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John Yoo, Harry Kreisler, Michael Nacht (Left to right) John Yoo and Harry Kreisler listen to Michael Nacht Jeffery Kahn photo

At IGS, friendly fire over Iraq, national-security issues
Non-debate features Boalt’s Yoo, Goldman School’s Nacht on presidential candidates’ positions and strategies

| 30 September 2004

A discussion on terrorism and national security featuring Berkeley’s favorite conservative target — Boalt Hall law professor John Yoo, who authored a now-notorious memo on the treatment of Guantanamo Bay detainees while working for the Bush Justice Department —– might be expected to yield some fireworks. But anyone who ventured to Moses Hall last Wednesday in search of a heated debate found something more like heat-related program activities.

Yoo, who left the Bush administration last year, was paired with former Clinton security adviser Michael Nacht, dean of the Goldman School of Public Policy, in an event sponsored by the Institute of Governmental Studies’ Center on Politics. Moderator Harry Kreisler, of the Institute of International Studies, said the two panelists were chosen to present “the broad spectrum of thinking” on terrorism and foreign policy issues in the race for the White House.

But while the two-hour discussion did turn up some points of contention between the major candidates, its civility stood in striking contrast to the contentiousness of the 2004 presidential campaign. The panelists agreed on a number of points, including one that could prove the key to the November election — that when it comes to national security and the “war on terrorism,” George W. Bush has been a far more effective campaigner than John F. Kerry.

“I don’t really know what the Kerry position is on a whole series of issues on which I think the Bush administration has some pretty clear policies,” said Yoo. “I think there probably are differences, but they just haven’t been pressed and articulated publicly. So far the campaign has been about who had better service during the Vietnam war.”

Nacht, an assistant director of the Arms Control and Disarmament Agency from 1994 to 1997, insisted there are “important differences” between the Republican and Democratic nominees. But where Bush presents “a very clear, consistent, on-message, no-deviation, tough-minded Middle America approach,” Kerry tends to be “more cerebral, more sensitive, more analytical.

“These are not words that most Americans know anything about,” he added, “or could care less about.”

Nacht called the 2004 race “the first presidential election since 1980 where national security and foreign policy have been hugely significant,” and predicted that U.S. involvement in Iraq will become an increasingly important issue during the final weeks of the campaign, “especially if Iraq continues to seemingly deteriorate.”

He admitted that “Kerry has a record on this that is tricky for him to defend publicly,” but said the candidates’ positions are clear. Bush, he said, claims “the glass is more half-full than half-empty.…Kerry has said the glass is almost empty in Iraq, and that what we are seeing here [are] the beginnings of a Vietnam-like commitment, with no end in sight. Just more murder, more mayhem, more bombings, more killings every day, and [no] ability to get a handle on the situation.”

Yoo, acknowledging that Bush and Kerry “obviously have a dispute over Iraq,” nonetheless questioned whether a Kerry administration would bring momentous changes in foreign affairs.

“Iraq’s not the important question at this point,” Yoo said. “I think what really is important is how the two administrations would handle the problems of proliferation, and particularly the questions of North Korea and Iran.”

He voiced doubts that Kerry could deliver on promises to substantially boost international cooperation in combating the spread of terrorism and nuclear weapons. Meanwhile, though Bush is “seen as being more bellicose,” Yoo said the current administration is, in fact, pursuing diplomacy in both Iran and North Korea.

The moderate, evolutionary Patriot Act

Both speakers addressed what Nacht termed the “inherent tension between national security and civil liberties.” During periods of “high perceived threat,” said Nacht, “civil liberties get constrained. The issue is how, where, when, which ones?” He said Kerry contends that civil liberties have been “unnecessarily constricted,” and that Attorney General John Ashcroft “personifies someone who is actually undemocratic” and “a threat to civil liberties.”

Yoo, however, suggested that wartime requires greater sacrifices on the civil-liberties front. “Very serious constitutional civil-liberties violations during wartime” under presidents Lincoln, Wilson, and Franklin D. Roosevelt were not only temporary, he said, but more severe than those imposed by the Bush administration.

Finding the balance between homeland security and individual rights, Yoo said, turns on the question, “Is this a war or not a war?” And he wondered whether Kerry views the fight to stop terrorists not as a bona fide war, but as “just a persistent social problem that we rhetorically call a war,” like America’s “wars” on poverty and drugs.

Yoo also downplayed the impact of the USA Patriot Act — which he helped write — maintaining the controversial law has not violated Americans’ liberties “in a serious, systematic way.”

“I think both political parties get a lot of advantage from claiming that the Patriot Act was really a great revolution,” said Yoo. “The Bush administration claims it was a great change because [that] makes it a significant legislative achievement,” while Democrats during the primaries overstated its negative impacts “because that appealed to the civil-rights wing of the party.”

As he has argued before, however, Yoo insisted “there are a lot of things people often think are in the Patriot Act that are not in it,” including the federal government’s authority to detain so-called enemy combatants without criminal charges. (That provision actually derives from an executive order, he said.) “Personally,” he said, “I think the Patriot Act, if you put aside the rhetoric over it and its terrible name, is at base a bunch of reasonable, moderate, evolutionary changes in law enforcement powers that build on powers that the government already had.”

(In May, the Berkeley Division of the UC Academic Senate, on a 105-0 vote, passed a resolution condemning the act for provisions it said “violate basic civil rights of students, faculty, and staff” at Berkeley.)

In the end, said Nacht, the differences between Bush and Kerry on terrorism and national security may be “beyond the issues. It’s about how these individuals present themselves as leaders on these problems.”

For Bush, in Nacht’s view, the war on terror is “a fight to the death. Either they’re going to kill us or we’re going to kill them. It’s really not much more complicated than that.”

For Kerry, by contrast, nuance is the name of the game. And that, Nacht said, can pose a challenge in a presidential election campaign. “You have to say very clearly and succinctly what the deal is,” he said. Kerry, he added, needs to “sharpen his message.”