[caption id="attachment_10567" align="alignright" width="150" caption=" "][/caption] I'm fascinated by the mini-kerfuffle (on the Right at least) over President Obama's propensity to bow when meeting foreign heads of state who are also royalty (see his super-bow to the Emperor of Japan to the right). In the old days, this type of stuff was really important. Students of Chinese history may recall that one...
The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity. A Canadian Court recently sentenced Désiré Munyaneza, a former Rwandan Army officer, to life imprisonment with eligibility for parole following his conviction in May for...
Cross-posted at Balkinization Nothing like Friday afternoon with the President overseas for a little news: The men accused of conspiring to commit the 9/11 attacks will be tried in federal court in New York City. Five other men, including a man accused of involvement in the USS Cole bombing in 2000, will face trial before new and improved (if not...
Richard Goldstone is getting lots of flak for his recent report on the conflict in Gaza. Much of this flak is either undeserved or way over the top. But the unreasonableness of some of his critics does not mean his report was actually good and wise and fair. The basic problem, as I see it, was that Goldstone and...
Unless something rather dramatic happens, the Obama Administration is going to give up on its self-imposed January 22, 2010 deadline for closing prison facilities at Guantanamo Bay. The Center for American Progress, a reliable barometer of the Administration's thinking, has also advised against meeting the deadline. As a legal matter, it is not obvious that closing Gitmo would have made much...
From our friends at George Washington Law School: The George Washington University International Law Review is now accepting submissions of book reviews for publication in Volumes 41 and 42. Book reviews should be written on a recent or forthcoming book discussing a timely issue in international law. Word count should not exceed 9000 words. Submissions must be in Microsoft Word (.doc)...
For those around DC this upcoming Monday afternoon, there is a very interesting panel discussion organized jointly by the ABA International Section, ASIL, and SAIS on the ICC. It will feature a screening of an excerpt from the documentary The Reckoning, and then a panel discussion that will have Gary Solis, Jane Stromseth, John Bellinger, and me, and moderated by...
Yes, it’s true, according to the Lieutenant Governor of South Carolina, Andre Bauer. A U.S. District Court held this week that a State-sponsored vehicle license plate featuring a cross superimposed over a stained glass window with the words “I Believe” violates the First Amendment's Establishment Clause. As reported by The State newspaper, the Lt. Governor declared in response that the ruling was...
On Friday, November 13, the International Legal Theory Interest Group of the ASIL will sponsor a scintillating event on the role of ethics in international law. The event will be held in Washington D.C. at the Tillar House and the Cosmos Club. Details here. Here's the breakdown of the panel discussion: Panel 1: Ethics in Public International Law (9:15)...
The Draft Articles on the Responsibility of International Organizations (“RIO”) provide that for an internationally wrongful act to occur, (i) the conduct must be attributable to the IO under international law, and (ii) constitute a breach of an international obligation of that IO. Greg Fox will be blogging on the important question of attribution later this week. ...
Another day, another attempt by the Registry to undermine the fairness of Dr. Karadzic's trial. Rule 3.3 of the Registry's Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused provides that a self-representing defendant's legal team is entitled to be paid for "a maximum of 150 out-of-court preparation hours...
I owe many thanks to Kevin, and the Opinio Juris community, for inviting me to join the conversation.
Although it has been in circulation for over a month now, I find myself still mulling Andrew Sullivan’s provocative open letter, Dear President Bush, in October issue of the Atlantic. It is a unique and thoughtful approach to the problem of torture and responsibility.
Sullivan’s letter unflinchingly describes official practices and acts during the Bush years as torture.
“The point of this letter, Mr. President, is to beg you to finally take responsibility for this stain on American honor and this burden on a war we must win. It is to plead with you to own what happened under your command, and to reject categorically the phony legalisms, criminal destruction of crucial evidence, and retrospective rationalizations used to pretend that none of this happened. It happened. You once said, “I’m worried about a culture that says . . . ‘If you’ve got a problem . . . blame somebody else.’” I am asking you to stop blaming others for the consequences of decisions you made.”
Why must President Bush take responsibility? For one, Sullivan claims that “[N]o previous American president has imported the tools of torture into the very heart of the American system of government as you did.” Moreover, “[B]y condoning torture, by allowing it to take place, and by your vice president’s continuing defense and championing of torture as compatible with American traditions, you have done enormous damage to America’s role as a beacon of freedom and to the rule of law.” Finally, regarding the policies and actions taken in violation of the Geneva Conventions and other laws, Sullivan writes: “The responsibility for all of this is yours—before the American people and before the court of history. And you need finally to own these decisions, to take full responsibility for them, to account for them, to explain them, and yes, to apologize for their scope and brutality.”
Why not hold all official actors who authorized, justified, and perpetrated torture accountable? Why President Bush alone? Sullivan believes ignoring the evidence of torture and war crimes is not an option, but neither is seeking to prosecute high officials such as President Bush or his vice president, because to do so would be even more damaging to the polity. Prosecuting lower officials would be to persist in scapegoating under a “few bad apples” theory. Thus, Sullivan arrives at a model he attributes to Ronald Reagan: “Only you can move this country forward by taking full responsibility for the past and supporting the current president in his abolition of torture and abuse.” Citing Reagan’s 1987 speech in which he took responsibility for trading arms for hostages in Iran, Sullivan continues:
Sullivan’s approach is unique. It is a direct appeal, using direct address. I have a number of questions, however. If President Bush were to take responsibility as Sullivan eloquently requests, would that really “help restore this country’s reputation.”? Is restoring our reputation the main objective? What is the objective of any call for accountability? Sullivan’s call sounds in the language of reconciliation, language he explicitly deploys in his letter. But is reconciliation the right discourse? One view regarding the relation between torture and responsibility, is that where it might seem an viable response to conditions of necessity ex ante, any official who succumbs to the temptation to torture must be held to account ex post (I discuss this more here). The process of holding officials responsible is one where other governing bodies, as well as the sovereign people, get to pass judgment on actions taken in their name. By contrast, Sullivan’s approach seems to accept at least one premise of executive unilateralism by focusing on the unilateral responsibility of the executive.“You may not have intended to torture people, but you did; you may have acted to protect the country within the law, but that admirable desire too easily slid into your approval of actions that are indefensible, illegal, and deeply damaging to America’s reputation and honor. You were let down, as Reagan was. He took responsibility. You need to as well.”
