07 Apr Has Jack Goldsmith Gone Soft on International Law?
This among his useful suggestions as to how to fix the errors of Bush in anti-terror policy in a Slate column last week:
• Work with allies to establish an international legal framework for terrorists. Last week, John McCain called for a “new international understanding on the disposition of dangerous detainees under our control.” This is a good idea, not because of a squishy commitment to internationalism but because an international consensus on how to treat detainees would foster deeper international cooperation crucial in thwarting terrorists.
To achieve this goal, the United States must stop talking about which international laws do not govern the detention of terrorists and start talking about which ones do. . . .
Okay, so Jack’s still against squishiness. But here’s the friendly challenge: how to reconcile a position that sees any value in international humanitarian regimes with the premise of his and Eric Posner’s The Limits of International Law, which dismisses IL as a mostly marginal constraint on state action (see for instance pp. 85-88). The Limits is not very keen on multilateral agreements insofar as they are not subject to reliable sanctions by independent third parties. Has something changed, or is there some about the anti-terror context which makes them a meaningful vehicle for modifying state behavior?
Goldsmith’s suggestion is similar to John Bellinger’s proposal (received poorly here) of an agreement filling in the gaps. Some assert that such an agreement is unnecessary because there are no gaps, but the opposition may likely stem instead from the understandable fear of weakening existing GC protections.
But there are gaps in the GCs, and something-like-an-international-consensus would be preferable to the current purgatory of the three branches of the U.S. government tossing between them dubious, politicized ‘military’ commissions like a hot potato. Constraints, even marginal ones, could provide some much-needed legitimacy and transparency. However, the IL community may not want that hot potato either. Is there no way to salvage legitimacy in the U.S. detainee situation?
I hear you Diplomatic Gunboat – just let us do it after the war crimes trials. Would not want this to be another improvisation to get people who did bad things off the hook. Put another way, I personally am happy to have a norm come into the international arena as a rule on which an international consensus among international society can arise. Such a rule might well include all those ideas suggested and be a source of international legitimacy. However, such a rule without accountability for those who so brazenly dismissed the prior rules is an encouragement to future rule transgressors that I would not want to encourage. So, prosecute the current rule transgressors at the same time as building the new rule. There’s a compromise position. Let’s start with Jack Goldsmith’s memo on transferring people out of Iraq to be tortured. How about an apology for that memo by Jack? What he wrote in the Terror Presidency did not seem to own up enough to what he was doing. Also, how about some real international law in the “new” Harvard Law School curriculum and not just comparative law or foreign relations law? I am not seeking a job… Read more »
Speaking of your tribunals, there is a rather vigorous discussion of Prof. Organ-Failure-or-Death’s latest release here at Volokh. (I would have put this under the Statutory Construction post but the comment period there has expired.)
My focus is (1) that in describing the Commander-in-Chief power he refuses to acknowledge Congress’ power under Art. I Sec. 8 to make rules concerning captures, e.g. ‘don’t beat them’, which defeats his constitutionality of construction argument; and (2) he neglects to address any specific provision of the UCMJ, such as Art. 134’s uncontroversial assimilation of general federal criminal law, or even the prohibitions on cruelty, maiming, assault, etc., but instead he offhandedly uses the UCMJ to say that general federal criminal law does not apply.
By the way, the UCMJ is law passed by Congress and is also restated, and expanded upon, by the President in published Executive Order as the Manual for Courts-Martial. This should have mooted Prof. Organ-Failure-or-Death’s spurious ‘Commander-in-Chief power’ argument, but he chose to ignore that.