John Yoo Reviews David Scheffer’s Memoir in WSJ

by Chris Borgen

The choice of book reviewer might be surprising but the result, unfortunately, is not.  Yoo reviews two books: David Scheffer’s memoir All the Missing Souls  and William Shawcross’ Justice and the Enemy. Scheffer’s book details his time working on war crimes issues, ultimately as the Ambassador at Large on War Crimes, in President Clinton’s State Department. (Disclosure: we hope to have Scheffer guest blog with us sometimes in the next couple of months about his book.) Shawcross’s book, as Yoo describes it, ”asks whether diplomats and specialists in international affairs, among whose number Mr. Scheffer must be counted, have any realistic alternative to the Bush administration’s strategy of using the military to detain, try or kill terrorists.”

OK, that’s a pretty provocative opening.  Yoo is an interesting choice to review a book on war crimes tribunals since his professional career has been about skepticism towards such tribunals. Hhe’s also an interesting choice to review a book about the Bush era policies that he played a part in defining. So, I thought’ I’d review his review, so to speak.

Aftert the shot-across-the-bow opening, Yoo has some eloquent passages (invoking Lincoln) and interesting observations about how interstate wars are decreasing but intrastate conflicts are becoming all the bloodier. As he starts in on Scheffer’s book, though, the critique is what you’d expect: an argument against the efficacy of international criminal tribunals.  Fair enough (although keep in mind  the book is billed as “a personal history” ). But then the review transforms and seems to be less and less about the books and more and more about the Bush administration (which Yoo was a part of).  And especially about how it was misunderstood. Yoo uses Shawcross’ arguments to criticize Scheffer and, implicitly, rehabilitate his own image. After indicting Scheffer for not doing enough to stop genocide in Rwanda, he goes on to write:

Mr. Scheffer tries to spice up this combination of diplomatic detail and depressing passivity with a stray attack on the Bush administration’s approach to world affairs after 9/11—the war on terror, as it was once known. With precious little analysis, he claims that the Bush administration destroyed America’s leading human-rights position, though naturally he fails to mention the Obama administration’s decision to continue, and even expand, many of the U.S. policies adopted in the wake of the attacks.

We get the sense that this review is most interested in going once more around the track on the Bush Administration’s record. By contrast to Scheffer,

Mr. Shawcross describes how left-wing groups, with the cooperation of gullible journalists, spread outright lies about conditions at Guantanamo Bay, about American detention and interrogation policy, and about the trials of terrorist leaders…

America’s response to 9/11 caused outrage among intellectuals precisely because it proved so successful: preventing further attacks on the United States, eliminating Osama bin Laden and the al Qaedaleadership, and beginning the overthrow of vicious authoritarian regimes in the Middle East. The Bush administration rejected the ineffectual internationalnetwork of activists, rights groups and courts in favor of a robust unilateral response that drew upon the traditional sources of state power, including diplomacy, economic sanctions and military force.

Funny thing is, I don’t know who supposedly argued that the U.S. must never act unilaterally or that force and sanctions are not key tools in statecraft. (I haven’t heard anyone make those claims.) That was not what the major Bush-era arguments were about. They were about torture and legal black holes and unilateralism for its own sake. They were also about recognizing the possibility that engaging (rather than running from) international institutions can actually broaden America’s options.  Addressing these actual issues might have made for an interesting essay.

Picking John Yoo to review a book about war crimes tribunals is a provocative choice. I wonder why the editors at the WSJ did it.  But the result was not so much thought-provoking as almost exactly what one would have expected. And that, as far as editorial decision-making goes, is an opportunity lost.

http://opiniojuris.org/2012/01/09/john-yoo-reviews-david-scheffers-memoir-in-wsj/

9 Responses

  1. Chris,

    You wonder why the Wall Street Journal — Bush administration and torture-apologist extraordinaire — picked Yoo?  Really?

  2. What would Helmuth James Graf von Moltke have written?

    http://en.wikipedia.org/wiki/Helmuth_James_Graf_von_Moltke

    It is difficult to hold a printable opinion of Yoo and his ‘work’.

  3. Exactly Kevin. I thought we got past this kind super-credulous golly-gosh stuff a while back, especially since NotW.

    It would be incredibly surprising if the WSJ editorial page gave a platform to a credible authority concerning issues where it’s readership and stakeholders in the conservative movement have pre-commitments.

  4. What I don’t like about Yoo’s argument is the implication that since international tribunals don’t have a workable deterrence function (which might be true), we shouldn’t support them.  What about retributivism, i.e. punishment for its own sake?  My full argument is here.

  5. Response…
    In spite of the implicit lies about alleged lies, I found one of the most shocking statements to be Yoo’s statement that “governments behind the International Criminal Court” (now some 120 on board, and some 160 who met at Rome to draft the Statute of the ICC and to “end impunity”) threaten an “international peace and security” that the U.S. allegedly should impose on 120 or 160 states whether they like it or not!  Indeed, that U.S. “sovereignty” is implicitly what drives such an “international” peace and security. 
    Unrepentant still is also part of his message.

  6. To all,
    Who can take this “torture memo author” any seriously anymore when speaking about international law and legal arguments? Why even bother to write a review about his “views”? This guy is toast in academic standing as well as in the legal profession and it should stay that way…Sorry about these harsh words, but whoever writes such dishonest legal analysis to allow human beings of being tortured shouldn’t be given any attention at a serious forum like opinio juris.
    Ben
     
     

  7. Jens,

    I am not an expert on domestic criminal law, but I gather that it is pretty hard to show much measurable deterrence from domestic criminal law either.  I don’t think that means we should stop enforcing that law.  Obviously both domestic and international criminal law have goals other than simply deterrence, as you note in your LieberCode piece.  More generally, I am working on an effort to “value” international criminal justice by comparing its cost to that of domestic criminal justice (and trying to adjust for the known differences in complexity between domestic and international prosecutions).  I know that even if I can show that domestic criminal justice is no more expensive than international criminal justice, I will not really have “proved” that it has value given that they have different although somewhat similar goals, but I think it might provide a more solid foundation for a discussion about the valuation of international criminal justice than most of what currently exists.

  8. Response…
    Stuart: but the direct and indirect benefits are so hard to measure, esp. re: prosecutions for war crimes and crimes against humanity, e.g., greater peace, security, human dignity as a process, respect for the rule of law, victim desires to witness history, justice, ending impunity in other instances, reaffirmation of norms, and so forth.

  9. Jordan,

    I had initially thought of doing a traditional cost-benefit analysis, but gave up for many of the reasons you mention.  It would be very difficult to measure or put a value on these putative effects of international criminal justice.

    Now, I have decided to do something simpler, but that I hope will still allow me to talk about the “value” of international criminal justice.  I intend to measure the complexity and cost of international criminal trials.  I then intend to do the same thing for domestic criminal trials.  Then I can adjust for the relative complexity of each type of trial and directly compare their complexity-adjusted costs.  

    I have no idea what the result will be yet because I have not finished collecting all of the data, but I do believe the results will tell us something about the value proposition of international criminal justice no matter what the outcome of my study.  For too long the costs of international criminal justice have existed in a vacuum.  They are high yes, but compared to what?  I think it will be worthwhile to start a conversation of what they cost relative to other similar things that we apparently think do have value (like domestic criminal justice).

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