(Chicago), Madeline Morris (Duke), John Yoo (Justice), Paul Stephan (UVA), Jeremy Rabkin (Cornell), Ruth Wedgwood
(Yale-SAIS), Claarles Krauthammer, Einer Elhauge (Harvard), Christopher Caldwell (Weekly Standard), Edwin Williamson
(S&C), Robert Turner (UVA), Diane Orentlicher (WCL), Hays Parks (Defense), Lee Casey (B&H), David Rivkin (B&H),
Robert Goldman (WCL), Paul Williams (WCL), Charles Fried (Harvard), Abraham Sofaer (Hoover), Samuel Estreicher
(NYU), William Bradford (Indiana), David Rieff.
FROM: Kenneth Anderson, Professor of Law, Washington College of Law (WCL), American University, Washington DC
RE: Breakfast Discussion of Bush Administration Responses to Laws of War Issues in Any
Upcoming Iraq War
SUMMARY:
I propose to convoke a private, off-the-record breakfast discussion at Washington College of Law, American University
on Wednesday, October 30, 2002, 8:30-11:00 am, in order to hring together a small group generally sympathetic to the Bush
administration’s Iraq policies to identify issues that will face the Bush administration in case of an Iraq war and begin flaming
responses. The group would be about a dozen or so people, drawn mostly from the DC area, and would be people
sympathetic to the Bush administration’s war aims (with a couple of exceptions - distinguished law of war experts from the
WCL faculty although not necessarily sympathetic to the administration’s views - in order to provide some critical contrast)
and, I would hope, would include some people able to articulate the discussion’s conclusions to pertinent members of the
administration. The issues that I have in mind include the legal methods of fighting an enemy that has decided to locate itself
among civilian noncombatants; POW status and its implications for detainees, especially the form of trials; trials for those
accused of atrocities and other war crimes; the laws of war consequences of using WMD; pressures to turn suspects over to
the ICC, especially in a transitional, possibly. European-led post-Saddam Iraq; and other topics that other people may want to
address. The rationale for this discussion is that there are laws ofwarissues which the Bush administration can and should
anticipate now arising out of an Iraq conflict, some of which it should both think through and formulate answers and
policy about now and some of which it ought to address now, rather than be put on the defensive by a barrage of hostile
critidism. At a minimum it ought to have its answers prepared~ and this discussion is intended to propose some of them. Out
Of this meeting I would hope to have at least a.handful of people willing to form a working group on such issues with the
intent of pressing these matters.
ATTENDEES:
The list above is simply those I was able to think of, biat I would welcome other suggestions, especially with their email
addresses, and especially those in the administration. My request is that they be generally sympathetic to the administration’s
war aims; what I intend is not a public debate between the administration and its critics - that is a useful exercise but not what
this is about - but instead a chance for friends of the administration’s policies to articulate answers to questions that are likely
to arise and to help the administration to think through the complexities of the laws of war in such conflicts. Most of those I
have listed above are here in the DC area, as the proposed meeting is relatively short and I am unable to provide a travel
budget, but those able to come from farther away are certainly welcome and in any case I thought might be interested either
to read the agenda or send comments by email. ! would particularly welcome any contacts who might be able to attend from "
the White House Counsel’s Office and other relevant offices within the administration. (You will see that I have listed more
people on this memo than I have addressed in the email - if you have current email addresses for any of those missing, I
would be grateful to receive them.)
DATE, TIME, AND PLACE: Wednesday, October 30, 8:30-11:00 am, Washington College of Law, American University,
(at the comer of Fordham Road near the edge of the District,
parking underground in WCL parking lot; bring ticket for validation). Please RSVP to my email to let me know if you are
able to attend. Even if you are not, I would welcome suggestions of others to join us, and views or topics to be addressed in
the discussion.
INITIAL ISSUES:
1. Urban warfighting among civilians. A constant refrain in news reports on war preparations is the possibility of US forces
having to fight Iraqi forces in Baghdad or other cities, where the enemy has deliberately mingled itself among the civilian
OLC 000770
file://C:~ocuments and Settings\dbrinleykLocal Settings\Temp0rary Internet Files\OLK6C... 7/14/2010
Page 2 of 3
population for protection itself but greatly endangering the civilian population. While US forces are taking steps to find ways
to fight in such urban, intermingled civilian environments, the question of the legality of using noncombatants effect!vely as
shields has not really been raised with the public. It is certain that in any case of urban warfare, the leading human rights
monitors will place the burden of protecting civilians from harm squarely upon US forces and, consistent with past reporting
patterns, tend to ignore the fact of enemy forces having deliberately hidden among civilians, by burying it deep in reports, not
making it a central point of media releases and interviews, etc.; Human Rights Watch, Amnesty International, and European
governments will attack the United States for having failed to meet its burden under IHL to take precautions to protect
civilians. It is true - and appropriate - that the obligation to protect civilians from harm is independently upon both defenders
and attackers. It is also true, however, that it falls more heavily on defenders if only because they make the first choice in
where to locate themselves - among civilians or not. It seems to me very important that the Bush administration make clear
that IHL, while placing a burden on attackers to minnimize collateral damage to noncombatants, in no sense renders a target
off-bounds because of the presence simply of noncombatants. Indeed, as Tod Lindberg has pointed out, the Bush
administration ought (it seems to me anyway) to be stressing that the criticism followed by the leading monitors and other
governments tends to increase risks for noncombatants over time because it practically excuses co-location of military targets
among civilians; just as Bushsaid that the UN could only remain relevant by enforcing its resolutions, so too IHL can remain
relevant only by being something more than an erosion of noncombatant protections - a message that in my view ought to be
announced sooner rather than later.
2. POW staresand its implications. The Bush administration view that A1 Qaeda fighters are illegal combatants seems to me
.amply justified under IHL; it is worth recalling why it mattered practically, which was that it spared the US the necessity of
court martials foranyone the US sought to try under the expansive roles of the Uniform Code of Military Justice and its
nearly full constitutional protections for US military personnel. It seems to me unlikely, however, that thelraqi army,
including its Command, can be considered illegal combatants under IHL; notwithstanding that their atrocities.include, at least
according to Human Rights Watch, genocide against the Kurds. There are a variety of matters for which the United States
¯ might’want to try members of the Iraqi military. Some of these mightbe handed off to a.future Iraqi government, and there
might be pressuret0 turn them over to the ICC, especially if they were in the hands of European govemmem forces in a post-
war environment - but I would think that the use of prohibited chemical or biological agents against US forces would be
Something that the United States would insist on trying directly, itself. In that case, the question of the roles under which the
accused would be tried would be ot~ immense importance,a and their legal status under Geneva III would be directly
controlling. It does not seem to me possible under Geneva III simply to declare them illegal combatants, even for the use of a
prohibited weapon ~uch as sarin or mustard gas; Geneva III contemplates that enemy soldiers will be tried even for war
Crimes as’POWs; not declared to be illegal.combatants. The legal difficulty lies, rather, in the level of protection accorded to
US soldiers Which carries over t0 enemY POWs. One possibility might be a declaration in advance of hostilities that US
soldiei:s detained ~n the conflict zone and accused of’war crimes would be triedby military commission rather than under
¯ regular UCMJ procedures, thus opening the way for similar treatment of enemy POWs. But this obviously raises many
questions 0fits own.
3. Trials of Iraqi civilians or soldiers for war crimes or other atrocities. Who should try Iraqi civilian leaders or military
.commanders for atrocities, war crimes, use of prohibited weapons, genocide against Iraq’s ownKurdish population, etc~ ¯
.What parts of this.should be conducted by (i) the US under court.martial rules .of one kind or another, (ii)a. future Iraqi court
system, (iii) an ad hoc tribunal such as theYugoslavia or Rwanda tribnnals, (iv) the ICC, or (V) no trials at all? The
- practicalities-here are considerable. For exampe, European states such as France or Germany - and even perhaps. Britain -
woulrexert, and be under, enormous pressure to turn any suspects that they had under their jurisdiction, in the course of a
UN-mandated post Iraq world, over to the ICC, which would see it as an opportunity to give itself legitimacy even in a US--
run war. I think the US should resist all such attempts, but the pressures to give way are immense. Under what
circumstances should the US conduct.its own trials - Surely for war crimes against US forces, butnnder what other
circumstances, if any?
4. The use of chemical or biological weapons. Ought the United States to announce in advance of any conflict that any
soldier~ senior or junior, who used CBW against US coalition forces would be tried for.war crimes, including in court martial
in the field? It is important to note that the use of nuclear weaporis is not actually prohibited by.IHL; it is important to
distinguish WMD from weapons prohibited by IHL.
5. Pressures to legitimize the ICC. See above for possible scenarios. What should the US response be?
6. Other issues, for which I hope to have your input.
hope you will agree with me that it is important to discuss these and other IHL issues now, rather than waiting on events
OLC 000771
file:PC ADocuments and Settings\dbrinleykLocal S.ettings\Temporary Internet Files\OLK6C... 7/14/2010
Page 3 of 3
and criticisms that create an unnecessarily defensive posture. I hope you are able to join us for this meeting, and will share
your views and suggestions on discussion topics by email in order to develop a broad agenda. Please be in touch with me at
your earliest convenience, and as it appears useful~ I will circulate an updated agenda and participant list.
With best regards.
Kenneth Anderson
OLC 000772
. file://C:kDocuments and Settings\dbrinley~Local Settings\Temporary Intemet Files\OLK6C... 7/14/2010
To: Yoo, John C
Subject: Re: Federalist Society Event at Vanderbilt
Mr. Yoo,
Thank you for your email. We could move the talk -- the dates so far ahead of time are flexible. Also, it would be great
to invite Ms. Fisher back to Vanderbilt! Were you thinking that you both could some here at the same time or separate
times? If separate times, what sorts of topics could she address in .addition to the ones you could?
Best,
Neena

Email. ~
Tel. ++
From: "Yoo, John C" <John.C.Yoo@usdoj.gov>
To: "’Neena Ganguli Shenai’"
Subject:. RE: Federalist Society Event at Vanderbilt.
> Neena:
> Would you be. amenable to possible moving the. talk? Also~ can I offer
-instead. (or in. addition) Alice Fisher as a speaker? She is a deputy.AAG in the criminal division, who works full time with
¯ me on the war on terrorism, and, why she. particularly came to mind, she. is a Vanderbilt alumna!
>
>John. Yoo
> 202.514.2069
> 202.305.8524 (fax)
>
> From: Neena Ganguli Shenai [mailto:
> Sent: Sunday, August 25, 2002 5:55 PM
> To: Yoo, John C
> Cc: Neena Ganguli Shenai
> Subject: Re: Federalist Society Event at Vanderbilt
>
> Dear John,
> Sure..January 30 is fine. I will be in touchin a few weeks to confirm

> the. details.
OLC 000773
Best,
Neena

Email.
Tel, ++ ~
> From: "Yoo, John C" <John.C.Yoo@usdoj.gov>
> Sent: Thursday, August 08, 2002 9:38 AM
>> Let’s say the 30th for now.

>>
>> John Yoo
>> Office of Legal Counsel
>> Department of Justice
>> 202.514.2069
>> 202.305.8524 (fa×)
>>
>> .... -Original Message .....
>> From: Neena Ganguli Shenai
>> [mailto:~
> > Sent: Wednesday, August 07, 2002 11::34 AM
> > To: Yoo, John C
> > Subject: RE:. Federalist Society Event at Vanderbilt
>>
> > Tuesday-Thursday (Jan.. 28-30) would: be best. Friday is also possible
> (though.
> > Usually not best in terms of attendance), if it would be more
> > convenient
for
> > you with travel, etc. How do any of those days work for you?
>
>
> > VanderbiltUniversity Law School
> > Phone: ++
> > Email:
>>
>>
>> Quoting "Yoo, John C" <John.C.Yoo@usdoj.gov>:

>>
>> > How about the 4th week of January? Any specific day?
>> >
> John Yoo.
>> > Office of Legal Counsel
>> > Department of Justice
"2
OLC 000774
> > > 202.514.2069
> > > 202.305.8524 (fax)

> > > [mailto:
>>>
> > > Sent: Wednesday, August 07, 2002 9:44 AM
> > > To: Yoo, John C
> > > Subject: RE: Federalist Society Event at Vanderbilt
>>>
> > > Sure. Let’s plan on the spring then. Would either the third or
> > > fourth week of January work for you? Is early in the week or later
> > > in the week
better?
> > > If we
> > > could set something up tentatively, it would be great. I am really
> > > looking forward to the event! Thanks.
>>>
>>>--
> > ~ Neena Ganguli Shenai
> > > Vanderbilt University Law School
> > > Phone: ++
> > > Email:
>>>
>>>
>>>
> > > Quoting "Yoo, John C" <John.C.Yoo@usdoj.gov>:
>>>
> >. > > The other possibility would be the spring. Right now my
> > > > calendar
>>>.for
> > > > the spring is. relatively flee.
>>>>
> > > >John Yoo
> > > > Office of Legal Counsel
202.514.2069
202.305.8524 (fax)

> > [mailto:

To: Yoo, John C
Thank you for your reply. Our dates are very flexible. We can
accomodate you pretty much any time you. are available. Exams
> > > begin on Dec. 9, so
> >the
3
OLC 000775
> > > > first
> > > > week of December (early in the week) is possible. If there is
>>>>any
> > > time
> > > > suitable
> > > > for you prior to then, however, it might be better since the
> > > > week before exams can get a tight for people. But, if this is
> > > > the only time you would
>>>be
> > > > able to
> > > > come, I think it would be fine. Please suggest some dates which
> > > would
> > > > work for
>>>>you.
>>>>
> > > > Neena
>>>>
>>>>--
> > > > Neena Ganguli Shenai
> > > > Vanderbilt University Law School
> > > > Phone: ++
> > > > Email:
>>>>
>>>>
>>>>
> > > > O.uoting "Yoo, John C" <John.C.Yoo@usdoj.gov>:
>>>>
> > > > > It iS I~ood to hear from you. What are the best dates for you’all?
>>>>My
> > > >. > calendar has. already become pretty booked. Do you do events
>>>>>in
> > > > early
> > > > > December at all?
>. > > > > John Yoo

> > > > > Office.of Legal.Counsel
> > > > > Department of Justice
202.5:[4.2059
202.305.8524 (fax)
>>>>> ..... Original Message .....

> > > > > From: Neena Ganguli Shenai
> > > > [mailto:
> > >. > > Sent: Tuesday, August 06, 2002 :[:[:03 AM
> > > > > To: Yoo, John C
> > > > > Subject: Federalist Society Event at Vanderbilt
> > > > > Dear Mr. Yoo~
> > > > > You might remember that we had.the.chance tospeak again at
OLC 000776
>>>>>Ted
> > > > Olson’s
> > > > > picnic
> > > > > after havinl~ met at Leonard Leo’s International Law and
> > > > > American Sovereil~nty workinl~ l~roup meetinl~o I was very happy
> > > > > to hear you are still interested in speakinl~ at a Vanderbilt
> > > > > Federalist Society event this fall. Do
> > > you
> > > > > have any
> > > > > dates we can try to schedule? Or, how do you recommend we
> > > proceed?
>>>>>
> > > > > I look forward to speakinl~ with you soon.
>>>>>
>>>>> Best regards,
>>>>>
>>>>> Neena
>>>>>
>>>>>
>>>>> Neena Ganguli Shenai
>>>>> Vanderbilt University Law School
>>>> > Phone: ++
>>>> > Email:
>>>> >
>>>>>
>>>>>
>>>.>>
>>
>
>
OLC 000777
From: Janice Hoggs ~
Sent: Friday, October 04, 2002 11:49 AM
To: Yoo, John C
Cc: Don Wallace
Subject: Materials from Don Wallace
Attachments: 01 Class Annoucement.wpd; 02 Memo.wpd; 04 Class Schedule.wpd; 05 Syllabus.wpd
01,Class 02 Memo.wpd (8 04 Class 05 Syllabus.wpd

~oucement.wpd (3 K KB) chedule.wpd (10 KE (27 KB)
Dear Prof. Yoo:
Prof. Wallace asked that I send you the attached materials from his course on Constitutional Aspects of Foreign Affairs.
He will call you next week.
Please feel free to contact me if you have any difficulty opening the attachments.
Sincerely,
Janice Hoggs
Georgetown University Law Center
OLC 000778
July 2002
CONSTITUTIONAL ASPECTS OF FOREIGN AFFAIRS SEMINAR
Professors Wallace, Lazarus and McGrath

Fall 2002
Class Announcement
We will have our first meeting on Monday, September 9 at 5:45 p.m. in Room 588.
Please pick up materials from the Distribution Center, Room 473 on the 4th floor, and
read the Memorandum and the Readings for Week 1.
We look forwardto see!ng you~
Don Wallace, Jr.

Kenneth A. Lazarus
C. Dean McGrath, Jr.
OLC 000779
July 2002
MEMORANDUM
Constitutional Aspects of Foreign Affairs Seminar

We attach:
(i) a copy of the class announcement dated July 2002, and forms of a class
roster and a class schedule;
(ii) lecture topics and readings for initial weeks.
The initial reading assignment is in the class announcement. In addition to specific

reading assignments, we suggest fo.r general reference and background reading (i) Louis Henkin,
Foreign Affairs and the U.S. Constitution (2nd Edition, Oxford 1996) and (ii) Phillip R. Trimble,
International Law: United States Foreign Relations Law (Foundation Press 2002), copies of
which will be on course reserve.
The heart of the seminar is the paper that each of you will do on some aspect of our
subject: the powers of the three branches of the federal government and their allocation; federal-
state allocation of powers; bearing of and on individual rights, as all of these relate to foreign
affairs broadly defined. "
We will "negotiate" a topic and an outline of your paper in the early weeks of the
semester, but in any event by September 23rd at the latest. Your class presentation will be based
upon your first draft (which should be as close to afinal draft as possible).
Parts of the. first, second and third class sessions will deal with matters of organization-
paper topics, order and dates of class presentation of your papers. In addition to doing a paper,
you will be expected to do critiques of two of your colleagues’ papers (including a short written
critique in each case), Class will be more valuable if each of you will also read all of your
classmates’ papers in advance of their presentation in class (the presenter is to put a copy a week
in advance on the class listserve).
During the early sessions we will provide some introduction, history and parameters to
the -- always important -- subject matter of the course.
Don Wallace, Jr.

Kenneth A. Lazarus
C. Dean McGrath, Jr.
OLC 000780
CLASS SCHEDULE

Fall 2002
DATE TOPIC PRESENTER CRITIQUES (2 EACH)
Sept. 9 Introduction, organization and lecture Professors

Sept. 16 Organization and lecture Professors
Sept. 23 Organization and lecture Professors
Sept. 3o Lecture Professors
Oct. 7 Lecture Professors
Oct. 15 War Porters Pierce Cicero/B ellinger
War Powers JacksOn Kales/Gray
Oct. 21 Detention (Domestic) Hamarm Bangudi/Grandrimo
Louisiana Purchase Herzig Stults/Mallot
Sole Executive Agreements/ Workman Cirlin!Pyun
Conflict with Legislation
Oct. 28 Preemption May Pierce/Workman

Preemption Brown Dowdall/Bellinger
Plan Colombia Green Hamann/Cirlin
NOV, 4 Financial Assistance Kales Cinotti/Jackson
Intelligence Oversight Short StaRs/Workman
Zaire Bangudi Brown/Gray
Nov. 11 Military Tribunals Pyun Green/Bangudi
Korematsu Cicero Jackson/May
Iraq Bellinger Pyun!Brown
Nov. 18 " Burma - Foreign Commerce Power Mallot Kales/Green

Self Ex. Treaty - Supremgcy Clause Cinotti Short!May
Burma - Foreign Affairs Power Dowdall Short!Craythom
Nov. 25 Jurisdiction Stults Herzig/Craythom.

NAFTA Chapter li/Federal-State Craythom MaIlotJHerzig
Palestine - Recognition Cirlin Grandrimo/Cicero
Dec. 2 UN - TObin Tax Gray Pierce/Dowdall
Treaty Power - Terrorist Finance, Bombers Grandrimo Hamann!Cinotti
[Party]
OLC 000781
Fall 2002
OVERVIEW (Week 1)
1. Constitutional Framework: Separation of Powers Principles
President/Congress/Judiciary
Are the Principles different in the foreign affairs arena
Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), 343 U.S. 579 (1952)
2. Constitutional Interpretation is about Law
Remedies may be political (i.e. impeaclunent)
What was the original constitutional allocation of power among the three branches? How
has that allocation survived? Is it relevant today?
READINGS: 1. Federalist Papers Nosl 47, 69, 75

2. Case cited (Steeli Seizure Case)
3. Louis Henkin, "Foreign Affairs and the U.S. Constitution" (2na edition)
Presidential Power (Week 2)
A. Enumerated Powers: What are they; How should they be interpreted?
1. Executive Power (Art. II, sec. 1)
United States v. Curt&s-Y/right Export Corp., 299 U.S. 304 (1936)
2. Commander-in-Chief(Art. II~ see. 2, cl. 1)
3. Treaty Power (Art. tI, see. 2, cl. 2); Executive Agreements
. Interpretati0n/Termination
o ABM Treaty
o Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979)
4. Appointment of Ambassadors (Art. II, sec. 2, cl. 2)
OLC 000782
5. Recognition/Nonrecognition (Art. II, sec. 3)
o UnitedStates v. Belmont, 301 U.S. 324 (1937)

o UnitedStates v. Pink, 315 U.S. 203 (1942)
6. Law Enforcement (Take Care)
B. "Independent Authority"-- Is the sum of these enumerated powers greater than the
parts?
In re Neagle, 135 U.S. 1 (1890)
C. Delegated Authority
D. Wartime/Peacetime Powers
o Individual Rights and Liberties

o Korematsu v. United States, 319 U.S. 432 (1943)
o Military Tribunals: Ex Parte Quirin, 317 U.S. 1 (1942); In re Yamashita,
327 V.S. 1 (1946)
¯E. Limits on Presidential Power
o United States v. Nixon, 418 U.S. 683 (1974); Steel Seizure Case
o Impeachment
o Electorate
F. Issues for consideration:
Does the President really control foreign policy?
READINGS: 1. The cases cited in .the outline.

2. Eugene V. Rostow, "President, Prime Minister, or Constitutional Monarch,"
McNair Papers No. 3 (Oct. 1989)
Congressional Power ~ (Week 3)
A. Enumerated Powers
1. Declare War (cl. 11)

2. Raise and Support Army and Navy (cls. 12 and 13)
OLC 000783
3. Regulate Land and Naval Forces (cl. 14) cf. Commander and Chief
4. Tax and Spend (cl. 1)
5. Regulate Foreign Commerce (cl. 3)
6. Necessary and Proper Clause (cl. 18)
7. Senate Consent (Art. II, sec. 2, cl. 2)
B. Delegation Considerations
Dames & Moore v. Regan, 453 U.S.654 (1981)
C. Is the sum of these powers greater than the parts?
READINGS: 1. Peter Raven-Hansen and William C. Banks, "Congressional Appropriations

and Foreign Affairs: Pulling the Purse Strings of the Commander-in-Chief,"
80 U. Va. L. Rev. 833 (May 1994)
Case cited (Dames & Moore v. Regan)
Role of the Courts (Art. III)-- Limited (Week 4)
A..Judicial Reluctance -- Constitutional or Prudential
--"Case or Controversy" -- Limited jurisdiction
go Political Question Doctrine: Baker v. Carr, 369 U.S. 186 (1962); Goldwater v.
Carter, 444 U.S. 996 (1979); Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983).
Co Standing: Barnes v. Kline, 759 F:2d 21 (D.C. Cir. 1985) (Bork dissenting);
Dellums v. Smith, 797 F. 2d 817 (9th Cir. 1986).
D. Never assigned to the Courts by the Constitution
-- Lack of Judicial Decisions (Review) does not mean there is no law
E. Protection of Individual Rights
QUESTION: Is Marbury appl!cable in foreign affairs?
READINGS: 1. John O. McGilmis, "Constitutional Review by the Executive in Foreign

Affairs and War Powers: A Consequence of Rational Choice in Separation of
Powers," 56 Duke Law and Contemporary Problems (1993)
2. Cases cited. -
OLC 000784
The States and Foreign Affairs (Week 4)
° Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)
Vo CONCLUSIONS
(July 2002)
OLC 000785
From: Institute of Bill of Rights Law [ibrl@wm.edu]
Sent: Monday, October 07, 2002 1:49 PM
To:
Cc: Yoo, John C;
Subject: Fwd: Cong & Constit
tmp.htm (934 B)
>X-Sieve: cmu-sieve 2.0

>From:
>Date: Mort, 7 Oct 2002 09:59:0.5 EDT
>Subject: Con8 & Constit
>To: ibrl@wm.edu
>X-Mailer: AOL 7.0 for Windows US sub 10641
>
>Melody:
>
>Please distribute the followin8 to folks attendin8 the roundtable.
>
>Thanks,. Neal
>
>Bill Eskridge & John Ferejohn’s chapter will play off of an essay the’y
>wrote for a Duke Law Journal symposium on Congress and the Constitution.
>That symposim paper can be found at
>>
> ><http://www.law.duke.edu/shell/cite.pl?50+Duke+L. + J.+1215>http://www.I
>>aw.duke.edu/shell/cite.pl?50+Duke+L.+J.+1215
>>,
>
OLC 000786
X-Sieve: cmu-sieve 2.0
From:
Date: Mon, 7 Oct 2002 09:59:05 EDT
Subject: Cong & Constit
To:~
X-Mailei’: AOL 7.0 for Windows US sub 10641
Melody:
Please distribute the following to folks attending the roundtable.
Thanks, Neal
Bill Eskridge & John Ferejohn’s chapter will play off of an essay they wrote for a
Duke Law Journal symposium on Congress and the Constitution. That symposim
paper can be found at
http :/Iwww.law.duke.edulshelllcite.pl?50+Duke+h + J.+1215 .
OLC 000787
file:ffC:kDocuments and Settings\dbrinleykLocal Settings\Temporary Intemet Files\OLK6C... 7/14/2010
Laurent Mayali
To: Yoo, John C
Subject: Invitation to Florence
Dear professor Yoo,
On behalf of the Centro per la Storia del pensiero Giuridico Moderno and the Robbins Collection inRreligious and Civil
law, I am pleased to invite you to present a paper at the conference orl~anized by professor Mannoni and myself on
"New Frontiers of American Law". The conference will take place at the Villa Ruspoli in Florence durinl~ the week of
Octobre 14. In addition to the participation of our Italian colleagues, Dean John Dwyer and professor Howard Shelanski
will also present papers.
I very much hope that you will be interested in participatinl~ in this conference. Arrangements for your travel to
Florence and your stay at the Hotel de la Ville will be made by the centro and the Robbins Collection.
In the hope to be able to welcome you to Florence,
Sincerely yours
Laurent Mayali
Lloyd M. Robbins Professor of Law
Director of the Robbins Collection in Religious and Civil law
OLC 000788
FFOB: Randy Barnett ~ ,
Sent: Friday, October 18, 2002 5:26 PM
To: Yoo, John C
Subject: Panel on Ideology and Judges
Importance: High
John:
I am organizing a panel on "The Role of Ideology in the Judicial Nomination Process" for the Annual Meeting of the Law
Professor Division of the Federalist Society. The panel will be the featured opening session held on Thursday evening at
7:00 PM, January 2nd at the Shoreham Hotel in Washington DC before the start of the AALS annual meeting.
This year, for the first time, the Federalist Society meeting (but only this panel) will be announced in the AALS program.
While these panels have been well attended in the past, the new policy of the AALS towards the Federalist Society will
likely increase the size as well as the composition of the audience.
I will moderate the discussion. Walter Dellinger and John McGinnis have already committed to participate and I am
planningto invite one more person (besides yourself) to obtain a diversity of views.
I hope you can agree to participate, though I will understand completely

if you cannot. Let me know ASAP.
Cheers,
Randy
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
http://www.RandyBarnett.com
http://www.LysanderSpooner.org (Lysander Spooner.page) http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty
page)
OLC 000789
From: Ji Alexander Cooke
Sent: Friday, October 18, 2002 9:56 AM
To: Yoo, John C
Subject: RE~ Yale Federalist Society
Mr. Yoo,
i,ve run into some problems w/the federalism debate. After Prof Rubenfeld failed to respond to my emails trying to
nail down a date for the event, I’went to his office to settle on a date. In the process, I found out he hadn’t carefully
read my original email to him outlining your position on federalism. And after I explained your position, he revealed
that he’s not prepared to take the position that judicial review isn’t needed to protect federalism values (or that the
political process offers sufficient protection of federalism). What he is prepared to debate is the trend in the Court’s
federalism decisions, especially whether they are part of an anti-antidiscrimination agenda (see Rubenfeld’s recent
Article in the Yale Law Journal).
Let me know where you want to go from here. If you aren’t prepared to debate against Rubenfeld, I could try to find
someone else who would articulate the position that political controls are sufficient to preserve federalism values, but
I’m not sure I’d be successful. (I already approache~l Prof. Kahn, who is the only one I could think of w/that position
and he declined to debate.) Apologies for this trouble; I should have visited Prof Rubenfeld in the first place and not
relied so much onemail.
Alex
At 08:52 PM 10/2/2002 -0400, you wrote:

>Good.¯ Let me know.
>
>John Yoo
>Office. of Legal Counsel
>Department of Justice
>202.5::14.2069
>202.305.8524 (fax}
Original Message
>From: J. Alexander Cooke [mailto: .........
>Sent: Wednesday, October 02, 2002 8::1:[ PM
>To: Yoo, John C
>Subject: RE: Yale Federalist Society
>
>Mr. Yoo,
>Prof. Rubenfeld has agreed to debate you on federalism. I let him know
>that the debate would focus on whether the political process is
>sufficient protection of federalism and whether other constitutional
>values should outweigh federalism concerns. I specifically told him
>that this would not be a debate about the rationale the Court adopts in
>Lopez and Morrison, since that subject has been.debated to death and
>since you two might not disagree very much if that were the debate.
>
>As for dates, of the ones you gave me :[0 Dec looks like the best.
OLC 000790
>After looking at the school calendar, I realized that one of the Name
>lectures is the afternoon of the 3d, so attendance would probably be
>very low if we scheduled the debate for that day as well. I’ll check
>w/Rubenfeld to see whether 10 Dec works for him.
>
>1’11 be in touch re logistics after I hear back from Rubenfeld about dates.
>
>Thanks,
>
>Alex
>
>P.S. Rubenfeld recently had an Article in the Yale Law Journal on
>federalism. It probably won’t be so helpful for the debate, though,
>since his argument is that the Court’s federalism is actually a front
>for the Court’s anti-antidiscrimination agenda. If you’re interested
>in reading more about it, see 111 Yale L.J. 1141.
>
>At 08:44 AM 9/27/2002 -0400, you wrote:
> >Yes, debater’s fOrmat is good. In terms of dates, I guess either the
> >3d or 10th are best for me. Probably the 3d, as it follows soon
> >after Thanksgiving.
>>
> >John Yoo
> >Office of Legal Counsel
> >Department of Justice
> >202:514.2069
> >202:305.8524 (fax)
>>
> > .....Original Message .....
> >From:. J..Alexander Cooke [mailto:
>. >Sent: Friday, September 27, 2002 8:33 AM
>>To: Yoo, John C
> >Subject: RE: Yale Federalist Society
>>
> >Classes go through the 3d week of December, but we should probably
> >avoid the 3d week since some people will skip class and leave town
> >early. After taking a look at the school calendar, the best dates
> >are 3, 4, 10 and 11
> Dec.
>>
> >Are you ok w/the debate format? If so, the other debater’s schedule
> >might constrain which of the above dates works.
>>
> >Thanks,
>>
> >Alex
.>>
> >At 07:59 AM 9/27/2002 -0400, you wrote:
> > >Alex:
>>>
> > >1 would always be interested in speaking at my alma mater. And you
> > >have perfect timing. In fact, I am just finishing up an article on
2
OLC 000791
> >judicial review of federalism questions: it’s a criticism of the
> >idea that judicial review should not be exercised over federalism
> >issues because the political process protects states, or because
> >other constitutional values are more important.
> >The only problem maV be the scheduling. November is booked.

> >December is prettV clear right now; I don’t remember how late
> >classes go at Yale that month. Maybe we should shoot for the first
> >week of December? What dates look good for you?
> >John ¥oo

> >Office of Legal Counsel
> >Department of Justice
> >202.514.2069
> >202.305.8524 (fax)

> >From:
> >Sent: Thursday, September 26, 2002 2:15 PM
> >To: Yoo, John
> >Cc:
> >Subject: Yale Federalist Society
>>>
> >Mr. Yoo:
>>>
>.>Greetings from the Federalist Society at Yale! We are wondering
> >whether you would be willing to come debate federalism and the
> >tenth. amendment in November or December of this fall. While we
> >haven’t nailed down. someone for the other side, I would approach
> >Prof. Paul. Kahn if you’re interested in coming. Prof. Kahn, though
> >he doesn’t seek the limelight at YLS, is an excellent speaker and
> >thinks the :£Oth Amendment doesn’t apply after the Civil War (and
> >even if it did apply, he. argUes that political safeguards provide
> >enough protection for federalism). So he would provide a good match.
>>>
> >Last year the YLS Federalist Society hosted a drug legalization
> >debate between then-Drug Czar Asa Hutchison and Gov. Johnson. of New
> >Mexico as well as the National Student Symposium, whose speakers included Hon.
> >Ted Olson, Hon. Guido Calabresi, and Hon. John Walker. In short,
>. >we make UP for our small membership by being active and hosting
> >top-notch, well-attended events. To continue that tradition, we
> >would be greatly honored if you would come debate at your alma mater..
>>>
> >Should you have any questions, please email me or call me at
>> . Thank you very much, and I look forward to hearing
> >from you.
>>>
>’> >Sincerely yours,
>>>
>. >Alex Cooke
OLC 000792
4
OLC 000793
Page 1 of 1
From: John Choon Yoo

Senti Sunday, October 20, 2002 10:57 AM
To: Yoo, John C
Subject: Fwd: Invitation to October 30 IraqoLaws of War Discussion
Attachments: Invitation to October 30 Iraq-Laws of War Discussion
OLC 000794
.7/i4/2010
15 October 2002
Since first sending around a memo a couple of weeks ago. proposing a meeting at
Washington College of Law, American University to discuss international
humanitarian law issues in connection with any possible Iraq conflict, I have
been very pleased by the interest it has generated. Indeed the meeting is set to
go, and is now cosponsored by the Hoover Institution, which has generously
agreed to provide some modest travel funds. The meeting, logistics, and so on
are discussed at greater length in the attached memo, but the essentials are:
Wednesday, October 30, 8:30-12:00, with breakfast at 8:30, discussion

beginning promptly at 8:50 and ending at 12:00, with light informal lunch for
those able to stay. Place is Washington College of Law, American University,
4801 Massachusetts Avenue, NW, Washington DC 20016 (corner of Mass and
Fordham Road, upper, upper NW DC). Parking is in the underground garage
entered from Mass Ave; bring ticket for validation.
Modest travel grants are available from Hoover. Institution. In order to make the
funds go as far as possible, we are asking NYC and Boston participants to come
down on the early morning shuttle; other US participants from farther away,
Hoover will provide a travel grant sufficient to cover coach fare and Tuesday
night hotel. To the extent you can get assistance from your home institution, it
will enable our travel budget to go farther, so please be parsimonious. Hoover
does not reimburse against receipts, but instead makes a direct travel grant;
please be in touch with Ken Anderson so. he can put you in touch with Hoover to
find out their procedures. You will need to make your own travel arrangements.
Participants: At this point,, andsubject to last minute emergencies, those who

have expressed a desire to participate include John Bolton, Jack Goldsmith, and
John Yoo from the administration; Lee Casey, David Rivkin, and Edwin.
Williamson from private practice; Chris Caldwell, Tod Lindberg,. and David Rieff
from journalism; and Ken Anderson, Bill: Bradford, Sam Estreicher, Bob Goldman,
Madeline Morris, and Paul Williams from academia. A full list of invitees is on
the. attached memo, and I welcome any further suggestions of people who
should be invited; we are still awaiting word on other participants.
Format: Small, closed roundtable discussion of about a dozen people on IHL

issues likely to arise in any Iraq conflict, by experts who are generally (with some
exceptions) sympathetic to the administration’s Iraq policies. The aim to identify
issues and, where, possible, answers that the administration, as well as other
groups such as the media, academia, the general public, ought to take into
account in formulating policy. More broadly, the discussion aims to initiate
discussion of IHL in a way that begins to reclaim a certain realism that has been
lacking in recent years from the utopian tenor of IHLo Issues for discussion
include urban war fighting, POW and status classification~ trials and treatment of
alleged war criminals, responses to the use of prohibited CBW, application of the
law of occupation, and US response to ICRC proposals to convene a Conference
to reconsider IHL in the light of terrorism and the war on terrorism. Outcomes
OLC 000795
include seeking individual lawyers to draft position papers to be circulated to the
administration to urge it to formulate policies now on questions that are certain.
to arise under conditions of conflict and which it can and ought to answer now,
rather than going on the defensive in the face of criticism from the press, NGOs,
other countries, etc. All discussions are strictly offthe record and not for
publication.
I hope you are able to join us for this discussion. Please RSVP by email to advise
if you are able to take part. Please also provide ground mail address for
background documents, email, phone, and. a brief one paragraph bio.
Looking forward to October 30, with best wishes.
Ken Anderson
Washington College of Law
American University
OLC 000796
Page 1 of 1
15 October 2002
Since first sending around a memo a couple of weeks ago proposing a meeting at Washington College of Law, American
University to discuss international humanitarian law issues in connection with any possible Iraq conflict, I have been very
pleased by the interest it has generated. Indeed the meeting is set to go, and is now cosponsored by the Hoover Institution,
which has generously agreed to provide some modest travel funds. The meeting, logistics, and so on are discussed at greater
length in the attached memo, but the essentials are:
Wednesday, October 30, 8:30-12:00, with breakfast at 8:30, discussion begimfing promptly at 8:50 and ending at 12:00, with
light informal lunch for those able to stay. Place is Washington College of Law, American University, 4801 Massachusetts
Avenue, NW, Washington DC 20016 (corner of Mass and Fordham Road, upper, upper NW DC). Parking is in the
underground garage entered from Mass Ave; bring ticket for validation.
Modest travel grants are available from Hoover Institution. In order to make the funds go as far as possible, we are asking
NYC and Boston participants to come down on the early morning shuttle; other US participants from farther awa~¢, Hoover
will provide a travel grant sufficient to cover coach fare and Tuesday night hotel. To the extent you can get assistance from
your home institution, it will enable our travel budget to go farther, so please be parsimonious. Hoover does not reimburse
against receipts, but instead makes a direct travel grant; please bein touch with Ken Anderson so he can put you in touch
with Hoover to fred out their procedures. You will need to make your own travel arrangements.
Participants: At this point, and subject to last minute emergencies,.those who have expressed a desire to participate include
John Bolton, Jack Goldsmith, and John Yoo from the administration; Lee Casey, David Rivkin, and Edwin Williamson from
private practice; Chris Caldwell, Tod Lindberg, and David Rieff from journalism; and Ken Anderson, Bill Bradford, Sam
Estreicher, Bob Goldman, Madeline Morris, and Paul Williams from academia. A full.list of invitees is on the attached
memo, and I welcome any further suggestions of people who should be invited; we are still awaiting word on other
participants.
Format: Small, closed roundtable.discussion of about a dozen people on IHL issues likely to arise in any Iraq conflict, by
experts who are generally (with some exceptions) sympathetic to the administration’s Iraq policies. The aim to identify issues
and, where possible, answers that the administration, as well as other groups such as the media,, academia, the general public,
ought to take into account in formulating policy. More broadly, the discussion aims to initiate discussion of IHL in a way
that begins to reclaim a certain realism that has been lacking in recent years from the utopian tenor of IHL. Issues for
discussion include urban war fighting, POW and status classification, trials and treatment of alleged war criminals, responses
to the use of prohibited CBW, application of the law of occupation, and US response to ICRC proposals to convene a
conference to reconsider IHL in the light of terrorism and the war on terrorism. Outcomes include seeking individual lawyers
to draft position papers to be circulated to the administration to urge it to formulate policies now on questions that are certain
to arise under conditions of conflict and which it can and ought to answer now, rather than going on the defensive in the face
of criticism from the press, NGOs, other countries, etc. All discussions are strictly off the record and not for publication.
I.hope you are able to join us for this discussion. Please RSVP by email to advise if you are able to take part. Please also
p~:ovide ground mail address for background documents, email, phone, and a brief one paragraph bio.
Looking forward to October 30, with best wishes.
Ken Anderson
American University
OLC 000797
file://C,:\Documents.and Settin~s\dbrinlev~Local Settin~s\Temlgorarv Internet Files\OLK6C... 7/i4/20113
October 14, 2002
RE: Iraq.Laws of War Roundtable Discussion

Washington College of Law and the Hoover Institution
A.~genda and Logistics for Wednesday October 30 8~00 Meetin
MEMORANDUM TO:
John Bolton (State), Brad Berenson (WHC), William Bradford (indiana), Chris
Caldwell (Weekly Standard), Lee Casey (B&H), Edward Cummings (State),
Samuel Estreieher (NYU), Ezra Field (ACi), Michael Glennon (Tufts), Robert
Goldman (WCL-AU), Jack Goldsmith (DOD), Christopher Hitchens, Tod
Lindberg (Policy Review-Hoover), Jerome Marcus, Michael Matheson (SAIS),
Madeline Morrig (Duke), Diane Orenflieher 0NCL-AU), Hays Parks
Jeremy Rabkin (Cornell), John Ralston (Hoover), David Rieff, David Rivldn
(B&M), Adam Roberts (Balliol Oxford), Paul Stephan (UVA), Detlev Vagts
(HLS), Ruth Wedgwood (Yale-gAIS), Paul Williams (WCL-AU), Edwin
Williamson (S&C), John Yoo (DO J).
FROM:
Kenneth Anderson (Washington College of Law, Atnerican University)
Logistics
Washington College of Law/American University and the Hoov.er Institution are co-
sponsoring a small, non-public roundtable discussion of laws of war issues likely to
arise in a possible Iraq conflict, on Wednesday, October 30, 8:30-12:00.noon, at
Washington College of Law, American University., 480:1 Massachusetts Avenue,
NW, Washington DC 20016 (at corner of Fordham Street and Massachusetts
Avenue in upper-upper northwest DC). Entrance to parking is on
Massachusetts Avenue; park underground in the WCL garage and bring ticket
to conference for validation..Breakfast and, for those able to stay beyond the
discussion’s close-at noon, a light buffet lunch will be provided. Breakfast will
start at 8:30 am and the discussion promptly at 8:50 am. The roundtable
discussion will end promptly at 12:00 noon, with lunch for those able to stay.
Please RSVP to Ken Anderson ASAP to confirm participation. Please also send an
email with your email, phone, regular address to send background materials, and
also a short one paragraph bio.
Thanks to Hoover’s co-sponsorship, we are able to provide through Hoover modest

travel grants for those coming from outside the DC area. If you ar( coming down
from New York City or Boston, we ask that you take the shuttle down early
Wednesday morning to avoid hotel costs. If you are coming from farther away in the
US, Hoover will provide a travel grant aimed to cover-coach travel, Tuesday night
hotel, and taxis - the travel budget is very limited and we are seeking to spread it as
widely as possible so please be parsimonious and, where possible, seek at least some
coverage from your home institution. Hoover makes direct travel grants rather than
OLC 000798
providing reimbursement against receipts and asks you to make your own
arrangements; please contact Ken Anderson for more information so he can put you in
touch with Hoover.
Participation
Since my first communication, there has been excellent response from invitees and,
subject tb the last minute conflicts, participants at this point include among others
John Bolton, Jack Goldsmith, and John Yoo from the administration; Lee Casey,
David Rivkin, and Edwin Williamson from private practice; Chris Caldwell, Tod
Lindberg, and David Rieff from journalism; and Ken Anderson, Bill Bradford, Sam
Estreicher, Bob Goldman, Madeline Morris, and Paul Williams from academia. We
still await various other responses, and if you know of others to whom this invitation
should be sent, please contact Ken Anderson with contact information. We are
particularly interested in lawyers with experience in laws of wars matters, and
particularly interested in additional lawyers or policymakers from the administration,
including the White House Counsel’s office.
Purpose of Discussion
With the passage of the use-of-force authorization by Congress last week, the
possibility of an Iraq confl.ict grows daily. Such a conflict raises important issues for
the laws of war, both jus ad bellum and jus in bello, some of which were raised in the
Kosovo and Afghanistan conflicts, and others of which are new. The fundamental
purpose of this roundtable discussion is to bring together a group of experts who are
generally sympathetic to the Bush administration’s Iraq policies, including the strong
possibility of war, in order to identify and address jus in bello, international
humanitarian law, issues that are likely to arise in such a conflict, and to seek the
proper legal and policy responses to those issues and to communicate them to the
administration and, as appropriate, to the public at large. It is easy, in fact, even .
before any Iraq conflict begins, to identify legal policy-issues that are sure to arise -
ranging from the proper conduct of urban war-fighting to classification as POWs to
the law of occupation. Some of these arose in the Afghanistan fighting, while others
are new, but the Bush administration should get in front of those issues now, with the
public, media, NGOs, and other countries and UN agencies that are certain to launch
waves of criticism once a conflict begins.
This discussion is in one sense strategic, with the aim of providing the administration
with responses that have a sound basis in law and policy, with which it can answer its
critics. For. that reason, the invitees are mostly lawyers who are sympathetic to the
Bush administration’s Iraq policies and who would be sympathetic to the
administration’s war aims in such event. (Several experts have also been invited who,
while not necessarily agreeing with the Bush administration’s policies, are noted
experts in international humanitarian law from the WCL faculty, and who can inject
an important note of skepticism and criticism that would, in any case, be heard from
outside voices.) .In another sense, however, the purpose of this meeting is not merely
strategic - it isnot merely about providing, so to speak, rhetorica! responses by which
the administration can answer its international law critics. It is a premise of this
discussion that the United States, and the Bush administration, is committed to the
¯bedrock of international humanitarian law, the Geneva Conventions, and to their
OLC 000799
sensible, .realistic interpretation. The US should seek to craft policies which neither
dismiss the Geneva Conventions nor give into the Utopian interpretations of them by
NGOs or states which need not contemplate ever doing any real war-fighting. A
purpose of this discussion therefore is to craft answers which are indeed consistent
with international humanitarian law yet which begin the long and arduous process of
reclaiming the moral high ground of the laws of war from the fantasy world into
which too much of it has departed. There are in at least some cases right and wrong
answers under laws of war which the US firmly accepts, and there are better and
worse interpretations of those laws which take into account both the actual facts of
fighting and the laudable aim of protecting civilians. Those answers and
interpretations on matters likely to be raised in an Iraq conflict should be established
now, in advance of any conflict, and the administration ought to be willing to assert
them now if it believes those are the right answers. This discussion aims to articulate
at least some of those legal and policy responses.
Discussion A~enda
8:30-8:50 Buffet breakfast

8:50-9:00 Discussion begins; introductions of participants.
9:00-9:30 Issue 1: Urban Warfighting, Protection of Civilians, Collateral
Damage, Co-location, and Obligations of Attackers and Defenders
9:30-10:00 Issue 2: Classification of POWs and Status Questions - Lessons from
Afghanistan conflict for Iraq
10:00-10:30 Issue 3: Atrocities, Violations of IHL, Use of Prohibited CBW, Pre-
Conflict Atrocities, Possible Trials of Alleged Violators, and Trial
Venue Questions
10:30-10:40 Coffee Break
10:40-11:10 Issue 4: Applying the Law of Occupation Following the Conflict "
11:10-11:40 Issue 5: The.ICRC Proposal for a Conference to Negotiate a Post 9-11
Revision to IHL and the US Response
11:40-12:00 Seeking Volunteers to Draft Position Papers and Future
Discussion/Tasks
I2:00-1:00 Close of discussion.. Buffet lunch for those able to remain.
As you can see the agenda seeks to cover the widest range of issues in a very short
amount of time. Discussion on each topic is limited to 30 minutes, which is absurdly
short, but is aimed to get matters on the table with the idea that volunteers among the
lawyers will develop Position papers fleshing out policy proposals. In order that
everyone can be certain the meeting will end at 12:00 as scheduled, I propose to chair
the whole morning meeting myself and ruthlessly cut off discussion to keep us on
schedule.
Why This List of Issues?
This initial list of issues was developed in conversations with various of the invitees,
but I am more-than open to take up other questions as well, although for the sake of
time and coherence, I propose to limit this discussion to international humanitarian
law issues rather than taking up jus ad bellum questions. Please advise .by email if
there are other important IHL questions that should b9 put on the agenda.
OLC 000800
Issue 1: Urban warfighting issues. The spectre of urban fighting, with resulting
civilian casualties, in Baghdad and elsewhere has been raised repeatedly in the press
and as criticism of the possibility of war. It seems to me that the rules on collateral
damage and safeguards for civilians stated in Art. 51 of Protocol I, which I understand
the US to accept as customary law, seem to quite adequate to defend the ability to
fight in urban environments. The real issue - and the issue which I believe the
administration ought to be highlighting - is the responsibility not merely of attackers
to take precautions to minimize harm to civilians, but the obligations on defenders not
to co-locate in civilian zones. The trend of contemporary law of war discussions to
put the onus upon attackers rather than on defenders and their initial decisions to co-
locate seems to me one of the most pernicious imaginable from the standpoint of
protecting civilians.
Issue 2: Classification of POWs and Status Questions. The question of determining

the status of battlefield detainees - POWs or illegal combatants - with resulting
important implications for possible trial continues into the Iraq conflict. The
difference is that it seems to me at least (others may disagree) that the Iraqi army,
including its senior commanders, cannot plausibly be classified wholesale as illega!
combatants and not POWs. But in the case of possible trials, POW status may afford
them all the trial benefits available to US soldiers, whose constitutional rights the
Uniform Code of Military Justice largely seeks to preserve even in court martial. If
one agrees that trials on this basis for atrocities and other IHL violations would
require inappropriate standards for evidence; etc., how should the US respond to this
problem created by the undeniable reciprocity established in the Third Geneva
Convention?
Issue 3: Atrocities, Violations of IHL, Trials of Alleged Violators, Use of Prohibited

CB W, and Venue Questions. This topic follows directly on Issue 2, and is closely
interrelated to it. Status answers the question 0fthe form of trial in US hands, but
there are other questions - pressures will very possibly be brought to turn suspects for
trial over to such venues as the Yugoslavia tribuna!, or even (as some have suggested
in the ease of A1 Qaeda)the ICC given special hearing power by the Security Council
to hear these eases ad hoc. How should the United States respond to questions of
venue? What positions should it taken regarding the use of prohibited weapons such-
as CBW, if that occurs in an Iraq war? How should it deal with atrocities dating back,
for example, to the 1980s and the gassing of the Kurds, prior to the current conflict?
Issue 4: Applying the Law of Occupation Post-Conflict. Press reports at this writing
say that the administration is considering a far-reaching American-administered
occupation in the post-conflict period; other reports spoke of turning such tasks over
to NATO and other governments and the UN. Any such administration is likely to
involve important issues under the Fourth Geneva Convention; what are those
questions likely to be? How would an occupation fit with efforts that might be made
to secure some kind of post-war UN Security Council designation or mandate in the
rebuilding proeess? The Fourth Geneva Convention is in fact extremely generous to
the security requirements of the occupier; how should those provisions be relied upon
to justify measures to maintain security in post-conflict Iraq and possible moves to
break up the territory (or at least signifie~intly weaken its unitary structure)? .How
does the language of"liberation" that the administration is currently using comport
with obligations under the Fourth Geneva Convention?
OLC 000801
Issue 5: ICRC Proposals to Convene a Conference for the Revision of lHL:
Although not directly related to conflict in Iraq, the ICRC has taken steps to call a
conference to discuss the possibility of a post-September 11 revision of IHL,
apparently to take the war on terror into account. Al.though some in the ICRC say that
the effort arose from sympathy with the US position and the need for updating the
rules for dealing with non-state actors engaged in terror, indications at this point are
that the meeting will be dominated by the usual coalition of "like-minded states" and
NGOs interested in utopian revisions to IHL and "anti-hyperpower" measures aimed
at confining the US war on terror at worst. How should the administration respond?
Should it participate at all? Should it take an active lobbying role, or would it do
better to ignore the effort altogether? Are the existing rules adequate and would any
attempt at revision inevitably embroil the US in pointless debates over what
constitutes terrorism for the purposes of IHL?
Background Documents
I will distribute a set of background documents to these various issues that may be
useful in thinking about the discussion. For this please email your ground mail
address.
Outcomes
I envision two outcomes to this meeting:
(1) At the conclusion of the meeting, I would like to ask for volunteers from among
the lawyers to draft position papers, including both an executive summary but
also relevant substantive research, on the issues raised in the discussion - each of
the issues stated above, some important part of them, or others brought up in the
course of talking. I would propose that these be vcritten in the individual names
of those drafting them, circulated to the group for comments, and then issued by
the individual authors in their own names, for posting to websites, circulation to
administration lawyers and policy makers, and distributed among relevant
academic, policy, governmental, medih, and other communities. I do not propose
at this point that this group issue something in its own name, but think it better if
individuals write in their own names. These papers need to be both thorough but
timely, given the pace of events.
(2) Further meetings of those interested in continuing as a group, with a more

programmatic eye than simply discussion. I would like to see interested members
of this group coalesce around an agenda of promoting reform of the discourse
surrounding IHL. I would guess that not everyone invited to this meeting would
share that goal, at least not insofar as it betokens a less expansive, un-utopian -
Conservative if you like - approach to IHL and international law more generally,
and might not want to proceed with anything more substantive. But for those who
do share that goal, I would.hope that this meeting, and such meetings as the
November NYU meeting organized by Sam Estreicher, would provide a venue in
which to organize.
OLC 000802
I am very pleased with the enthusiasm my original invitation has brought, and
especially pleased to be co-sponsoring this event with the Hoover Institution. Please
be in touch with me by email asap to confirm your participation. I look forward to
seeing you on Wednesday, October 30.
Best wishes.
Kenneth Anderson
Professor of Law
American University
OLC 000803
Page 1 of 1
From: John Choon Yoo ~

Sent: Sunday, October 20, 2002 11:04 AM
To: Yoo, John C
Subject: Fwd: RE: Hello from
Attachments: IRE: Hello from
7114/2010 OLC 000804

Hi Professor Yoo,
Glad the mail system worked as advertised.
I’ll be in Washington on Thursday, October 31, and I can stop by that morning.
Friday, November i is also a possibility.
I’ll be in Washington for the latter portion of next week, but my schedule’s
pretty full. If you could squeeze me in around 5 or 6pm on Wednesday, October
23 through Friday, October 25th, I could probably stop by then as well.
Hope all is well. I’ll talk toyou soon.
Best,
>..... Original Message From "John Choon Yoo" "
>We did receive it, and it is in the hands of one of the deputies here
>who handles hiring. I am out of the office this week and will check on
>matters when return. Also, let me know when you are in dc so perhaps
>you could come by the office informally.

>From:
>Date: Wednesday, October 16, 2002 8:41 am
>Subject:. Hello from
>
>> Hi Professor Yoo,
>>
>> My name is~ I’m a Boalt 2L interested in working for
>> OLC this
>> summer. I sent you a cover letter, resume, and transcript on .
>> September 21st,
>> and I waswondering if it arrived.
>> I understand that you’re extremely busy : I’m not trying to rush
>> you. I’m
>> just following up because I will be in the DC area a few times in
>>the coming
>> weeks, and I’d be glad to stop by if you or someone in your office
>> could spare
>> a few minutes to interview me.
>>
When you have a chance, could you let me know who I should contact
to trY to
>> set up a meeting?
>> Thanks verY much.
OLC 000805
>> Sincerely,
OLC 000806
From: John Choon Yoo ........
Sent: Sunday, October 20, 2002 3:12 PM
To: Yoo, John C
Subject: Fwd: Information on Georgetown etc. Discu.ssion Group
Attachments: Information on Georgetown etc. Discussion Group
7/14/2010
OLC 000807
:i. This is just a reminder that you should distribute your "ticket of
admission" to this list (somewhat edited since last time) as soon as you
can.
2. Our discussions will begin at 1 PM on Friday, December 6. Lunch

will be available for those who arrive at noon (1’11 ask for arrival
details in a subsequent e-mail). We’ll break at around 5, with a dinner
for those who wish one at around 7. We’ll reconvene on Saturday at
9:30, take a lunch break, and finish around 5 on Saturday, again with a
dinner to follow for those interested.
3. Housing arrangements: Participants who need to arrange for a hotel

should contact one of our events people, Sharon Weslow, at
.. Briefly, we have a good rate at the Hotel
George, two blocks from the Law Center (~:189 a night), and an even
better one at two new hotels near Dupont Circle ($149 a night). But
Sharon will work with you on l~etting rooms.
4. Let me know if you have any other questions, l’ve done this enough
to think I know what needs to be done, but I almost always overlook
something.
OLC 000808
~rom: Rivkin, David
To: Yoo, John C
Attachments: tmp.htm; NYU.7-102202.doc
tmp.htm (3 KB) NYU.7-102202.doc

(100 KB)
Dear John:
As promised a long long time ago, here is our draft "law review"
piece on whV ICC’s efforts to assert jurisdiction over nationals of non-state parties violate international law and ought to
be robustly resistant. I would love to get any comments/suggestions/criticisms which you might have. (By the way, I
have sent a copy of this piece to Jack and Jim
Haynes.) Many thanks in advance.
Best regards;
David
P.S. The draft is still quite rough and we are planning to make a number of changes/additions, including a footnote on
the Lotus case and some additional discussion of the Pinochet case.
<<NYU.7-102202.doc>>
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH .IT IS ADDRESSED AND MAY
LAW.
If the readerof this message is not the intended recipient,, or the employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying
Thank you.
OLC 000809
The Limits of Legitimacy: The Rome Statute’s Unlawful Application toNon-State
Parties
By:
Lee A. Casey & David B. Rivkin, Jr.*
Introduction
By claiming the right to subject the citizens of non-party states to the legal
authority of the International Criminal Court ("ICC"), the 1998 Rome Statute violates the
global constitution.~ That constitution, which is unwritten but as real as any nation’s,
contains a number of basic roles around which the international community is organized.
The two most fundamental of these principles are that: (1) the ultimate authority over the
world’s affairs is vested in sovereign and independent nation-states; and (2) each of those
states is, at least in law, absolutely equal. As a result, rules of international law in
general, and the authority of international institutions in particular, cannot be imposed --
either by treaty or custom -~ on states that have not consented. Although that consent
may be implied in certain instances, in no instance can it be disregarded altogether.
That, however, is precisely what the ICC states partieshave done in their efforts
to write "universality" into the Rome Statute. Under that instrument, the ICC claims
jurisdiction over the citizens, including governmental officials, of non-parties. Such a
claim is unprecedented, and is unsupported by any established doctrine of international
lave. Althougli ICCproponents have asserted that the accepted principles of "universal
jurisdiction" and "territorial jurisdiction" can justify the court’s claims, they are mistaken.
~ Rome Statute of the International Criminal Court, July 17; 1998, U.N. Doc. A/CONF, 18319 (hereinafter
"Rome Statute")
OLC 000810
These doctrines govern when a state may criminalize certain misconduct of
"universal" concern, and when the jurisdiction of national courts can be asserted. Both
are limited by other customary rules of international law that were not recognized by, or
respected in, the Rome Statute. Moreover, neither universal nor territorial jurisdiction
support the creation of an independent, super-national enforcement mechanism.
In this respect, it is important to note that the ICC does not act, or purport to act,
as the mere agent of the states parties. It exercises a new, and altogether unprecedented,
form of authority that purports tobe superior to the individual states who created it.
Under the Rome Statute, the court can act on!y when it has determined that national
institutions have failed properly to.prosecute and punish the offenses within its
jurisdiction. This determination, however, is left entirely to the court’s discretion, and its
power may be exercised without regard to the requirements (if the constitution and laws
of any state party. It does not act as an agent, but as the principal.
There is no precedent in international law and practice for the creation of such an
institution. Previous international courts, such as the International Court of Justice
("ICJ"), and the United Nation’s ad hoc tribunals for theFormer Yugoslavia and
Rwanda, were based on the consent of all of the affected states -- whether expre.ss or
implied.2 The Nuremberg and Tokyo Tribunals were based upon the rights of the
victorious Allies to legislate and act for conquered Germany and Japan.
2This is also the case with the Worm Trade Organization’s dispute resolution arrangements and the
International Tribunal on the Law of the Sea, established under the 1982 U:N. Convention on the Law of
the Sea..The one possible exception to this rule is, arguably, application of the ICTY’s jurisdiction to the
Federal Republic of Yugoslavia (Serbia and Montenegro) ("FRY"), between 1993 and 1995. Although the
FRY claimed to be a member of the United Nations, as the successor of the Socialist Federal Republic of
Yugoslavia, and consequently subject to Security Council action taken under Chapter VII, the U.N. refused
to recognize it as such. Nevertheless the FRY accepted the ICTY’s authority as part of the Dayton Accords
in 1995.
OLC 000811
Overall, the creation of an institution, claiming ultimate authority over states that
have not consented to its creation or jurisdiction, violates the fundamental principles of
sovereignty and equality that remain the bedrock of the international system. To the
extent that the Rome Statute asserts jurisdiction for the ICC over the nationals and
officials of non-state parties, it is illegal.
II. The Rome Statute Violates the Global Constitution
The first principle of the global constitution, and of international law, is that the
international community is composed of sovereign states and, in law, those states are
absolutely equal.3 As the United States Supreme Court noted in an early case: "No
principle of general law is more universally acknowledged than the perfect equality of
nations. Russia and Geneva have equal rights. It results from this equality, that no one
can rightfully impose a role on another."4 Two generations before, Vattel articulated the
principle as follows:
Since men are naturally equal, and their rights and obligations are
the same, as equally proceeding from nature, nations composed of
men considered as so .many free persons, living together in the
state of nature, are naturally equal, and receive from nature the
same obligations and rights. Power or weakness does not in this
respect produce any difference. A dwarf is as much a man as a
giant; a small republic is as much a sovereign state as the most
powerful kingdom.5
This legal equality of states is a part of what Vattel termed the ’~necessary" law of "
nations, which does not require the consent of states, but which is inherent in the
3 As Emmerich de Vattel wrote in the mid-18ta Century: "The law of nations is the science of the law
subsisting between nations or states, and of the obligations that flow from it." Emmerich de Vattel, The
Law of Nations or Principles of the Law of Nature Applied in the Conduct and Affairs of Nations and
Sovereigns 2 (Luke White ed. Dublin 1792).
4 The Antelope, 23U.S. (10 Wheat.) 64, 122 (1825).
5 Vattel, supra note 3, at 9.
OLC 000812
international system itself. It was accepted and codified in the United Nations Charter,
which provides that:
The Organization and its Members, in pursuit of the Purposes

stated in Article 1, shall act in accordance with the following
Principles:
1. The Organization of based on the principle of the sovereign

equality of all its Members.
2. All Members shall refrain in their international relations

from the threat or use of force against the territorial
integrity or political independence of any State, or in any
other manner inconsistent with the Purposes of the United
Nations.6
Such fundamental rules cannot be abandoned, altered, or ignored by treaty: "all the
treaties and all.the customs contrary to what the necessary law of Nations prescribes, or
that are such as it forbids, are unlawful.’’7
There are a number of basics that follow from this system of independent and
equal nation-states. First, there is no international legislative power, whereby one or
more states may act collectively to impose their will, or institutions, on the others.8
6 Charter of the United Nations, Art. 2, Secs. 1 & 4, reprinted in Ian Brownlie, Basic Documents in
International Law 1, 3-4 (4t~ ed. 1995). Significantly, Article 2.6, which provides that "[t]he Organization
shall ensure that States which are not Members of the United Nations act in accordance with these
Principles so far as may be necessary for the maintenance of international peace and security," is not a
claim of legal fight, but a simple statement of the intent to use power for the common good. See, e.g.,
Richard A. Falk, The Authority of the United Nations to Control Non-Members 73-74 (t965).
7Brownlie, supra note 6, at 4.
8 Only long standing and accepted state practice can create binding customary international law norms.
Again, as Vattel explained:
Certain maxims, and customs consecrated by long use, and observed by nations
between each other as a kind o flaw, form the customary law of nations, or the
custom of nations. This law is founded upon tacit oonsent, or if you will, on a
tacit convention of the nations that observe it with respect to each other.
Whence it appears that it is only binding to those nations that have adopted it,
and that it is not universal, any more than conventional laws.
OLC 000813
Second, the right of states to create institutions like the ICC through the device of a treaty
is limited by the accepted doctrine, also flowing from the nature of the international
system, that treaties are a species of contract requiring the formal consent - whether
freely given or coerced - of a state before it can be subjected to the treaty’s provisions.
As Vattel explained more than two centuries ago: "The several engagements into which
nations may enter, produce a new kind of the law of nations called conventional or of
treaties. As it is evident that a treaty binds only the contracting parties; the conventional
law of nations, is not a universal, but a particular law.’’9 It follows that an international
organization, created by a treaty, cannot be imposed on non-consenting states, t0 This,
however, is exactly what the Rome Statute purports to do, by granting the ICC
jurisdiction over the nationals, including and especially the civilian and military offi~ia.ls,
of non-state parties.t t
When a custom is generally established, either beO~veen all the polite nations in
the world, or only between those of a certain continent, as of Europe, for
example; or these who have more frequent correspondence; if that custom is in
its own nature indifferent, and much more, it be a wise and useful one, it ought
to be obligatory to all those nations who are considered as having given their
consent to it. And they are bound to observe it with respect to each other, while
they have not expressly decta!-ed, that they will not adhere to it.
Vattel, supra note 3, at 11-12.

9 Vattel, supra note 3, at 1 t. As provided by the Vienna Convention on the Law of Treaties, which on this
point, at least, clearly codifies customary international law: "[a] treaty does not create either obligations or
rights for a third State without its Consent." Vienna Convention on the Law of Treaties, Art~ 34. See also
Restatement (Third) of the Foreign Relations Law of the United States §324(1) ("An international
agreement.does not create either obligations or rights for a third state without its consent.").
to As Professor Madeline Morris has argued: "the ICC Treaty would abrogate the pre-existing rights of
non-parties which, in turn, would violate the law of treaties. As the International Law Commission’s
Official Commentaries on the Vienna Convention state ’[i]ntemational tribunals have been firm in laying
down that in principle treaties, whether bilateral or multilateral, neither impose obligations on states which
are not parties nor modify in any way their legal rights without their consent." Madeline Morris, ’~High
Crimes and Misconceptions: The ICC and Non-Party States," L. & Contemporary Problems 13, 26-7
(2001), quoting, Report of the International Law Commission on the Work of its Eighteenth Session, Draft
Articles on the Law of Treaties with Commentaries, II Yearbook of the International L. Comm’n, 226
(1996), (Commentary to Draft Art. 30, "General Rule Regarding Third States.")
~t The U.S. has consistently objected to this feature oftlie Rome Statute for a number of years, viewing it
as one of the. treaty’s most important defects See, e._~., David J. Scheffer, "The International Criminal
Court: The Challenge of Jurigdiction, Address at the Atmual Meeting of the American Society of
OLC 000814
In this regard, articles 12 and 13 of the Rome Statute set forth the principal
requirements for an exercise of jurisdiction by the ICC. Pursuant to those provisions, the
court may exercise jurisdiction in the following cases:
1. Where the U.N. Security Council has referred the matter to the court under
its Chapter VII authority;
2. Where the accused is a national of a state party to the Rome Statute; or
3. Where the "conduct in question" took place on the territory of a state

party, or on one of its flag vessels or aircraft, regardless of the accused’s
nationality.
The first two bases of ICC authority cause little concern from an international law
perspective, since they are both grounded in consent - either the consent of a U.N.
member state (implied by its acceptance of the Charter upon admission), to carry out
Chapter VII Security Council resolutions, or consent evidenced by ratification of the
Rome Statute itself, which clearly grants the ICC jurisdiction over the citizens of states
parties. It is, of course, the third basis of jurisdiction that violates international law, since
it permits the ICC to exercise its power over the citizens of states that have not consented,
either, by membership in the United Nations, or by ratifying the Rome Statute.
International Law, (March 26, i999) (At-the time this speech was given’, David Scheffer was U.S.
Ambassador at Large for War Crimes Issues and the Clinton Administration’s point person on ICC-related
issues.) See also, David J. Scheffer, "The United States and the International Criminal Court", 93 Am. J.
Int’l L. 12 (1999). In fact, the ICC’s claim to jurisdiction over non-parties was one of the primary
objections noted by President Clinton in explaining that, even though he had signed the Rome Statute, he
would not transmit it to.the Senate for advice and consent, and did not recommend that President Bush take
this action. See Statement by the President: Signature of the International Criminal Court Treaty (Dec. 31,
2000). The other key Clinton Administration objection was the well-founded fear that the ICC would be
used to launch politically-inspired prosecutions against American foreign and defense policy makers.
While the U.S. spent s~veral yem~ seeking various protections against this possibility, it was ultimately
unable to do so. As a result, the Bush Administration has taken a number of actions, including obtaining a
UN Security Council resolution protecting peacekeepers from the court’s authority, and seeking "Article
98" agreements from a number of Rome Statute State Parties.
OLC 000815
Moreover, these claims of authority do not merely affect the individual citizens of
a state, it affects the state itself in the form of its governmental officials, civilian and
military. In this regard, Article 27 of the Rome Statute specifically provides that:
This Statute shall apply equally to all persons without any

distinction based on official capacity. In particular, official
capacity as a Head of State or Govermnent, a member of a
Government or parliament, an elected representative or a
government official shall in no case exempt a person from
anc~Q_f !t_ ~s~!f_~ _c_under
criminal responsibility _o ns_ .t !Statute,
this _tg_t_q_nor.ashall
- _g_r_o_.
it, in _u~_ _d_- _fg. _r _ _r _e_d_u. _c.t_ip_x_~_ .o_ _f _s_ _e_n_t
.... t Deleted:
2° Immunities or special procedural rules which may attach to

the official capacity of a person, whether under national or
international law, shall not bar the Court from exercising its
jurisdiction over such a person.~2
Government officials act pursuant to the authority, and as the instruments, of their
states. Indeed, international law has long recognized that states act onty through their
duly constituted authorities, and when state officials act within their official capacities,
their actions are considered to be the actions of their states.~3 By asserting power over
the civilian and military officials of non-party states, tt~e ICC impermissibly violates the
sovereign equality of those countries as guaranteed by international law.
There is little doubt that the international system based on sovereign and
independent states has flaws. As activists never tire of complaining, it permits the.
continuing existence of retrograde social systems and go’vernmental practices in much of
Rome Statute, supra note ~..,~.~:.2_7_: ......................................... : ............................................... ( ~eleted: __

As noted in the International Law Commission’s Draft Articles on the Origin of State Responsibility:
For the purposes of the present articlesl conduct of any State organ having that status under the
internal law of that State shall be considered as an act of the State concerned under international
law, provided that organ was acting in that capacity in the case in question.
Draft Articles on the Origin of State Responsibility, Art. 5, reprinted in, Brownlie, supra note 6, at 426,
427 (emphasis added). Although the Draft has not been completed, "It]he Draft articles constitute evidence of
the state of general international law concerning llae origin of State responsibility." Id. at 426.
OLC 000816
the world that would be intolerable in the West. At the same time, this system, called
"Westphalian" after the 1648 Peace of Westphalia, was not arbitrarily adopted or
imposed. It was based upon hard learned lessons in Early Modem Europe. The
"universalism," which too many ICC proponents have embraced, was once as dangerous
to the geueral peace as fascism and communism later proved to be. The idea was .
described in the 14tu Century as follows by Dante Alighieri, one of its most dedicated
proponents:
[M]anldnd should be ruled by one supreme prince and directed

towards peace by a common law issuing from him and applied to
those characteristics which are common to all men. This common
role, or law, should be accepted from him by particular princes, in
the same way as the practical reason preparing for action accepts
its major proposition from the speculative intellect and then
derives from it the minor proposition appropriate to the particular
case, and.finally proceeds to action. In it notonly possible for one
movement to issue from a single source, it is necessary for it to do
so in order to eliminate confusion about universal principles,t4
It was no coincidence that the Westphalian System was established after one of the last,
and most bloody, efforts, by the Habsburg family in the 16th and early 17th Centuries, to
make Dante’s theory a reality. The wars that followed were unprecedented in their
bmtatity and scope, and were-unequalled until the 20th Century. The result of these wars,
including the Eighty Years War between the Dutch Republic and Habsburg Spain, and
the Thirty Years War in Germany, was the 1648 Peace of Westphalia, which recognized
the essential sovereignty of the German states by granting each the right "to make
Alliances with Strangers for their Preservation and Safety.’d5 Westphalia represented a
~4 Dante Alighieri, Monarchia, bk. I, ~ 14, reprinted in Oliver O’Donovan and Joan Lockwood
O’Donovan, eds., From Irenaeus to G~-otius: A Sourcebook in Christian Political Thought 413, 42 l
1999).
s Treaty of Westphalia, Art. LXV (24 Oct. 1648). The companion Treaty of Munster formally ended the
Eighty Years War.
OLC 000817
definitive rejection of universality, and created the circumstances ultimately necessary for
the Enlightenment, and the development of liberal democracy in the 18tl, and 19t~’
Centuries.
The fundamentals of the Westphalian system, and in particular the role that
international law calmot be "made" by treaty and then imposed on non-consenting states,
have been respected by the community of nations for 350 fifty years. This has been the
case even where few states doubted the importance or the moral force of pro.posed
international law roles, as in the case of abolishing the Trans-Atlantic slave trade in the
early 19th century.
When Britain set out to accomplish this goal, beginning with its own 1807 statute
abolishing the slave trade in British vessels, it sought to extend this abolition through a
series of treaties with each of the maritime powers. Throughout this process, it was fully
recognized that the nationals of states which had not entered such a treaty could not be
arrested, or otherwise constrained, by Great Britain. As High Court of Admiralty judge
Sir William Scott explained in the The Louis:
The great object, therefore, ought to be to obtain the concurrence

of other nations, by application, by remonstrance, by example, bY
every peaceable instrument which men can employ to attract the
consent of men. But a nation is not justified in assuming rights
that do not belong to her, merely because she means to apply them
to a laudable purpose.~6
This view was fully accepted by the United States Supreme Court in The Antelope, in
which Chief Justice Marshall opined that, as a result of the "perfect equality of nations,"
no [nation] can rightfully impose a’mle on another. Each legislates

for itself, but its legislation can operate on itself alone. A right,
~6 [ADD CITE]. In tfiiS case, the court ruled thata vessel could not be lawfully condemned because it had
been the subject of a stop and search at sea during peace, a right that was neither recognized in customary
international law, nor conceded by treaty in this instance.
OLC 000818
then, which is vested in all by the consent of all, can be devested
only by consent; and this trade, in which all have participated,
must remain lawful to those who cannot be induced to relinquish it.
As no nation can prescribe a role for others, none can make a law
of nations. ~7
Ironically, one feature of these treaties, and of a similar proposal by Britain to the
United States in 1818, were "mixed courts." These courts were composed o f judges fiom
each of the treaty-parties, although they exercised on!y a civil jurisdiction over vessels
suspected of having engaged in the slave trade. The officers and crew of such ships were
subject to criminal prosecution only in the courts of their own countries. Nevertheless,
the United States refused to accept such courts, based on the Monroe Administration’s
conclusion that U.S. participation in such mixed courts would violated the Constitution.
These objections were communicated to British Foreign Secretary Castlereach in a letter
from American ambassador Richard Rush as follows:
the powers of government in the United States, whilst they can

only be exercised with the grants, are also subject to the
restrictions of the federal constitution. By the latter instrument, all
judicial power is to be vested in a supreme court, and in such other
inferior courts as Congress may, from time to time, ordain and
establish. It further provides, that the judges of these courts shall
hold their offices during good behaviour, and be removable on
impeachment and conviction of crimes and misdemeanors. There
are serious doubts whether, obeying the spirit of these injunctions,
the government of the United States would be competent to appear
as party to the institution of a court for carrying into execution
their penal statutes in places out of their own territory; a court
consisting partly of foreign judges, not liable to impeachment
under the authority of the United States, and deciding upon their
statutes without appeal.~8
x7 The Antelope, 23 U.S. (10 Wheat.) at 122.

~8 Note from Richard. Rush to Viscount Castlereagh, 21 Dec. 1818, reprinted in Report of the Committee on
the Slave Trade, H.R. Rep. No. 59, __st Cong., _ Sess., 54, 55-56 (Feb. 9, 1821). See also Message from
President James Monroe to the Senate, May 21~t, 1824, reprinted in Sen. Exec. J., 380, 381-82 (May, 21,
1824) (noting that "mixed courts" had been incorporated in treaties between Britain and Spain, Portugal,
and The Netherlands, but that "It]hey had been resisted by the Executive, on two grounds: that the
constitution of mixed tribunals was incompatible with [the U.S.] constitution; and the other that the
concession of the right of search., would be repugnant to the feelings of the nation, and of dangerous
10
OLC 000819
However important eliminating "impunity" for violations of international humanitarian
law may be19, it can hardly be said to be more important that the abolition of the slave
trade. As Sir William Scott noted, "a nation is not justified in assuming fights that do not
belong to her, merely because she means to apply them in a laudable purpose."
Accordingly, the ICC states parties cannot impose their will on any state that does not
consent.
ICC proponents, of course, have argued that the entire community of nations
already has accepted the criminal character of the offenses outlined in the Rome Statute,
and further defined in the ICC’s Elements of Crimes document. This, however, is
incorrect, even with respect to the most universally accepted violations, such as genocide.
The United States, for exampte, has refused to recognize the causing of"mental harm" to
a group as genocide, and entered a reservation to this effect when it ratified the
Convention on the Prevention and Punishment of the Crime of Genocide. Moreover,
tendency."). It was only in 1862, after the Confederacy had abolished the slave trade in its constitution,
¯ leaving the Lincoln Administration desperate to s.way.British public opinion in the Union’s favor, that the
United States accepted "mixed courts" in the Treaty Between the United States and Great Britain for the
Suppression of the Slave Trade, April 7, 1862. significantly, no case was ever actually adjudicated in these
courts, and they amounted to little more than a source of political patronage. They were abolished after
seven years, in 1870. See Cong. Globe, 40th Cong., 3ra Sess. 818-819 (1869). The constitutionality of this
abortive experiment in "international" courts was never determined.
19 The claim by [CC proponents, that tlae court’s "universality" will eliminate "impunity" from international
humanitarian law is a!so far from being proven. Indeed, there is ample historical evidence indicating that
¯ international rogues are rarely, if ever, deterred by the threat of some future prosecution. Only the
application of militar~ force has proven effective in this area. The ICC’s most likely impact will be to
.make the threshold for military intervention by law-abiding states even higher, further emboldening.the
rogue states, and making violations of international humanitarian law more, rather than less, likely. [ADD
CITE] This point was, in fact, noted by one of the ICC most dedicated supporters,.David Scheffer. In
discussing Article 12 of the Rome Statute, Ambassador Scheffer warned that the end result of imposing
ICC jurisdiction on non-consenting states: "will be to limit severely those lawful, but highly controversial
and inherently risky, interventions that the advocates of human rights and world peace so desperately seek
from the Unites States and other military powers. There will .be significant new legal and political risks in
such interventions .... ’" David J. Scheffer, The United States and the International Criminal Court, 93
Am. J. Int’l. L. 12, 19 (I 999), quoted in, Morris, Supra note 10, at 53. In general, diplomatic bargaining,
economic and financial pressures, and the use of force remain the preferred methods of international
intercourse. By contrast, litigation and judicial proceedings, with their inherent rigidity, are a clumsy tool
11
OLC 000820
state practice also varies widely in the actual definition and application of various
generically recognized offenses, such as the "war crime" of causing disproportionate
injury to civilians or civilian objects.
However, even if it were true that all of the specific substantive offenses outlined
in the Rome Statute had been accepted by all of the non-party states, this would not imply
the concomitant acceptance of an international enforcement mechanism, such as the ICC.
Although all states are bound by international law, that law has traditionally, almost
without exception, been enforced by national institutions. The authority tO create a
super-national institution, like the ICC, cannot be infer-red simply from the fact that
certain offenses are universally condemned. The fundamental principle of par in parem
non habetjurisdiction, "legal persons of e’qual standing cannot have their disputes settled
in the court of one of them,2° undercuts ICC authority. That court has no authority save
that which has been transferred to it by its states parties. Its authority is limited by their
authority, and if no single one can do it, then they also cannot do it in tandem.2~
of statecraft. This, at least in:part, explains why even traditional international judicial fora, such as the ICJ,
are
2~ rarely, if ever,, used
Significantly to resolve the most important of
issues of international
12, 1949, thewar and peace.
on[ADD CITE].
20 Brownlie, supra although
note __, atthe Geneva
324. Conventions August Convention the Prevention
and Punishment of the Crime of Genocide and the Apartheid Convention, suggest the possibility of
criminal enforcement, for certain violations of those agreements, in international tribunals, both recognize
that this mechanism cannot be imposed on a slate without its consent. In this regard, the Genocide
Convention provides that "[p]ersons charged With genocide or any of the other acts enumerated in article III
shall be tried by a competent tribunal.of the State in the territory of which the act was committed, or by
such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which
shall have accepted its jurisdiction." Genocide Convention, Art. VI (emphasis added). Moreover, in.
ratifying the Convention, the United States specifically made clear its understanding that, "with regard to
¯ the.reference to an international penal tribunal in article VI of the Convention,.the United States declares
that it reserves the right to effect its participation in any such tribunal only by a treaty entered into
specifically for that purpose with the advice and consent of the Senate." See United States reservations and
understandings, http:llwww.uuhclvz.chlhtmllmenu3lbl treaty 1 gen.htm.
Meanwhile, the International Convention on the Suppression and Prevention of the Crime of
Apartheid treats the possibility of an international enforcement in a manner identical to that adopted by the
Genocide Convention, by noting that p~rsons accused o.f apartheid-related offenses may be tried "by an
international penal tribunal havingiurisdietion with respect to those state parties having acc_.~_ted its
jurisdiction." Apartheid Convention, Art. V (emphasis added.) With respect to the Geneva Conventions,
12
OLC 000821
In sum, since the Rome Statute purports to impose the ICC’s power on non-
consenting states it violates the "necessary" law of nations and is itself unlawful, unless
there is some pre-existing international law doctrine that would support the ICC’s
exercise of criminal jurisdiction over the officials and citizens of non-party states. There
is none.
III. There is No Doctrine of International Law that Would Support the

ICC’s Jurisdictional Claims, Absent the Consent of All Affected States
Since there is no international law doctrine that would support either the
existence, or the manufacture, of some generalized, inchoate prosecutorial and judicial
authority in the "international community" at large, if the legal authority claimed by the
ICC has any basis in law at all, that basis must be found in the sovereign rights of the
states who have ratified.the Rome Statute. The ICC must have received its authority
from those states and, of course, the Rome Statute states parties cannot give what they,
themselves, do not possess. In this connection, there are two recognized international law
doctrines that must be considered: the concept of "universal jurisdiction," which permits
the text of those treaties suggests that national courts will be the competent authorities to impose any
criminal penalties on individuals. All four agreements require the High Contracting Parties to enact
national legislation "to provide effective penal sanctions for persons committing, or ordering to be
committed, any of the grave breaches of the present Convention," and:
To search for persons alleged to have committed, or to have ordered to

be committed, such grave breaches; and [to] bring such.persons,
regardless of their nationality, before its own courts. It may also, if it
prefers, and in accordance with the provisions of its own legislation,
hand suchpersons over for trial to another High Contracting Party
concerned, provided such High Contracting Party !~as made out a prima
facie case."
See Convention I, art. 49, Convention II, art. 50, Convention III, art. 129, and Convention IV, art. 146. "
However, according to the ICRC Commentary on the Geneva Conventions, the text purposefully did hot
address this issue so as not to "exclude handing over the accused to an international criminal court whose
competence has been recognized by the Contracting Parties." See ICRC Commentary, supra note __, at
624. Thus, even if the Geneva Convention is interpreted to permit criminal trials in an international court,
that court can punish violations of the treaties only if the states concerned have ~iven their consent.
13
OLC 000822
all states to criminalize Certain conduct deemed of interest to all; and (2) territorial
jurisdiction, which permits a state to exercise jurisdiction over individuals who enter its
territory. Neither can bear the weight of the ICC’s pretensions.
A. Universal Jurisdiction
Although proponents of a "universal" authority for the ICC eagerly raise their
standard on the ground of traditional "universal jurisdiction," the Rome Statute itself is -
properly - more cautious. In no part or particular does the Rome Statute claim "universal
jurisdiction" for the ICC. That doctrine, as actually supported by state practice, merely
permits a sovereign state to criminalize activity that is considered unacceptable by all
states -- and traditionally covered only piracy and, later, the slave trade. Significantly,
both of these offenses involve actions taking place on the high seas, beyond the
immediate authority of any single state, and involved essentially private activities, rather
than acts of state.22 The doctrine’s application to the second question of what individuals
may be pursued and prosecuted by a state for "universal" offenses is far less settled.
Claims of universality have, of course, been made for a number of other offenses
of"intemational" concern, such as "war crimes," "crimes against humanity," and
~z While pirates and slave traders have been sometimes supported, and often tolerated by states, pirates, as
distinct from privateers, did not act on behalf of any sovereign. Hence, there was no state reSponsibility
:implicated by pirate offenses. [ADD CITE] Significantly, the essentially private character of the conduct
involved is also the key characteristic of a new set of"inchoate" universal jurisdiction-based offenses,
described in various multilateral conventions. These entail "hijacking and other crimes on aircraft, crimes
against the safety of maritime navigation,hostage taking, attacks on internationally protected persons and
IJ.N. personnel, terrorist bombings and torture [and] each conthins provisions permitting a state party to
prosecute individuals believed to have committed the enumerated crimes when such individuals are found
Within its territory." Morris, supra note __, at 61 (citations omitted.) In any case, these new "inchoate"
universal jurisdiction-based offenses, to the extent that they are on the verge of becoming a part of
customary legal norms, are acquiring this status because of state consent, as expressed by the signing of the
relevant treaties and a failure to object to specific prosecutions. With the regard to the latter point, as
argued by Morris, "It]here have been a number of prosecutions under the terrorism treaties of individuals
who were not nationals of state parties to tho~e treaties, and yet there appears to be, thus far, no ease in
which the defendant’s state.of nationality has objected to that exercise of jurisdiction." Id. at 62.
14
OLC 000823
genoctoe. There is, however, little or no actual state practice supporting a universal
right to both criminalize and prosecute such offenses, unless the prosecution is supported
by some other type of jurisdiction, such as territoriality or nationality.24 The ~ternational
Military Tribunal ("IMT"), established by the victorious Allies after World War II to try
and punish the leadership of Nazi Oermany, certainly does not constitute such a
precedent, although it often is incorrectly cited as such.25 The IMT did not base its legal
right to exercise jurisdiction over the accused Nazis or~ universality, but upon the settled
right of a conqueror to legislate for the conquered. As the IMT itself explained:
The jurisdiction of the Tribunal is defined in the A~’eement and

Charter .... The law of the ~harter is decisive, and binding upon
the Tribunal.
~ These types of offenses are, of course, rarely, if ever, carried out by purely private parties.
24 Even proponents of universalizing such offenses concede this point. See Christopher C. Joyner,
"Accountability for International Crime and Serious Violations of Fundamental H.uman Rights: Arresting
Impunity -- The Case for Universal Jurisdiction in Bringing War Criminals to Accountability," 59 Law &
Contemp. Prob. 153, 166 (1996). Those who assert an existing "universality" for war crimes and similar
offenses have mistaken the right to prescribe, or criminalize, an act, and the quite separate right to
prosecute and try an individual for the offense. As explained by Professor Alfred Rubin:
The analogy between war atrocities and "universal offenses" such as "piracy" or
the slave trade does not relate to jurisdiction to enforce or to adjudicate, but only
to the applicability of national criminal legislation: the reach of so-called
’~jurisdiction to prescribe." And, even there, the extension of a national
jurisdiction to make criminal acts of some foreigners outside the territory of the
¯ prescribing state has been much exaggerated by s~holars unfamiliar with the
aetua! cases and equally unaware of the dismal record of failed attempts tO
¯ codify the supposed ~nternaf!onal criminal law relating to "piracy" or the
international slave trade.
Alfred P. Rubin, "Dayton, Bosnia and the Limits of Law," The National btterest (Win. 1996/97). It is also
the case that the fight to try individuals, charged with a universal jurisdiction-related crime in the national
courts of third parties, is quite different from the right to try similarly situated individuals in international
tribunals. The most obvious difference is that national courts, even if not of one’s own state~ are subject to
a certain level of accountability, imposed through diplomatic dialogue, economic pressure or even the
threats to use force.. Indeed, throughout history, mistreatment of one’s nationals by another state has given
rise to a many a conflict. Unfortunately, imposing any kind of discipline or restraint on an international
tribunal is virtually impossible. Hence, any consent to allow such tribunals to try any universal
jurisdiction-based offenses cannot be inferred even from one’s consent to grant jurisdiction over such
offenses to third party national courts.
=SSee, e.g., Demjanjuk v. Petrovsky, 776 F.2d 571 (6t~ Cir. 1985).
15
OLC 000824
The making of the Charter was the exercise of the sovereign
legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of these
countries to legislate for the occupied territories has been
recognized by the civilized world.26
As a practical matter, the rights of the Allies over Germany and Japan in 1945
were not very different from those of Caesar over Gaul. The sovereignty of both states
was at the disposal of the Allies, and it was that sovereignty they exercised in prosecuting
and punishing the defeated Axis leaders.27 The states that have chosen not to join the
Rome Statute have not been conquered by the ICC states parties, and those states can lay
no claim to the prerogatives enjoyed by the victorious belligerents.
In fact, there is only one instance in which a genuinely "universal" jurisdiction
was even arguably exercised with respect to offenses within the ICC’s authority, and that
is the prosecution, trial and execution of Adolf Eichmann by the State of Israel.
Beginning as the deputy of Reinhard Heydrich, from 1941-45, Eichmann organized and
implemented the Nazi Government’s "Final Solution." He was directly responsible for
the murder of millions of Jews, but escaped to South America after the war. In 1960,
Israeli agents located Eichmann in Argentina. He ~as seized, and taken back to Israel for
trial. Because the State of Israel did not exist at the time Eichmann’s crimes were
26 The Nurnberg Trial, 6 F.R.D. 69, 107 (I.M.T. 1946) (emphasis added). Significantly, as Professor
Morris note21, the June 5, 1945 Berlin Declarationspecifically proclaimed that the Allies "he~:eby assume
supreme authority with respectto Germany, including all the powers possessed by the German
-Government, the High Command [of Germany] and any state, municipal, or local government or authority
tofGermany]." . sovereignty directly. In the case of Japan, they worked
7 In the case of Germany, the Allies exercised that
’through the Japanese government, which had accepted the prosecution of wartime leaders as part of the
surrender. See Morris, supra note __, at 37. But see Michael P. Scharf, "The ICC’s Jurisdiction Over the
Nationals of Non-Party States: Critique of the U.S. Position", 64 Law and Contemp. Prob. 68, 103-108
(2001) (argues that both the Nuremberg and Tokyo tribunals were the true "international tribunals" and that
their creation and functioning can be used to support the assertion by ICC of jurisdiction over nationals of
non-signatory state parties).
16
OLC 000825
committed, it generally is assumed that he was prosecuted on a universal jurisdiction
theory.
However, even this case involved an ambiguous application of universal
jurisdiction. In articulating the legal basis for Eichmann’s prosecution, the Supreme
Court of Israel certainly referred to principles of universal jurisdiction.28 However, it
also specifically found jurisdiction based on the protective and passive personality
principles, endorsing the lower court’s view that the "effective link" between the State of
Israel and the Jewish people was sufficient to invoke these bases of authority as well.29
’Moreover, the Eichmann case represents a single precedent, arising in the most unusual
circumstances, and involving the most horrific atrocities in history.
In any case, the proponents of universal jurisdi(tion have yet to uncover a
principle of international law that would require a sovereign state, undefeated in war, to
accept the exercise of universal jurisdiction against either its officials or citizens.3° In
this regard, it is no accident that the only offense ctearly subject to universal jurisdiction
is piracy, which by definition takes place beyond the territory of any state, and where the
individuals involved are not. likely to be of much interest to their home countries. Claims
to universal jurisdiction by one state against the citizens, and most especially the
officials, of another state are rare indeed. Outside of the comical efforts of Belgium to
cut a figure on the world stage by asserting the jurisdiction 0f its courts over foreign
leaders; including Israel’s Ariel Sharon, and Libya’s 1999 "indictment" of U.S. officials
z~ The Eichmann Case, 36 I.L.R. 1,298-304 (E. Lauterpacht ed. 1968).

29 ld. at 52, 304.
3o The case ofAugusto Pinochet also does not represent such an example. In that instance, the rights of
Chile were neither asserted by that State, nor adjudicated by any competent authority. Significantly,. in its
Eichmann opinion, the Israeli Supreme Court noted that West Germany had itself refused Eichmann’s
request that his case be prosecuted in that cout~try. The Eichmann Case, supra note 28, at 302.
17
OLC 000826
for tlie 1986 air raid on Qadhafi’s headquarters (in retaliation for an attack on U.S.
military personnel in Berlin), the page is blank.
There is, of course, a very good reason for this. Efforts by one state to exercise
judicial power over the nationals (and officials) of another, in circumstances where that
state disputes the criminal character of their conduct, can easily lead to conflict -- up to
and including armed conflict. Of course, the stage for such conflict over the ICC’s claims
is already set. In response to the Rome Statute’s claims of authority over the nationals of
the United States, Congress enacted the American Servicemembers ProtectiOn Act, which
specifically authorizes the President to "to use all means necessary and appropriate to
bring about the release of’ Americans detained by, or on behalf of, the [CC.31 Ill short,
claims by any state to exercise broad universal jurisdiction over the nationals of an
objecting state remain unsupported in international law, and constitute a substantial threat
to peace.
Overall, universality is, at most, an aspiration for the ICC, rather than an
accomplished fact that could legitimize its claims to authority over the citizens of non-
consenting states. The only way in which such an aspiration can be realized is through
the consent of all affected states to the expansion of the universality principle to
encompass both the substantive offenses within the ICC jurisdiction and the right of
international tribunais to enforce these universal norms.
B, Territorial Jurisdiction
If there is any lawful basis upon Which the ICC can claim jurisdiction over the
nationals of non-party states, it must be found in a delegation of "territorial" jurisdiction
3t 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on
the United States Act, Pub. L. No. 107-206, § 2008, 116 Stat. 820, 905 (2002).
18
OLC 000827
from the Rome Statute states parties to the court. For its part, the Rome Statute does not
specifically claim to exercise the territorial jurisdiction of its states parties, but this is a
reasonable inference from Article 12 of the treaty, which gives the court jurisdiction
where the offense took place on the territory of a state party. However, as in the case of
"universal" jurisdiction, the accepted international law doctrine of territorial jurisdiction
is an insufficient buttress for the ICC’s claims. That doctrine is limited by a number of
exceptions/obligations, in favor of foreign officials and citizens, that the Rome Statute
does not preserve. There is also little support, for the proposition that territorial
jurisdiction can be delegated, in any case, without a corresponding transfer of the
territory itself.
Territorial jurisdiction is, of course, the best established, and strongest, species of
national jurisdiction, especially national criminal jurisdiction,recognized by international
law. As Professor Brownlie explains: "The principle that the courts of the place where
the crime is committed may exercise jurisdiction has received universal recognition, and
is but a single application of the essential territoriality of sovereignty, the sum of legal
competences, which a state has.’’32
From its inception, the United States, of c0urse, has recognized the validity, and
power, of territorial jurisdiction. Chief Justice Marshall described the.principle as
follows:
The jurisdiction of courts is a branch of that which is possessed by

the nation as an independent sovereign "power. The jurisdiction of
the nation within its own territory is necessarily exclusive and
absolute. It is susceptible of no limitation not imposed by itself.
Any restriction upon it, deriving validity from any external source,
would imply a diminution of its sovereignty, to the extent of the
restriction, and an investment of that sovereignty to the same
3z Brownlie, supra note 6, at 300.
19
OLC 000828
extent in that power which could impose such restriction. All
exceptions, therefore, to the ful! and complete power of a nation
within its own territories, must be traced up to the consent of the
nation itself.33
However, as Marshall continued in The Schooner Exchange, where the Supreme Court
held a French warship, moored in theport of Philadelphia, tobe immune from the
process of the United States courts, the principle of temtorial jurisdiction is not
unlimited:
[The] perfect equality and absolute independence of sovereigns,

and this common interest impelling them to mutual intercourse,
and an interchange of good offices with reach other, have given
rise to a class of cases in which every sovereign is understood to
wave the exercise of a part of that complete exclusive territorial
jurisdiction, which has been stated to be the attribute of every
nation.34
There are, indeed, a number of exceptions to the territorial-based jurisdictions that the
Rome Statute does not adequately recognize or respect.
1. The Immunities of High-Ranking Officials.
First and foremost, any exercise of territorial jurisdiction is constrained by the
immunity, accorded by international law, to high-ranking state officials, especially heads
of state and foreign ministers. Thedoctrine "¢" " immunity," oi’course, has been
,,t sovereign
significantly complicated in the years since The Schooner Exchange was decided by the
development of the modern, bureaucratic state, and the practice of states to .become
engaged in commercial and other "non-sovereign" activities. As a matter of United
¯ States domestic law, the immunities enjoyed byforeign government officials, and
33 Tire Schooner Exc.hange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812). See also Girard v. Wilson,
354 U.S. 524, 529 (1957) ("[a] sovereign nation has exclusive jurisdiction to punish offenses against its
l~tws committed within its borders, unless it expressly or impliedly consents to surrender jurisdiction.’)
34 Id. at 137.
2O
OLC 000829
organizations, are now governed by the Foreign Sovereign Irmnunities Act of 1976, 28
U.S.C. §§ 1602-1611.
However, at least with respect to "sovereign" acts (de jure imperil), immunity
remains the general rule:
Und6r international law, a state or state instrumentality is immune

from the jurisdiction of the courts of another state, except with
respect to claims arising out of activities of the kind that may be
carried on by private persons.35
This is especially tree with respect to the extension of criminal jurisdiction over
foreign officials, particularly high level ones -- a point was recently, and emphatically,
affirmed by the International Court of Justice (,ICJ") in the Case Concerning the Arrest
Warrant of 1 l April 2000 (Democratic Republic of The Congo v. Belgium) (14 February
2002). That case involved a Belgian court’s effort to prosecute the Congolese foreign
minister, Mr. Abdulaye Yerodia Ndombasi, for "international" crimes committed in the
Congo. The Congo challenged the international arrest warrant, issued by a Belgian
investigating judge, asserting its official’s immunity, as recognized by customary
international law and by treaty.36
In ruling for the Congo, the ICJ relied upon the immunities, based on customary
international law, of high-level state officials. It specifically noted that "in international
law it is firmly established that, as also diplomatic and consular agents, certain holders of
high-ranking office in a State, such as the Head of State, Head of Government and
Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil
as Restatement (Third) of The Foreign Relations Law of the United States, supra note __, at § 451. This
would include all of the offenses set forth in the Rome Statute when undertaken by state officials, high or
low, since private individuals have no right to use force in the first instance.
36 The Congo also argued that the warrant violated its territorial sovereignty, and the sovereign equality of
states as guaranteed by the U.N. Charter. The ICJ, however, decided the case on immunity grounds.
21
OLC 000830
and criminal."37 It rejected Belgium’s argument that, based on the precedents of
Nuremberg, and the UN ad hoc tribunals, there was an exception to this immunity for
"international" crimes, finding these instances to be insufficient evidence of state
practice to support a new or ~nodified rule. The ICJ squarely held that national courts do
not have the legal right to prosecute, whether for national or international crimes, the high
ranking officials of a foreign state without that state’s consent.
At the same time, the right to investigate and prosecute the very highest state
officials is a key aspect of the Rome Statute. In this regard, Article 27 specifically
provides that: "It]he Statute shall apply equally to all persons without any distinction
based on official capacity, " and that "[i]mmunities or special procedural roles which may
attach to the official capacity of a person, whether under national or international law,
shall not bar the Court from exercising its jurisdiction over such a person.’’38
This is, of course, an extraordinary -- indeed, it is a ~?evolutionary -- claim. In this
provision, the Rome Statute purports to sweep aside well-established rules of
international law. However, since the individual states who have ratified tile Rome
Statute do not, themselves, have the right to ignore the immunity of another sovereign’s
officials, then there simply is no legitimate source of authority upon which the ICC can
base this claim. The mere fact of collective action is certainly insufficient.39 As defense
counsel in the trial of Archbishop Thomas Laud noted in 1640, "even one hundred black
rabbits, taken together, do not make a single black horse.’’4° Only ifa state consents, by
ratifying the Rome Statute, or accepting the ICC’~ jurisdiction in a particular case, to
37 Congo v. Belgium, ~ 51.

38 Rome Statute, supra.note 1, Art. 27.
39 As noted above, treaties cattaot be imposed, and new customary rules of international law can neither be
instantly created, nor imposed on states who object.
22
OLC 000831
waive the immunity of its officials, can another state prosecute for that official’s
actions.4 t
2. The Immunity of Military Forces.
In addition to state officials, international law also recognizes immunity from
territorial jurisdiction, at least in certain instances, for military forces. In particular,
where the force enters the territory of another sovereign with that sovereign’s consent,
that consent is deemed to carry immunity from the host’s courts -- unless other
arrangements are specifically agreed. Today, of course, this normally is the case. The
rights implied when foreign troops are granted permission to enter the territory of a state
are, by and large, governed by specific agreements known as "status of forces
agreements" ("SOFAs").
Modem SOFA agq’eements are, generally, less generous than the customary fight
of "free passage," which effectively immunized the foreign force from any exercise of
jurisdiction by the "receiving" state. However, even today, these agreements reserve to
the "sending" state the primary right to prosecute and punish criminal violations such as
those established in the Rome Statute. At least, this is the case with the most important
such agreement, the Agreement Between the Parties to the }qorth Atlantic Treaty
40 [ADD CITE].
4t In this regard, .it is significani that the ICJ, in Congo v. Belgium, referenced the provisions of Article 27
of the Rome Statute in noting that high-level officials could, in certain circumstances, be tried for their
official actions. There is no suggestion in the Court’s opinion that this elimination of the immunity
recognized by international law could be based on anything other than the consent of the states parties. To
be sure, it did not discuss the issue of the extension of ICC jurisdiction to the officials of non-state parties.
It is important to note, however, that the U.N. ad hoc_ tribunals, also mentioned by the ICJ as instances
where officials are subject to criminal pros~ution, were both based on Security Council resolutions
adopted under Chapter VII. Upon joining the United Nations, each state undertakes an obligation to accept
the Security Council’s decisions, when taken under Chapter VII. U.N. Charter, Arts. 48-49. Similarly,
upon joining the ICC regime, states accept the waiver ofirnmunity for their officials.
23
OLC 000832
Regarding the Status of Their Forces, which governs the status of tens of thousands of
American troops stationed in Europe since the end of the Second World War.42
The Rome Statute itself accepts the reality of these agreements in Article 98,
which provides that "It]he Court may not proceed with a request for surrender which
would require the requested State to act inconsistently with its obligations under
international agreements pursuant to which the consent of a sending State is required to
surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the-giving of consent for the surrender."
However, this limitation on the court’s jurisdiction only modifies the obligations
of a state party to cooperate. It does not limit the ICC’s ultimate claims of authority,
which could be exercised if the individual in question was seized and surrendered by
another party. Since the ICC’s lawful authority-is necessarily limited to that which could
be delegated by the Rome Statute states parties, there simply is no legal basis here for the
court’s asserted power. If non-state party forces are stationed on a state party’s territory
without specific agreement, they are presumedto be immune from its jurisdiction as a
matter of customary international law. If their status is governed by a SOFA, the
receiving state cannot delegate more authority to the ICC than it has itself reserved. In
either instance, the Rome Statute goes too far.
3. The Rights of States With Respect to Their Citizens Abroad.
Finally, the tdrritorial jurisdiction of all states is limited by certain obligations to
foreign citizens, and rights held by foreign states to protect their nationals. Although
ordinary citizens traveling in a foreign state are undoubtedly subject to that state’s civil
,~2 NATO SOFA, Art.. VII.3.ii ("sending" state is to have the "primary right to exercise jurisdiction over a
member of a force or of a civilian component in relation (o :.. offenses arising out of any act or omission
24
OLC 000833
and criminal jurisdiction, they nevertheless retain certain rights, recognized by
international law. These rights are not well defined, but are generally stated as the right
to be treated "fairly" by the host state. This right takes the form of a right to be treated as
a citizen would be in the context of a criminal prosecution. Perhaps more importantly,
however, the individual’s state of citizenship retains the right to champion its citizen’s
cause, demanding and ensuring that this fundamental obligation is fulfilled by the
prosecuting state. 43
The Rome Statute, however, neither preserves, nor even recognizes, this right.
Although, on its face, the treaty secures the same procedural rights to all individuals, it
provides for no mechanism whereby the states parties can carry out their obligations to
non-party states, or to each other for that matter, if the ICC’s prosecutors and/or judges,
fail to provide these rights, or a~t otherwise unjustly.44
It could, of course, be argued that the states parties remain obligated by the
requirements of international law, and that whatever authority the Rome Statute vests in
the ICC, it does not purport to relieve the states parties of these pre-existing obligations.
The failure of the states parties to provide a mechanism, whereby their obligations to
non-state parties can be discharged, simp, ly puts them in violation of their international
don~ in the
43 States performance
retain an interestofinofficial duty.")of their citizens, even when in the territot of another state. This
the welfare 3’
principle has be~n recognized by the U.S. courts.. See Harisiades v. Shaughnessy, 342 U.S. 580, 586 (1952)
("As an alien tie retains a claim upon the state of his citizenship to diplomatic intervention on his behalf, a
patronage often of considerable value. The state of origin of each of these aliens could presently enter
diplomatic remonstrance against these deportations if they were inconsistent with international law, the
prevailing custom among nations or their own practices."). Customary norms of international law aside,
most states in today’s international system have entered into bilateral and multilateral treaties, governing
various aspects of the criminal and civil cases involving their citizens. Such treaties set forth a multitude of
fights, including, for example, the right of access to consular officials and the opportunity to have one’s
sentence served in the prisons of one’s own state.
44 Although Articles 46 and 47 of the Rome Statute permit the states parties to discipline the prosecutor and
judges in certain instancez, neither the treaty, nor the Rules of Procedure and Evidence, provide a
mechanism by which injustices may be corrected in individual cases.
25
OLC 000834
law obligations -- for which they may suffer punitive action by injured non-parties -- but
this does not affect the ultimate authority of the ICC itself. However, if the ICC’s
authority over the citizens of non-state parties is, in fact, based upon a delegation of
territorial jurisdiction from the states parties, then that delegation must perforce include
any pre-existing obligations accepted by the states in the fot~n of treaties, or imposed by
customary international law. A principal can vest his agent only with the power he has
himself reserved.
C. There is Insufficient Valid Precedent to Support the Transfer or

Delegation of Territorial Jurisdiction Without a Cession of Territory
In any case, there is a substantial question whether the ICC states parties would
have had the authority, in the first instance, to delegate any form of territorial jurisdiction
to the ICC -- encumbered or unencumbered by pre-existing obligations. The most
important characteristic of territorial jurisdiction is that it belongs to the state in control
(either by right or in fact) of the land mass, or appurtenant areas of ocean and airspace, "
concerned.4s It is, as Justice Marshall inferred, an essential attribute of sovereignty, and
there is no obvious precedent in international law permitting the delegation of this
authority without a colTesponding transfer of the territory itself. The precedents that do
exist for such delegations are of limited application, and manifestly discredited.
45 I( is possible to mal~e an even broader argument concerning the problems posed by any delegation of
jurisdiction. There arefive internationally-recognized types of jurisdiction: territorial, nationality,
protective, passive personality and universal. Except for the universal jurisdiction, which presently
provides uncontested basis only for the piracy- and slave trade-related prosecutions, all of the other types of
jurisdiction reflect two key facets of sovereignty, i.e., territory and population. Transferring jurisdiction to
another entity, which has neither the territorial nor the demographic connection to the underlying offense,
presents numerous problems and ought to be considered only in situations where the national state, which
has the right jurisdictional connection to the crime, has suffered a Hobbsean-level breakdown in law and
order and cannot function as an Organized body polity. This, in fact, was the basis for the invocation by the
Security Council of Chapter VII powers, and the creation of the ad hoc_ tribunals.
26
OLC 000835
There have, of course, been instances when sovereign power, including judicial
power, has been exercised by non-state bodies. Undoubtedly, the most extravagant
example is the British East India Company in the 17~’, 18t~, and early 19th centuries. The
Company’s authority was, however, limited to its own agents and employees, and then to
other British subjects, in accordance with its Royal grants, until it obtained control over
territory onthe Indian Subcontinent. To find an example of judicial power entirely
divorced from actual responsibility for governance of the territory concerned, it is
necessary to turn to the "capitulations" in the Ottoman Empire, and "extra-territorial"
jurisdiction exercised by the Western Powers in China and other areas of the Far East.
Beginning with agreements in the 18t~’ century, the Ottoman Porte ceded civil and,
in certain cases, criminal, jurisdiction over foreigners in its territory to relevant
diplomatic missions: "Consular courts" were established to try and punish individuals
accused of crimes against their fellow citizens, or other foreigners, in Turkish territory.
However, these courts did not have jurisdiction when Ottoman subjects were involved,
and did not exercise jurisdiction over the nationals.of other states.46 AS explained in a
note from Lord Salisbury to Robert Lincoln, U.S. ambassador to Great Britain, outlining
Britain’s rights:
Her Majesty the Queen (as you are doubtless already aware)
possesses extraterritorial jurisdiction over British subjects in the
Ottoman dominions.
46 This was the case unless the individual, or his state of nationality, had consented - either tacitly or
expressly - by accepting the "protection" of another power. Thus, for example, citizens of Switzerland
were under the "protection" of American, French, or German officials in the Ottoman Empire. See 2
Moore, supra note __, at 722 ("as the relations of Switzerland with the Porte were not regulated by the
capitulations, and as Switzerland had no representative in the Ottoman Empire, Swiss citizens were at
liberty to place themselves under the protection of other powers, and were considered to be subjects to the
jurisdiction, both civil and criminal, of the protection state.").
27
OLC 000836
I have the honour to inform you that (1) all crimes committed by
one British subject by another in the Ottoman dominions, are
exclusively justiciable by Her Majesty’s consular authorities in
these dominions.
(2) all criminal charges brought by a British subject against a

Turkish subject, or by a Turkish subject against a British subject in
the Ottoman dominions, are justiciable by the Turkish tribunals
and according to Turkish law; but the presence of a dragoman from
the British consulate is necessary to the validity of such
proceedings, and if (at any rate in Constantinople) the dragoman
refi~ses to sign the sentence, it can only be carried into effect after
negotiations between the higher authorities of the two countries.
(3) Criminal charges where foreigners, other than Turkish

subjects, are concerned with British subjects are justiciable by the
tribunal of the accused’s nationality.47
Similarly, in the Far East, China granted extra-territorial jurisdiction to a number
of Western powers in a series of treaties, beginning with its 1842 agreement with Great
Britain, ending the Opium War. This included both. civil and criminal jurisdiction, but
was limited - in criminal cases - to authority over a state’s own nationals.4s
Significantly, when actual control over the territory in question passed to another
"Christian" power, the extra-territorial authority of the consuls of other such states
erlded.49
These grants of jurisdiction, were, of course, based upon long discredited, and
discarded, theories of cultural and racial superiority that are more properly described as
47 ld. at 715, 716 (emphasis added). Similar provisions were found in the concessions to the other powers,
including the Habsburg Monarchy, Germany, Italy, The Netherlands and Portugal. Id..at 716-72 I. In
1888, the U.S. Department of State also took the view that consular jurisdiction could not extend to
criminal complaints "against persons not citizens of the United States without the consent of their
government." SeeLetter of Acting Secretary of State Rives to Mr. Cardwell, Agent and Consul-general at
Cairo, Oct. 13, t888, reprinted in 2 Moore, supra note__, at 753.
~ ld. at 597-99, 600 ("The jurisdiction of the ministers and consuls usually is limited to proceedings against
persons of their own nationality. In this sense nationality operates as a limitation UPOn the jurisdiction; and
in the same way the nationality of the plaintiff, or even of a witness, may, in certain contingencies, raise an
obstacle to the effective exercise of jurisdiction.").
491d. at 637-640.
28
OLC 000837
embarrassments, rather than precedents, in international law. Overall, there simply is no
valid international precedent or practice to support the delegation or transfer of a
"territorial" jurisdiction by one state to another state or institution over the nationals of a
third, absent the third state’s consent.
IV. A New Form of Jurisdictiou?
However, even if territorial jurisdiction could be divorced from territorial
sovereignty, and delegated to a non-state such as the ICC, the Rome Statute would not
represent such a delegation. The authority that instrument purports to vest in the court is
not merely a species of delegated, or even transferred, territorial jurisdiction, it is an
entirely new form of judicial power that claims to be wholly superior to the national
authority of the ICC state parties themselves.
Under Article 17 of the Rome Statute, the ICC can proceed with a case only
where a state has been "unwilling or unable genuinely to carry out the investigation or
prosecution," of the individuals implicated,s° This is known as the principle of
"complimentarity." However, the assessment of whether a state has been "unwilling or
unable," is entirely within the discretion of the ICC itself. If it concludes that national
proceedings were not "conducted independently or impartially," for instance, the ICC can
go forward and this conclusion is unreviewable, either by national institutions, or by the
Assembly of States Parties established in the Rome Statute.
Moreover, a "delegation" implies some continuing supervisory role for the
delegator. The .Rome Statute.reverses this relationship, taking the ultimate authority
away from the states parties, and yesting it in the !CC itself. Under the treaty, although
the states parties - when acting together in the Assembly of States Parties - can discipline
29
OLC 000838
the ICC’s prosecutor and judges for acts of personal peculation, they may not interfere
with the court’s work. Once the court has taken up a case, even the withdrawal of the
relevant state from the Rome Statute carmot end its authority over the matter, or relieve
the state of its obligations to cooperate.5~ The ICC’s power is, in fact, not exercised on
behalf of states parties, or at their direction, but in contravention of the decisions of the
relevant national institutions.
However questionable the policy merits of such an arrangement, there is little
doubt that, at least as a matter of international law, the states who consent to the ICC’s
authority by ratification of the Rome Statute can be subjugated in this manner. However,
as explained above, the imposition of an ultimate, super-national legal authority violates
the most basic tenets of the global constitution, as they have developed over the past 350
years.
so Rome Statute, Art. 17(1)(a).

s~ Rome Statute, Art. i27 (a withdrawing state must still cooperate with the court in investigations and
proceedings commended prior to date when withdrawal becomes effective and withdrawal shall not
"prejudice in any way the continued consideration of any matter which was already under consideration by
the Court prior to the date on which the withdrawal became effective."). Only the United Nations Security
Council is empowered to stay a pending action, for a renewable period of one year. It does not have the
authority to alter in any marinera decision of the court once entered.
30
OLC 000839
Sent: Thursday, November 21,2002 12:28 AM
To: Yoo, John C
Subject: Re: Article Submission
Professor Yoo,
First, I hope you will excuse my very delayed response. I really enjoyed readins.your article (with Professor Prakash) on
judicial review. I hope that the piece is still available. If it is, would you mind sending me the most updated draft. I
would like to pass it on to our articles function group so that we can make a decision as quickly as ~ossible. (Asain I
apologize for not I~ettinl~ on this sooner.) As with last time, an email copy is fine.
I hope ali’s well. Please say hello to Professor Goldsmith.
Best,
Dave Scott
U Chi L Rev
> David:
>
> I hope you don’t mind me sending you an e-mail, but I got your address
> from Jack GOldsmith, who told me you are one of the articles editors
> on the law review this year.
>
> My friend Sai Prakash of the San Dieso Law School and I wouldlike to
> submit the attached draft for consideration. It attempts to provide "
> the definitive textual, structural, and historical justification for
> judicial review, which has come under attack of late from some
> surprising quarters. At this point, we are submitting it only tb the
> few top places that still might have spots available.
>
> I would be happy t6 discuss the manuscript with you at your Convenience.
>
> Best wishes,
>
>
>
> John Yoo
> 202.5:[4.2069
> 202.305.8524 (fax}
>
>
OLC 000840
From: David Scott .............
¯ Sent: Tuesday, December 03, 2002 10:42 AM
To: Yoo, John C; Sai Prakash (E-mail)
Subject: Re: Article Submission
tmp.htm (804 B)
Professors Yoo and Prakash,
I.am very pleased to convey the University of Chicaso Law Review’s offer of publication for your article, The Orisins of
Judicial Review. If you choose to accept our offer, the article will appear in our Summer issue. Thus, the editin8 process
¯ will most likely besin in early January.
We are very excited about the article, and hope that you will be interested in publishin8 with us. If you have any
questions, please feel free to contact me via email or phone Of course if you accept, I will send each of
¯ you a letter containin8 more detailed information,
¯ We look forward to hearin8 from you soon.
Best,
Dave Scott
OLC 000841
Professors Yoo and Prakash,
I am very pleased to convey the University ofChicago Law Review’s offer of publication for your
article, The Origins of Judicial Review. If you choose to accept our offer, the article will appear in our
Summer issue. Thus, the editing process will most likely begin in early January.
We are very excited about the article, and hope that you will be interested in publishing with us. If you
have any questions, please feel free to contact me via email or phone "~11~’: Of course if you
accept, I will send each of you a letter containing more detailed information.
We look forward to hearing from you soon.
Best,
Dave Scott
OLC 000842
file://C:kDocuments and Settings\dbrinley~Local Settings\Temporary Intemet Files\OLK6C... 7/14/2010
From: J. Alexander Cooke
Sent: Friday, December 06, 2002 11:44 AM
To: Yoo, John C
Subject: Feb dates
Mr. Yoo,
Since the law school calendar is bel~inning to fill up, l’m wonderinl~ if we can nail down a date for your talk at Yale Law.
The best dates are Wed, 5 Feb or Wed, :~2 Feb. As for time, early evening usually works best (6.10-7.40pm), but we’re
flexible. Anyway, let me know if any of these dates and times work for you.
Thanks,
Alex
OLC 000843
Page 1 of l
From: John Choon Yoo

Sent: Monday, December 09, 2002 11:49 AM
To: Yoo, John C
Subject: Fwd: RE: visiting offer
Attachments: RE: visiting offer
711212010 OLC 000844

Hi John
What a terrific e-mail to receive from you! Of course that is acceptable,

and I am already looking forward to getting to know you as a colleague. If
you have some interim-difficulty so to speak, then perhaps we can tall< and
maybe you will even allow me to speak with the interim dean. meanwhile, I
guess I should ask whether you have thought about when you would like to be
here, or is that premature. This is truly excellent. Let’s see as to what
else. Can I hint to my colleagues that I have every reason to expect your
presence?
saul

From: John Choon Yoo [mailto.
Sent: Thursday, December 05, 2002 1:28 PM
To:
Subject: visiting offer
Saul:
It was a pleasure to talk to you last week. I am very excited about

Chicago’s offer to visit. My wife is also happy about visiting
Chicago. I am looking forward to spending time with the great group
of scholars and studentsthat Chicago has assembled, and we are both
excited about living in Chicago.
As we discussed, I still need to seek approval from my dean. I had

planned to call Boalt at the end of last week to discuss the matter.
As you have probably been reading in the newspapers, however, it is no
longer clear who the dean at Boalt is right now. John Dwyer has
resigned, and an interim dean has not yet been named. I am told that
the interim dean will be named either at the end of this week or early
next week. Under the system at Boalt, the dean must approve all
leaves of absence from the school, including visits at other schools.
Normally such approval would be pro forma, but because of my two y.ears
of service with the I~overnment, I will need to discuss the matter with
the new interim dean.
So is it acceptable to leave matters with an understanding that I

would .like to visit, but that it is contingent on the interim dean’s
approval? I expect that I can have that approval resolved, one way or
the other, by the end of the month.
Best wishes,
John Yoo
OLC 000845
From: Jean Carmalt ..... "
Sent: Monday, December 09, 2002 4:32 PM
To: Yoo, John C
Subject: Re: Cornell Intl LJ symposium
tmp.htm (4 KB)
Dear Professor Yoo:

I am so happy to hear of your interest in participating in our Symposium. The ILl Board and I would be very happy to
host your participation on one of the March 6 panels. Leornard Leo at Federalist Society recommended you as a
participant, and from your scholarship, I know you would make an exceptional addition to our. Symposium.
Our goal is to create a politically diverse discussion about US international, policies and actions since September 11. The
topics are broad, and speakers will not be engaging in a narrow political battle. Rather, we.seek legal analysis and
.examination of US policy since September 11. Given your scholarship regarding the constitutionality of congressional-
executive, treaties and self-execution of treaties, we are particularly interested in your thoughts regarding the
constitutional roots of US policies.
Panel 2 focuses on US policies towards international crimes since September 11. Speakers will address the War on
Terrorism and the International Criminal Court. We are, of course, primarily interested in a legal analysis. In this regard,
your comments about the structural difficulties from increasing globalization are particularly relevant to an analysis of
recent events.
Panel 3 will focus on US. policies in Afghanistan. and Iraq.. Again, our purpose is to create a discussion that will. take into
account as many. viewpointsas possible. Although the IU Board felt you might prefer Panel 2, ofcourse your
participation wouldalso be. welcome, on Panel 3.: The nature of US policies, abroad obviously have constitutional roots,
and we would, welcome your comments on. them.
In response to your question~ invited speakers include law professors, NGO and government representatives. From.the
USG, we have invited Pierre Prosper, and from academia, we have invited Madeline Morris,. Steven Ratner and Diane
’ Orentlicher,. among others. Our latest acceptance is. from the. UN Ambassador for the League of Arab States, who will be
speaking on Panel 3. We are currently in the process of negotiating with our invited keynote, Richard Holbrooke. Last
year, the ILl Symposium Keynote was. Nicholas Rostow.
If you choose to.join us, we would ask that you plan to speak for approximately 20. minutes. We would also ask that you
submit a copy of your comments to us, so that we may publish them in the Journal, due out.in Fall 2003.
If you have any additional questions, please do not. hesitate to contact me. I speak on behalf of the IU Board when I say
you would make an exceptionally valuable additionto our Symposium. I hope you will choose, to join. us.
Best regards,
Jean carmalt
Symposium. Editor
Cornell International Law Journal
"Yoo, John C" <John.C.Yoo@usdoj.gov> wrote:
OLC 000846
Dear Jean:
Thanks for your Nov. 21, 2002 letter inviting me to participate in your symposium. ! am initially interested in
participating. I would not be able to participate in February, only March, so panel 2 or 3 no doubt would be best for me.
Could you let me know, for purposes of my ethics clearances, who else will be speaking and on what topics, and how
long I would be expected to speak for? I also would still need to decide whether to participate in light of the focus and
topics of the panels.
Thanks.
John Yoo
202.514.2069
202.514.0539 (fax)
Do you Yahoo!?
Yahoo! News - Today’s headlines
OLC 000847
Page 1 of 2
Dear Professor Yoo:
I am so happy to hear of your interest in participating in our Symposium. The ILJ Board and I would be
very happy to host your participation on one of the March 6 panels. Leornard Leo at Federalist Society
recommended you as a participant, and from your scholarship, I know you would make an exceptional
addition to our Symposium. ¯
Our goal is to create a .politically diverse discussion about US international policies and actions since
September l 1. The topics are broad, and speakers will not be engaging in a narrow political battle.
Rather, we seek legal analysis and examination of US policy since September 11. Given your
scholarship regarding the constitutionality of congressional-executive treaties and self-execution of
treaties, we are particularly interested in your thoughts regarding the constitutional roots of US policies.
Panel 2 focuses on US policies towards international crimes since September 11. Speakers will address
the War on Terrorism and the International Criminal Court. We are, of course, primarily interested in a
legal analysis. In this regard, your comments about the structural difficulties from increasing
globalization are particularly relevant to an analysis of recent events.
Panel 3 will focus on US policies in Afghanistan and Iraq. Again, our purpose is to create a discussion
that will take into account as many viewpoints as possible. Although the ILJ Board felt you might prefer
Panel 2, of course your participation would also be welcome on Panel 3. The nature-of US policies
abroad obviously have constitutional roots, and we would welcome your comments on them.
In response to your question, invited speakers include law professors, NGO and government
representatives. From the USG, we have invited Pierre Prosper, and from academia, we have invited
Madeline Morris, Steven Ratner and Diane Orentlicher, among others. Our latest acceptance is from the
UN Aml~assador for the League of Arab States, who will be speaking on Panel 3. We are currently in the
process of negotiating with. our invited keynote, Richard Holbrooke. Last year, the ILJ Symposium
Keynote was Nicholas Rostow. "
If you choose.to.join us, we would ask that you plan to speak for approximately 20 minutes. We would
also ask that you submit a copy of your comments to us, so that we may publish them in the Journal, due
.out in Fall 2003.
If you have any additional questions, please do not hesitate to contact me. I speak on behalf of the ILJ
Board when I say you would make an exceptionally valuable addition to our Symposium. I hope you
will choose to join us.
Best regards,
Jean Carmalt
Symposium Editor
Cornell International Law Journal ¯
" iYoo, John C" <John. C. Yoo@usdoj.gov> wrote:
Dear Jean:
Thanks for your Nov. 21, 2002 letter inviting me to participate in your symposium. I am initially
interested in participating. I would not be able to participate in February, only March, so panel 2
OLC 000848
file://C:kDocuments and Settings\dbrinleykLocal Settings\Temporary Internet FileskOLK6C... 7/14/2010
Page 2 of 2
or 3 no doubt would be best for me.
Could you let me lcnow, for purposes of my ethics clearances, who else will be speaking and on
what topics, and how long I would be expected to speak for? I also would still need to decide
whether to participate in light of the focus and topics of the panels.
Thanks.
John Yoo
Department o f Justice
202.514.2069
202.514.0539 (fax)
DO you Yahoo !?
Yahoo! News - Today’s headlines
OLC 000849
file://C:kDocuments and Settings\dbfinleykLocal Settings\Temporary Internet Files\OLK6C... 7/14/2010
From:
Sent: Tuesday, December 10, 2002 4:41 PM
To: Yoo, John C
Subject: congress & constitution
John:
Here are some general comments about how your.piece might fit into the larger project. For the most part, all of the
issues mentioned below are already addressed in the piece. But the piece is not as well focused as it could be on the
larger themes of the book. The description that follows is intended to provide you with some ideas--but we do not
want you to feel that you need to address all of these things.
Your chapter is important because, like other chapters in the volume, it calls attention to how Congress might/does/can
inform itself about the Constitution’s meaning. Elena Kagan is writing about how the executive contributes to
Congress’s interprs; Barbara Sinclair is writing about legislative procedures; Lou Fisher is writing about congressional
services (GAO, CRS, etc). Lawyers in Congress are among the most important actors that might bring constitutional
knowledge to bear on legislative problems and, as such, we are very pleased that your chapter will fill this important
hole.
Our take is that your chapter can be a bit more explicit in using this "lawyers in Congress" lens to grapple with the larger
problem of how and how effectively C0ngress grapples with constitutional issues. Subordinate issues might inClude(a)
how it is that the lawyerly role is sometimes institutionalized (committee staff), (b) whether lawyers in Congress help
"Congress" remain faithful to the constitutional text, and (c) how layers in Congress contribute to constitutional
development. In :particular, your chapter can provide some empirical insight into these questions. At the risk of
redundancy, these questions include--how Congress deliberates on the Constitution’s meaning, how Congress informs
itself about constitutional issues {esp how Congress alerts itself to possible constitutional problems--and whether those
problems are tied to possible judicial invalidations or; more generally, tied to Congress’s duty to interpret the
Constitution), and how Congress disciplines itself to conform to constitutional strictures.
Again, we think that your chapter is well done and insightful. In terms of brining the larger concerns of the book into
focus, we hope that this email provides you with the background info that you need.
Speak towou soon,
Neal
OLC 000850
From: David Scott ~. _ _
Sent: Wednesday, January 29, 2003 8:24 PM
To: Yoo, John C; Sai Prakash (E-mail)
Subject: author response
tmp.htm (4 KB)
Professors,
As your author response period approaches, I would like to get your thoughts on logistics. Traditionally we send the
author(s) a hard copy of the article that shows all of our editing changes and suggestions. The
author(s) then make(s) hand-written changes to that hard copy and send(s) it back to us, upon which we enter the
.hand-written changes into the electronic document. This system continues to work effectively in the large majority of
cases. However, the combination of having multiple authors, your geographic separation, and the length of the article
makes me Skeptical as to its potential effectiveness here. Therefore, I want to. propose.an alternative and solicit any
preferences you might have.
Proposed plan
I will send three versions of the document:
(l) I will overnight each of you a hard copy of the article that shows all of the tracked changes.
(2) I will also email each of you an e-copy of the article with all of the changes accepted (soit will be a clean copy that
does not show the tracked changes but incorporates them). This e-copy will be designated "read-only"
so that changes can not be. made to it.
(3) Finally, I-will send one of you an e-copy with allof the changes accepted, which will not be designated "read only,"
but will be "protected"
such .that any changes made by you will be tracked.
Under (3) I will. send only one copy to one of you because we need to make sure that the two of you only work on one.
protected, document so that we keep all of your changes together. Of codrse nothing will prevent you from emailing this
version back and forth, and that’s really the idea. For example, Professor Prakash might start with this version and make
some tracked changes the first.day and then email it to Professor Yoo who will make more changes, and so on and so
forth. I get the sense that this is how you wrote the draft in the first place. Or youmight decide that just one of you will
keep the one protected document the whole time and make all of the official changes, having communicated with the
other on everything. I leave these decisions to you. The important thing is that you work on one protected document
that will have all of your changes, and you email me back that one protected document. (If you agree to this proposal,
please let me know who wants to start with this document.)
The e-copies Will have all of the changes accepted because (a) we have made only minor changes to the text itself (often
with accompanying comments and explanations), and (b) we have made significant changes to the footnotes (primarily
related to citation format and not substance). Further, you can always check the hard copy against the e-copies to see
what we have actually changed. In other words, changes you might really want to see are few and easily discernable,
while changes you probably do not want to see are. many.. Of course, if you disagree with a change, all you have to do is
address it On the one protected document and cross things out or add things as you find necessary (again, these
additions and deletions, will be .tracked). You may also address our comments as you wish simply by typing atthe end of
each of them.
OLC 000851
At the end of the author response period one of you will simply email me back the one protected document with all of
your changes in it. Does this proposal make sense? Is it agreeable? Please let me know your thoughts as soon as
possible~ As of riight now I plan on overnighting the hard copies by tomorrow (by the way could each of you please email
me a mailing address?) by 5pm, and I plan on emailing the e-copies to you soon thereafter so that you should have
everything by Friday morning when the author response period begins.
It has been a lot of fun working with you so far and we look forward to your revisions and the continuation of the
.process.
Many thanks,
Dave
OLC 000852
Page 1. of 1
Professors,
As your author response period approaches, I would like to get your thoughts on logistics. Traditionally we
send the author(s) a hard copy of the article that shows all of our editing changes and suggestions. The
author(s) then make(s) hand-written changes to that hard copy and send(s) it back to us, upon which we enter
the hand-written changes into the electronic document. This system continues to work effectively in the large
majority of cases. However, the combination of having multiple authors, your geographic separation, and the
length of the article makes me skeptical as to its potential effectiveness here. Therefore, I want to propose an
alternative and solicit any preferences you might have.
.Proposed plan
I will send three versions of the document:
(1) I will overnight each of you a hard copy of the article that shows all of the tracked changes.
(2) I will also email each of you an e-copy of the article with all of the changes accepted (so it will be a clean
copy that does not show the tracked Changes but incorporates them). This e-copy will be designated "read-
only" so that changes can not be made to it.
(3) Finally, I will send one of you an e-copy with all of the changes accepted, which will not be designated
"read only," but will be "protected" such that any changes made by you will be tracked.
Under (3) I will send only one copy to one of Y0u because we need to make sure that the two of you only
work on one protected document so that we keep all of your changes together. Of course nothing will
prevent you from emailing this version back and forth, and that’s really the idea. For example, Professor
Prakash might start with this version and make some tracked changes the first day and then email it to
Professor Yoo who will make more changes, and so on and so forth. I get the sense that this is how you
wrote the draft in the first ,place. Or you might decide that just one of you will keep the one protected
document the whole time and make all of the official changes, having communicated with the other on
everything. I leave these decisions to you. The important thing is that you work on one protected document
that will have all of your changes, and you email me back that one protected document. (If you agree to this
proposal, please let me know who wants to start with this document.)
The e-copies will have all of the changes accepted because (a) we have made only minor changes to the text
itself (often with accompanying comments and explanations), and (b) we have made significant changes to
the footnotes (primarily related to citation format and not substance). Further~ you can always cheek the hard
copy against the e-copies to see what we have actually changed. In other words, changes you might really
want to see are few and easily discernable, while changes you probably do not want to see are many. Of
course, if you disagree with a change, all you have to do is address it on the one protected document and
cross things out or add things as you find necessary (again, these additions and deletions will be tracked).
You may also address our comments as you wish simply by typing ~,t the end’of each of them.
At the end of the author response period one of you will simply email me back the one protected document
with all of your changes in it. Does this proposal make sense? Is it agreeable? Please let me know your
thoughts as soon as possible. As of right now I plan on overnighting the hard copies by tomorrow (by the
way could each of you please emait me a mailing address?) by 5pm, and I plan on emailing the e-copies to
you soon thereafter so that you should have everything by Friday morning when the author response period
begins.
It has been a lot of fun working with you so far and we look forward to your revisions and the continuation
of the process..
Many thanks,
Dave
OLC 000853
file://CADocuments and S ettings\dbrinleykLocal Settings\Temporary Internet Files\OLK6C... 7/14/2010
Page 1 of 1
From: John Choon Yoo ........

Sent: Wednesday, February 05, 2003 6:55 PM
To: Yoo, John C
Subject: Fwd.: Re: judicial review
Attachments: Re: judicial review
OLC 000854
This is a devastating paper. It will now be very hard to sustain an
originalist argument against judicial review. I have a few comments.
A clarifying point: You talk about a lot of folks who range widely in their
degrees of opposition to judicial review. Those who believe it should be
highly deferential, those who think that there should be review of state but
not federal statutes, and those who believe in no judicial review. Sometimes
it’s hard to tell who’s in what category because you sometimes describe
people in more than one way (Kramer, for example; compare p. 3 with p. 10).
It might be helpful just tO set up some terminology for distinguishing among
the different camps and then to identify who’s in each camp.
You lead with the text of the arising under clause of Article III. But I
wonder if it really does as much work as you suggest. The thrust of your
argument is that granting jurisdiction over cases arising under the
Constitution would be a nullity unless the judicial power included authority
to treat the Constitution as a binding rule of decisi0n. That seems
absolutely correct, and I would actually cite some of the cases saying that
a bedrock rule of construction is to avoid treating language as a nullity.
But to avoid the conclusion, one need only conclude that some set of
constitutional cases might be adjudicated: You’re right that it would be odd
to draft the arising under jurisdiction just to capture the Treason Clause
(p.. 14). But if Kramer, for example, is right about the Supremacy Clause’s
authorizing judicial review of state, but not federal law, then applying the
Constitution to invalidate, state laws would provide a nontrivial category of
cases arising under the Constitution. So that preserves the meaningfulness
of the. arising under category for constitutional claims, but doesn’t get you
to judicial review offederal statutes, it is true, as you say, that Article
III doesn’t draw any distinctions among the kinds of cases that arise under
the Constitution (p. 12), but I’m not sure that gets. you all the v~ay. For
you to use the arising under jurisdiction as a sword~ you have to show that
the class of cases under any of the theories you attack is (essentially) a
null set. You do, as. I discuss below, have good arguments for why the
Supremacy Clause can’t be limited to displacing state law, but the Article
III argument doesn’t seem to add to that independent point.
With respect to your Supremacy Clause argument, I like the point that you
have to take "in pursuance of~’ seriously. {P. 18-20) But I wonder the
following: Does that argument justify judicial review generally, or does it
just make judicial review a condition of displacing state law under Article
Vl. Or perhaps you are arguing that all federal statutes impinge on state
law in some sense. So, for example, imagine a federal statute that violates
the First Amendment (like the CDA). Does the basis for judicial review of
such a statute come from the Supremacy Clause, or some other source?
When you talk about oaths (p. 26), you say: "As the Constitution is the
OLC 000855
superior form of law, these officers must disregard any governmental actions
that come into conflict with it." That strikes me as question begging. I
would just delete the sentence.
I really like your Article V argument (p. 27). I wonder if you should move
it up more. I completely agree that it doesn’t make any sense to prescribe
such an elaborate process unless it is designed to trump the product of
ordinary lawmaking in the less elaborate process of bicameralism and
presentment. Really nice point.
Your point about constitutional interpretation as an incident of each

branches’ powers is a strong one (p. 33). I think that the Correspondence of
the Justices lends you support. The Court did not give an advisory opinion,
in part, because it wanted the executive to exercise its own judgment on the
legal issues in question. That understanding adds an important layer of
checks into the Constitution.
With respect to your discussion of the pre-constitutional state precedents:

Eskridge and I have a little debate about this in his reply and my
sur-reply. He argues that such cases are best understood as applications of
equitable interpretation; I argue that they reflect the development of
judicial review. One important thing to note, though, is that all of those
cases were highly controversial. You acknowledge that (pp. 40-41), but I
would look at Julius Goebbels and Ted White, who have written about these
cases and the controversy they provoked in their Holmes Devises.
I think the post-ratification settlement of practice (pp. 71 et seq) is

really important. You should, probably include something to explain why
people care about such. matters. I discuss it, with lots of good sources, in
my Deriving Rules of Statutory Interpretation from the Constitution. It may
be worth a sentence or two because Madison et al were so explicit in
thinking that the meaning of the judicial power was vague and could only be
"liquidated" through practice.
Again, this is a really fine piece of work. Exceptionally readable for

something that covers so much ground. I’m sure it will get cited a lot (and
that Larry will respond).

From: "John Choon Yo ..~_ "
To: "John F. Manning" <. - ............ .... ~:- .~
Sent: Tuesday, February 04, 2003 4:16 PM
Subject: Re: judicial review
>.That is great. You will love it there. I will call this week.
>
OLC 000856
From: "John F. Manning" ~~>
Date: Tuesday, February 4, 2003 3:01 pm
Subject: Re: judicial review
John:
I am actually going to have a chance to read your judicial review

piece this
afternoon. I am attaching t[~e latest version of my absurdity
draft. I’d
love to get your comments onthe latest version of the "Manning/Yoo"
position on statutory interpretation. Thanks.
John
PS: .Went to Tilden Park on Saturday; then roamed around

Telegraph. We are
having a great time here.

> > From: "John Choon ¥oo" < ~11111111~i~111111~
> >To: <
> > Sent: Friday, January 24, 2003 4:34 PM
> > Subject: judicial review
OLC 000857
From-" James C. Ho.
Sent: Tuesday, February 25, 2003 9:59 PM
Subject: opinionjournal.com: Vietnam vs. Virginia
http://www.opinionjournal.comicolumnists/bminiter/?id= 110003117
THE WESTERN FRONT
Vietnam vs. Virginia

The State Department favors Hanoi over the Old Dominion.
BY BRENDAN MINITER
Tuesday, February 25, 2003 12:01 a.m.
An unlikely dispute has broken out.between the commonwealth of Virginia and communist Vietnam-and the U.S. State
Department is siding with Hanoi.
Throughout Virginia, public School officials often fly various countries’ flags in classrooms and at school functions. I saw
this firsthand on "International Day" when I was a student at George MasonUniversity in Fairfax. The student union
would be decorated with "celebrate diversity" signs and scores of different flags. And on this day the.stars and stripes
would fly at the same level as all the other banners.
-Northern Virginia is home to some 32,000 Vietnamese-Americans, refugees of communist tyranny. Many are
understandably appalled to see the flag of the communist North Vietnamese, with a gold star on a red background,
.casually hung in their children’s public schools. They want the communist flag taken .down.
Virginia politicians are happy tO oblige. Delegate Bob Hull, a Fairfax County Democrat, asked school officials last year to
remove Hanoi’s flag, but they refused. So this year he introduced a bill .that would bar.public school officials from flying
the communist flag and .allow them to fly the banner of the former republic of SouthVietnam (shown nearby). "Unlike
¯ any other communist.country that still exists in the world, 1,309 Virginians died defending this flag that I want to show
in the schools and colleges around this commonwealth," Mr, Hull said on the House. floor. The bill quickly gained
bipartisan support and--on Jan. 31, the 35th anniversary of the Tet Offensive--eas.ly passed the House of Delegates,
68-27.
Then the State Department got involved. Reacting to pleas by Vietnamese officials in Washington, Deputy Secretary of
State Richard Armitage fired offa letter to Mr. Hull. "1 believe this bill could run afoul of the U.S. Constitution and our
federal system which Confine the conduct of foreign policy to the national government .... and send a particularly
unfortunate message in these times when it is important that we spe.ak with a single voice in matters relating to the
conduct of our international affairs," Mr. Armitage wrote in his Feb. 5 letter.
Word spread quickly in Richmond that the State Department wanted this bill killed. Someone even started a rumor that
the White House had called a few state senators to plead Foggy Bottom’s case. The diplomatic offensive worked. The
bill quietly died last week in the state Senate’s rules committee.
Mr: Hull ridicules the State Department’s constitutional argument. Virginia’s public schools--their curriculum and their
conduct--are well within the purview of the state government, he says in a phone interview. And his bill didn’t run afoul
of freedom of speech because it didn’t ban the flag,-educators were still free to use textbooks with the communist flag.
OLC 000858
It simply instructed school officials not to fly it.
What really upset Mr. Hull, however, is that the State Department is siding with an insolent communist government. "It
is known to everybody that the gold-starred red flag has been the only flag representing the independent and unified
State of Viet Nam since 1945," Hanoi said in a prepared statement responding to Mr. Hull’s bill. Of course, 58,000
Americans would disagree if they could, but they died defending South Vietnam’s flag--to say nothing of the millions of
boat people who fled after the communists took over in 1975.
What has the U.S. government gotten in return from its former enemy? When it comes to the most pressing
international issue of the day, Iraq, Hanoi sounds as anti-American as its former colonial master, France: "Vietnam
protests against any military action against Iraq to overthrow the Government of President Saddam Hussein," said the
Vietnamese Foreign Ministry in August. "lraq is an independent and sovereign state and a member of the United
Nations. The Iraqi Government was elected by the people of Iraq [!]. Interference by force from outside to Change the
political regime of this country constitutes a gross violation of international law and the United Nation Charter." Hanoi
reiterated this position in January, after President Bush’s State of the Union address.
That’s the same Vietnamese government that "murdered innocent civi ians and imprisoned hundreds of thousands of
South Vietnamese in hundreds of concentration camps all over the country," as Mr. Hull says, reading a letter from a
14-year=old Fairfax student of Vietnamese decent. Some who suffered this fate are now Americans. Why does the State
Departme~nt insist oh treating them with such contempt?
Mr. Miniter is assistant editor of Opinion Journal.com. His column appears Tuesdays.
Copyright: © 2003 Dow Jones & Company, Inc. All Rights Reserved.
OLC 000859
From: Kersten, Chariss ........ .
Sent: Friday, March 07, 2003 2:07 PM
To: Yoo, John C; " _
Subject: From David Forte
Attachments: Yoo 4-7B clean.doc
Yoo 4-7B clean.doc

(36 KB)
I am attaching the edited version of your essay on the commander in chief power. Please look it over and let me know
if you desire any modifications. I will need two things: First, another example or two at the end of any attempts in the
courts to limit the power and Second, a list with citations of significant cases at the end. Your essay is alittle over the
word limit, so please be frugal in any additions, or ~ake up for them by trimming elsewhere.
With your OK, this wili be the final version, except for the normal copyediting and formatting for the printer.
Thanks for nice a nice job on a complex topic.
David Forte
OLC 000860
Article II, Section 2, Clause 1 ~
The President shall be Co~nmander in Chief of the Army and Navy of the United
States, and of the Militia of t~e several States, when called into the actual Service of
the United States
Few constitutional issues have been so consistently and heatedly debated by legal
scholars and politicians in recent years as the distribution of war powers between
Congress and the President. As a matter of history and policy, it is generally accepted
that the Executive takes the lead in the actual conductof war. After all, a single,
energetic actor is better able to prosecute war successfully than a committee; the enemy
will not wait for deliberation and consensus. At the same time, the Founders plainly
intended to establish Congressional checks on the Executive’s war power. Between these
guideposts is a question of considerable importance: does the Constitution require the
President to obtain specific authorization from Congress before initiating hostilities?
Article II, Section 1 vests the entirety of the "executive Power" in a single person,
the President of the United States. By contrast, under Article I Congress enjoys only
those legislative Powers "’herein granted." Scholars generally agree that this vesting of
executive power confers upon the President broad authority, to engage in foreign
relations, including war, except in those areas in which the Constitution places authority
in Congress. The debate, then, is over the extent of Congress’s constitutional authority to
check the President in matters of war.
Article II, Section 2 expressly designates the President as "Commander in Chief

of the Army and Navy of the United States, and of the Militia of the several States, when
called into the actual Service of the United States." Presidential power advocates argue
that this provision confers substantive constitutional power upon the Executive branch to
engage military forces in hostilities. The executives throughout British history as well as
in the colonial governments and several of the states prior to the Constitution, generally
enjoyed such power. In contrast, the Articles of Confederation did notprovide for a
OLC 000861
separate executive branch and thus gave "the sole and exclusive right and power of
determining on peace and war" to Congress, in fact to a committee of Congress
The presumption of presidential initiative in war established by these two

provisions of ArticIe II appears to be bolstered by other constitutional provisions. Article
I, Section 10 expressly prohibits states from "engag[ing] in War, unless actually invaded,
or in such imminent Danger as will not admit of delay" unless they have obtained the
"Consent of Congress." By contrast, no such limitation on engagement in war by the
President can be found in Article II.Although Article II expressly authorizes the President
to engage in other foreign relations powers (such as the making of treaties and the
appointment of ambassadors) only with the consent of Congress, it imposes no such
check with respect to the use of military force.
The lack of an express consent requirement for executive initiation of hostilities is

particularly meaningful in light of pre-constitutional American piactice. America’s
earliest years were haunted by fear of executive tyranny, following the recent experience
of living under British rule, and that fear was reflected in several of the legal charters
preceding the United States Constitution. Under the Articles of Confederation, the
United States could not "engage.in any war" absent theconsent of nine states. The
constitution of South Carolina expressly provided that the state’s executive could neither
"commence war" nor "conclude peace" without legislative approval. Other states limited
executive war power differently through a variety of structural limitations, such as
frequent election, term limits, and selection of tlie executive by the legislature. In one
extreme example, Pennsylvania replaced its single governor with a twelve-person
executive council. Problems arising out of weak executive authority soon brought about
a reversal in the trend, however. New York established a strong executive, vested with
the authority of commander in chief and free of term limits or consent requirements, and
Massachusetts and New Hampshire soon followed suit. The text of the Constitution
suggests a continuation of, rather than a departure from, this newer trend of enhancing
executive authority.
OLC 000862
Any power to initiate hostilities would be useless, of course, without the resources
necessary to engage in hostilities. Under our Constitution, the power to provide those
resources is unequivocally vested with Congress. Under Article I, it is Congress, not the
President, that has the power to "lay and collect Taxes" and to "borrow Money," to make
".Appropriations" and "provide for the common Defence," to "raise and support Armies"
and "provide and maintain a Navy," and to "call[] forth the Militia." Thus, the President
¯ may be Commander in Chief, but he has nothing to command except what Congress may
provide. As a result of Congress’s authority over the purse, the President is unable as a
practical (if not Constitutional) matter to engage in hostilities without Congress.
Based on these provisions of the Constitution, some originalist scholars have

concluded that Congress’s war power is limited to its control over funding and its power
to impeach executive officers. They contend, that the President is constitutionally .
empowered to engage in hostilities with whatever resources Congress has made available
to the Executive.
Advocates of stronger Congressional war power, by contrast, contend that

Congress not only has the power to deprive the Executive of military resources, but also
to control the President’s authority to initiate hostilities. They typically locate the textual
hook for their argument in Article I, Section 8, which vests the powers to "declare War"
and to "grant Letters of Marque and Reprisal" in Congress, not the. President.
Congressionalists argue that these two powers exhaust the entire range of possible
hostilities, and that their vesting in Congress must mean that the President cannot initiate
hostilities without prior Congressional authorization.
Presidentialists contend that the power to "declare War" is only a power to alter
international legal relationships.. In their view, placing the power to "declare War" in
Congress does not affect the President’s domestic constitutional authority to engage in
hostilities. Notably, Article I provides that states may not, "without the Consent of
Congress,... engage in War," and Article III defines treason as"’levying War" against
the United States--suggesting that the power to "declare War" is a lesser power that does
OLC 000863
not include the ability to control the actual initiation and conduct of war. Presidentia!ists
also argue that the Marque and Reprisal Clause vests Congress only with the power to
authorize private citizens to engage in hostilities for private, commercial gain.
A final textual clue should be noted. Congressionalists generally contend that,

although the President may not initiate hostilities, the Declare War Clause leaves the
President with the authority as Commander in Chief to repel invasions without prior
Congressional approval. According to his own notes of the Constitutional Convention,
James Madison successfully moved to replace the phrase "make" war with "declare" war,
"leaving to the Executive the power to repel sudden attacks." Congressionalists read this
power to repel attacks as exhaustive, rather than merely illustrative, of presidential
authority. On the other hand, Arti~!e I expressly provides that states generally may not
engage in war without Congressional consent "unless actually invaded, or in such
-imminent Danger as will not admit of delay"; there is no such language, by contrast,
governing the President. In addition, Article I vests authority with Congress to "call[]
forth the Militia to... suppress Insurrections and repel Invasions."
In summary, the argument for executive initiative rests on the background

understanding that the vesting of"executive Power" and the "Commander in Chief’’
designation together constitute a substantive grant of authority tothe President to conduct
.military operations. The argument also rests on the absence of e×plicit provision for.
Congressional incursion into that power, other than through its express powers over
funding and impeaclmaent. Under this view, the contrary position--that Congressional
consent is required prior to the initiation-of hostilities--suffers from a lack of strong
textual support.
Accordingly, Congressionalist scholars frequently turn to other authorities. First,

they cite statements from various founders, both before and after the framing period, in
support of broader Congressional power. For example, they frequentlyquote James
Wilson, who had urged limits on Presidential power during the constitutional convention,
and who argued during the Pennsylvania ratifying convention that "[t]his system, will not
OLC 000864
hurry us into war; it is calculated against it. It will not be in the power of a single man, or
a single body of men, to involve us in such distress; for the important power of declaring
war is vested in the legislature at large: this declaration must be made with the
concurrence of the House of Representatives: from this circumstance we may draw a
certain conclusion that nothing but our national interest can draw us into a war."
Presidentialists respond that Wilson’s statement must be placed in context. They

claim that Wilson was simply responding to concerns that exercise, of the treaty power
alone could start a war. They further note that nowhere in Wilson’s reference to
declarations of war did he ever deny the President’s authority to initiate hostilities
without a declaratiom
Presidentialists also focus attention on the ratification debates in the battleground

state of Virginia, where Anti-Federalists launched a feverish campaign, against, among.
other things, excessive executive power to wage war. Notably, the Federalist effort to
ease concerns rested largely on Congressional control of the purse--not the Declare War
Clause. Presidentialists also cite James Madison’s statement that "the sword is in the
hands of the British King. The purse in the hands of the Parliament. It is so in America,
as far as any analogy can exist."
,¯~ Congressionalists and presidentialists also disagree about theproper interpretation

.of numerous post-ratification statements by founders and later prominent American
figures, as well as early American practice under the Constitution. For example,
Congressionalists cite the limited, defensive-oriented approach taken by President
Jefferson during the Tripolitan War.(1801) and by others in the nation’s earliest
hostilities. Presidentialists respond bynoting Hamilton’s sharp criticisms of Jefferson as
well as the broader theory of presidential power urged by Jefferson himself when he was
Secretary of State. More generally, presidentialists note that, out of only five declarations
of war in our nation’s history, the first did not take place until the War of 1812.
Presidentialists also contend that early Congresses exerted significant control over
hostilities not byrefusing to exercise its powers under the Declare War Clause, but by
OLC 000865
denying the President a large, peacetime, standing military force through its control of the
purse. In their view, early references to Presidential subservience to Congress merely
reflected Congress’s ability to deny funding to presidential initiatives, and little else.
Finally, presidentialists generally criticize the usefulness of post-ratification statements as
little more than the self-interested assertions of politicians caught in tl~e heat of partisan
conflict, and not as good faith endeavors to ascertain original meanirig.
The modern debate over the allocation of war powers between Congress and the
President was triggered largely by the establishment of a large United States peacetime
military force in the wake of World War II.
United States intervention in Korea in 1950 began with Congressional support but
without formal declaration of war. When the war stalemated, executive power was
challenged. President Truman responded by claiming independent constitutional
authority to commit troops without Congressional authorization. Presidents Johnson and
Nixon undertook military operations of breathtaking breadth in Vietnam, armed with only
the Gulf of Tonkin Resolution. Congressional criticism of that protracted campaign led
not only to funding restrictions, but also to the 1973 enactment of the War Po.wers
Resolution, over President Nixon’s veto. The Resolution limits substantially the
President’s ability to engage U.S. forces in hostilities for more than 60 days, absent a
declaration of war or specific congressional authorization, and requires the President to
consult with Congress about military deployments.
The War Powers Resolution has proven largely impotent in practice. No

President has ever acknowledged-its constitutionality, and no President has ever formally
¯ complied with its terms. President Carter failed to consult with Congress before
¯ attempting the doomed rescue attempt of the Iranian hostages. President Reagan refused
~ormal compliance (instead claiming %onsistency") with the terms of the Resolution
when he deployed American military forces in Lebanon, Grenada, Libya, and the Persian
Gulf. President Bush publicly declared that he had constitutional power to initiate war
OLC 000866
unilaterally, and his Desert Storm operation in the Persian Gulf plainly violated the
Resolution’s time limits. Congress responded by authorizing him to use force. President
Clinton followed these precedents in Somalia, Haiti, Bosnia, the Middle East, and
Kosovol
Members of Congress have periodically filed suit to enforce the War Powers
Resolution and the Declare War Clause, but courts have generally avoided ruling on the
merits by dismissing such cases on a variety of procedural grounds. Most recently, in
Campbell v. Clinton (D.C. Cir. 2000), the D.C. Circuit unanimously dismissed a
iCongressional challenge to President Clinton’s airstrikes campaign in the former
Yugoslavia, albeit under a panoply of competing theories arising out of the legislative
standing, mootness, and political question doctrines. [need further case examples, e.g.
regarding Vietnam and Iraq II]
John C. Yoo and James C. Ho
See Also
Article I, Section 8, Clause 12 (power to declare war)
Article I, Section 8, Clause 13 (army)
Article I, Section 8, Clause, 14 (navy)
Article I, Section 8, Clause 16 (militia)
Article I, Section 8, Clause 17 (militia)
Suggestions for Further Research
ELLEN C. COLLIER, ED., CONGRESSIONAL RESEARCH SERVICE, INSTANCES OF USE OF

UNITED STATES FORCES ABROAD, 1798-1993 (1993)
LOUIS FISHER, CONGRESSIONAL ABDICATION ON WAR & SPENDING (2000)
LOUIS HENK1N, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION (2nd ed. 1996)
OLC 000867
HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER
THE IRAN-CONTRA AFFAIR (1990)
MONTGOMERY KOSMA, OUR FIRST REAL WAR, 2 GREEN BAG 2d 169 (1999)
H. JEFFERSON POWELL, THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS: AN ESSAY

IN CONSTITUTIONAL INTERPRETATION (2002)
John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding
of War Powers, 84 CALIFORNIA LAW REVIEW 167 (1996)
John C. Yoo, Clio at War: The Misuse of History in the War Powers Debate, 70
UNIVERSITY OF COLORADO LAW REVIEW 1169 (1999)
Significant Cases
¯ Campbell v. Clinton (D.C. Cir. 2000)¯
OLC 000868
From: Bybee, Jay
Sent: Monday, March 17, 2003 1:40 PM
To: OLC All
Subject: Signatures R Us -- End of Tenure Clearance
This is to let you know that Friday will be my last day at OLC. I will make a long-winded speech on another occasion, but I
do want to thank all of you for your support as I have gone through the confirmation process. Although I am looking
forward to assuming my new reponsibilities on the court, I am leaving OLC reluctantly. I am confident that I will find
stimulating legal issues at the Ninth Circuit, but I can only hope that my new colleagues, clerks, and staff will be as
¯ gracious, intelligent, and hard working as you have been. Thank you all.
Jay
Jay S. Bybee
Assistant Attorney General
(202) 514~2051 (phone)
(202) 514~,~)539 (fax)
Jay.Byl~ee@usdoj.gov
OLC 000869
From: Ayres, David
Sent: Friday, March 28, 2003 1:16 PM
To: Whelan, M Edward III; Philbin, Patrick; Larsen, Joan; Bradshaw, Sheldon; Yoo, John C
As you know, Jay Bybee will vacate the office of Assistant Attorney General, OLC, upon taking the oath of office today for
his appointment to the Ninth Circuit Court of Appeals. Pursuant to the Vacancies Reform Act, Ed Whelan, the Principal
Deputy Assistant Attorney General for .OLC, will serve as Acting Assistant Attorney General and exercise the
responsibilities of that office until a successor is announced.
OLC 000870
Sen~:: Tuesday, April 01, 2003 11:40 AM
To: OLC All
Subject: FW:~ESTIMONY OF ATTORNEY GENERAL JOHN ASHCROFT BEFORE THE
COMMERCE, JUSTICE, STATE AND JUDICIARY SUBCOMMITTEE OF THE SENATE
APPROPRIATIONS COMMITTEE
FYI.
Attorney General John Ashcroft

Testimony before the Commerce, Justice, State and Judiciary Subcommittee of the Senate
Appropriations Committee
April 1~ 2003
(Note: The Attorney General Often Deviates From Prepared Remarks)
Good morning, Chairman Gregg, Ranking Member Hollings, and Members of the Subcommittee:
We are at war. And I know that as we watch events unfolding overseas, our prayers and our thoughts are
with those young men and women who are defending freedom. We pray also for those families who have lost
loved ones or whose loved ones have been captured or are missing in action. Their efforts in the defense of
freedom - a noble cause - will never be forgotten. We will honor their sacrifice with an ever-vigilant
commitment in our war on terrorism.
Indeed, the first and overriding priority of this budget - and of the Department - is to protect America
from acts of terrorism and bring terrorists to justice. I am pleased to be here to present the President’s fiscal year
2004 budget request for the Department of Justice, and I thank you for your continued assistance in providing
the Department of Justice with resources to detect, disrupt, and dismantle terrorist activity.
The Justice Department’s terrorism prevention efforts have included planning for the possibility of
intensified conflict with Iraq. Last spring, the FBI began developing an action plan to address any related
threats that might face us in this conflict. An Iraqi Task Force plan was developed in addition to the integrated
prevention security framework put in place after the September 1 lth attacks.
The Iraqi Task Force plan includes:
Around the clock operations at. FBI Headquarters and Field Offices since the escalation of hostilities
with Iraq;
Outreach to Middle Eastern and Islamic communities in the United States;
Analysis of prior cases involving Iraq and/or supporters of Iraq to identify potential intelligence targets
or persons of interest;
Stepped up monitoring of individuals suspected of links to Iraqi hostile forces or other terrorist
1 OLC 000871
organizations; and
Voluntary interviews of 11,000 U.S.-based Iraqis to obtain counter-terrorism information and

¯ intelligence information, as well as to identify any backlash threats to Iraqis in the United States.
Out of these voluntary interviews, we appreciate the valuable information we have gained from the
cooperation of the Iraqi community in the United States. This cooperation has assisted us in our efforts inIraq,
as well as in our own domestic anti-terrorism efforts. We have gathered intelligence about such things as Iraqi
bunkers, tunnel systems, telecommunications networks, manufacturing plants and Iraqi military officials. This
information is being shared and analyzed by our law enforcement, military and intelligence officials.
On March 25, 2003, the President submitted a supplemental budget request for fiscal year 2003 to
address the continuing threat to the national security of the United States posed by Iraq. For the Department of
Justice, the request includes $500 million for the Counterterrorism Fund to meet terrorism-related prevention
and response requirements.
Among our top priorities for the use of this funding.are critical items for the FBI that address response
capabilities, security enhancements, language translation services, operational .field expenses, and surveillance
Support. We also anticipate usi.ng a small portion of this funding to meet increased U.S. Marshals Service
security requirements for the federal judiciary and to upgrade the capability of the Office of Intelligence Policy
and Review for its role in the FISA warrant process.
The President’s overall Justice Department budget request I am discussing today will strengthen our
capacity to fulfill all of the Department’s top priorities. The President’s budget requests $23.3 billion for the
Department of Justice, including $19 billion in discretionary funding and $4.3 billion .for the Department’s..
mandatory and .fee-funded accounts.
The September 11 attacks made it clear that America’s defense requires a new culture of prevention,
nurtured by cooperation, built on coordination, and rooted in our Constitutional liberties. The Justice
¯ Department is battling terrorism by integrating, not Separating, our law enforcement capacity; and integrating,
not Separating, our intelligence capabilities..
Our integrated terrorism prevention strategy is having an impact on terrorist threats. Listen to the
recorded conversation between charged terrorist-cell-member Jeffrey Battle and an FBI informant on May 8,
2002, in Portland, Oregon.
In his conversation unsealed in court, Battle explained why his threatening enterprise was not as
organized as he thought it should be (quote):
"... because we don’t have support. Everybody’s scared to give up any money to help us. You
know what I’m saying? Because that law that Bush wrote about, you know, supporting terrorism,
whatever, the whole thing... Everybody’s scared.. ~ He made a law that says for instance I left
out of the country and I fought, right, but I wasn’t able to afford a ticket but you bought my plane
ticket, you gave me the money to do it... By me going and me fighting and doing that they can,
by this new law, they can come and take you and put you in jai!."
2 OLC 000872
Mr. Chairman, terrorists clearly recognize the effectiveness of the laws passed by Congress and utilized
by the Department to disrupt terrorist activity.
It is a credit to our new investigative tools, the hard work of the law enforcement community and our
intelligence agencies, as well as a vigilant public, that we have not suffered another major terrorist attack in this
country. The FBI indicates that since September 1 lth, 2001, over 100 terrorist plots have been disrupted.
Nevertheless, as the President recently stated, "There is no such thing as perfect security against a hidden
network of cold-blooded killers. Yet abroad and at home, we’re not going to wait until the worst dangers are
upon us."
Therefore, we will continue to seek the assistance of Congress as we enhance a culture of prevention and
ensure the resources of our government are dedicated to defending Americans. Now, I would like to give. you a
brief overview of the results to date of our integrat.ed prevention strategy to fight the war on terrorism:
Firs__~t, we are gathering and cultivating detailed intelligence on terrorism in the U.S.:
Hundreds ofsuspected terrorists have been identified and tracked throughout the United States;..
Our .human sources of intelligence have doubled;
Our counter-terrorism investigations have doubled in one year;
¯Over 18,000 subpoenas and search warrants have been issued; and
Over 1,000 applications in 2002 were made to the FISA court targeting terrorists, spies and foreign
powers that threaten our security, including 170 emergency FISAs. This is more than 3 times the
total number of emergency FISAs obtained in the 23 years prior to September 1 lth.
Second, we are arresting and detaining potential terrorists:
Four alleged terrorist cells broken up in Buffalo, Portland, Detroit and Seattle;
228 criminal charges brought tO date;
t 13 individuals convicted or pied guilty, including shoe-bomber Richard Reid, "American Taliban" John
Walker Lindh, and three of the six members of the Buffalo cell - 2 more of whom pled guilty just
last week, joining another defendant who is already cooperating; and
478 deportations linked to the September 1 lth investigation.
Third~ we are dismantling the terrorist financial network:

36 designated terrorist organizations;
3 OLC 000873
$124 million in assets frozen and Over 600 accounts frozen around the world; and
70 investigations into terrorist financing with 23 convictions or guilty pleas to date.
Fourth., .we are disrupting potential terrorist travel:
9 major alien smuggling networks disrupted;
Hundreds of terrorists and criminals stopped through the National Security Entry-Exit Registration
System (NSEERs) including:
! 1 suspected terrorists, with at least one known member of al Qaeda;
649 aliens stopped at the border who were wanted criminals, had committed past felonies, or
violated other laws; and
77 felons identified through domestic enrollment who were in the country illegally, including a
murderer, cocaine traffickers, child molesters, .and individuals convicted of assault with a
deadly weapon.
Fifth, we are building our long-term counter-terrorism capacity:
near three-fold increase in counter terrorism funds;
Overl,000 new and redirected FBI agents dedicated to counter-terrorism and counter-intelligence;
250 new Assistant U.S. Attorneys;
66 Joint Terrorism Task Forces;
337% increase in JTTF staffing; and
Fly Away Expert Teams for rapid deployment to hot spots worldwide.
We have made tremendous progress, but there is always more to be done. To that end, the budget
request includes an increase of $598.2 million for programs that support our mission to prevent and combat
terrorism, including $516.2 million to enhance or complement the FBI’s Counter-terrorism Program.
Even as the men and women of the Justice Department fight the war on terrorism, we do so within a
framework of justice that upholds our other crucial responsibilities. I will briefly review these Other core
missions:
OLC 000874
First, the Department of Justice has taken decisive action to combat corporate corruption and punish
corporate law-breakers. The relentless work of the Corporate Fraud Task Force, chaired by Deputy Attorney
General Larry Thompson, has resulted in:
Over 200 investigations opened into suspected corporate fraud;
Over 200 people charged to date;
® 70 convictions obtained to date;
$20 million in assets frozen; and
$14 million in forfeiture to date - and we are seeking to forfeit more than $2.5 billion to restore to the
creditors and investors who lost this money.
The Department is committed to ensuring a marketplace of integrity and restoring the Confidence of
American. investors and protecting their assets. To that end the fiscal year 2004 budget requests $24.5 million to
support the Corporate Fraud Task Force.
Second, the-Department of Justice has continued to fight the scourge of illegaldrugf!. Thanks to the
tireless efforts of the Drug Enforcement Administration and the Organized Crime Drug Enforcement Task
Force, we have:
Increased the seizures of drug assets from major drug trafficking organizations by 20 percent;
Dismantled 305 drug trafficking organizations in 2002 alone;
More than doubled the amount of heroin seizures from 2000 to 2002;
Reached a 9-year low in student drug use; and
® Attacked the nexus between drug trafficking and terrorism, including bringing charges in San Diego
against individuals for conspiring to trade heroin and hashish for anti-aircraft missiles, which
were allegedly intended to be sold to al Qaeda forces in Afghanistan.
The FY 2004 budget request includes $117.9 million to augment our efforts to reduce the availability of
illegal drugs, to identify and dismantle drug trafficking organizations, and to support drug treatment.
Third, the Department of Justice has prevented and prosecuted crimes a~ainst children by:
Allocating $2.5 million to develop an effective, nationwide AMBER Alert system;
® Reassigning 3 FBI investigative analysts to work full time at the National Center for Missingand
Exploited Children;
OLC 000875
Supporting Internet Crimes Against Children Task Forces across the nation; and
Dedicating a total of$15.2 million to the FBI’s Innocent Images National Initiative, a $3.6 million
increase, to keep pace with a nearty 2,000 percent increase in investigations since 1996 and to
combat the proliferation of child pornography and child sexual exploitation via the Internet.
Fourth, the Department of Justice has provided increasing protection to Americans from gun crimeJ In
the first two years of this Administration’s Project Safe Neighborhoods initiative to combat gun crime, we have:
Increased federa! gun crime prosecutions by 32 percent, which has helped lock up repeat offenders and
lower crime in cities across America. For example:
In Philadelphia, robberies at gunpoint dropped 11 percent, and the homicide rate is the lowest it
has been since 1985; and
In Kansas City, the murder rate dropped 23 percent, to its lowest level in three decades. This
reduction translates to 27 more people alive today who might not have been if previous
trends had continued.
u.s. Attorneys have:
Charged 10,634 defendants for violating gun statutes;
Convicted and taken 7,747 gun criminals off the streets so far.
In 2002, the conviction rate for federal gun crime prosecutions was nearly 90 percent, and more than half
of these gun criminals were sentenced to more than five years in a federal prison.
Our successes in these areas would not be possible without the diligence and hard work of state and local
law enforcement .agencies. To that end, the Administration is requesting $8.5 billion for first resp0nders and
state and local law enforcement - $2 billion in the current war supplemental that is pending and $6.5 billion in
the FY 2004 budget requests for the Justice Department and Department of Homeland Security.
Fifth~ the Department of Justice has protected vigorously the civil rights of all Americans:
The Department has strengthened our Civil Rights Division with an approximately 10% increase in both
full-time attorneys (355) and total employees (709) enforcing our nation’s civil rights laws since
the begilming of the Bush Administration;
12% increase in successful prosecutions of criminal civil rights violations from previous two years
100% increase in settling pattern or practice police misconduct cases from previous two years
OLC 000876
$500 million obtained for traditional black colleges through settlement of a 25-year-old desegregation
lawsuit
The Department has prosecuted more than 90 discriminatory backlash hate crimes in the wake of
September 11:
By securing the Conviction of Zachary Rolnik for violating the civil rights of Dr. James J. Zogby,
the president of the Arab-American Institute; and
By securing the guilty plea of Earl Leslie Krugel for conspiracy to manufacture and detonate
bombs at a mosque and a field office of United States Congressman Darrell Issa of
California.
The Department has prosecuted 43 non-September 11 related hate crimes cases in the last two years, and
initiated over 600 additional non-September ! 1 hate crimes investigations;
The Department has coordinated the Voting Rights Initiative to ensure access, honesty, and integrity at
the polls on Election Day that resulted in a smooth election with far fewer complaints than were
reported in recent years; and
The Department has investigated, prosecuted, and convicted record numbers of human trafficking and
sex trafficking cases, doubling the number of trafficking prosecutions.- and doubling the number
of convictions - over the previous two years.
Obviously, our Department has other vital missions I have not been able to address fully here but would
be happy to address during questions. For example, the Department’s Antitrust Division successfully settled the
Microsoft case, receiving praise from Judge Kollar-Kotelly for "the clear, consistent, and coherent manner" in
which .the Division reached this historic settlement. On the criminal enforcement front, last year, individuals
convicted for antitrust violations and related.cri.minal offenses received a record average sentence of.greater than
18 months.
Mr. Chairman, as we work to achieve our Department’s objectives, I appreciate your continued support
and (would be pleased to answer your questions.
###
OLC 000877
From" Harris, Paul (SMO)
Sent: Thursday, April 17, 2003 5:00 PM
To: Yoo, John C
Subject: RE: The Holmes Debates
Even better if you’re at University of Chicago bythen. Congratulations, by the way. Can I count you in along with Paul
McNulty and Viet Dinh?
Paul Clinton Harris, Sr.
Deputy Associate Attorney General
---i-Original Message .....

From: Yoo, John C
Sent: -Ihursday, April 17, 2003 4:52 PM
To:. Harris, Paul (SMO) "
Subjed:: RE: The Holmes Debates
I might not be at the Department by then, will probably be a visiting professor at the University of Chicago. On the other
¯ hand, I would say exactly the same things defending the Department’s policies as I would now. I would like to do it, but if
you want to get someone else from the Department, I totallyunderstand.
John Yoo
202.514.2069
202.514.0539 (fax)
....-..Original Message .....

From: Harris, Paul (SMO)- .
Sent: :Thursday, April 17, 2003.4:47 PM
To: Yoo, John C
Subject: RE; The Holmes Debates
OK. The date is June 17, 2003. Thanks.

Paul Clinion Hards, St.
~ nt of Justice

From: Yoo, John C
Sent: Thursday, Apdl 17, 2003 4:46 PM
To: Harris, Paul (SMO)
Subjed:; RE: The Holmes Debates
Paul:
I would be very interested. Let’s talk about it tomorrow. It might just be a matter of dates.
.John Yoo
202.514.2069
202.514.0539 (fax)
OLC 000878
From: Harris, Paul (SMO)
To: Yoo, John C
Subject: FW: The Holmes Debates
John,
Per my voicemail, see the information below concerning the agenda and the debate format. I would like for you to take on
the topic of "The Balance Between the Justice Model and the Law of War"
When to apply the criminal law and justice model and when to apply a military/law of war model to suspected
terrorists?
® Do military tribunals violate the 6th Amendment right to a fair, open, speedy and public trial or the 7th Amendment
right to trial by jury?
® How much evidence may be introduced under seal to ensure security interests?
® What is the role of the defense attorney in preventing future attacks while preserving the judicial system and ensuring
clients receive adequate representation?
~ How far can the government go to obtain information?
® What is the role of torture in this role?
,, Can information obtained through torture be used in trial?
,, How does the Geneva Convention impact evidence gathering?
Hope you can participate. Let me know. Paul

From= Harris, Paul (SMO)
To: McNulty, Paul; Miller, Brian D.
Subje~.-t~ RE: The Holmes Debates
Thank you, Paul. The event will be on June 17, 2003 in the Coolidge Auditorium at the Library of Congress. Here’s the
agenda:
Noon to 1:30 p.m. -- Lunch
1:30 to 1:45 -- Opening Remarks
1:45 to 2:30 -- Debate #1
2:30 to 2:45 -- Break
2:45 to 3:30 -- Debate #2
3:30 to 4:15 -- Debate #3
4:15 to 5:00 -- Debate #4
5:00 to 5:30 -- Synopsis & Questions
Format for each debate:

Affirmative Constructive -- 7 minutes (#1 presenter)
Negative Constructive -- 8 minutes (#2 presenter)
Affirmative Rebuttal -- 8 minutes
Negative Rebuttal -- 8 minutes
Surrebuttal -- 4 minutes
Surrebuttal -- 5 minutes.
40 minutes total
At this time I don’t know the exact order of the debates. Perhaps we can work it out around your schedule, if there is a
-problem. Let me know. Again, thanks! Paul

~ of Justice
OLC 000879
From: McNulty, Paul
To: Harris, Paul (SMO); Miller, Brian D.
Subject: RE: The Holmes Debates
Thanks for thinking of me, Paul. This sounds like a promising format and a good opportunity to educate folks on the truth
about what is going on. I’m happy to participate. Please let me know what it is being planned concerning format. What
time ofday is this? Evening, I’m assuming.
..... Odginal Message .....

l:rom: Harris, Paul (SMO)
Sent: Thursday, April 17, 2003 11:14 AM
To: McNulty, Paul; Miller, Brian D.
Subject: The Holmes Debates
~mportance-" High
Paul: I want to invite you to participate in a new and unique event that will be held on June 17, 2003. The Library of
Congress and the Burton Foundation, of which I am a board member, are establishing the "Holmes Debates" which
comprises four constitutional law debates at the Library of Congress. Chief Justice Rehnquist selected the topic for
the debates which is "The Bounds of Post 9/11 Freedoms." Former Secretary of Defense William Cohen will.be the
moderator. Dean Lee E. Teitelbaum of Cornell Law School is the 2003 Chair of the event.
The purpose of the Holmes Debates is to examine, analyze and discuss important constitutional issues facing the
judiciary. The Library of Congress has offered many symposiums in the past, but the new debate format should be far
more interesting, lively and engaging. The sponsors will be Shook, Hardy & Bacon, LLP, American Lawyer Media, and
Thomps0n-West Publishing.
Already, professors from the UniversitY of Pennsylvania and Michigan Law School have agreed to participate. The
proceedings may be carried on C-SPAN.
¯ Paul, I would like to invite you to take on the topic of "The Balance Between Individual Rights and National Security:’.t
Does the need for national and homeland security give law enforcement and the government overriding authority
to conduct unlawful search and seizure?
, Are law enforcement surveillance and evidence gathering techniques violating the 4th Amendment?
, How can governm.entbalance the need for national and homeland security against basic constitutional rights?
, What is the toll on the 4th Amendment freedom from unlawful search and seizure; the 6th and 7th Amendment
right to public trial; and the 8th Amendment right to no cruel and unusual punishment?
What is the role of the Constitution in times of war or in fighting terrorism?
What is the value of civil liberties if you are fighting an enemy who wants to destroy the nation?
What lessons may be learned from the body of law emanating from the Cold War and Red Scare and how can
they be applied to the current legal crisis we are facing in battling terrorists, terrorist Cells and nation states that
support terrorism?
What Constitutional lessons did the nation learn during World War II when many Asian American citizens were
interned in concentration camps?
Other topics include:

® " "The Balance Between the Justice Model and the Law of War"
® "The Balance Between Individual Rights and National Security: Rights of Free Expression"
® "The Balance Between National Security and Immigration Policy and Practice"
FYI, Jim Comey also has been invited. Please let me know of your interest as soon as you can. Thanks, Paul, and
keep up the great work you’re doing to keep the Commonwealth and the nation safe.
Sincerely,
Paul H.
Deputy. Associate Attorney General
OLC 000880
OLC 000881
~ro~: JamesCHo~ .
Sent: Thursday, April 24, 2003 8:27 AM
To: Yoo, John C
Subject: USA PATRIOT Act
John:
It was great to get a chance to catch up with you yesterday. Please give Elsa our best. Allyson and I will really miss
seeing you both around D.C. I will call my brother this morning to ask him about Chicago apartments.
¯ 1 reviewed the USA PATRIOT Act provisions last night (at a Senate lawyer level, and not at an OLC lawyer level, mind
you!).-After that summary review, I think that I tentatively agree with you -- the Act, although important in some areas
to be sure, is not nearly as dramatic as both its proponents and opponents characterize !t.
From a civil liberties standpoint, it seems to me that the following provisions are noteworthy:.
* Generally reducing the procedural hurdles for the federal government to obtain eavesdropping authority and
access to.telephonic and e-mail information, under Title III and other provisions. This is a reduction in civil liberties
protections against intrusions of privacy, to be sure. But it is a reduction of burdens that were not constitutionally
required in the first place. Moreover, it looks like the government still must get a court order in all instances; and there
must be a nexus to some past or future crime (although the specific burden on the gov’thas been reduced in some
cases).
* Generally expanding the reach of FISA. Under the Act, a FISA warrant can be obtained.so .long as a "significant
~ipurpose" remains gathering foreign intelligence; it no longer needs to be the exclusive-purpose, however. But the
probable cause standard remains, although it is probable cause of a connection to a foreign power or to international
terrorism, rather than probable cause of a past or future.crime as in the traditional search/seizure warrant. And the
PATRIOT Act does not appear to change the minimization procedures which protect US citizens from falling within the
scope ofa FISA surveillance order. To be sure, the Actallows the governm._ent more power to obtain not only wiretaps,
but also tangible evidence, related to the FISA investigation more easily, regardless of who may be in possession of the
evidence at th~ relevant time. But again, all of this must be done pursuant to court order. [I take it this is the provision
that librarians are unhappy with. Their specific complaint that they can’t tell people about any FISA orders -- that,s
under pre-PATRIOT FISA law, right?]
* Expanded government confiscation powers. Effectively permitting Trading with the Enemy Act-type
confiscation under the current circumstances by expanding IEEPA. The confiscation is broad, not limited to actual acts,
but to all property of a terrorist. Essentially, this raises the question whether the President’s wartime powers of
confiscation apply to the current and more ambiguous war on terrorism.
* Sneak and peak warrants. There is now broader authority to conduct delayed notifiaction searches, and even
seizures under certain cases. But again, this is all done pursuant to court order.
And there are of course a number of other provisions -- new crimes, DNA collection for convicted terrorists, broader
deportation provisions, etc.
But my general impression-is that USA PATRIOT seems more like a run-of-the-mill omnibus crime package - albeit one
that is generally tilted towards the government and away from defendant rights -- rather than a big-time expansion of
power along the lines of the government’s assertion of war powers (e.g., detention of enemy combatants without
counsel, transfer, etc.).
OLC 000882
(The other thing that I wonder -- are there specific instances of abuse that have occurred and have been reported? I’m
not aware of any. And of course, this is all subject to court challenge -- yet no court has struck down any provision of
the USA PATRIOT Act, I gather based on a quick Westlaw search of federal cases.)
I gather this is your impression, too, after far more scrutiny than I have yet had time to devote. If I am missing anything,
or failing to ’appreciate any particular civil liberties arguments that deserve more respect than I’ve given, if you could let
me know if you have a free moment, I would really appreciate it!
OLC 000883
From;
Sent: Friday, April 25, 2003 8:56 AM
"~o:
Subject: Travel Arrangements for Point Clear, AL in May
Good Morning!
I am writing to inquire about your travel arrangements to the llth Circuit Judicial Conference in Point Clear, AL in May.
If you. could please respond with your arrangements to the conference email address:
. If you have any questions, please contact myself at the number below or Nancy Burnham
Please respond as soon as possible so that we can firm up all arrangements. Thank you in advance for your help.
Have a great weekend!
Sara Perks
OLC 000884
~rom:
To: Yoo, John C;
Cc:
Subject: RE: Travel Arrangements for Point’Clear, AL in May
Dear All:
Just to clarify here: As you know, our panel is on Thursday, May :15 at 3:00 p.m. The conference has made
tentative hotel reservations for arrival on the evening of Wednesday, May 14, and departure on the morning of
Saturday, May 17. It is these dates that Sara needs to get firmed up. I assume that at least some of you will wish to
stay for a shorter time.
Depending on people’s arrival schedules, ASIL will host either a working dinner on Wednesday night or a working lunch
on Thursday afternoon, so that we may all talk through the panel presentation in person. As Sara indicated, please e-
mail your arrival and departure dates to . If you could
cc me as well, I wou~d be grateful.
Look for an e-mail from me later today re: additional details on logistics, as well as discussion of panel substance.
Best regards -- Kathleen-
Kathleen A. Wilson
tel:
e-mail:

From:
To:
John.C.Yoo@usdoj.gov;~
Subject: Travel Arrangements for Point Clear, AL in May
Good Morning!
I am writinl~ to inquire about your travel arrangements to the 11th Circuit Judicial Conference in Point Clear, AL in May.
If you could please respond with your arrangements.to the conference email address:’
~~. If you have any questions, please contact myself at the number below or Nancy Burnham
at ~1~1~
Please respond as soon as possible so that we can firm up all arrangements.

Thank you in advance for your help.
Have a great weekend!
Sara Perks
OLC 000885
OLC 000886
From
Sent: Monday, April 28, 2003 7:48 PM
To: Yoo, John C;=
Subject: 11 th Circuit JudiciatConference .-- May 15
Attachments: ILPA 11C 2003 CLE Outline and Sample Handouts041003.doc; 1 lth C - May 2003 -
Contacts.doc
ILPA-11C 2003 CLE [lth C - May 2003 -

Outline and ... Contacts.d...
Dear All:
Sorry for the delay in following up on my e-mail of Friday morning.
The 11th Circuit is in the process of providing you with more information about the conference, including a conference
schedule (which I will also forward when I am able to obtain one). The conference hotel is the Marriott Grand Hotel
Resort and Spa in Point Clear (see www.marriott.com .<http://www.marriott.com> ). For those who have not yet
purchased their airline tickets, Point Clear is more or less equidistant from the Mobile and Pensacola airports, approx, a
45-minute drive either way according to what I have been told. Please save your airline, hotel and other travel .receipts
to forward to ASIL for reimbursement after the conference.
With respect to the substance of the panel, I have attached below a copy of an outline of potential topics that
panel moderator Chris Borgen prepared for purposes of applying for CLE accreditation. Chris asked me to stress that 1)
this is intended to be a comprehensive outline, so other suggestions are welcome; and 2) even if it were a .
comprehensive outline, there is no way that we would be able to cover all of these topics in 90 minutes. -Chris asks,that
each of you think about i or 2 topics--either fromthis list or not--that you yourself would like to cover during the course
of the panel presentation. (What Chris would normally do is to "tee up" a particular topic for a sinl~le panelist, and then
allow others to comment or follow up). To get the ball rolling on this process, and to get a collective sense of what folks
might like to discuss, we!d like to set up a conference call (20-30 minutes max) for some afternoon this week. Please let
me know if Wednesday at 3:00 p.m. EST work for.everyone, and also, more generally, what other times you couldbe
available on Wednesday, Thursday or Friday afternoon. I’ll be back in touch as soon as POssible to confirm a time,
hopefully one that everyone can make.
I’ve also attached below a copy of contact information for everyone participating on the panel. Many thanks--lim
looking forward to working
with all of you on this. Be~t regards -- Kathleen
Kathleen A. Wilson
tel.
e-mail: -

From: Kathleen Wilson
To:
John.C.Yoo@usdoj.gov; Kathleen Wilson
Cc:
Subject: RE: Travel Arrangements for Point Clear, AL in May
OLC 000887
Dear All:
Just to clarify here: As you know, our panel is on Thursday, May 15
at 3:00 p.m. The conference has made tentative hotel reservations for
arrival on the evening of Wednesday, May :14, and departure on the morning of
Saturday, May 17. It is these dates that Sara needs to get firmed up. I
assume that at least some of you will wish.to stay for a shorter time.
Depending on people’s arrival schedules, ASlL will host either a working
dinner on Wednesday night or a working lunch on Thursday afternoon, so that
we may all talk through the panel presentation in person. As Sara
indicated, please e-mail your arrival and departure dates to
If you could
cc me as well, ! would be grateful.
Look for an e-mail from me later today re: additional details on
logistics, as well as discussion of panel substance. Best regards --
Kathleen
Kathleen A. Wilson
tel:
e-mai!: ~

From: -
To: "" .
Subj~ct:Travel Arrangements for Point Clear, AL in May
Good Morning!
I am writing to inquire about your travel arrangements to the llth Circuit

Judicial Conference in Point Clear, AL in May. If you could please respond
with your arrangements to the conference email address:
../.- Ifyou have any questions, please contact myself
at the number below or Nancy Burnham a~
Please respond as soon :as possible so that we can firm up all arrangements.
Thank you in advance for your help.
Have a great weekend]
Sara Perks
OLC 000888
~ternationa[ Law
2223 Massacllusetts Avenue, NW Washington, DC 20008-2864 Phone (202) 939-6000 Fax (202) 797-7133
Eleventh Circuit Judicial Conference, Spring 2003
Panel: The Rule of Law in an Age of Terrorism
Goal
Introduction to the institutions of international law by using intemational criminal law and the War on
Terrorism issues as a central example. The following questions set forth topics for possible discussion
among the panelists and between the panel and the audience as part of this session.
_Introducto__ry Questions
A preliminary question is what is "international law"-- to what does the term refer? What are the
roles of treaties and of customary international law?
One of the major intemati0nal legal developments sincethe end of tlie Cold War has been the
proliferation of international courts and tribunals. What are some of the major international
tribunal.s? How may they interact with domestic legal systems?
The events of September 11 ~h have had a profound effect on international and domestic law and
law has shaped the policy responses of the United States. How has the law been used as a
regulator of military action and as a tool for the pursuit of terrorists.
What is the boundary (if any) between a serious crime and an "armed attack" that would allow a
military response? Is there a principled line to be drawn between a crime and armed conflict?
Domestic and International Tribunals and the Prosecution of Terrorists
The following fora have been mentioned as fora for the prosecution of alleged A1 Qaeda and Taliban
members caught in Afghanistan, in the U.S., or elsewhere.
o Trials before federal courts;

o Trial before an Ad Hoc International Tribunal
o Trial before the International Criminal Court
o Proceeding before a Military Commission
o Others?
OLC 000889
What are the comparative advantages and disadvantages of each?
How does the determination of status of detainees affect the choice of forum for those who are
charged with a crime? What is the relationship between POW status and the forum in which a
detainee may be prosecuted.
What about Iraqi prisoners from the war in Iraq?
What is (or what are) the proper law(s) for such a trial?
U.S. civilian law

International law as interpreted by the U.S.
International law as determined by an international consensus
U.S. military law
Islamic law
International Tribunals
Since the end of the Cold War there has been not only a proliferation of new international tribunals,.but
also the caseload of each of these tribunals has increased dramatically. International tribunals have
consequently addressed a wide variety of issues with significant implications for the United States. For
example, international tribunals:
Have found the U.S. liable to Germany for the execution of a German national without the
national having been informed of his right to meet with a German consular officials;
Have begun the trial of Slobodan Milosevic for war crimes;
Have heard begun proceedings to consider whether certain state environmental laws in the U.S.
are tantamount to an illegal expropriation of profits and are thus are not NAFTAcompliant;.
Have begun proceedings to consider whether Mississippi state tort laws are unfair to foreigners
and are also tantamount to expropriation.
Besides domestic courts taking a role in enforcing international criminal law, there are also international
criminal tribunals, such as the tribunals established to address crimes in the Former Yugoslavia and in
Rwanda. There has also been much debate over the establishment of an international criminal court,
whose statute the previous Administration had signed but recently the Administration stated that it had no
intent to become a party to the treaty and renounced any previous obligations under the treaty. "
What is the status of the ICC?
How is it different from the Ad Hoc Tribunals?
What are the pros and cons to the U.S. joining the Statute of the International Criminal Court?
OLC 000890
The relationship of foreign court decisions to U.S. jurisprudence is an issue that has come increasingly to
the foreground. Moreover, the role of international tribunals in transnationat litigation has also grown in
importance.
Of what use, if any, are the decisions of foreign courts in interpreting the U.S. Constitution or acts
of Congress?
What are the relationships between the federal courts and international tribunals? How do they
communicate with each other?
What role do domestic courts play in enforcing the orders or judgments of international tribunals
or foreign courts?
Should U.S. courts defer to orders of the International Court of Justice or other international
tribunals?
Resource Building for Stakeholders
Due to the broad nature of the War on Terrorism,. including military action abroad and law enforcement
responses both domestically and abroad, there are a wide range of "stakeholders" including the American
public, judges, criminal law attorneys, civil rights attorneys,..the military, the media and aliens who may
be detained in the U.S. or overseas.
What resources would assist American policymakers, the general public and other stakeholders in
addressing the issues mentioned above?
What resources would federal judges need to address cases with implication concerning either the
laws of armed conflict or the rights of alien in the United States?
Samplesof possible handout materials follow. Use and topics of handouts w~ll depend on what
topics are deemed to be most timely by’panelists shortly before the event.
OLC 000891
The Rule of Law in an Age of Terrorism -- Sample handout materials
I. Terrorism.
In sweeping language in 1985, the United Nations General Assembly "[u]nequivocally"

condemned, "as criminal, all acts, methods and practices of terrorism wherever and by
whomever committed". The Security Council also "resolutely" condemned "’all acts of
terrorism’...in all its forms, wherever and by whomever committed," while endorsing a similar
statement of the Secretary-General that same year. Nonetheless, none of the resolutions actually
defined that which is so resolutely condemned.
The Antiterrorism Act of 1990

18 U.S.C.
§ 2331. Definitions
As used in this chapter [18 USCS §§ 2331 et seq.] --.

(1) the term"intemational terrorism" means activities that--
(A) involve violent acts or acts dangerous to human life that are a Violation of the
criminal laws of the United States or of any State, or that would be a criminal violation if
committed within the jurisdiction of the United States or of any State;
(B). appear to be intended--
(i) to intimidate or coerce a civilian population;
(it) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by assassination or kidnapping;
and
(C) occur primarily outside the territorial jurisdiction of the United States, or
transcend national boundaries in terms of the means by which they are accomplished, the persons
they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or
seek asylum;
(2) the term "national of the United States" has the meaning given such term in section
101(a)(22) of the Immigration and Nationality Act [8 USCS § 1101(a)(22)];
(3) the term "person" means any individual or entity capable.of holding a legal or
beneficial interest in property; and
(4) the term "act of war" means any act occurring inthe course of--
(A) declared war;
(B) armed conflict, whether or not war has been declared, between two or more
nations; or
(C) armed conflict between military forces of any origin.
OLC 000892
§ 2332. Criminal penalties
(a) Homicide. Whoever kills a national of the United States, while such national is
outside the United States, shall,--
(1) if the killing is murder (as defined in section 111 l(a)), be fined under this title,
punished by death or imprisonment for any term of years or for life, or both;
(2) if the killing is a voluntary manslaughter as defined in section 1112(a) of this
title, be fined under this title or imprisoned not more than ten years, or both; and
(3) if the killing is an involuntary manslaughter as defined in section 1112(a) of
this title, be fined under this title or imprisoned not more than three years, or both.
(b) Attempt or conspiracy with respect to homicide. Whoever outside the United States
attempts to kill, or engages in a conspiracy to kill, a national of the United States shall--
(1) in the case of an attempt to commit a killing that is a murder as defined in this
chapter [ 18 USCS §{} .2331 et seq.], be fined Under this title or imprisoned not more than 20
years~ or both; and
(2) in the case of a conspiracy by two or more persons to commit a killing that is a
murder as defined in section It 1 l(a) of this title, if one or more of such persons do any overt act
to effect the object of the conspiracy, be fined under this title or imprisoned for any term of years
or for life, or both so fined and so imprisoned.
(c) Other conduct. Whoever outside the United States engages in physical violence--
(1) with intent to cause serious bodily injury to a national of the United States; or
(2) with the result that serious bodily injury is caused to. a national of the United
States;
shall be fined under this title or imprisoned not more that ten years, or both.
(d) Limitation on prosecution. No prosecution for any offense described in this section
.shall. be undertaken by the United States except on written certification of the Attorney General.
or the highest ranking subordinate of the Attorney General with responsibility for criminal
prosecutions that, in the judgment of the certifying official, such offense was intended to coerce,
intimidate, or retaliate against a government or a civilian population.
§.2332a. Use of weapons of mass destruction
(a) Offense. A person who uses, or attempts or conspires to use, a weapon of mass
destruction--
(1) against a national of the United States while such national is outside of the
United States;
(2) against any person within the United States; or
(3) against any property that is .owned, leased or-used by the United States or by
any department or agency of the United States, whether the property is within or outside the
United States,
OLC 000893
shall be imprisoned for any term of years or for life, and if death results, shall be punished by
death or imprisoned for any term of years or for life ....
§ 2333. Civil remedies
(a) Action and jurisdiction. Any national of the United States injured in his or her person,
property, or business by reason of an act of international terrorism, or his or her estate, survivors,
or heirs, may sue,therefor in any appropriate district court of the United States and shall recover
threefold the damages he or she sustains and the cost of the suit; including attorney’s fees ....
2334. Jurisdiction and venue ....
(d) Convenience of the forum. The district courts shall not dismiss...unless--
(1) the action may be maintained in a foreign court that has jurisdiction over the
subject matter and over all the defendants;
(2) that foreign court is significantly more convenient and appropriate; and
(3) that foreign court offers a remedy which is substantially the same as the one
available in the courts of the United States ....
§ 2335. Limitations of actions
(a) In general. Subject to subsection (b), a suit for recovery of damages under section
2333 of this title.shall not be maintained unless commenced within 4 years after the date the
cause of action accrued.
(b) Calculation of period. The time of the absence of the defendant from the United
States or from any jurisdiction in which the same or a similar action arising from the same facts
may be maintained by the plaintiff, or ~of any concealment of the defendant’s whereabouts, shall
not: be included.in the 4-year period set forth in subsection (a).
§ 2336. Other limitations.
(a) Acts of war. No action shall be.maintained under section 2333 of this title for injury-
or loss by reason of an act of war ....
§ 2337. Suits against Government officials

No action shall be maintained under section 2333 of this title against--
(1) the United States, an agency of the United States, or an officer or employee of the
United States or any agency thereof acting within his or her official capacity or under color of
legal authority; or
(2) a foreign state, an agency of a foreign state, or an officer or employee of a foreign
state or an agency thereof acting within his or her official capacity or under color of legal
authority.
OLC 000894
Aircraft Sabotage.
Montreal Convention for the Suppression of Unlawful Acts

Against the Safety of Civil Aviation
974 U.N.T.S. 177, 24 U.S.T. 564, T.I.A.S. No. 7570 (1971)
Article 1
1.’ Any person commits an offence if he unlawfully and intentionally:

(a) performs an act of violence against a person on board an aircraft in flight if
that act is likely to endanger the safety of that aircraft; or
(b) destroys an aircraft in service or causes damage to such aircraft which renders
it incapable of flight or which is likely to endanger its safety in flight; or
(c) places or causes to be placed on an aircraft in service, by any means
whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it
which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety
in flight; or
(d) destroys or damages air navigation facilities or interferes with their operation,
if any such act is likely to endanger the safety of aircraft in flight; or
(e) communicates information which he knows to be false, thereby endangering
the safety of an aircraft in flight.
o Any person also commits an offence if he:
(a) attempts to commit any of the offences mentioned in paragraph 1 of this

article; or
(b) is an accomplice of a person who commits to attempts to commit any such
offencel
Article 2
For the purposes of this Convention:

(a) an aircraft is considered to be in flight at any time from the moment when all its
external doors are closed following embarkation until the moment when any such door is opened
for disembarkation; in the case of a forced landing, the flight shall be deemed to continue until
.the competent authorities take over the responsibility for the aircraft and for the aircraft and for
persons and property on board;
(b) an aircraft is considered to be in service from the beginning of the preflight
preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-
four hours after any landing; the period of service shall, in any event, extend for the entire period
during which the aircraft is in flight as defined in paragraph (a) of this article.
Article 3
Each Contracting State undertakes to make the offences mentioned in Article 1

punishable by severe penalties.
OLC 000895
Article 4
1. This Convention shall not apply to aircraft used in military, customs or police
services.
2. ha the cases contemplated in subparagraphs (a), (b), (c) and (e) of paragraph 1 of
Article 1, this Convention shall apply, irrespective of whether the aircraft is engaged in an
international or domestic flight, only if:
(a) the place of take-off or landing, actual or intended, of the aircraft is situated
outside the territory of the State of registration of that aircraft; or
(b) the offence is committed in the territory of a State other than the State of
registration of the aircraft.
3. Notwithstanding paragraph 2 of this article, in the cases contemplated in
subparagraphs (a), (b), (c) and (e) of paragraph 1. of Article 1, this .Convention shall also apply if
-the offender or the alleged offender is found in the territory of a State other than the State of
regiStration of the aircraft.
4. With respect to the States mentioned in Article 9 and in the cases mentioned in
subparagraphs (a), (b), (c) and (e) of paragraph 1 of Article 1, this Convention shall not apply if
the.places referred to in subparagraph (a) of paragraph 2 of this article are situated within the
territory of the same State where thatState is one of those referred to in.Article 9~. unless the
offence is committed or the offender or alleged offender is found in the territory of a State other
than that State.
5. In the cases contemplated in subparagraph (d) of paragraph 1 of Article l, this
Convention shall apply only if the air navigation facilities are used in international air
navigation.
6. The provisions of paragraphs 2, 3, 4 and 5 of this article shall also apply in the cases
contemplated in paragraph 2 of Article 1.
Article 5
1. Each Contracting State shall take such measures as may be necessary to establish its
jurisdiction over the offences in the foll(~wing cases:
(a). when the offence is COlmnitted in the territory of that State;
(b) when the offence is committed against or on board an aircraft registered in
¯ that State;
(c) when the aircraft on board which the offence is committed lands in its
territory with the alleged offender still on board;
(d) when the offence is committed against or on board an aircraft leased without
crew to a lessee who has his principal place of business or, if the lessee has no such place of
¯ business, his permanent residence, in that State.
2. Each Contracting State shall likewise take such measures as may be necessary to
establish its jurisdiction over the offences mentioned in Article 1, paragraph 1 (a), (b) and (c),
and in Article 1, paragraph 2, in so far as that paragraph relates to those offences, in the case
where the alleged offender is present in its territory and it does not extradite him pursuant to
Article 8 to any of the States mentioned in paragraph l of this article.
OLC 000896
3. This Convention does not exclude any criminal jurisdiction exercised in accordance
with national law.
Article 6
1. Upon being satisfied that the circumstances so warrant, any Contracting State in the
territory of which the offender or the alleged offender is present, shall take him into custody or
take other measures to ensure his presence. The custody and other measures shall be as provided
in the law of that State but may only be continued for such time as is necessary to enable any
criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary enquiry into the facts.
3. An3~ person in custody pursuant to paragraph 1 of this article shall be assisted in
communicating immediately with the nearest appropriate representative of the State of which he
is a national.
4. When a State, pursuant to this article, has taken a.person into custody, it sh~ll
immediately notify the States mentioned in Article 5, paragraph 1, the State of nationality of the
detained person and, if it considers it advisable, any other interested States of the fact that such
person is in custody and of the circumstances which warrant his detention.. The State which
makes the preliminary enquiry contemplated in paragraph 2 of this article Shall promptly report
its findings to the said States and shall indicate whether it intends to exercise jurisdiction.
Article 7
The Contracting State in the territory.of which the alleged offender is found shall, if it
does not extradite him, be obliged, without exception whatsoever and whether or not the offence
was committed in its territory, to submit the case to its competent authorities for the purpose of
prosecution. Those authorities shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State.
Article 8
1. The offences shall be deemed to be included as extraditable offences in any

extradition treaty existing, between Contracting States. Contract.ing States undertake to include
theoffences as extraditable offences in every extradition treaty to be concluded between them.
2. If a Contracting State which makes extradition conditional on the existence of a treaty
receives a request for extradition from another Contracting State with which it has no extradition
treaty, it may at its option consider this Convention as the legal basis for extradition in respect of
the offences. Extradition shall be subject to the other conditions provided by the law of the
requested State.
3. Contracting States which do not make extradition conditional on the existence of a
treaty shall recognize the offences as extraditable offences between themselves subject to the
conditions provided by the law of the requested State.
4. Each of the offences shall be treated, for the purpose of extradition between
Contracting States, as if it had been committed not only in the place in which it occurred but also
OLC 000897
in the territories of the States required to establish their jurisdiction in accordance with Article 5,
paragraph 1 (b), (c) and (d).
Article 11
1. Contracting States shall afford one another the greatest measure of assistance in
connection with criminal proceedings brought in respect of the offences. The law of the State
requested shall apply in all cases.
2. The Provisions of paragraph 1 of this article shall not affect obligations under any
other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual
assistance in criminal matters.
Ill..Crimes Against Humanity.
Charter of the International Military Tribunal at Nuremberg (1945)
Article 6
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation,

and other inhumane acts committed against any civilian population, before or during the war; or
persecutions on political, racial or religious grounds in execution of or in connection with any
crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of
the country where perpetrated.
IV. War Crimes.
Ex parte Quirin
317 U.S. 1, 27-30 (1942)
Stone, C.J.
[Editors’ note [from PAUST, FITZPATRICK, VAN DYKE, INTERNATIONAL LAW AND
LITIGATION IN THE UiS. (West Group, American Casebook Series 2000)]: Habeas petitioners
were individuals born in Germany who had lived in the U.S. and returned to Germany by 1933,
one of whom claimed U.S. citizenship by virtue of naturalization of his parents when he was five
years old. They had been trained in a "sabotage school near Berlin" and were members of one of
two teams that had been transported by submarine to the U.S., had landed during darkness "with
explosives, fuses, and incendiary and timing devices," had worn German military uniforms or
parts thereof upon landing but immediately proceeded "in civilian dress" from landing sites at
Amagansett Beach on Long Island, New York, and Ponte Verde Beach, Florida; and had traveled
either to New York City or through Jacksonville, Florida to Other points of the U.S., and who
10
OLC 000898
were captured by the F.B.I. in New York or Chicago. The President of the U.S. created a
Military Commission by Order of July 2, 1942, to try them for violations of the laws of war
(including efforts to engage in combat acts of sabotage out ofu~iform), violation of Article 81 of
the 1916 Articles of War (concerning provision of intelligence to the enemy), violation of Article
82 of the Articles of War (concerning spying out of uniform), and conspiracy with respect to the
above. Petitioners claimed "that the President is without statutory or constitutional authority to
order the petitioners to be tried by military tribunal for offenses...charged; that in consequence
they are entitled to be tried-in the civil courts," with a jury trial, and that the procedure and
.method for review of the military tribunal conflict with the Articles of War as adopted by
Congress "and are illegal and void." The Supreme Court denied each such claim.]
From the very beginning of its history this Court has recognized and applied the law of
war as including that part.of the law of nations which prescribes, for the conduct of war, the
status, rights and duties of enemy nations as well as of enemy individuals. By the [ 1916]
Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may
constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offensesi
against the law of war in appropriate cases. Congress, in addition to making rules for the
government of our Armed Forces, has thus exercised its authority to define and punish offenses
against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of
military commissions to try persons for offenses which, according to the rules and precepts of the
law of nations, and more particularly the law of war, are cognizable by such tribunals.-And the
President, as Commander in Chief, by his Proclamation in time of war has invoked that law. By
his Order creating the present Commission he has undertaken to exercise the authority conferred
upon him by .Congress, and also such authority as the Constitution itself gives the Commander in
Chief, to direct the performance of those functions which may constitutionally be performed by
the military arm of the nation in time of war ....
¯ . It is no objection that Congress in providing for the trial of such offenses has not itself .
undertaken to codify that branch of international law or to mark its precise boundaries, or to
enumerate or define by statute all the acts which that law condemns. An Act of Congress
punishing "the crime 0fpiracy as defined by the law of nations" is an appropriate exercise of this
constitutional authority, Art. I, sec. 8, cl. 10, "to define and punish" the offense since it has
adopted by reference the sufficiently precise definition of international law. United States v.
Smith, 5 Wheat. i53...; see The Marianna Flora, 11 Wheat. 1, 40, 41...; United States v. The
Malek Adhel, 2 How. 210, 232...; The Ambrose Light, D.C., 25 F. 408, 423,428; 18 U.S.C. §
481, 18 U.S.C.A. § 481. Similarly by the reference in the 15thArticle of War to "offenders or
offenses that...by the law of war may be triable by such military commissions", Congress has
incorporatedby reference, as within the jurisdiction of military commissions, all offenses which
are defined as such by the law of war (compare Dynes v. Hoover, 20 How. 65, 82..,), and which
may constitutionally be included within that jurisdiction. Coiagress had the choice of
crystallizing in permanent form and in minute detail every offense against the law of war, or of
adopting the system of common law applied by military tribunals so far as it should be
recognized and deemed applicable by the courts. It chose the latter course.
11
OLC 000899
Notes and Questions:
t. Incorporation by reference is also evident with respect to civil sanctions. Consider the
Alien Tort Claims Act [ATCA], 18 U.S.C. § 1350, which reads: "The district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States."
2. There had been no statute incorporating the laws of war until the 1916 Articles of War
addressed in Ex parte Quirin. Nonetheless, as the Court recognized, the laws of war formed the
basis for criminal sanctions, as well as for other legal matters, since the beginning of the United
States. See also JORDAN J. PAUST, M. CHERIF BASSIOUNI, ETAL., INTERNATIONAL CRIMINAL LAW
.225-31,242-47,251-52 (1996). Today, 10 U.S.C. §§ 818,821 perform the same incorporating
role as the older Articles of War. § 818 states: "General courts-mgrtial also have jurisdiction to
try any person who by the law of war is subject to trial by a military tribunal and may adjudge
any punishment permitted by the law of war...."
Does the incorporation of the laws of war as domestic U.S. criminal offenses also
implicate federal district court jurisdiction under 18 U.S.C. § 3231, which states: "The district
courts of the United States shall have original j urisdiction~ exclusive of the courts of the States,
of all offenses against the laws of the United States"? See PAUST, BASSIOUNt, ET,4L,, supra at
-215~24; Jordan J. Paust, After My Lai: The Case’for War Crime Jurisdiction Over Civilians in
Federal District Courts, 50 TI~x. L. R~v. 6 (1971). If so, the United States can prosecute
civilians vcho are not otherwise subject to the jurisdiction of U.S. military tribunals in the federal
district courts.
The War Crimes Act of 1996

18 U.S.C. § 2401. War Crimes
(a) OFFENSE.---Whoever, whether inside or outside the United States, commits a grave
breach of the Geneva Conventions, in any of the circumstances described in subsection (b), shall
be fined under this title or imprisoned for life or any term of years, or both, and if death results to
the victim, shall also be subject to the penalty of death.
(b) CIRCUMSTANCES.---The circumstances referred to in subsection (a) are that the person
committing such breach or the victim of such breach is a member of the Armed Forces of the
United States or a national of the United States (as defined in section 101 of the Immigration and
Nationality Act).
(c) DEFINITIONS.---As used in this section, the term "grave breach of the Geneva
Conventions" means the conduct defined as a grave breach in any of the international
conventions relating to th.e laws of warfare signed a.t Geneva 12 August 1949 or any.protocol to
any such convention, to which the United States is a party.
12
OLC 000900
[Editor’s note: Article 147 of the 1949 Geneva Civilian Convention states]:
Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the present
Convention: wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health, unlawful
deportation or transfer or unlawful confinement of a protected person, compelling a
protected person to serve in the forces of a hostile Power or wilfully depriving a protected
person of the rights o~" fair and regular trial prescribed in the present Convention, taking
of hostages and extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly.
OLC 000901
nternational Law
2223 Massachusetts Avenue, NW Washington, DC 20008-2864 Phone (202) 939-6000 Fax (202) 797-7133
ASIL Judicial Outreach Program

11 th Circuit Judicial Conference
Point Clear, Alabama May 15 - 17, 2003
ASIL Panel: The Rule of Law in An Age of Terrorism

May 15, 2003 3:00 p.m.
Panel Contact Information - Updated
Laura S. Adarr;s Ruth Wedgwood

Thomas Jefferson School of Law Paul H. Nitze School of Advanced
International Studies
St. John’s University School of Law
John C. Yoo
tel: 202.514.2069
fax: 202.514.0539
e-mail: John.C.Yoo@usdoi.gov
Lieutenant Colonel Jeffrey K. Walker

through May 2, 2003:
Office of the Staff Judge Advocate ASIL contacts:
Headquarters Air Combat Command
Kathleen A. Wilson
Langley Air Force Base, VA 23665-2774 Director of Research and Outreach
beginning May 3, 2003:
Maria Staunton
Outreach Program Assistant
(address and fax as above)
OLC 000902
From:
Sent: Tuesday~ April 2-9, 2003 11:02 .AM
To: Yoo, John C; ~
Subject: website for 1 lth Circuit Judicial Conference -- May 15
Dear All: FYI, here is a link to the conference website:

<http://www.nationaltravel.com/11thcircuit/hotel_home.html>
www.nationaltravel.com/11thcircuit/hotel_home,htrnl. The button labeled "conference outline" has a rough overview
of the conference schedule. Also, for those, that have not already finalized (or need to change) your hotel reservations "
with Sara Perks from the Circuit ExeCutive’s offic.e, recall that you can do so via the following e-mail address:
3est regards
o- Kathleen
Kathleen A. Wilson
OLC 000903
~rom:
Sent: Friday, May 09, 2003 4:00 PM
To: Yoo, John C
Subject: RE: invitation to speak
Dear John,
I hope you’re not really sorry to be returning to academia.
I would have invited youto our conference just with your academic hat, so if you develop enough of a sense of
what your schedule will be like during the fall and conclude that you are able to attend, do let me know.
On the OLC/DOJ front, I would be interested to know who you would recommend as familiar with the issues I
described. Is there someone who has enough of an academic bent to be comfortable participating in a discussion about
the values of federalism, and who is also knowledgeable about the government’s need to enlist the cooperation of local
officials (in enforcing immigration laws, provision of information, etc.), and who might even have a viewpoint on the
local resistance to the Patriot Act (the Bill of Rights Defense Committee provisions)?
Thanks for anythoughts you have on this.
Susan N. Herman
---~Original Message .....

From: John.C.Yoo@usdoj.gov [mailto:John.C.Yoo@asdoj.gov]
Sent: Saturday, May 03, 2003 6:3:~ PM "
To: ’~
Subject: invitation to speak
Dear Susan:
Thanks fbr your phone call and letter. I am sorry to say that by November 21, I will have returned to academia an~l will
no longer be in the government. I am not sure right flow, however, what my schedule in late November will be - I know
I will be visiting at the University of Chicago then, but am not yet sure what my teaching schedule and other
responsibilities will be yet. I don’t feel I can make any commitments right now until I learn that information.
I would be happy, however, to arrange for a speaker from the Justice Department who would be familiar with, and able
to speak about, these issues.
Let me know .what you would like to do.
John Yoo
202.514.2069
202.514.0539 (fax)
OLC 000904
~rom:
~ent: Thursday, May 15, 2003 5:51 PM
To: Yoo, John C
~ubje~t: RE: invitation to speak
John,
Thanks for your recommendations. I just read today that Viet Dinh is also returning to the ivory tower. Alice
Fisher’s title certainly makes her seem like a great candidate for this symposium. If you would like to talk up the idea
with heG that would be great. I can also send her a written description/invitation. Do you have an appropriate address
for her, e mail or otherwise?
Susan N. Herman

From: John.C.Yoo@usdoj.gov [mailto:John.C.Yoo@usdoj.gov]
Sent: Monday, May 12, 2003:10:42 AM
To: ’~
Subject: RE: invitation to speak
Susan:
That is. very kind of you. Once I get a better handle on my academic schedule, this summer, I will let you know for sure.
In terms. 0f DOJ participation, there are three individuals who would be good; Viet Dinh, a professor at Georgetown Law
who. is assistant attorney.general in the Office of Legal Policy; Pat Philbin, a fellow deputy at OLC; and Alice Fisher, a
d, eputy in the criminal division. I have worked with all three on terrorism issues and have seen them speak about,them
at different conferences and symposia; I think all of them would be interested and would do a good job.
Let me know if you would like me to contact one or all of them.
John Yoo
202.5:[4.2069
202.51_4.0539 (fax)

From:
To: Yoo, John C
Subject: RE: invitation to Speak
Dear John,
I hope you’re not really sorry to be returning to academia.
I would have invited you to our conference just with your academic hat, so if you develop enough of a sense of
what your schedule will be like during the fall and conclude that you are able to attend, do let me know.
On the OLC/DOJ front, I would be interested to.know who you would recommend as familiar with the issues I
OLC 000905
"descriBed. Is there someone who has enough of an academic bent to be comfortable participating in adiscussion.about
the values of federalism, and who is also knowledgeable about the government’s need to enlist the cooperation of local
officials (in enforcing immigration laws, provision of information, etc.), and who might even have a viewpoint on the
local resistance to the Patriot Act (the Bill of Rights Defense Committee provisions)?
Thanks for any thoughts you have on this.
Susan N. Herman

From: John.C.Yoo@usdoj.gpv [mailto:John.C.Yoo@usdoj.gov]
Sent: Saturday, May 03, 2003 6:31 PM
To: ’
Subject: invitation to speak.
Dear Susan:
Thanks for your.phone call and letter. I am sorry to say that by November 231, I will have returned to academia and will
no longer be in the government. I am not sure right now, however, what my schedule in late November will be ~ I know
I will be visiting at the University of Chicago then, but am not yet sure what my teaching schedule and other
responsibilities will be yet. I don’t feel I can make any commitments right now until I learn that information.
I would, be happy, however, to arrange for a speaker from the Justice Department who would be familiar with, and able
to speak about, these issues.
Let me know what you would like to do.
John. You.
office of Legal Counsel
Department Of Justice
202:514.2069
202.5:[4.0539 (fax)
OLC 000906
From:
Sent: Tuesday, May 20, 2003 2:26 PM
To: Yoo, John C;
Co:
Subject: 1 lth Circuit Conference
Dear All:
Thank youagain for your participation in this outreach program. We obviously got a terrific turnout at the
panel, and I received many enthusiastic comments afterword.
So that ASIL may reimburse you, please forward your receipts for all travel-related expenses to Maria Staunton,
American Society of International Law, ....... (If you’ve:, already
put yours in the mail to me, that’s fine, I will simply forward to Maria). Should any follow-up be required on the
reimbursement process, Maria’s number is ~
Thanks again, and best regards -- Kathleen
Kathleen A. Wilson
The American Society of International. Law
OLC 000907
Fro m,:
Sent: Saturday, May 31, 2003 11:50 AM
To: Yoo, John C;
Subject: RE: New Contact Info
There’s a great void...

From: John.C.Yoo@usdoj.gov [mailto:John.C.Yoo@usdoj.gov]
To: AI Gonzales (E-mail); William J Haynes (E-mail); David Addington (E-mail); David G. Leitch (E-mail}.
Cc: Carrie Nelson (E-mail); Charlotte Montiel (E-mail); Lisa Hamar (E-mail); Patrick Bumatay (E-mail)
Subject: New Contact Info
Gentlemen:
Thanks for lunch today, and I am looking forward to dinner next Thursday.
That was a great surprise with Secretary Rumsfeld,.and I deeply appreciate the honor he bestowed on me. I feel that it
would not have been possible had we all not worked together on these issues over the last two years. I. hope you all
know how much fun and what an honor it has been to work with you all, and we will have time Thursday to talk about
that.
And now for the fun part, the contact information. From June I to August 15, I will be at:
The American Enterprise Institute
(you can always reach me through this e-mail address)
From August 15 to September 15, I will be at the Bellagio Institute in Italy, and unreachable by phone or mail. You will
be able to reach me through e-mail through my Berkeley e-mail address:
Our home address from June 1 to September 15 continues to be: .
From September 15 through December 15,
Visiting Professor of Law

And then, after December 15, back home:
OLC 000908
Boalt Hall School of Law
university of California
home:
John Yoo
202.514.2069
202.514.0539 (fax)
OLC 000909
From: Fisher, Alice
Sent: Saturday, May 31,2003 4:25 PM
To: Yoo, John C
Subject: Re: new contact info
I’m still cryin
Sent from my BlackBerry Wireless Handheld

From: Yoo, John C <John.C.Yoo@usdoj.gov>
To: Chertoff, Michael- , Fisher, Alice < .v ; Nahmias, David
<
Sent: .Fri May 30 21:42:25 2003
Subject: new contact info
It has been an honor to serve in government with all of you. Not only was it a pleasure getting to know you all, and not
only were you all patient in suffering my sense of humor and occasional outbursts, but we all together served our
country to the best of our abilities during a time when our country was most in need. I will never forget that.
Please-feel free to contact me about anything, professional or personal. Upon returning to teaching, I won’t have a lot
to do. "
And now for the fun part, the contact information. From June i to August 15, I will be at:
The American Enterprise Institute
~.~ ~(you can always reach me through this e-mail address)
From August 15 to September 15, I will be at the BellaBio Institute in italy, and unreachable by phone or mail. You will
be able to reach me through e-mail through my Berkeley e-mail address: . - ....
Our home address from June i through September 15 continues tobe:
From September 15 through December 15,
Visiting Professor of Law

And then, after December 15, back home:
OLC 000910
Boalt Hall School of Law
University of California
Berkeley, CA 94720
home:
John Yoo
202.5:~4.2069
202.5:24.0539 {fax)
OLC 000911
~ro~: Geurtsen, Frits
~ent: Monday, June 02, 2003 8:40 AM
To: OLC All
~ubje~t: Two-~ew Arrivals Today!!!
All: I’m pleased to announce that our newest Deputy AAG, Noel Francisco, is arriving today. He will occupy Pat Philbin’s
old office as soon as Pat finishes moving out. In addition, Andrew Baak is coming on board today as the second of our
three summer law interns. Someone will bring each of them around to meet you all. Frits
OLC 000912
~0~: Jacob, Gregory F
Sent: Monday, June 02, 2003 9:37 AM
To: OLC_Attorneys
Subject: Summer Intern Assignments
As you all know, we have another summer intern, Andrew Baak, starting today. If you have any assignments that would
be appropriate for an intern to work on, please let me know.
OLC 000913
Garrett, Bernie B
To: OLC_Attorneys
Subject: FW: S.CT OPINIONS FOR MONDAY, JUNE 2, 2003
Website for Supreme Court opinions: http://www.supremecourtus.gov
Bernie

From: Spadoni, Emily C
To; Antheny Harris; Anthony Jones; Anthony McEachin; Antoinette Whitfield; Austin Schlick; Barbara McDowell; Benjamin Undorf; Brian
Hicks; Candy Lubin; Carolyn Brammer; Charlene Williams; Dan Himmelfarb; David Salmons; Deborah Chambers; Edwin Kneedler;
Emily King; Evelyn Buggs; Gayle Wilson; Gregory Garre; Gregory Rapawy; Helen Voss; Irving Gornstein; James Feldman; Jeffrey
Lamken; Jeffrey Minear; Jerome Brown; John EIwood; Kaletus McCain; Kent Jones; Lawrence Wallace; Lisa Blatt; Malcolm Stewart;
Margaret Lemos; Margrita Walker; Matthew McGill; Matthew Robert~; Michael Dreeben; Nell Siegel; Nina Graham; Patricia Kraus;
Patricia Millett; Paul Clement; Rebecca Smith-Jackson; Robert Leider; Sara Langsdorf; SharOn Van Meter; Shirley Anderson; Sri
Srinivasan; Theodore OIson; Timmy Easton; Adam Ciongoli; Alisa Klein; Andrew Beach; Anthony Steinmeyer; Barbara Biddle;
Barbara Herwig; Barbara Underwood; Bernie Garrett; Catherine O’Sullivan; Dana Perino; David E. Carmack; David Flynn; Dennis
Dimsey; Don Willett; Douglas Letter; Douglas Ross; Douglas Wilson; Gary Allen; Gregory Katsas; Heather Cutchens; Jeffrey Clark;
Jessica Silver; Jim Kilbourne; John Bryson; John Powers; Kathleen Felton; Leonard Schaitman; Usa Simotas; M Edward Whelan;
Mark Gross; Myron Marlin; Patty Merkamp Stemler; Peter Owen; Richard Friedman; Robert EriCkson; Robert Kopp; Roger Pauley;
Roy McLeese; Sara Criscitelli; Sidney Glazer; Stephanie Marcus; Steve Frank; Theresa M. Singleton; Thomas Booth; Trevor
Morrison; Viet Dinh
Subject; S.CT OPINIONS FOR MONDAY, JUNE 2, 2003
02-299 Entergy Louisiana v. Public Service, Rev -- FERC/ESK/Schlick -- a.c. support petr -- Argued by: Schlick
02-428 Dastar v. Twentieth Century, Rev & Rein -- CIVIL/PDC/Garre -- a.c. support petr -- Argued by: Garre
02-306 Beneficial Natl Bank v. Anderson, -- Rev -- CIVIL/PDC/Roberts -- a.c. support petr -- Argued by: Roberts
OLC 000914
From: I~Rivkin~
Sent: Monday, June 02, 2003 1:05 PM
Subject: In case you missed it...
National Review June :16, 2003, Monday

Copyright.2003 National Review
National Review
June 16, 2003, Monday
SECTION: Article; Vol. LV, No. 1:1
LENGTH: 2090 words
HEADLINE: Arrest This: Against Belgium’s self-righteous, illegitimate, kangaroo courts
BYLINE: By Lee A. Casey & David B. Rivkin Jr.
BODY:
Once the war against Saddam Hussein reached a successful conclusion, the war against that war entered a new phase.
Activists, asserting that the United States committed "war crimes" in Iraq, are even now in the process of initiating
criminal prosecutions against American officials, including President George W. Bush and Gen. Tommy Franks, as well as
British prime minister Tony Blair. These actions have been brought in Belgium and Switzerland; the Belgian government
already has. "referred" the Franks case to the U.S. Justice Department -- giving the U.S. an opportunity to punish its
general lest the Belgian government do it for us.
This Belgian missive should be rejected and returned forthwith, along with a note. politely explaining that the writ of
Albert II, king of the Belgians, does. not run on these shores -- and reminding his majesty’s government that.the U.S. has
never taken, kindly to such pretensions. AnuPdated quote from Patrick Henry would be .a nice touch: "Caesar had his
Brutus, Charles I his Cromwell, and Albert II’s ministers may profit by. their example." To. give this. referral any other
consideration would work to validate the profoundly flawed legal theory on which Belgium’s actions, are based.
Belgium’s referral has been made under an assertion of "universal jurisdiction," and this is. not the first time that
Brussels hag attempted to punish foreign leaders for what it defines as "international crimes?’ Under its "Law
Concerningthe Punishment of Serious Violations of International Humanitarian Law," Belgium’s courts are even now
considering allegations against as many as 30 foreign political leaders, including Israel’s Ariel Sharon, as we!l. as the first
President Bush, Colin Powell, and Dick Cheney, 0n-account of the :199:1 Gulf War.
In..2000; a Belgian investigating magistrate actually issued an international arrest warrant against Congo’s foreign
minister, Abdoulaye Yer0dia Ndombasi~ alleging violations of the Geneva conventions and "crimes against humanity."
Whatever the substantive merits ofBelgium’s claims against Yerodia Ndombasi, its proceedings in that case can only be
characterized as epic chutzpa -- considering its own sorry record of imperial brutality in what was, not so very long ago,
the "Belgian" Congo. The claims were also legally unfounded, since, under international law, Belgium has no right to
prosecute criminally offenses that did not take place in Belgium ("territorial"
jurisdiction), were not perpetrated by Belgian nationals ("nationality"
jurisdiction), did not victimize Belgian nationals ("passive personality"
jurisdiction),, and did not threaten Belgian national security ("protective"
jurisdiction). In fact, Belgium’s only claim of right to prosecute in this case was founded on the dubiou~ doctrine of
OLC 000915
"universal" jurisdiction.
Not surprisingly, Congo rejected Belgium’s claims, and challenged the arrest warrant before the International Court of
Justice (ICJ). In February 2002, the ICJ ruled in Congo’s favor -- although it never reached the fundamental question of
Belgium’s right to assert universal jurisdiction over foreign officials. Rather, it concluded that high-level government
officials, such as a foreign minister, simply are immune from pros.ecutions by foreign judicial systems, noting that it was
"unable to deduce from [the relevant state practice] under the well accepted rules-of customary international law any
form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of
Foreign Affairs."
But if the question of universality is seriously examined, it quickly becomes evident that the Belgian, and other,
universal-jurisdiction statutes also have no foundation in accepted international-law principles. There is, of course,
plenty of support for universal-jurisdiction theories in the legal literature, and universality is the.obvious goal of many
activists and non-governmental organizations,. However, law professors, commentators, and NGOs do not make
international law -- sovereign states do, either by treaty or through long and consistent practice. Although the opinion
of scholars may be some evidence of international law, only actual state practice that is widespread and consistent over
lengthy periods of time can result in a binding norm. To justify the universal-jurisdiction claims of Belgium and
Switzerland, not to mention those of their excited NGO supporters, there would have to be a long and well-established
lineof cases where the courts of one country have tried and punished the nationals of another, even though the
prosecuting state has no connection to the offense other than its "international" character; and equally abundant
precedent where the accused’s home state has accepted the prosecution and punishment of its nationals o- including
government officials -- for the sole reason that this is what international law requires. And this practice would have to
exist for each and every "offense" over which jurisdiction is claimed -- which it.does not.
Even in the area of piracy, where notions of a universal jurisdiction first developed, there are few instances where the
international, character of the offense was the only ground for jurisdiction over an individual case.
Certainly in the Anglo-American experience, most such cases involve some other, far less controversial jurisdictional
basis, i.e., either the’ accused or the victim{s) were nationals of the prosecuting state. Moreover, although there are a
handful of cases in which American courts have referenced, recognized, or even purported to apply universal~
jurisdiction, principles, these cases rarely involve criminal prosecutions, and almost invariably reference the 1946
:.Nuremberg trials as the supporting state practice.
Nuremberg, however, does not provide the necessary authority.
-The ’"International Military Tribunal," which sat at Nuremberg and tried the surviving top Nazis, never claimed to
exercise universaljurisdiction..In its written opinion~ that court definitively based its authority on the rights of the
victorious allies to legislate for a conquered. Germany. The court expressly stated thatit was established as "the exercise
Of the sovereign legislative power by the countries to which the German Reich unconditionally.surrendered; and: the
undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world."
In fact, there is only one notable case in which a (former) government official actually was tried criminally for
international offenses on a universal-jurisdiction theory, and that was Israel’s prosecution of Adolf Eichmann. Eichmann,
of course, was the bureaucratic mastermind behind. Hitler’s Final Solution. He fled. to. South America, but was finally
located and captured by Israeli agents in 1960. Since Israel did not exist when Eichmann’s offenses tookplace, it could
not assert jurisdiction based on territoriality, nationality, or state interest, and the Israeli Supreme Court relied upon
universal jurisdiction to justify Eichmann’s prosecution.
However, even here, the court also suggested that some form of "passive personality" jurisdiction would have applied,
since Eichmann’s principal victims were Jews, even if not technically Israeli citizens. In any case, assuming that
Eichmann’s prosecution was an application of universal.jurisdiction, a single case does not establish an international
practice, let alone "make" customary international law.
State practice sufficient to support an international legal rule permitting universal jurisdiction to prosecute
"international crimes" simply does not exist, and for good reason: Any such rule would undermine the principles of
2
OLC 000916
national sovereignty upon which the international system is based, and would shortly lead to international legal chaos.
Despite the claims of activists and NGOs, there is no clear international consensus on what conduct actually constitutes
"war crimes," "crimes against humanity," or even "genocide."
Still less is there agreement on what constitutes "aggression," which even the drafters of the 1998 Rome Statute,
establishing the new International. Criminal Court (ICC), could not define. For example, although it is well established
that deliberate attacks on civilians violate the laws of war, and that indiscriminate attacks on civilians or Civilian objects
are also criminal offenses, there is little.or.no agreement, in practice, on what is "indiscriminate." A number of NGOs,
and even some states, consider U.S.
"cluster" munitions to be inherently indiscriminate and their use, therefore, illegal. The U.S., of course, categoricallV
rejectsthis claim -- as it has.every right to do.
Each state, as an attribute of sovereignty, has the legal right to interpret and apply international norms for itself. Efforts
by one state, through the prosecution of foreign officials, to impose its interpretation on others invite -- indeed, they
virtually demand --.retaliation in kind. This, more than any other reason, is why there is no state practice supporting
universal jurisdiction for violations of international humanitarian law:
Such practice would long ago have reduced international relations to a series of tit-for-tat criminal prosecutions.
unfortunately, that may be exactly the road the U.S. must now take -- at least in the short term -- in order to protect its
citizens.and its sovereignty.. Belgium and other states that claim universal jurisdiction have thrown down the gauntlet,
and the challenge must be. accepted. International practice does not support their pretensions, but if prosecutions
based on universalist theories are not.opposed by the U.S., new international norms may, over time, be developed. This
isespecially true given the universalist aspirations, of the ICC, which claims jurisdiction over the nationals of non-parties
and has been ratified by 89 states.
The U.S.. has a number of options that it should pursue vigorously. First, the administration should, transmit formal and
public diplomatic notes to: both Belgium and Switzerland, making clear that the U.S. rejects their claims, and that jt will
view investigations or prosecutions of its. nationals for alleged "offenses" in Iraq as unlawful, and as unfriendly acts,~:The
initiation of criminal investigations against American civilian and military officials, is a very serious, matter, and cannot be
handled, through private complaints and assurances, as a minor diplomatic faux pas.
Second, the administration should make clear to. Belgium that its status as the home. of NATO’s principal command
structures will be affected by its universal-jurisdiction law. If American officials cannot travel safely to and from Belgium,
without the fear of groundless "war crimes" charges, then NATO headquarters must be. relocated to a country that
takes international, law, and its international obligations, more seriously. In this..regard; .Belgium’s recent efforts to
ameliorate the:impact of its universal-jurisdiction law, by permitting the. Belgian.government to "refer"
cases.to the accused’s home state.before taking action, does nothing to solve the.problem. To accept such referrals :
. would, ineffect, be a recognition that Belgium has the legal right to investigate and prosecute in the first instance, when
it does not.
Finally,the. administration should introduce "blocking" legislation in the U.S. Congress. Such legislation would formally
reject universality as an acceptable basis of international jurisdiction, and would permit the assertion of American
criminal jurisdiction over individuals who attempt such prosecutions against U.S. nationals. Unlike universal-jurisdiction
statutes, this law would have firm support in accepted international-law, norms, since it would be based on acts
undertaken againstU.S, nationals (passive-personality jurisdiction) and against the U.S. government (protective
jurisdiction).
Overall, the allegations brought against American officials reveal.just how far bitter, ideologically driven activists are
prepared to go to punish lawful policies with which they disagree. These charges also reveal how small states, with little
or no responsibility for international peace and stability, have sought to manipulate international-law principles as a
means of cutting a figure on the world, stage. It is high time for the U.S. to begin redressing the balance. Although there
are a number of measures that can be taken, the one thing the U.S. must not do is nothing.
OLC 000917
LOAD-DATE: May 29, 2003
THIS MESSAGE IS iNTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY
tAW.
-If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding; or copying
of this communication is strictly prohibited. If you have received this communication in error, please .notify the sender
Thank you.
OLC 000918
From: Garrett, Bernie B
Sent: Monday, June 02, 2003 2:07 PM
To: OLC_Attorneys
Subject: Book ....
Please let me know if you have the following book:
George Lewis and John Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945
(1955)
thanks, Bernie
OLC 000919
~’0~" Gannon, Curtis
Sent: Tuesday, June 03, 2003 3:30 PM
To: OLC_Attorneys
Subject: Lost Umbrella?
A blue umbrella has been left in the lunchroom.
OLC 000920
~rom: McCoy, Deneen
To: OLC All
Subject: Wha~s Making News
Today is Tuesday, June 3, 2003. Here are the latest headlines from 9 News.
Arab leaders, meeting with President Bush as he plunged into the labyrinth of Mideast peace talks, pledged on Tuesday
to fight terror and violence and called on Israel to "rebuild trust and restore normal Palestinian life."
http://www.gwusa.com/news/news_article.asp?storyid=18992
A suspected militant killed by Saudi police last weekend was carrying a 6-month-old letter allegedly written .by Osama
bin Laden, a Saudi newspaper reported Tuesday. The body of the man identified as Yosif Salih Fahd Ala°yeeri, one of :[9
militants wanted for alleged ties to al O.aeda, was searched after he was shot dead following a police chase Saturday, al-
Watan newspaper reported, quoting informed sources.
httP://www.9wusa.com/news/news_article.asp?storyid=18982
<http://www.gwusa.com/news/news_article.asp?storyid=18982>.
A Manassas man is under arrest on charges of murdering two people inside his grandparents’ home. When the
.grandparents arrived back from a weekend trip Monday, they found, a dead martin ~the dining room of their home. in the
9400 block of Fairview Avenue. They called police -- who then found another dead man in the basement. Both had been
shot.
http://www.9wusa.com/news/news_a rticle.asp?st0ryid=:18988
Federal Reserve chief Alan Greenspan said Tuesday he sees indications of a "fairly marked turnaround" in the
U.S.economy. Data for May suggest the economy as "stabilized," he told a conference of top central bankers in Berlin.
"The acceleration has not yet begun," he said, before noting that recovering stock markets and other indications "are
suggestive of a fairly marked ¯turnaround."
http://www.9wusa.com/news/news_article.asp?storyid= 18979
The National Transportation Safety Board recommended Tuesday that all states immediately pass laws prohibiting
inexperienced drivers from using cell phones while behind the wheel. Only New Jersey now bans holders of learners
permits or intermediate licenses from using cell phones, pagers or other wireless devices while driving.The board wants
the 49 other states to adopt similar laws.
http://www.9wusa.com/news/news_article.asp?storyid= :[8989
<http://www.gwusa.com/news/news_a rticle.asp?storyid=:~8989>
OLC 000921
***Weather <http://www.9wusa.com/weather/default.asp> ***
*Today -- Becoming Cloudy & Cooler... Morning Showers Developing...

Afternoon Rain
HIGHS: 63 - 67
WINDS: SE ~I0 - :15
Sunset : 8:29 PM
*Tonight o- Cloudy with Rain... Heavy at Times

LOWS: 55 - 60
WINDS: E/SE 5 - :10
*Wednesday -- Mostly Cloudy & Milder... Showers/Storm

-HIGHS: Low 70s
WINDS: S/SE - :10
* * * Programming <http://www.9wusa.co m/programming/tuesday.asp> * * *
8:00 AFI’.s 100 Years/lO0 Heroes & Villians...
The rain is back[ Stay ahead of the storm and check Doppler 9000 24-hours a day and watch-the 9 News Webcast from
1pro - Spin every afternoon at wusatv9.com <http://www.9wusa.com/default.asp~>.
To view this rich message in its entirety, click here:

http://emd3.rdg.com/wusatvg/att/wusatv9~11735-2.html
Or, cut and paste into your web browser.
OLC 000922
From: Whelan, M Edward III
To: OLC All
Subject: new ~)LC deputy
I am pleased to report that Howard Nielson, currently counsel to the Attorney General, has accepted a position as a deputy
in OLC. Howard may join us as early as next Monday.
OLC 000923
Bingold, Elizabeth Kim
Wednesday, June 04, 2003 8:56 AM
Adam Charnes; Adam Ciongoli; Alice Fisher; Barbara Comstock; Bill Jordan; Bob Driscoll;
Brad Schlozman; Carl Peed; Cheri Nolan; Chris Wray; Dan Bryant; Dan Collins; David Ayres;
David Higbee; David Israelite; Deborah Majoras; Eric Jaso; Gregory Katsas; Hew Pate; Jamie
Brown; Jason Klitenic; Jeffrey Bucholtz; Jeffrey Clark; Jeffrey Taylor; Joan Larsen; John
Malcolm; John Yoo; Julie Myers; Kelly Johnson; Kris Kobach; Laura Flippin; Lori SharpeDay;
M Edward Whelan; Mark Holmes; Michael Carrington; Mike Wiggins; Minh Vu; Patrick Philbin;
Patrick Purtill; Paul Clement; Paul Harris; Paul Murphy; Peter Keisler; Richard Morrison; Rod
Rosenstein; Shannen Coffin; Sheldon Bradshaw; Stuart Levey; Tracy Henke; Amy Bass;
Andrew Beach; Andrew Emrich; Andrew Hruska; Andrew Schauder; Angel Paulson; Blain
Rethmeier; Camille Cain; Chad Boudreaux; Charles James; Cynthia McKnight; Dan Kapsak;
Deborah Underhill; Denise Gitsham; Ed McFadden; Elizabeth Bingold; Elizabeth Nodal; Eric
Grannon; Francis Cramer; Gary Cunningham; Glenn Schmitt; Greg Harris; Heather Cutchens;
Helen Voss; Howard Nielson; Janet Potter; Jason Torchinsky; Jorge Martinez; Josie Duckett;
Kimberly Krueger; Lani Miller; Lara Reynolds; Lizette Benedi; Luis Reyes; Mark Corallo; Mark
Grider; Mark H. Metcalf; Martin Gillespie; Mary Neumayr; Matt Cowles; Matt Dummermuth;
Matt Robinson; Matthew Miranda; Matthew Zabel; Michael Bell; Monica Goodling; Omar
Vargas; Patrick McArthur; Peggy Ward; Price Roe; Reagan Dunn; Robert Coughlin; Scott
Bloch; Spence Pryor; Stacey Duffy; Susan Richmond; Trent Luckinbill; Wanda Martinson;
William Woodruff
Subject: White House Posters
The White House has sent over some Easter Egg Roll posters and copies of the State of the Union address. Please feel
free to swing by my office ~~.,) to pick one up.
OLC 000924
Sent: Wednesday, June 04, 2003 9:42 AM
To: OLC All
Subject: Water Club
Members of the OLC Water Club (and those who might like to join):
We’re getting a better sense of how much water we actually use each month and it’s a bit more than we originally guessed.
I think the major reason is that many of us (myself included) seem to take water from the dispensers by the bottle rather
than by the cup. Anyway, Bernie has arranged for bi-weekly, rather than monthly, deliveries of water and that will help us
keep track of our actual usage.
Based on our water usage and the number of members currently in the water club, the monthly "dues" are $3 each.
Please give that to Bernie at the beginning of each month. If you’d like to make life easier for yourself and for Bernie, feel
free to pay ahead for the next several months. She has a logbook and tracks how much everyone has paid, Please be
good about keeping up with your dues. Bernie pays the bill each time it arrives and you’ll be forcing her to front the money
if you’re not paid UP.
If you are not already a member of the water club and would like to join, please see Bernie. There’s an extra $1 charge for
joining to cover rental of the dispensers. If you have elected not to join the water club, then we expect that you will not take
any of the water.
Thanks. Frits cc: Bernie
OLC 000925
Ledbetter, Judy A
Sent: Wednesday, June 04, 2003 11:25 AM
To: OLC_Attorneys; Farris, Bette; Garrett, Bernie; Jennings, Jackie; Neal, Randy
Subject: New Book for OLC Library
We have received Senate Manual 2001 - Senate Document No. 107-1 containing the Standing Rules, Orders, Laws, and
Resolutions Affecting the Business of the United States Senate, KF 4982.$5 2003.
OLC 000926
From: Harrison, Wanda Mariah
Sent: Wednesday, June 04, 2003 1:11 PM
To: OLC_Attorneys
Subject: survey
would anyone be interested in conducting an interview as late as 6pm on the 12th?
Wanda Mariah Harrison

Personnel/Payroll Liaison
Office of Le(]al Counsel
Robert F. Kennedy Building (Main)

Office ~ ::ax ~
OLC 000927

CREW Versus Department of Justice (Lawsuit) : John Yoo Emails: 8/31/10 - August 31 Production

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From: Harrison, Wanda Mariah

Sent: Monday, July 23, 2001 10:30 AM

jim haynes -.~

..... Original Message .....

Jim Haynes, GC at Defense

Alex Azar, soon to be GC at HHS; I suspect he is a consultant there now

Lee Liberman, GC at Energy

Gene Scalia, soon to be GC at Labor, I suspect a consultant there now

tmp.htm (11 KB)

..... Original Message .....

..... Original Message .....

<< File: tmp.htm >:~ Deputy Assistant Attorney GeneraI-Yoo:

After today, my contact information is:

..... Original Message .....

assistant attorney general in the Office of Legal Counsel at DOJ. So it

may be harder to schedule, and it may be harder to figure out a topic.

..... Original Message .....

We do hope to be able to welcome you to the Law School this year.

Vice President for Speakers

NOTICE: This e-mail message and all attachments transmitted with it

.... Original Message .....

..... Original Message .....

<< File: tmp.htm >> Deputy Assistant Attorney General Yoo:

It’s wonderful to hear that you’re interested in speaking. This early

any matter you deem appropriate.

After today, my contact information is:

..... Original Message .....

Thanks very much for your invitation. I would be very interested in

assistant attorney general in the Office of Legal Counsel at DOJ. So it

may be harder to schedule, and it may be harder to figure out a topic.

..... Original Message .....

> Dear Professor Yoo:

> Federalist Society will cover all travel-related expenses. If your

Thank you. Mayer, Brown and Platt.

> You asked me to write a supporting statement for John Yoo’s

Sign up to receive email notification of new titles in any field:

~ {NEW FAX NUMBER]

Catalogs, online ordering, and features from our publications

Sign up to receive email notification of new titles in any field:

.... Original Message ....

.... Original Message .....

Cost of travel by POV;

Dear Professor Yoo:

From: John Yoo l!l~t~~~l~lll

Attached is a draft of the letter I am preparinl~ to send out to potential

You probably understand the collective-action problem involved in an endeavor

I greatly appreciate your encoural~ement.

1) The Constitutionality of the Bush Administration’s proposed changes in the

The Constitutionality of proposed changes to rules governing INS detention

4) The wisdom of US restrictions on assassination of heads-of-state.

5) The legal viability of a declaration of war against an individual, a group or

7) Peripheral concerns, such as the wisdom and legality of industry bailouts.

Rethinking the relationship of the United States to. the international

Addressing the rift between domestic conservatives and libertarians

Dear Professors Yoo and Stuntz,

Again, sincere thanks,

. Looks fine to me.

Dear Professor Yoo,

Prof. Cass Sunstein University of Chicago Law School

Prof. Debra A. Livingston Columbia Law School

Prof. William Stuntz Harvard Law School

Assistant Attorney General Viet Dinh

Prof. Geoge Fletcher Columbia Law School