07 Jun More Bravery from Bellinger: Articulating an American Approach to International Law
Readers of this blog know that the top legal adviser at the U.S. State Department, John Bellinger, is not afraid to take on critics of the U.S. government’s treatment of international law. He did so on this blog a few months ago. Yesterday, he went into the “capital” of international law, the Hague, to defend the U.S. administration’s approach to international law from its many critics. It’s a bit long, but well worth a full-read. Here is his roadmap:
. . .I will demonstrate that our approach to international law – how and why we assume international obligations, how we implement those we have assumed, and how international law binds us in our domestic system – all reinforce our commitment to international law. In the course of the evening, a few themes should emerge. One is that a reliance on sound bites and short-hand can give the deeply misleading impression that we are not committed to international law. A second is, in fact, deeply ironic: that the very seriousness with which we approach international law is sometimes mischaracterized as obstructionism or worse. A third is that some of the most vehement attacks of our behavior – although couched as legal criticism – are in fact differences on policy. A fourth and related theme is that our critics often assert the law as they wish it were, rather than as it actually exists today. This leads to claims that we violate international law – when we have simply not reached the result or interpretation that these critics prefer.
Oh, Julian, if only the Bush administration’s approach to international law were the one that the eloquent Mr. Bellinger portrays it to be. Bellinger’s uneasiness about soundbites is understandable, but here’s one that in one sentence describes the current US government’s disdain towards international law better than any book or article ever could:
National Defense Strategy of the United States of America, March 2005.
My only addition would be that Mr. Bellinger’s attempt at spin is not very likely to be successful in that “capital” of these “weapons of the weak” (sans terrorism – that spot is reserved for Baghdad), the lovely The Hague.
“Our strength as a nation-state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes and terrorism.” You’re right on the money, Mr. Milanovic. The United Snakes’ unilateralist, imperialist arrogance and contempt for the rights of human (and other) beings on this planet and those who defend those rights are crisply embodied in this statement and to those who have eyes to see, all the more conspicuous for all the slick and slimy efforts of various snakes in suits to conceal their true nature. They can tergiversate themselves into a frenzy, but those who despise injustice see through their spin,and the oppressed of the world know them by their fruits, and with the lucidity peculiar to the victims of such injustice. Justice, in their minds is, as J. Edgar Hoover once stated, “incidental to law,” and law exists for them solely as an instrument of acquiring and maintaining power. “When men are pure, laws are useless; when men are corrupt, laws are broken,” observed Benjamin Disraeli. So beware, those who labor in the vineyard of law: these people are corrupt, and have no compunction about twisting and subverting the spirit and… Read more »
Crimes are not policy disagreements.
Funny you should call it “brave,” Julian. If it were an accurate account of this Administration’s policies and legal views, of course, there wouldn’t be the least bit brave about it — it would simply be, well, an accurate account of this Administration’s policies and legal views. What’s “brave” about it, in some sense, is that Bellinger has the guts to deliver this speech knowing how little it comports with reality. It’s a lot like the recent Zelikow speech that claims that under the new Bush “paradigm” they’re closing GTMO and reserving military commissions for the worst terrorists, “not bin Laden’s driver.” Both speeches are fantasies of what the world would look like if the State Department had prevailed in the internal Administration debates. But time and again, Cheney has beaten them back. What would be truly “brave” would be for the folks at State, after the hundredth or so time that their views of international law were ignored, to emulate Jim Comey and Jack Goldsmith and to threaten resignation unless the President agrees to abide by the law. I’m not saying Bellinger, et al., are morally obliged to do so — indeed, they may right be that the better,… Read more »
Illegality + acquiescence = legitimacy. Bellinger is urging acquiescence in an effort to gain legitimacy. It only works if we accede to his efforts which are multilevel and aggressive.
Best,
Ben
You guys are harsh on anybody you deem guilty by association. The ‘taint’ on Goldsmith has changed substantially in light of Comey’s testimony.
Yes, Mr. Gittings, I know you do not believe Mr. Goldsmith has been absolved of anything at all, and I agree it will be interesting to see, when, 40 years from now? hopefully much sooner, the internal debates and roles are declassified and known. I am currently re-reading more closely Horton’s article “When Lawyers are War Criminals” obtained from your website. There is a crucial distinction between Goldsmith, showing the courage and tenacity to pull those memos, and Yoo.
John Bellinger is making legitimate, thoughtful (yes, sometimes optimistic) arguments. Of course they may not be fully shared by everyone in the administration (ie. Addington), but the voice and courage of such reasonable and ethically-compelled people has proven an important presence (yes, sometimes merely to show that objections were raised at the time).
Why not engage these arguments instead of merely attacking the individuals? I think Bellinger raises several good points, and I would be very interested to hear responses to his arguments from the commenters on this thread.
Crimes are not policy disagreements.
“Crimes” based on “international norms” as defined by the accusors certainly are. It’s kangaroo court justice of the worst sort.
Gunboat, I’ll engage just one of Bellinger’s arguments – the one that the US is not violating international law, but is merely disagreeing with the intepretations of international law offered by its critics. That claim, even if made by a man as reasonable as Bellinger, is pure baloney. As Brian Tamanaha recently explained at Balkinization, there is a crucial difference between a reasonable legal argument, and an argument which is merely arguable, in the sense that language or precedent can be twisted beyond any recognition. Let me just give you an example – the OLC/John Yoo conclusion that Afghanistan was a ‘failed state’ and therefore ceased to exist as a subject of international law, thereby obviating any treaty obligations the US might have. This argument is so totally and obviously wrong that any lawyer making it is crossing the basic bounds of professional ethics. It is not interpreting the law, it is torturing the law. The fact that Bellinger is NOT making that argument does not affect the fact that he is actually defending the policies of the same administration which DID in fact make that argument. That is precisely why Bellinger, reasonable and appealing though he might be, lacks… Read more »
Yes, “bravery” sticks in my craw as well. When he appeared on a panel at ASIL this year, he was greeting with similar fawning. He’s a government official. As part of his official duties, he has to explain and defend the government’s positions. If he truly believes in those positions, then it is hardly brave of him to stand up for his beliefs. In his shoes I would welcome every opportunity to explain to friends and allies — and even to critics — why the positions of my government are legally defensible. If he does not truly believe in those positions, then bravery is not the first word that leaps to mind.
I’m not sure it’s productive to dwell on the “bravery” point. I took Julian to mean simply that the speech was delivered before what one might wager was a skeptical audience (albeit one that was unlikely to react with the use of force). Mr. Bellinger himself only asked whether the speech might be thought “rather bold,” which I take it would attract broader support. Marko, the example you give as establishing that one of the speech’s claims is “baloney” — and the lesson you seem to extract from that — is not the strongest. The State Department, through Will Taft, immediately and vigorously responded to the “failed state” argument; this was not immediately successful, but ultimately Bush reversed his decision as to the applicability of the GCs to Afghanistan, indirectly indicating that the US did not accept OLC’s argument. The episode is well described in a paper by David Caron, and undoubtedly by Marty’s expert blog coverage, on which you could check the particulars. Personally, I think this shows a desirable capacity for course-correction, rather than US hostility to IL or the futility of EB lawyers remaining engaged with such matters. That is, incidents like this actually start to address… Read more »
What about crime occurring for over 12 years under the US jurisdiction?
Human rights are violated, torture is the intent among other sickness. Why haven’t the US put an end to this crime, its been across 44 stated since 1995 and it still is on going non-stop.
There is no reason to allow this crime. A person should never live in this country with their constitutional rights repeatedly violated every waking hour of every day of the year and the US does nothing but allow it to go on and on and on.
I don’t think it is inappropriate at all to say that John Bellinger displayed “bravery” by articulating the Bush Administration’s positions to a hostile audience in The Hague. I recall Anne-Marie Slaughter saying the same thing about Justice Scalia when he agreed to speak at the ASIL annual meeting. Similarly, the Daily Telegraph described Bellinger’s posts on Opinio Juris as “ballsy” because he agreed “to take on critics and argue the Bush administration’s case on the most contentious issues of our time.”
Roger Alford
Marko,
I am curious, would you call the Tadic decision or Akayesu “baloney”? Both cases were watersheds in IHL, but neither was really the product of reasonable legal argument at the time. What’s the difference between those cases and what Bellinger advocates, other than those decisions probably are in accord with your personal politics.
Ed, I am fully aware of the details of the episode to which I referred to, particularly the administration’s later repudiation of Yoo’s analysis. That doesn’t change the fact that this position was adopted by the administration for a period of time, and that no reasonable, ethical lawyer could have made it. Also, when I was questioning whether Bellinger should be listened to, I was again referring to the fact that he is acting as a representative of the administration, not as an academic, and that he is in fact not describing the actual position of the administration in relation to international law, but the one that he was unsuccessfully fighting for within the administration. In other words, as Marty points out, it’s Cheney that counts, not Bellinger. NSD, I fail to see how the Tadic court’s position that international criminal responsibility attaches to crimes committed within an internal armed conflict, when it already undoubtedly existed for crimes in international armed conflicts, crimes against humanity and genocide, is in any way at the same level of unreasonableness as the legal position that ‘failed states’ cease to exist as states. I completely agree with you that the Tadic position had little… Read more »
I wanted to make a general note about the comments. It would be nice if folks engaged on the issues in the speech — not sure they even bothered to read it — rather than simply engage in ad hominem attacks or general critiques. Bellinger tried specifically to deemphasize the detainee issue so that listeners could react to other issues, like U.S. treaty practice or the role of international law in domestic courts. The only comments in this thread that specifically engage Bellinger’s speech is the exchange between Marko and Ed. The personal attacks are lowering the quality of discourse on OJ, which otherwise is very high. I would be most curious if commenters could identify specific issues or problems with the speech itself, rather than just offer familiar critiques.
Roger Alford
The only comments in this thread that specifically engage Bellinger’s speech is the exchange between Marko and Ed.
True, but I don’t find Mr. Bellinger’s speech by itself to be that controversial, while I do find some of the rather unsubstantiated accusations among the comments to be so.
This accountability, coupled with the seriousness with which we implement our obligations, also explains why we are so careful from the very start to determine whether we need to subject our ratifications of treaties to any reservations or understandings and why we make sure to line up any implementing legislation in advance. Unlike certain countries, we do not join treaties lightly, as a goodwill gesture, or as a substitute for taking meaningful steps to comply.
This is a nice jab at the CIL types, though, and perhaps a seperate jab at Europe in general.
Marko, Thanks for your reply. I shouldn’t have implied that you weren’t fully aware of the facts; it’s more what we lessons we derive from them, and I wanted to add detail to your account. 1. The claim you were portraying as “baloney” was whether the Administration was violating IL or merely engaged in good-faith disagreement with its peers. There’s lots of ways to test that proposition — the speech touched on some close cases, and Marty and other bloggers certainly have — but I wouldn’t start with one in which the US corrected its own error, unless you think that it is maintaining the failed states argument sub silentio. If you wanted to illustrate that I was deranged, you’d point to something I was maintaining, not a position I apparently withdrew. 2. You ask whether there’s any point in listening to speeches like this because Foggy Bottom loses to the OVP; again, I think the case has yet to be made. There have been widely reported instances of such losses. But certainly the GC’s application to Afghanistan shouldn’t be numbered among them; if anything, as I indicated, it shows the value of maintaining within (any) administration a vigorous defense… Read more »