The Sands-Yoo Debate

Earlier this week Professors Philippe Sands and John Yoo debated global legal rules at an event sponsored by the World Affairs Council. The full debate is available here.

Here is a brief excerpt of Philippe Sands’ opening remarks (beginning at the 12^th minute):

“[The Bush Administration has undertaken] a systemic assault on global rules… But it is not states that break the rules. It is people that break the rules…. In the case of torture, one of those advisors was Professor Yoo. He prepared a number of legal opinions which plainly are not supportable in the rules of international law.… [I]n the case of the torture that has been prosecuted apparently as a matter of policy by the United States, the Torture Convention is going to come back to haunt individuals associated with it…. There is international authority in Nuremberg … that legal advisors who prepare legal advice that is so erroneous as to give rise to an international crime are themselves subject to the rules of international criminality. I think that … [Articles 4, 5 and 7 of the Torture Convention] which require that any state that finds on its territory any individual who has been associated with the promotion of a policy of torture is either to be investigated and prosecuted in that state or to be extradited to a country where it will happen. And I suspect that with the passage of time the rules of international law that are reflected in this Convention will come to be seen as rather robust and the individuals who have been associated with the deplorable policy, the un-American policy, of torturing anybody under any circumstances whatsoever are likely to find themselves facing the very same tap on the shoulder that Senator Pinochet got so unexpectedly on October 16, 1998.”

Here is a brief excerpt of John Yoo’s opening remarks (beginning at the 18^th minute):

“I do agree with what Professor Sands says that the United States is engaged in a project to change the rules of international law in this area…. I would say a lot of the wars that the United States fought [during the Cold War] were not self-defense: Panama, Grenada, Libya… Those were all clearly illegal as well as many of the other conflicts around the world. So the question is should we have a legal system in which practice and rules are so inconsistent…. The world has changed. These rules were written in 1945…Our great enemies are not nation states. The great problems affecting the United States are … international terrorist organizations like Al Qaeda …, rogue states and failed states, states that commit massive human rights violations against their own citizens, and … weapons of mass destruction proliferation. So if you agree that those are the pressing security problems that we face in the world today, should we maintain a system that is designed to prevent military intervention to solve those kinds of problems? It seems to me that what we have now … is a collective action problem…. The international legal rules made it illegal to intervene in places like Rwanda … like Kosovo…. International law in this case …. makes things worse because it prohibits intervention in almost all of these situations. Unless these states are actually committing attacks or some kind of threats against their neighbors or unless the Security Council intervenes it’s illegal for the United States and other nations of the world to intervene….The United States … is trying to change the international legal system to permit countries to intervene in those kinds of situations.”

Regarding various questions relating to torture, Professor Yoo responded (beginning at the 52^nd minute) that “It is American policy and law that torture is prohibited … both to Al Qaeda, … the Taliban, and Iraq, and everywhere…. [As for] Abu Ghraib … what we saw in the pictures was clearly a violation of American law and the Geneva Conventions and I think what we have there is a problem of a small force sent over to do a big job and we had people who violated the rules…. There is a military justice and investigatory service whose job it is to follow the chain, no matter how high up the chain of command it goes, to make sure that those who created that policy are investigated and punished. I do think that there is a different legal regime that applies in the war on terrorism, that applies in Guantanomo Bay and that is that torture is prohibited and it is not policy, but that the Geneva Conventions standards do not apply there….”

Following these responses, Professor Sands interjected (beginning at the 55^th minute) that “I suppose it is moderately entertaining to engage with a sparring partner when the use of facts and law are so skewed as to depart entirely from reality. The problem is not renegade actors, the problem, frankly, is renegade lawyers. I’m sorry to say that Professor Yoo is one of them. He drafted advices which … completely redefines torture…. Sure you can unilaterally change the definition and then say what you are doing is not amounting to torture, but you won’t get away with it in the international context because in the international context the only standard that is relevant is … international law.”

To which Professor Yoo replied (beginning at the 59^th minute) that “Mr. Sands, I could sit here and call you names… I have not and you can certainly engage in ad hominem criticisms, but I choose not to….”

Finally, Professor Sands concluded (beginning at the 69^th minute) that “I don’t for a moment believe that what has happened at Abu Ghraib, and at Guantanomo … and elsewhere in Iraq is just a case of a few bad eggs. There is a paper trail … of policies, of decisions, of legal advices, and I think that with the passage of time it will become abundantly clear that there is a direct line from the legal advices to acts of torture that occurred….”

It is worth an hour of your time to listen to the whole debate.