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In the debut episode of Close Encounters, John Yoo discussed his new book (co-authored with Jeremy Rabkin,) Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War, with our own Ben Weingarten. Watch their interview below along with a full transcript of their discussion, slightly modified for clarity.
Ben Weingarten: Your book talks about the laws and rules of war, and the interaction with the development of weapons technology. And I want to start with a basic foundational question, which is, what was the traditional Western doctrine when it comes to the rules of war – what were the core principles of that doctrine?
John Yoo: As we explain in the book, historically there were some basic principles which guided the use of weapons and just combat: Necessity, that you use military force when it’s necessary to meet an objective; proportionality, you use a reasonable amount of force; and distinction, you try to keep clear the line between combatants and civilians. And so, our Western tradition was not to try to pass a long legal code with thousands of pages and lots of sub-sections and provisions, like you might see in a modern European treaty, for example, these days. Our book argues that as we come across these new technologies — cyber, robotics, space weapons — we should look back and be guided by those fundamental principles, rather than thinking we can devise a whole code in advance for how these new weapons should work; or that we should just ban them the people like Elon Musk want to, along with other tech company leaders.
Ben Weingarten: Now, like many of the worst inventions, the 1970s led to the advent of a series of what you argue are essentially perverse legal principles, and you talk about, for example, the so-called AP [Additional Protocol to the Geneva Convention] I framework. And I’m going quote from the book here. You say, “Whereas once the nations that fought wars set the rules for hostilities, today, the law itself has become an arena for ideological struggle between advanced and developing nations.” Explain that whole concept.
John Yoo: Well, first I agree with you that the ’70s should never be allowed to return. You’re too young to remember bell bottom jeans, so you’ve been fortunate.
Ben Weingarten: But I have to deal with the residue of them.
John Yoo: That’s right, you have to live with the leftovers, unfortunately. So AP I stands for the Additional Protocol to the Geneva Convention. Most people, when they hear Geneva Conventions, they think of the World War II Geneva Conventions, which were from 1929, or the ones that have been governing for the most part since then, which were drafted right after World War II. Then in the ’70s, in the midst of these wars of liberation, and decolonization, and Vietnam – which had a very important effect — most of the countries of the world got together and drafted these new Geneva Conventions on top of the existing ones, called the Additional Protocol. And one thing in writing this book, and one reason we reject the idea that any of these rules should guide how the United States thinks about these new weapons, is they were very much the product of this kind of pro-Third World, pro-guerrilla, pro-terrorist movement that was very much an effort designed to try to constrain the Western powers, constrain the use of technology, because it was thought to give the West an unfair advantage.
Our Western tradition was not to try to pass a long legal code with thousands of pages and lots of sub-sections and provisions.
And so in the end, actually, the United States refused to ratify that treaty. It was, I think, a very important decision made by President Reagan. It’s hard to believe, but back in the day, the Washington Post and The New York Times praised Reagan, which happened very rarely back then, and probably rarely today, for saying, “We’re not going to sign a treaty that gives terrorists and guerrilla fighters the same protections and rights as our soldiers who follow the usual rules of war.”
In our book, we say, people should understand that when they hear, “Oh, the Geneva Conventions of this variation,” or the “Laws of war…” they often have this ideological mission behind them, which they didn’t use to have when the rules for war were set by, as we said, the countries that fought the wars – not sort of all the Third World countries, or the developing world, as we call it now, getting together and trying to regulate war.
Ben Weingarten: So you have the ’70s paradigm, which essentially empowers evil adversaries who wish to do the Western world harm in a sense, in kind of an affirmative action for these Third World movements.
John Yoo: I’ve never thought of it that way. Can I use that? [Laughter]
Ben Weingarten: Yeah, absolutely. [Laughter] Another element of these laws is that they treat evil tyrannical regimes and non-state actors as co-equals, and assume, in effect, that they’re not going to cheat. Should the rules of war and the laws of war be based on reality [as opposed to naiveté or wishful thinking]?
John Yoo: It’s a good question, because there is this kind of utopian view of the world, and combat, even, that sits behind the laws of war. These are people who have noble goals in mind, but they think that, yes, if the West restrains itself, that terrorists, guerrilla leaders are all going to fight by the civilized rules of warfare. And it just doesn’t happen because the very way they succeed is by violating the rules of war. And so our argument is yes, why should the West, why should the United States — when it’s looking at weapons and technologies that better achieve the goals of the rules of war, which is to reduce harm to civilians, reduce death and destruction, while you’re meeting your military goals — why should the U.S. constrain itself when using those kinds of technologies and weapons, when as you say, the people and the rules behind these new kinds of laws of war have this objective, which is to in a way, I think, raise up the status of people who cheat?
Ben Weingarten: And we’ve been talking in kind of theoretical terms, about what these rules of war are, and how they constrain or they might constrain Western powers. You write in the book, “If the United States wants to preserve freedom of action and its deployment of military force, it must publicly reject those who want to restrict such force unduly with new and questionable claims about international law.” So the implication here is that freedom of action is under threat. Would you elaborate on that?
These new Geneva Conventions were the product of this kind of pro-Third World, pro-guerrilla, pro-terrorist movement that was very much an effort designed to try to constrain the Western powers.
John Yoo: Yes. I actually think the problem in the future is not going to be that the U.S. and other Western countries are engaged in military adventurism. The real problem is that the U.S. and our allies are going to use force too little, given the threats that are facing the world today. So you can even see signs of that in the reaction to President Trump, when he went to Europe, in his first trip, and he didn’t read the standard declaration of U.S. support for NATO and self-defense of all the members. People flipped out in Europe and the United States. Why? It’s because people worry the United States is actually going to start pulling back from the world. That’s actually a part of the, I think, motivation behind people voting for Trump, in terms of foreign policy. They don’t want the U.S. to keep incurring these kind of casualties and have a big footprint in terms of troops all around the world.
At the same time, I think American voters…and I think it’s reality, as you were saying earlier…you’re seeing a lot of threats rise that are pulling apart the fabric of the international order, which the U.S. built since World War II and has been to our great benefit, and I think to the world’s benefit. To keep that order going, to maintain it, you have to use force from time to time, to stop people who want to upend that order, to stop regional threats, I think like in Iran, for example, or North Korea…if you have the resources, to stop grave human rights disasters, like in Syria, for example. If the U.S. and the West play by these rules that people want us to, it’s going to mean that we’re just going to use force less often, and then, these problems are going to get worse, and they’re going to grow unstopped.
Ben Weingarten: And you argue in Striking Power that technological advances in robotics, cyber and space interestingly lead to less conflict, and in other words, might actually serve the ends of those who wish to commit less blood and treasure; we might do so [engage in offensive action] more frequently, at lower levels.
John Yoo: It’s interesting. I think when you look…at the relationship between technical progress and war, until now, it had always been towards war being cheaper, more destructive, and less discriminating in a sense that…Think about World War II weapons or World War I weapons. An AK-47 costs like 10 bucks to make. It allows really an untrained person to shoot and kill lots of people. So World War I and World War II were the mass production wars — millions of people, large draft armies, cheap mass-produced weapons, millions of people killed.
Think about what the new technologies do, just like they’re doing in the civilian economy. These technologies allow the military to be much more precise. Highly trained people use them. They kill far less people. They cause far less destruction.
And so the book’s argument is that this will make it possible to achieve the ends of war with much less cost and much less destruction. Hopefully, that means then we can intervene earlier, that we don’t have to choose…between doing nothing, and letting someone have a nuclear arsenal who shouldn’t have one, or a full-blown ground invasion that’s going to kill millions of people. Technology gives you lots of other options now. And so hopefully, if countries use that earlier to stop problems earlier, it will actually lead to less conflict, less destructive wars with thousands or tens of thousands of casualties.
Ben Weingarten: Walk us through what the future of war looks like from a technological perspective.
John Yoo: So, the three chapters in the end of the book talk about the revolution in each space. Robotics is going to be obviously a big one, as we’re seeing it in the domestic economy. Drones were just the leading edge of what you’re going to see. You’re going to see, of course, much more advanced drones. They’re going to be based on sea as well as land.
But think about the Google car, for example. So you have a Google car. It drives around. Say it tries to drive around New York City. There are tens of thousands of variables it has to analyze and process, just driving down a city street. A tank could have the same kind of control software. It’s actually much easier. It doesn’t have to [analyze questions like] “Is that a grandma crossing the crosswalk against the light? What about the poodle? What about the bike?” It just has to say, “There’s enemy soldiers, allied soldiers. Here’s terrain. Shoot the enemy. Avoid getting hit.” There are a lot less variables involved with military software for something like a tank. So you’re going start seeing a lot more robotics for almost every kind of ground vehicle.
You’re going to see robots take over the functions of crew in naval vessels. In the civilian economy, for example, people who are in this industry, think within 10 years, all cargo vessels on the high seas will be basically robotic. Naval vessels and submarines, for the hardest missions, going closest to the enemy, will be robotic.
And then, I think you’re also going to see space take a big role. Space is already important. It sits behind a lot of the technological revolution we’re enjoying now, sensors and reconnaissance, high-speed communications of data. Think about a lot of the beneficial things that drones have brought, with precision bombing after long surveillance, so you hit the target with a minimum amount of collateral damage. That’s all made possible by space and space satellites. I think you’re going to see weapons based in space, and you’re going to see more combat, possibly, in space with anti-satellite weapons. The Chinese have already tested an anti-satellite weapon.
…And then, the third area which we’re not going to physically see, but is going to come along, of course, is cyber. One example we talk about is the Stuxnet virus, which was used to delay the Iranian nuclear program by several years. I think the United States has been on the receiving end of a kind of low intensity cyber war by China and Russia. I think the United States is going to eventually have to retaliate and use its own cyber weapons to deter future attacks like the ones we’ve seen.
If the U.S. and the West play by these rules that people want us to, it's going to mean that we're just going to use force less often, and then, these problems are going to get worse, and they're going to grow unstopped.
Ben Weingarten: Leave aside the fact that once the technology starts to develop, and the genie is out of the bottle, all of our enemies will rush to use those weapons if they can constrain their adversaries, including the U.S., and others in the West. Critics who want to constrain technological development or usage of these advanced weapons will argue that there are moral and ethical concerns around their use — for example, a weapon that is essentially on autopilot, and can pick targets, and shoot without a commander directing them at the targets to pick. What do you say to those critics?
John Yoo: Well, so first, I didn’t even get to autonomous weapons, which is the next state, where you see artificial intelligence guiding these weapons. But that’s also down the road, and actually, I think is going to come down there a lot faster than people think. Yeah, there are objections to these. Is it Elon Musk and, I think, 100 tech company leaders have called for a ban on these kinds of weapons. A few years ago, Stephen Hawking and Steve Wozniak, one of the founders of Apple, joined a whole bunch of robotic scientists calling for a ban on these [weapons]. It’s not clear to me why they’re calling for a ban, like what’s the real objection? Because they’re weapons like other weapons. And I think what’s more important is why are you using the weapons, not the inherent nature of the weapon as somehow immoral or moral. And in fact, to the extent that we can make moral judgements about them, I think they’re more moral because they reduce killing and destruction. We should actually favor these kinds of weapons. The real objection I think they have is to just war itself…I don’t think these people are really qualified. They can certainly have a view just like anyone else, that it’d be good to have less war. We think there should be less war. But I don’t see how they can be good judges of what’s going to bring about less war.
Ben Weingarten: Why is the prospect of a “cyber Pearl Harbor” overblown in your view?
John Yoo: Well, first of all, I think that people exaggerate the vulnerabilities of the United States to a Pearl Harbor. I think the United States actually has the best cyber warriors, if that’s what you want to call them. I think that actually we’re quite far ahead of Russia and China, but we don’t have the will to use them. That’s one, I don’t think we’re as vulnerable. The second thing is…a new administration in power that’s willing to rethink these ideas. I think what was going on in the last administration is they restrained our use of these weapons to deter the other side because they hoped that Russia and China would go along with us in creating some kind of understanding of non-use of cyber weapons. Instead, I think what happened is, when we restrained ourselves, Russia and China just took more advantage of us. We could have a conversation about how successfully did Russia affect the 2016 elections…But they certainly tried, right? And China stole the entire government personnel database, you could go on and on.
The only way to stop that, I think, is to potentially retaliate so that you have deterrents. It doesn’t make sense to me to say, unilaterally, we’re not going to use these [weapons] anymore in the hopes that someone else will similarly restrain themselves, exactly at a time when: One…the offense in cyber is very cheap. Defense is very expensive. And two, you can’t really trust the other partners to restrain themselves. So I think a “cyber Pearl Harbor” of course is possible. There’s always a probability of it, but if we’re going to have a more robust deterrence policy, I think it will stop other countries from using those kinds of weapons against us.
I think what's more important is why are you using the weapons, not the inherent nature of the weapon as somehow immoral or moral.
Ben Weingarten: What would John Yoo’s course of action be with respect to the Joint Comprehensive Plan of Action, aka Iran deal? [Editor’s note: Subsequent to this interview, President Donald Trump announced he was decertifying the Iran Deal under the Iran Nuclear Review Act of 2015]
John Yoo: Based on what I’ve said, you probably can imagine I was an opponent of the deal. It was a bad idea, I think, from the start. The interesting question is, what do you do now that you’re in the middle of it? If you look at the deal, it was structured in a way that gave Iran all the benefits upfront: Lifting of sanctions, access to billions of dollars, they’re now buying Boeings and Airbuses, and who knows what else on the open market. The benefits we get out of it are all at the end. After 10 years, did Iran really not build a nuclear weapon program, when it’s very easy for them to construct one and claim it’s for civilian purposes, which gives them the ability to, at the end of the 10 years, or even before, quickly build one if they want to (just the way, for example, Japan and South Korea could build one right away now if they wanted to because they have such advanced civilian nuclear technology)? So I think it was a terrible deal for the United States. But now that we’ve given them all this stuff, and we’re hoping that they’re going to pay us back, I can see the arguments of some people say, “Well, we might as well just leave it in place and see if the Iranians will agree to it.”
That said, I don’t think it’s going to work. And I think in 10 years, Iran is just going to have a nuclear weapon. And we’ll be not just back to where we were, but we’ll be with an Iran that’s much richer, better armed…They’re using the civil war in Syria to expand their power and their reach all the way to the Mediterranean, all the way through to Lebanon now. So if the Iran Deal actually prevents us from taking military measures, or cyber measures, or constructing a ballistic missile defense in space aimed at Iran, then I think we should break the agreement. I think we shouldn’t allow it to restrain other things we can do with technology to try to make sure Iran doesn’t get its hands on nuclear weapons.
Ben Weingarten: Why won’t North Korea just become another Iran? And, of course, we know that there’s evidence to suggest that they collude in their weapons programs to begin with. So while Iran’s freed up, North Korea might be working with them right now.
John Yoo: One real problem is you could see Iran saying, “Okay, we’re not going to build a nuclear weapons program, but we can just go buy one, buy a nuclear weapon from North Korea.” North Korea would be happy to sell [to] them. They’re happy to sell whatever they can. And as you say, they’ve been proliferating, it appears, nuclear weapons technology, and missile technology. North Korea, Pakistan, Syria and Iran all seem to have various ways [to] share different kinds of nuclear technology.
So I think the thing with North Korea — and this is where I think the technology that we’re talking about in the book can have a more immediate positive impact — is I think North Korea has really paralyzed our government for many decades now, not just President Obama, but it goes back to President Clinton, who struck the first deal with North Korea, to try to get them not to build nuclear weapons. So people feel they’re stuck between letting, I think, a pretty unstable person have access now to ICBMs. And they just tested a hydrogen bomb, basically.
And then, again, you could have a conventional war where you try to destroy these sites, which would succeed. But Seoul, which is a city of over 20 million people and has 30,000 American troops stationed there, is really just within artillery distance of North Korea…You could have strikes, and you’re going to have a million civilian casualties in Seoul.
So what do you do? I think you need to have options in-between those two polar opposites, and this is where the technology can come in. For example, I think robotics give you the ability to build drones that will patrol the air space around North Korea that are designed to shoot at missiles in their most vulnerable launch phase. You could put ballistic missile defense on ships and surround North Korea with what we call the Aegis Cruiser anti-missile cruisers, but upgrade their technology and make them more automated, so they also can quickly strike any missile they see. And then, I think, ultimately, you can put out over North Korea a missile defense system. The most effective missile defense system would be one based in space that strikes the missiles just as they’re starting to launch. Our current national missile defense system, which is based in Alaska and California, tries to shoot the missiles in what’s called their terminal phase…after they’ve come out of space, and they’re shooting down onto the target. That’s the hardest time to take them, when their accelerating at their fastest.
Ben Weingarten: And their success rates aren’t great.
John Yoo: Yeah.
Ben Weingarten: They’re not perfect, certainly.
John Yoo: To change a calculation, you just have to work a little bit, but obviously, you want it to be perfect. If you wanted to increase your chances, you have got to shoot when the missiles are first taking off, when they’re slowest, and they’re easiest to spot. That requires, I think, this kind of layered system: Space, drones.
And then the other aspect in North Korea is we should be doing all kinds of things to coerce and pressure the regime to give up the nuclear weapons program that they have. And that should involve…Cyber, I think, would be most effective there. Why not freeze and transfer out all the assets of North Korean leadership that they’ve got stashed all around the world in banks? Why not hack into and take down any company that trades with North Korea? We may not be able to get the Chinese government to stop relations, but we could certainly go after all the Chinese companies that are trading with North Korea; prevent North Korea in its ability to buy and sell technology; put up a blockade, basically a full economic and internet blockade of North Korea. All those things, again, that’s not going to shoot down missiles, but that’s going to increase the punishment on North Korea and the cost for trying to maintain this kind of arsenal.
Ben Weingarten: North Korea provides China lots of leverage, so that’s a real benefit of the regime there. Why should we have any confidence that China would ever intercede on America and the West’s behalf in a way that’s ultimately positive?
If the Iran Deal actually prevents us from taking military measures, or cyber measures, or constructing a ballistic missile defense in space aimed at Iran, then I think we should break the agreement.
John Yoo: So a number of these things that you could do to North Korea might produce that kind of outcome because they’d also be harmful for China and the balance of power. Right now, China is freaking out that we’ve deployed this anti-missile system called THAAD on this golf course in South Korea. Why are they so upset? It’s not really because it’s aimed at the North Korean system, although that’s what it is. It’s that that system is such a high technology that…its radar system and sensors can reach back into China itself and could, they think, be used to help shoot down Chinese missiles.
So all of these things we’re talking about, if we said, “Okay, if North Korea is going to have this hydrogen bomb arsenal with ICBMs, well, we’re going to really accelerate our advancement of national missile defense.” China shouldn’t want us to be able to do that because they do not have actually a large arsenal. All these tools we’re talking about in North Korea could be used on China as well. China actually has an interest not to have us go really overboard into missile defense.
I think, unfortunately, for many years, American leaders actually restrained our missile defense system, actually, dumbed down radar systems like THAAD — they could be much more effective than they are — just so that we wouldn’t irritate or piss off China and Russia or threaten their deterrents. I think maybe North Korea is going to require us to [do so]. So China then has an interest to restrain the North Koreans because otherwise it causes us to bulk up our defenses so much China is going to start losing out in the balance of power.
Ben Weingarten: We just passed the 16th year since September 11, 2001. You served in the [George W.] Bush administration in helping, from the earliest days, execute a strategy to win in the Global War on Terror, as it was termed. Are we winning 16 years on?
John Yoo: I think clearly not. I think we clearly are not winning. In the years since the Bush administration, there are a number of, I think, policies that we adopted as a country that have not worked. One was…the worst thing, I think…the thing we faced on 9/11 but destroyed…the worst thing is if terrorist groups actually can come into control of territory, and population, and the resources of a state, they get a safe haven. And that’s what existed in Afghanistan on 9/11. That’s why Al-Qaeda was able to marshal, and train and develop the resources to carry out the 9/11 attacks, and then to pose threats to other countries all around the world. And we stopped that with the intervention in Afghanistan. ISIS came up and controlled an even bigger swath more directly of people and population than occurred in Afghanistan. I think that’s the worst thing that could happen in terms of our fight against terrorism. I think that resulted from our walking away from Iraq at the 2008 to 2010 period. So I think that’s got to be…just the fact that ISIS exists is a great blow to our counter-terrorism policies.
And as we draw down and eventually hope to destroy ISIS’ control in Syria and Iraq, the problem is a lot of those fighters are going to spread out, as they already have been, to Western Europe, first, and then here second, and carry out terrorist attacks, as we’ve seen in places like Nice, Boston, San Bernardino, Paris and London.
…The second area where you’ve seen, I think, a setback because of our counter-terrorism policies, is President Obama didn’t want to capture any more terrorist leaders. So he said he was going to close Guantanamo Bay, he was going to end interrogation methods, he was going to stop using military trials. The problem with that is…then, he amped up the drone program and started killing terrorist leaders. 2,500 terrorists allegedly have been killed.
Ben Weingarten: There goes the intelligence.
John Yoo: Right, exactly. All the intelligence that all those people had is gone. And so we’ve been kind of drawing down actually on our intelligence that we’ve built up under the Bush years, and it hasn’t been replenished. We can still get some intelligence from electronic interceptions…Sometimes when we’re fight on the ground with ISIS, or we kill Osama bin Laden, we get digital records…that’s nothing like what we were able to get before. We’ll always be able to get that, but the real advantage is to get the information they have about pending plots, what their organization looks like, what their network is composed of. And that I don’t think you can fully get from maybe luckily intercepting emails from time to time, or even getting the digital records from some kind of physical search. So I think that’s got to change too, if we’re to have a hope of stopping this next wave that’s going to be coming here when ISIS loses control of the territory in the Middle East.
Ben Weingarten: You mentioned before, in not so many words, the idea that it isn’t so much that we lack capability in certain areas, but it comes down to will. Will to win. And in war, you write in the book something about how it doesn’t ultimately come down to the weapons. It comes down to the people using the weapons, what they’re willing to [work to] achieve. I think one of the critical things relating to will is the culture, and the culture is impacted by many things, including academia, and in particular, elite academic institutions. You have had a view working in an administration, and then also as a law professor at Cal-Berkeley. People are seeing all sorts of crazy things happen on campuses. What do people need to know about what’s occurring in academia and the end results of it?
John Yoo: So, that’s a great question. And I…don’t address it in the book necessarily. But what’s going on on our campuses today is very disturbing to me. We’re living through this period of a kind of puritanical approach to thought, where certain thoughts are not acceptable anymore. And students are taking the view that…and it’s really, I think, some faculty members too who are kind of egging the students on, is the idea that speech itself can be harmful. And so if someone hears something offensive that they don’t like, they’ve actually been harmed just as much as if they’d been physically attacked. I think this is a very destructive idea. I think it’s quite wrong. And if you really implemented it, it would ruin what made our American universities the best ones in the world, which is free inquiry and free debate. The only place I remember where universities were not allowed to study certain subjects was the Soviet Union. There was “Marxism Studies” in the Soviet Union. There wasn’t “Capitalism Studies” in the Soviet universities too. There are actually great books about what was it like to be a scientist in the Soviet Union when you weren’t allowed to ask certain questions. Obviously, if we want to ruin our university system and miseducate a whole generation of students, that’s the way to go, is to say, “There are certain subjects and topics you’re not allowed to debate and talk about.”
Now, the one good thing, the one glimmer of hope I have is that I think the students, or at least the ones that I see, are not fully convinced. And part of it is just young people don’t like their elders. So all the administrators and the great majority, something like 95% of the faculty, are all liberal democrats. If you’re a student, of course, you’re going to react against that. You don’t want to be like your parents. I find a lot of students are quite libertarian or even conservative in their basic principles. And it’s actually, they struggle against this kind of orthodox, this kind of orthodoxy that we’re seeing on campus. So my hope is actually that it’s going to be the students who read on their own, who see, and listen to speakers, and make up their own minds who are going to resist this kind of indoctrination that we’re seeing on campus, that there’s only one right way to think, and that certain ideas are valid, and certain ideas are invalid. But I’m really disturbed by this. I think this is a serious cultural…it’s clearly a cultural problem, but it’s behind a lot of the debates we have about policy.
What's going on on our campuses today is very disturbing to me. We're living through this period of a kind of puritanical approach to thought, where certain thoughts are not acceptable anymore...The only place I remember where universities were not allowed to study certain subjects was the Soviet Union.