When Will This Administration Acknowledge the Reality of International Law?

Reading through President Bush’s speech yesterday on the commissions, war crimes, and secret detentions, it’s striking how he repeatedly emphasized legality. At several points he asserted the lawfulness of the secret detention and of interrogation techniques (at one point noting that the program “has been subject to multiple legal reviews by the Department of Justice and CIA lawyers”). He frames the military commissions issue as one requiring legal clarification. And he closed with what in any other context might be considered a throway line: “America is a nation of law.”

I’m not sure whether this is new or not. The law talk may have been ratcheted up here (as highlighted in this LA Times editorial), but the Administration has been aggressive for some time now in asserting the legality of various anti-terrorism practices (domestic wiretapping, for instance), even where it’s standing on pretty thin legal ground. The strategy almost starts to look like this: if we say something’s legal over and over again, the people will come to believe it. That may not be particularly shrewd, but it does demonstrate an understanding that the failure to provide legal justification for any controversial action is a good way to lay the groundwork for public rejection. (To take one historical example, President Nixon’s failure to supply a legal justification for the bombing of Cambodia surely contributed to widespread condemnation of the decision notwithstanding a tenable self-defense claim.)

But that’s all about domestic legality. Bush continues to refuse to bow down before the altar of international law. I count six instances in the speech of the phrase “our laws.” There is one mention of rights under the laws of war to capture and detain terrorists (consistent with the Administration’s uses of IL where it serves its interests), and then there is an allusion to treaty obligations in the context of “alternative” CIA interrogation techniques. Not exactly hammering home the point of international legality.

The irony here is that international law was the much more probable driver for shutting down the secret prisons (Bush may have left open the possibility of reviving them, but that seems highly unlikely barring some subsequent terrorist attack). The Hamdan and Hamdi cases didn’t say anything about those detentions, and it’s hard to imagine the courts would have gone there even if given the opportunity. Domestic public opinion has never seemed that agitated by the CIA detentions (or for that matter, those at Guantanamo). But international opinion has been inflamed by them. (See, for instance, this report from the Council on Foreign Relations.) And that has to be why the Administration backed down, because it’s just costing them too much on the diplomatic front, where opposition to detention practices is framed in international law terms. That might also explain the other part of yesterday’s news, as described by Marty Lederman over at Balkinization, in the new revision of the Army Field Manual.

So what will it take for the Administration to learn that a failure to conform to international norms has consequences? The proposed legislation doesn’t reflect any such awareness, insofar as it would impose a narrow and inflexible conception of Geneva Conventions protections and war crimes. That is sure to raise the hackles of the international community. The Senate seems more attuned now to the IL implications of the GWOT, so perhaps it will save us from more of the same. In the meantime, yesterday’s half-measures add another sorry chapter to a pretty depressing narrative.