Legal expert stirs debate on wartime rights

John Yoo, a former Justice Department lawyer who helped draft memos on treatment of terrorist prisoners, said yesterday that in wartime the question is not whether to give up liberties, but "how much is enough."

Yoo, now a law professor at the University of California-Berkeley, drew attention at an American Bar Association convention panel on whether tactics such as the detention of suspected terrorists at Guantanamo Bay and the surveillance of phone calls might erode liberties.

The United States is not at war with any traditional nation-state, as in past conflicts, Yoo said, but with the al-Qaida terrorist network, and officials are trying to adapt the rules of war to these new circumstances.

For example, war involves targeted killings of the enemy and detention of enemy troops until the end of a conflict, he said.

"I don't think it's a question of ... are we going to have to restrict civil liberties. It's a question of how much is enough."

Both World War II, with its detention of Japanese-American citizens, and the Civil War, with its mass military detentions, put serious restrictions on civil liberties that were much greater than what is happening today, Yoo said.

At Justice, Yoo helped write internal memos in 2002 designed to give the federal government greater leeway to aggressively question terror suspects.

Yoo noted in an interview after the panel that of the roughly 1 million prisoners of war held in World War II, none received a hearing or were charged with crimes, and some were held for five years.

"We never have hearings for prisoners of war, never have had them until this last year. It's just the way the rules of war have always been," he said.

Superimposing the rules of criminal law on war, such as requiring that a prisoner be read his Miranda rights, might be unwise, Yoo said.

"In wartime, when you're detained, you're not being punished for anything. You're being held so you can't keep fighting," he said.

However, panel member Neal Sonnett, a former prosecutor living in Miami and chairman of the ABA's task force on enemy combatants, said calling the struggle against terrorism a "war" carries unnerving implications, including the indefinite duration of the conflict and increased presidential authority.