Quivering Before (International) Law: The Terrified Presidency

by Peter Spiro

Here’s a striking takeaway from Jack Goldsmith’s book: Bush Administration officials now fear international law, as in: they really worry about being hauled before the dock in foreign and international tribunals. Who knew? Of course they’re more worried about facing prosecution in federal courts, and the hefty legal expenses that would come even with exoneration. That was apparently enough to paralyze anti-terror decision making, or at least threaten to paralyze it and put a premium on OLC authorizations that would help minimize the risk of criminal liability. But Goldsmith characterizes Rumsfeld and others as worried about foreign prosecution in the wake of Pinochet and the rise of universal jurisdiction, and about finding themselves and other Americans hauled before the ICC or other international tribunals. International law would have been the standard behind many of the domestic laws in on the post 9/11 radar screen, including for instance the War Crimes Act. So IL’s chief detractors seem to recognize its new potency.

Goldsmith laments this development. “The administration has been strangled by law,” he writes, ”and since September 11, 2001, this war has been lawyered to death.” Here he draws again the contrast to the Roosevelt experience leading into WWII: “Roosevelt feared impeachment, not judicial trial; the democratic process, not the courts, would be his judge.”

A couple of thoughts on this. First of all, I wonder how much more warmaking has been effectively legalized. The experience with the War Powers Resolution is a case in point. Sure, the law is on the books, which at face value would make the process look more legalized. But it’s not good for much. Its spirit has been long degraded. When President Clinton flagrantly violated its specific terms during the Kosovo episode, there was no talk of impeachment, much less prosecution.

But I’ll grant that there is a lot of water under the bridge since Roosevelt pointing to increased legalization, both domestically and internationally. That’s not to say that legalization is a bad thing in itself, although Goldsmith at least implicitly thinks that it is (in among other ways by validating the “lawfare” label). He’s hardly proved the case by connecting some particular legal constraint to some national security harm (see David Cole and Jules Lobel’s new book for the argument that it’s the violation of law, rather than conformity with it, that has done the damage). The argument is more along the lines of, anti-terror efforts require boldness; legalization results in timidity.

I don’t buy it. Either this isn’t a war, in which case the rule of law as usual is presumptively a good thing; or we’ve been lacking the leadership that would overcome the timidity. Goldsmith recognizes the first possibility. “When a nation is unambiguously at war and believes its future is at risk, practices that would have seemed wrong in peacetime are viewed as necessary and thus legitimate.” He also recognizes that a lot of folks don’t think we’re at war now. Where he comes down on the question isn’t clear. At several points he invokes the “threat matrix”, the briefing document that lists all known terrorist threats regardless of their probability of execution or success. Although he can’t give us any details, he makes clear that this is a pretty scary document, and that it leads to a sort of paranoia, “like being stuck in a room listening to loud Led Zeppelin music.” That’s effective at making the reader empathize with those who have deal with all this on the inside, the terrible responsibilities on their shoulders, but it doesn’t really give us an answer to the question, is this the kind of situation in which the law should show some give to a higher national interest?

But assume that this is war and that as with Roosevelt the situation has required extralegal action. In that case, legalization won’t get in the way of leadership. Strong leadership creates trust. That creates public support, which allows the bending of legal rules (including especially more weakly enforced international legal rules). It also remedies hesitations down the line within the government. Goldsmith allows that top officials were ultimately willing to risk legal jeopardy; many of them thought they’d be pardoned, if it came to that. The real problem, he stresses, is with lower-level officials at DoD, the CIA, and NSA, who end up (after decades of getting beat up, back to the Church Committee hearings in the mid-70s) feeling like they need to ask a lawyer to go to the bathroom. I believe it, but I also believe that strong leadership at the top would be enough to get the troops in line.

And clearly that’s something that’s lacking with this Administration. Just as bullies are deeply insecure, this Administration’s secretiveness and its aggressive agenda on executive power is rooted in deep insecurity. Strong leaders, like Lincoln and Roosevelt, have the confidence to reach out for support and the awareness to understand their personal and institutional limitations. Not this crowd. For all the bluster, this Administration is ultimately characterized by weakness. Instead of the Terror Presidency, we’re left with the Terrified Presidency. The upside, if true: things might actually get better come January 2009.


3 Responses

  1. Rather than the folks below having to get lawyers to protect themselves from prosecution for following the orders of those above, why not focus on the persons above them who created the boneheaded structures and orders that the folks below followed.

    Let’s convict the order givers and give immunity to the folks below in exchange for the folks below at DoD, CIA etc telling exactly how the orders were given to them to do the dirty deeds that they did and are doing.

    We are going to be discussing much of this at the International Law Weekend of the American Branch of the International Law Assocation at the Association of the Bar of the City of New York in New York.

    The session on Saturday afternoon, October 27, 2007 at 3h45 pm is in draft form described like this:

    SATURDAY, OCTOBER 27, 2007

    3:45 pm – 5:15 pm

    Whither Refluat Stercus?: Criminal Prosecution in U.S. Courts of U.S. Officials for Violations of International Humanitarian and Criminal Law

    While low-level military personnel have been court-martialed and prosecutors in Italy, Germany and Switzerland are investigating potential crimes related to extraordinary renditions by lower-level U.S. intelligence officers, U.S. high-level civilians and generals have not suffered criminal prosecution as to actions taken during the current “war on terror”. Given the failure of overseas processes and domestic civil processes to address command and other responsibility of this select group, this panel will examine whether criminal prosecution of senior officials in U.S. courts is possible.


    Benjamin G. Davis, Associate Professor, University of Toledo College of Law


    James Bischoff, International Criminal Tribunal for Former Yugoslavia

    Jason Dominguez, Assistant Professor, Thurgood Marshall School of Law, Texas Southern University

    William V. Dunlap, Professor, Quinnipiac University School of Law

    Jordan Paust, Mike and Theresa Baker Professor, University of Houston Law Center

    Yes, be very afraid.



  2. If history teaches us anything, it will most likely be that all of the top deciders will be above the law, and none of them will be ever be tried. At best, only some lower ranking officials will be the patsies of the day.

    Either Congress will pass an impunity law absolving them all, or as with Pinochet (who the DoJ avoided extraditing, [both by the Clinton and Bush administrations] by keeping the extradition request in a drawer.

    Then there is the almost certain possibility of a presidential pardon.

    To be honest, I don’t think that anything will be done. Then again, I love surprises.

  3. I think most Administration members have about as much chance of being struck by a meteorite than being tried for anything stemming from such accusations.

    Let me insert a quick “criminalization of politics” argument, though, in the event it ever seems likely. Trying as far after the fact as they would be seems more like a means to a political end than anything.

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