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Welcome to the Blogosphere, A Guy in the World!

by Kevin Jon Heller

The blog is a one-man show, and that man is Charles Blanchard — former General Counsel of both the Air Force and the United States Army, current partner at Arnold & Porter in DC. The blog will focus on national-security law, which Chuck “define[s] pretty broadly — to include topics such as climate change and immigration as well as defense policy.” Recent posts include an excellent primer on emoluments, a discussion of the practical difficulties of stopping North Korean aggression, and a debunking of the right-wing meme that the Ninth Circuit is reversed 80% of the time.

I don’t always agree with Chuck — which is not terribly surprising — but I always find his writing intelligent and insightful. I hope his blog has a long, happy life.

You can find A Guy in the World here.

The Soft Bigotry of Low Expectations

by Kevin Jon Heller

Oh, Fox News, how I love thee:

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PS: In case you’re wondering, yes, it’s real.

Will International Law Matter to the Trump Administration?

by Julian Ku

There are lots of panels and conferences being held around the U.S. (and maybe outside the U.S.) on the new Trump Administration’s policies and their impact on international law. I would like to recommend our readers view some or all of the video from this half-day conference recently hosted in Washington D.C. by the Federalist Society and the American Branch of the International Law Association.  Entitled “International Law in the Trump Era: Expectations, Hopes, and Fears,” the conference has lots of interesting scholars and former U.S. government officials participating.  All of the panels look great, but it is hard to avoid highlighting the panel discussion below with friend of blog John Bellinger and Georgetown lawprof Rosa Brooks tackling the question everyone is asking:

Panel on Travel Ban & Immigration Orders

by Kristen Boon

Seton Hall Law School (where I am a professor) organized an excellent panel on the travel ban and immigration restrictions last Thursday, Feb 2.    For those who wish to learn more about the legal effects of the executive order, I encourage you to watch it here.

You will see presentations by Professors Lori Nessel, Ed Hartnett and Jonathan Hafetz discussing the immigration orders, their constitutionality, and possible challenges to those orders.  The panel was moderated by Professor Jenny-Brooke Condon.

This is a fast moving issue – please note this panel predated multiple developments and decisions by judges in several jurisdictions over the weekend, which considered the constitutionality of the travel ban.

To stay current, you can access all briefs and decisions at this link, which has been setup by the Civil Rights Litigation Clearinghouse at the University of Michigan Law School.

The Draft Executive Order on Detention and Interrogation

by Deborah Pearlstein

It is early days, and much we don’t know – including, indeed, whether the draft Executive Order the new Administration is contemplating (as reported by the New York Times and Washington Post) is indeed an official document of the new Administration. For the time being, let me offer a few reasons why I’m worried, and reasons why I’m not (completely) (yet).

Why Worry

As reported, the draft order calls not only for considering the resumption of a CIA detention and interrogation program (discontinued under the Obama Administration), but also for reassessing existing directives for how law enforcement agencies should proceed following the arrest of a member of Al Qaeda (or associated forces) in determining the propriety of potential military custody (here’s current guidance); and for considering whether to reanimate detention operations at Guantanamo Bay, which has not received a new detainee since 2009. The draft order would revoke Executive Orders on these topics issued by the Obama Administration when it first took office and replace them with guidance that, among other things, pointedly does not make express the requirement that anyone in U.S. custody be treated consistent with the Geneva Conventions, the Convention Against Torture, or any other relevant treaty obligation the United States has undertaken; the draft order mandates only compliance with the domestic “laws of the United States.”

These are bad – disastrously bad – ideas, for reasons I and more importantly others (including a vast and bipartisan swath of our military and intelligence communities) spent much of the past 15 years establishing in detail. (Perhaps I’ll save a reiteration of the catalog of those reasons for another post.) Of particular concern at this stage, it did not take direct orders to troops to engage in torture across U.S. detention operations. Most of the detainee torture and abuse that happened in the years after 9/11 did not involve the waterboarding of “high value” terrorists. Most of the torture and abuse involved low-level troops and U.S. agents, holding low-level (or wholly innocent) detainees. The reasons for this were several – each important – but one of them was the administration’s equivocal relationship with the international legal regime on which training had long been based. (For a summary description recalling what happened and why at the wholesale level, see, e.g., this old piece of mind that seems unfortunately relevant again.) The Bush Administration’s public and private equivocation on its attention to these rules left, at the very least, a vacuum in guidance, into which vacuum rushed a series of directives that left little doubt that interrogators’ gloves, in any theater of operations, were meant to come off. Even if this administration does nothing else at all from this day forward on detention and interrogation issues, the draft order has already done some damage. Again.

Why Not Worry (Too Much) (Yet)

On the concerning topic of CIA detention, interrogation operations more broadly, and the future of Guantanamo Bay – mostly what the order does is require reconsideration of policies in place. It does not order the re-establishment of a global detention apparatus. Yet. In a functional administration, what would follow from this order is an interagency assessment of the value, including, among others, the Department of Defense and the CIA. Here’s when we get to test whether those internal executive branch checks so many of us have written about in recent years are really capable of slowing the train. There is some reason for optimism. Among others, Secretary of Defense Mattis is on record as an opponent of torture, a view he has (reports indicate) not hesitated to express to his new boss. And while incoming CIA Director Pompeo has expressed differing views in different contexts, there is little doubt members of the intelligence community below the director level retain an acute institutional memory of the personal and professional jeopardy they endured the last time a CIA Director asked them to “get chalk on their cleats” in pushing the line between lawful interrogation and abuse. It seems hard to imagine what more the new president could do to alienate those intelligence community professionals than he has done in the months since his election. Actually re-establishing the system of CIA detention and interrogation would require not only willing cooperation but personal courage of the people the President has compared to the Nazis. Even had that “chalk on their cleats” CIA Director not changed his mind (now agreeing, along with Obama’s former CIA Director, that CIA should never undertake waterboarding again), that is asking, as it were, a lot.

All outside the executive branch, there are checks against detainee torture and abuse now that did not exist in 2001. Some of them are critically important changes in U.S. domestic law since 2001 (Steve Vladeck notes some here), including limits on the kind of interrogation techniques that can be used by any U.S. agency against any detainee in U.S. custody. It would take an act of Congress to undo these laws, and it is not at all clear (I’d say unlikely) the administration could muster 50 votes to support the repeal in the Senate (where Republican Senator (and torture survivor) John McCain stands manifestly in opposition). It is especially less likely in light of the vastly more robust – and today, profoundly energized – domestic NGO community than existed in 2001. In 2001, a tiny handful of (underfunded) domestic NGOs had programs focused specifically on the human rights or civil liberties consequences of U.S. national security policy. Today, one can name a half-dozen such programs off the top of one’s head, all of which boast solid funding and a staff of deep knowledge and experience.

And then there are the allied nations that were essential to hosting the CIA’s secret global detention system the first time around, nations who unblinkingly rushed to our aid in both sympathy and self-interest after the 9/11 attacks. The new administration enjoys no such sympathy now. Indeed, several of the foreign states who aided the CIA in its efforts have faced their own domestic consequences for their role in facilitating U.S. efforts. (Here, for example, is the European Court of Human Rights decision concluding that Poland violated its human rights obligations for hosting a CIA black site in which two CIA prisoners who were waterboarded.) It is difficult to imagine they (or others having witnessed their experience) will be eager to volunteer their services again. Of course the new administration seems keen to make new and different friends.

A student asked me today where I was on a scale of concern to panic. The answer is much closer to the former at this stage than the latter. I’m counting on the constraints we’ve spent the past decade and a half reinforcing to get to work.

RIP, Sir Nigel Rodley

by Kevin Jon Heller

It is with great sadness that I report the passing of my friend and Doughty Street colleague Sir Nigel Rodley. Cribbing from the statement issued by the International Commission of Jurists, of which Nigel was President:

Elected President of the ICJ in 2012, he was serving his third term as such. He had been first elected to the Commission in 2003 and re-elected in 2008 and 2013. He served as a member of the Executive Committee from 2004-2006.

He was also a Council member of JUSTICE, the British Section of the International Commission of Jurists.

Professor Sir Nigel Rodley was a towering figure in the area of international human rights, playing many roles as an educator, as an academic, as an activist and as an advocate.

He established and expanded the first human rights law department at Amnesty International in the 1970s and 1980s, leading the organization’s work on the development and promotion on international legal standards.

He spent eight years, from 1993 to 2001, as the United Nations’ Special Rapporteur on Torture, visiting dozens of countries and working tenaciously toward the eradication of torture worldwide.

From 2001 to 2016 he served on the UN Human Rights Committee, including a period as it Chairman, where he often served as the intellectual author of the Committee’s most prominent accomplishments.

I’m sure many Opinio Juris readers knew Nigel, someone for whom the expression “towering figure” seems specifically invented. Although our paths had crossed both virtually and physically for a number of years, I did not get to know Nigel particularly well until we went to Beijing together a couple of years ago as part of a Chatham House project entitled “China and the Future of the International Legal Order.” I was fortunate enough to spend a great deal of time with Nigel during that trip, including flying back with him. (Nigel almost missed the trip because he left his wallet in our taxi.) After that, we were fast friends.

You would be hard pressed to find a kinder, more gracious person than Nigel. He will be sorely missed — by me and by anyone else who had the pleasure of knowing him.

Requiescat in pace, Sir Nigel.

Identifying the Language of Peace: Developing the Practical and Theoretical Framework of Peace-Making

by Marc Weller, Tiina Pajuste, Mark Retter, Jake Rylatt and Andrea Varga

[Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge. He is the  Principal Investigator of the Legal Tools for Peace-Making Project, drawing on extensive experience in international high-level negotiations in Cote d’Ivoire, Egypt, Libya, the Darfur crisis, Yemen, Somalia and, most recently, Syria. Tiina Pajuste is a Lecturer in Law at Tallinn University, and former researcher on the Legal Tools for Peace-Making project. She has continued to contribute to the Legal Tools for Peace-Making project since taking up her current post. Mark Retter, Jake Rylatt and Andrea Varga are researchers working on the Legal Tools for Peace-Making project, based at the Lauterpacht Centre for International Law, University of Cambridge. The authors, in collaboration with the United Nations Department for Political Affairs and PASTPRESENTFUTURE, developed the Language of Peace research tool that forms the basis for this post.]

This post was originally published on EJIL: Talk, and is cross-posted with the kind permission of the editors.

In a year which saw an unprecedented number of people displaced by violent conflict, and peace processes suffering setback after setback, from the repeated ceasefire violations reported in Yemen to the difficult process of bridging differences in Syria, faith in peace-making appears to be at its lowest. But when faced with the devastating impact of conflicts around the world, there can be no question of the need to redouble the efforts directed at achieving negotiated peace; as illustrated by the case of Colombia, peace is attainable even in the most entrenched of conflicts. In most cases, redoubling efforts requires going back to the drawing board, reframing issues and suggesting different approaches in order to create novel solutions to seemingly intractable problems. In such cases, the ability to draw on the practice of previous agreements drafted in similar situations may prove invaluable to the process; but without a consolidated and issue-based digest of such previous practice, this means having to spend days combing through possibly hundreds of documents (often on very short notice) each time, while there is still a chance of missing at least some of the relevant results.

Furthermore, identifying the range of options utilised in previous practice is only the first step; the negotiating parties must then consider whether these approaches comply with, or appear to depart from, international law. This in itself can be a cause of great controversy within peace-making processes: for instance, is it legal for peace agreements to grant blanket amnesties, including to (suspected) war criminals? Such controversies, as well as the ever-growing attention to concepts such as lex pacificatoria and jus post bellum, highlight the need to clarify the underlying relationship between peace and international law in specific areas.

It is in response to these concerns that the Language of Peace research tool – launched at the UN Secretariat in New York on Tuesday, 6 December 2016 – was developed, allowing instant search capability across the provisions of around 1,000 peace agreements, categorized according to the issues they address, from negotiating agendas through human rights to power-sharing arrangements. This post identifies two areas in which Language of Peace seeks to contribute to the development of international peace-making.

The Research Gap in Peace-Making: The Origins of Language of Peace

Before Language of Peace, those involved in peace-making processes had no consolidated, analytical digest of peace agreement practice. Beyond valuable personal experience, mediators were almost invariably required to research settlement options afresh each time a dispute arose. Depending on the range of issues to be covered in the prospective peace agreement, from a simple ceasefire to a comprehensive peace settlement, collating and analysing the burgeoning previous practice could be extremely time-consuming. Language of Peace eliminates this repetitive and tedious research by providing a search tool through which past solutions and options adopted in the provisions of previous peace agreements can be accessed within seconds.

In order to ensure that it addresses the needs arising in the field, Language of Peace – part of the Legal Tools for Peace-Making Project at the University of Cambridge – was developed in collaboration with the UN Department of Political Affairs, incorporating feedback received over the course of several months from the Mediation Support Unit and its Standby Team of experts, as well as from the Project’s own practitioner and academic advisory boards, which includes members from the EU and the OAS.

Through this innovative tool, users can search according to 226 issues, organised under 26 main issue headings, and refine their search according to a number of filters such as signatories, region, date range and conflict type. Additionally, the tool contains a word search function which allows users to search by word or phrase as an alternative to the issue area search, or as a method of further refining existing searches. Search results can subsequently be bookmarked and exported in either PDF or DOCX format. Furthermore, in order to provide information about the broader context of provisions on a particular issue, and as part of the Cambridge-UN collaboration, Language of Peace is linked to the UN Peacemaker database, which contains full text PDF documents of the agreements.

Language of Peace also addresses the difficulties presently faced by non-state parties to peace negotiations. Specifically, it alleviates the imbalance of power inherent in negotiations between non-state actors and central governments, arising from the fact that the former lacks the extensive administrative apparatus at the disposal of the latter. The search tool provides non-state actors with ready access to past practice, enabling them to articulate their grievances in a negotiable form. Through analysis of such practice, parties can propose constructive approaches and options to find common ground on contested issues, which can assist them to move beyond deadlocks arising from emotive assertions and counter-assertions. Language of Peace can therefore help to transform or reframe negotiations by equipping all parties with an open-access tool containing decades of peace agreement practice.

Bridging Theory and Practice in International Peace-Making: The Use of Language of Peace in Academia

Language of Peace has also been developed with an eye to enhancing academic research at the intersection of law, practice and policy in international peace-making. From a legal perspective, Language of Peace presents the practice which underpins and cuts across theoretical debates on jus post bellum and lex pacficatoria, offering potential to identify where international law potentially conflicts with, and/or influences, peace-making processes. Additionally, the research tool can be viewed as an access point into a rich deposit of potential customary practice, raising questions about the international legal status of obligations contained within peace agreements. Going beyond the discipline of law, Language of Peace captures valuable source material for inter-disciplinary research comparing the approaches taken in peace agreements with their subsequent implementation.

From Language of Peace to Legal Tools for Peace-Making

Beyond its status as a standalone tool which aims to contribute to the theoretical and practical development of international peace-making, Language of Peace is part of the broader Legal Tools for Peace-Making project. The project team is also working on 26 case studies corresponding to the main issue areas identified in Language of Peace. The case studies analyse the approaches taken in previous peace processes, identifiable within source material generated by Language of Peace, against the backdrop of international law. By doing so, they aim to identify the range of options available to parties on a particular issue by reference to international legal obligations, while also considering the extent to which peace agreement practice complies with or diverges from international law. By the conclusion of the Legal Tools for Peace-Making project, the case studies will become available online, and aim to be a valuable resource for mediators and a starting point for further academic research on the influence of international law and customary practice of peace-making.

Alongside the case studies, the scope and functionalities of Language of Peace will continue to be developed and refined; we would be delighted to receive feedback at legaltoolsproject [at] lcil [dot] cam [dot] ac [dot] uk.

Welcome to the Blogosphere, The Law of Nations!

by Kevin Jon Heller

It’s a bit overdue, but I want to call readers’ attention to a new blog, The Law of Nations. Here is the blog’s self-description:

Public and private international law play an increasingly important role in the decisions of the English courts. From commercial cases to human rights claims, a huge range of public and private international law principles are now regularly applied by the English courts: from state immunity to diplomatic immunity; service out of the jurisdiction; the enforcement of arbitral awards and foreign judgments; the application of customary international law in the UK; the application of the UK’s international obligations to its conduct abroad; international sanctions; and many other aspects of international law.

The Law of Nations aims to provide timely analysis of English court decisions across the vast range of areas where international law issues arise. We aim to combine sharp analysis with lively commentary, perspectives from abroad, weekly news roundups and the occasional guest feature and interview. We welcome all comments and suggestions.

The blog’s editors are Alison Macdonald, a barrister at Matrix Chamber, and Angeline Welsh, who specialises in international arbitration and public law.

Read The Law of Nations!

Keeping up with the Iran Deal

by Deborah Pearlstein

For those interested in the policy merits of the Iran Deal, it’s important to note the letter sent today by 37 leading American scientists, including multiple Nobelists, nuclear arms designers, former White House science advisers and the chief executive of the world’s largest general society of scientists — detailing the effects of the deal to date and urging the incoming President not to “dismantle” it. Here’s the Times article with a link to the letter.

For reasons others have addressed in substantial part, it is not possible for any U.S. president to now “dismantle” the deal in its entirety, the most significant international sanctions having been lifted by a binding resolution of the UN Security Council, a resolution all other veto bearing members of the Council remain committed to supporting. The United States could of course re-impose some or all of the national sanctions it had suspended in support of the deal. But at this point it is hard to see how the sanctions of any individual state, however powerful, would succeed in persuading Iran to abandon its decades old political and military activities in the region or do more than it is already doing to roll back its enrichment efforts.

The President’s Report on the Legal and Policy Frameworks

by Deborah Pearlstein

While hardly light reading, the Obama Administration’s new (released last week) Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (the “Frameworks Report”) is, as several of our blogospheric colleagues have already noted (e.g., here) an invaluable document. The Frameworks Report breaks little or no new legal ground in illuminating the United States’ current understandings of the intersecting bodies of international humanitarian law, international human rights law, and domestic U.S. law governing U.S. military operations. But it does serve (at a minimum) three important functions as we head into new presidential administration I would be remiss in not highlighting. (more…)

UN Apologizes for Role in Cholera Outbreak

by Kristen Boon

On December 1 in a meeting in the UN’s Trusteeship Council, the UN Secretary General apologized for not doing more in the UN Haiti Cholera affair, stating “”On behalf of the United Nations, I want to say very clearly: We apologize to the Haitian people … “we simply did not do enough with regard to the cholera outbreak and its spread in Haiti. We are profoundly sorry for our role.”   It also announced details of a material assistance package that will total some $200 million, provided sums can be raised.   A media report on the speech can be found here.  The webcast is currently available here.

 

This meeting was eagerly anticipated, as the culmination of the UN’s change of direction, which it signaled in August of this year.  After announcing that that the UN would provide some compensation in October, the UN announced a two-track approach involving better water sanitation (track one) and “material assistance” (track two) to the victims.  The details of this new approach were released in a new Secretary General report.

Of particular interest is the Material Assistance Package, which is described as follows: “Track 2 is the development of a package of material assistance and support to those Haitians most directly affected by cholera, centered on the victims and their families and communities.  Affected individuals and communities will participate in the development of the package.  This will inevitably be an imperfect exercise, fraught with practical and moral hazards, and it has been complicated by the impact of Hurricane Matthew.  The package is not likely to fully satisfy all those who have been calling for such a step, nor will it happen overnight.  However, the Secretary General has concluded that it is better to take this step than not to.”

The report indicates that much work remains to be done.   First, the funds for Track II ($200 million) need to be raised, and paragraphs 60 – 64 demonstrate there is no clear timeline. Second, the reports details two different approaches to assistance: community based or individual. The report notes the logistical difficulties of proceeding down this path, although it doesn’t eliminate it. Due to the absence of data on who the victims of cholera are and were, it seems likely that a community based approach will prevail.

Reactions to the announcement have been generally positive. In a press release, Brian Concannon, one of the lawyers for the victims and Executive Director of the Institute for Justice & Democracy in Haiti, stated “This marks a remarkable shift in the UN’s response, and is a major victory in the cholera victims’ six-year long struggle for compensation, cholera treatment and elimination, and an apology. Victims have demanded justice from the streets of Port-au-Prince to the courts of New York, and finally they are being heard.”   However, many have been quick to pick up on what the UN did not say: that it was responsible for introducing cholera into Haiti.  Philip Alston, Special Rapporteur on Extreme Poverty and author of a recent and very critical report on the UN’s actions, termed this a “half-apology” in an interview with The Guardian because the Secretary General omitted to apologize for the introduction of Cholera in the first place.  He declared this a “missed opportunity.”

It is significant from another perspective as well: if the UN had acknowledged its liability and accepted responsibility for the introduction of cholera in Haiti, the material assistance could have been presented as expenses of the Organization under Art. 17 of the UN Charter, which would have given the Secretary General the opportunity to request they be added to the regular budgets (such as the peacekeeping budgets) and assessed from Member States at the normal rate.

We will be posting other reactions to the UN announcement this week:  stay tuned!

 

Torture and the U.S. Military

by Deborah Pearlstein

Cross-posted at Balkinization

There should by now be little doubt that various members of the incoming administration, including the President himself, would be willing to torture terrorist suspects should opportunity arise. On the campaign trail, Donald Trump expressed a desire to return to “waterboarding” terrorism suspects and “worse.” Mike Pence declined to rule out torture when asked about it expressly this past weekend. Nominee for CIA Director Mike Pompeo opposed President Obama’s decision in 2009 to close C.I.A. black-site prisons and also to require interrogations to comply with the rules of the Army Field Manual. Army Lt. Gen. Michael Flynn, the choice for national security adviser, is perhaps more equivocal. As a firsthand witness to the counterproductive effects of abusive interrogation, he has said that “I would not want to return to ‘enhanced techniques,’ because I helped rewrite the manual for interrogations.” On the other hand, “if the nation was in grave danger from a terrorist attack involving weapons of mass destruction, and we had certain individuals in our custody with information that might avoid it, then I would probably OK enhanced interrogation techniques within certain limits.”

Even with all best intentions, Congress and the courts are unlikely to play much role at the outset in reining in this particular kind of presidential ambition. There are clear statutory prohibitions against the use of torture as it is; and the courts are empowered to act only once an actual case or controversy is before them. It was in no small measure in the face of the same dilemma during the first George W. Bush administration that so many legal scholars turned to focus on the role of internal, intra-branch checks on executive power – the Justice Department Office of Legal Counsel, agency Inspectors General, and others. It also became apparent that the uniformed military could be included among potentially available checks on executive power.

After the attacks of 9/11, military lawyers and others in the Pentagon played a critical role resisting efforts by the Bush Administration to evade laws barring torture and cruelty to detainees in U.S. custody. Not only was such treatment illegal, they argued, authorizing techniques the troops had long been trained were prohibited was disastrous policy: it sowed confusion in the field, compromised operational effectiveness, endangered our troops, and undermined the mission they had been sent to carry out. Well beyond the Pentagon, it was a young Army specialist who helped blow the whistle on the torture that permeated the U.S.-run Abu Ghraib prison in Iraq, and a Major General whose investigation made clear to Congress how inadequate resources, training, and accountability helped allow the abuse to endure and spread. Elsewhere, military lawyers urged Congress to investigate whether war crimes trials at Guantanamo could ever actually succeed in delivering justice. And it was an Army Reserve lieutenant colonel whose declaration about his experiences at Guantanamo extraordinarily persuaded the Supreme Court to change its mind and agree to decide whether the detainees there had a constitutional right to have their cases heard. Entirely apart from the military’s duty to disobey manifestly unlawful orders, both active duty military, and retired leaders, played a pivotal role in preventing America’s torture crisis from becoming worse than it was.

Yet as laudable as this service was, and especially as the incoming administration peoples itself with retired generals galore, the idea that the military might limit the President in the pursuit of his goals should seem at some level exactly backwards. The President is, after all, the Commander in Chief of the military, a symbol of our country’s bedrock principle of civilian control. That principle was born in part from a (Revolutionary War-era) fear of military oppression in ordinary life, a fear that seems unlikely today. But it was also driven by the worry that the military – whose political popularity is unsurpassed in contemporary American life – was capable of exercising outsized influence over democratic decision-making. The image of the “man on horseback” came to symbolize the concern that a particularly successful and charismatic commander could effectively lead the public down a path contrary to its own democratic interests, undermining the ability of elected leaders to accomplish the policy goals the People wanted them to fulfill.

While the military has of course changed dramatically since the Constitution was drafted, the enduring concern that the military might unduly influence politics led to a series of regulations beginning in the early twentieth century restricting active-duty military from engaging in political activities. Congress came to prohibit officers from holding civil elective office, and to impose criminal penalties for using “contemptuous words” against the President, members of Congress, or other elected officials. Today, active duty military personnel are prohibited from participating in partisan political fundraising, rallies, or conventions; using official authority or influence to interfere with an election; or soliciting votes “for or against a partisan political party, candidate, or cause.”

Such proscriptions are sensible. But these rules, coupled with powerful career incentives, have too often been understood to limit the honest expression of professional military dissent. There was in Washington’s time, and today remains, a critical difference between a military expression of partisan alliance and one of professional judgment. And there is certainly a difference between expressions of political disagreement, and an insistence on adherence to law. The era of Abu Ghraib taught us that there is a range of ways in which the military can, consistent with their own duty to uphold the nation’s Constitution and laws, help to steady the ship of state. Of course the military is no panacea. Plenty of troops supported Donald Trump, and not all would oppose a return to torture. But it is also clear that the military is capable of performing at least a part of the same service Americans should expect of all our political institutions: as a platform from which people of good will and a commitment to law can make their voices heard. Those concerned about a return to torture should reach out. For it is as least as likely as any of our institutional checks to help constrain whatever policy adventurism is to come.