07 Sep When Will This Administration Acknowledge the Reality of International Law?
Reading through President Bush’s speech yesterday on the commissions, war crimes, and secret detentions, it’s striking how he repeatedly emphasized legality. At several points he asserted the lawfulness of the secret detention and of interrogation techniques (at one point noting that the program “has been subject to multiple legal reviews by the Department of Justice and CIA lawyers”). He frames the military commissions issue as one requiring legal clarification. And he closed with what in any other context might be considered a throway line: “America is a nation of law.”
I’m not sure whether this is new or not. The law talk may have been ratcheted up here (as highlighted in this LA Times editorial), but the Administration has been aggressive for some time now in asserting the legality of various anti-terrorism practices (domestic wiretapping, for instance), even where it’s standing on pretty thin legal ground. The strategy almost starts to look like this: if we say something’s legal over and over again, the people will come to believe it. That may not be particularly shrewd, but it does demonstrate an understanding that the failure to provide legal justification for any controversial action is a good way to lay the groundwork for public rejection. (To take one historical example, President Nixon’s failure to supply a legal justification for the bombing of Cambodia surely contributed to widespread condemnation of the decision notwithstanding a tenable self-defense claim.)
But that’s all about domestic legality. Bush continues to refuse to bow down before the altar of international law. I count six instances in the speech of the phrase “our laws.” There is one mention of rights under the laws of war to capture and detain terrorists (consistent with the Administration’s uses of IL where it serves its interests), and then there is an allusion to treaty obligations in the context of “alternative” CIA interrogation techniques. Not exactly hammering home the point of international legality.
The irony here is that international law was the much more probable driver for shutting down the secret prisons (Bush may have left open the possibility of reviving them, but that seems highly unlikely barring some subsequent terrorist attack). The Hamdan and Hamdi cases didn’t say anything about those detentions, and it’s hard to imagine the courts would have gone there even if given the opportunity. Domestic public opinion has never seemed that agitated by the CIA detentions (or for that matter, those at Guantanamo). But international opinion has been inflamed by them. (See, for instance, this report from the Council on Foreign Relations.) And that has to be why the Administration backed down, because it’s just costing them too much on the diplomatic front, where opposition to detention practices is framed in international law terms. That might also explain the other part of yesterday’s news, as described by Marty Lederman over at Balkinization, in the new revision of the Army Field Manual.
So what will it take for the Administration to learn that a failure to conform to international norms has consequences? The proposed legislation doesn’t reflect any such awareness, insofar as it would impose a narrow and inflexible conception of Geneva Conventions protections and war crimes. That is sure to raise the hackles of the international community. The Senate seems more attuned now to the IL implications of the GWOT, so perhaps it will save us from more of the same. In the meantime, yesterday’s half-measures add another sorry chapter to a pretty depressing narrative.
It is pretty pessimistic of me, but I’m starting to believe that only clear exposition of constitutional standards are requirements are likely to have any effect, for two reasons. Firstly as the new Bill shows, international legal standards are easily avoided by Congress &President working together, given the last in time rule etc… Secondly people in America don’t seem to get as excited or upset about international law. Even lawyers quite often don’t really believe it has any ontological basis. So being in breach of international law doesn’t really mean anything to much of the domestic audience here. Whereas framing things as ‘legal’ in the American domestic sense of the word (whether you’re right or not) is much more important. Especially with elections looming.
(Apologies for any generalisations or cultural superiority!!!)
‘The strategy almost starts to look like this: if we say something’s legal over and over again, the people will come to believe it.’—You’re far too reticent here! That is the strategy. In fact, it’s rather clear when you listen to President Bush’s speeches and the various other statements that emanate from his Administration, that reliance on repetition is one of the foremost rhetorical methods employed to convice us of the truth of this or that proposition. It’s rather like the poor soul in the clutches of self-deception, struggling to convince himself that the half-truths, evasions and lies are really truth in all its glory, a conviction that will become entrenched, or so it seems, through passionate repetition in his own mind and vocalized repetition to all who’ll listen. In our case, rhetorical repetition amounts to a purposeful and skilfully pursued propaganda strategy.
I believe his decision has little to nothing to do with international law.
Ire that the countries that collaborated with the US suffered had far more to do with alleged abuse and the appearance of being the US’s lapdog than any real concern over international norms.
Ask yourselves if the reaction would have been any different had the actions in question had raised no issue with international law. There in you will find the answer as to why this is unlikely to change the administration’s mind on the issue.
I have the greatest respect for Peter Spiro’s scholarship. However, I think that he, like the vast majority of the ASIL, Washington-based, international law establishment, fail to see the stark reality of what’s really going on. What is going on, in my judgment, is that “international law” is being used by the rest of the world (including here the enemies of the United States as well as others, like the Europeans who, while no enemies, are concerned about U.S. hegemonic power) as a bulwark against U.S. power. This means that THERE IS NO SUBSTANTIVE VALUE, really, in the effort to assert “international law.” It’s the rule of law, at best, for the sake of the rule of law, and at worst, to prevent the U.S. to win a just war. And sadly, it is a pathetic attempt by us, international law professors, to convince others that international law is still relevant. But if President Bush is right (as I think he is, regardless of blunders, etc.) that we are at war with Islamofascism, then the efforts to defeat that deadly and determined enemy should play some role in judging whether “international law” is helping or hindering in a just war. For example: does “international law” allow Israel to strike at Iran’s nuclear capabilities before Iran can wipe out Israel off the map, as it has announced it intends to do? Any “international law” that answers “no” to this question is not deserving or the name “law”, and not entitled to respect. So yes, I want to vindicate international law, but I don’t want to vindicate the “international law” whose only purpose is to prevent the United States to succeed in this war against Islamofascism. Let’s make it clear once and for all: the war against Islamofascism is a war FOR human rights, not inimical to human rights. It is war against those who want to impose a pre-modern, totalitarian rule on the rest of us and destroy the hard-won achievemets of the Enlightenment. So yes, it is not PC to say it, but President Bush is right: appeasing this enemy is wrong, and using “international law” to do that is morally reprehensible.
Fernando
You assume a few things I think, viz:
(a) That this is a just war (do you mean the ‘war on terror’ in general or??)
(b) That there is something wrong with internaitonal law being a bulwark against hegemonic power (it’s what it’s for….)
(c) That there’s something wrong with ‘the rule of law for the sake of the rule of law’ (?????????)
(d) That ‘Islamofascism’ is somehow definable in operational, military and legal terms
(e) That international law is not still relevant (I don’t believe even Posner &Goldsmith would stretch that far….although they could do with a basic tutorial on european legal institutions)
I used to think that the war in Iraq was a war for Iraq. Now Iraq has disintegrated almost to the point of no return. I do hope that your ‘war for human rights’ does not lead to a parallel result
fdelondras:
I think the jury is still out on the war in Iraq. I agree with you that the right way of reading the war in Iraq is that it is a war for the Iraqis. I believe that the Iraqis who want a decent society for themselves now have a chance (maybe slim, giving the ferocity and determination of the enemy) to build that society, thanks to the United States and the UK. On the question of international law: I don’t think that the main purpose of IL is to be a bulwark against hegemonic power. On the contrary, I believe it should be a system to protect, ultimately, human freedom (see my book A Philosophy of International Law). If the hegemon is trying to vindicate human freedom (as I think the U.S is, generally, doing here) then using “international law” to stop it is objectionable. But I don’t even concede that the “international law” that critics of the U.S. (including her enemies) are using here, is, in any meaningful sense, real. I think it is largely rhetoric, just made up “law”, invented. In that respect I agree w/ some of the things that Goldsmith &Posner say. Where I part company with them is that I think there is an objective morality: the primacy of human dignity. To the extent that the U.S. is standing up against those that want to destroy human dignity (as I think Islamofascists do), and those who want to appease them, then I think all right-minded liberals should support that effort, and not hide behind an “international law” whose main purpose and effect is to protect tyrants and murderers.
OK – firstly I think that the war is Iraq is a failed war for Iraq, but leaving that aside, sure, I believe that powerful nations have a role and responsibility in trying to spread freedom in areas where it is lacking. I think that international law as constituted (though not necessarily as practised) allows for that. However I think there are some normative values (and I’m taking it from your post that you agree; I apologise for not having read your scholarship on the point as of yet) that should show us the boundaries of allowable action within such a framework. If the action, no matter how well intentioned it may be, does not respect those basic and absolute limitations (I’m thinking here primarily of jus cogens rights) then the end cannot justify the means. It simply undermines the entire project of spreading freedom to attempt to do so in a manner that is inherently disrespectful of individual freedom. [In case it’s not obvious I’m a human rights lawyer, as opposed to a general pub int lawyer].
Can I ask why you think much of the international law being used is merely rhetorical? I’m wondering whether you’re distinguishing between classical pub int and ‘new international law’ (in the sense Julian and others use the term in their scholarship). If so, do you challenge the ontological basis of that law, or?? [This is not combative, btw, merely inquisitive]
I also agree with some things Posner &Goldsmith say (although I’m dubious about manipulating a methodology like rational choice/game theory to find your preferred outcome) and depart from them in the area of morality. I believe international law does have moral force and furthermore that states should act morally not only for reasons of what is ‘right’ but also for reasons of self-interest (classically realist considerations then). In other words I believe that morality is as much an instrumental reason for action as a non-instrumental one.
But maybe we’re getting away from the point here [Apols to Peter]. Regardless…I’m interested in your response. I’m also fascinated by the term Islamofascism. I still cannot for the life of me work out what it’s supposed to mean (and I don’t address this merely to you…the ubiquity of its usage confounds me)
On ‘Islamofascism,’ see the post by Henry Farrell over at Crooked Timber (enter the word in the ‘search’ and it will appear). In the comment thread I had a few things to say as well (nos. 17, 20 and 27). Katha Pollitt has also written on this at The Nation, ‘Wrong War, Wrong Word,’ September 11, 2006 issue (posted online Aug. 24). Finally, there was a discussion at the Law & Society blog as well in response to Hanno Kaiser’s post, ‘On Instilling Fear and Selling Security: The Counterterrorist-Media-Industrial Complex,’ Aug. 19, 2006. I pasted my comments from Crooked Timber there as well as made some new observations.
Professor Teson,
You might want to read Charles Glass’ review essay in the London Review of Books, ‘Cyber-Jihad,’ Vol. 28, No. 5 (9 March 2006).
Go raibh maith agat a Phádraig!
Professor Teson,
The US can’t ‘vindicate freedom’ in the Middle East with policies and strategies that are contrary to the freedom putatively envisaged. Iraq is close to civil war, its Sunni, Shi’ite and Kurdish allegiances divided up and bound to everything but the central government and the State. We effectively created a breeding ground and training camp for disaffected Muslims to become adept in the means of violence toward the attainment of their immediate political goals and long term political ends. We re-enforced long-standing stereotypes about the US and its closest allies in the region, thereby linking imperialistic-like and hegemonic behavior with ‘democracy’ and its virtues in a manner that will hurt long-term prospects for organically grown democratic institutions in the region. You cannot force cultures and polities to realize the extent to which the political liberties indissolubly associated with democracy are in their self-interests: they have to come to this realization on their own, have some historical experience or memory that helps to awaken the individual and collective desire for same, see evidence of the concrete benefits and virtues of ‘freedom.’ These are proud and dignified cultures with histories far longer than ours: they can only resent the presumptuousness and arrogance that characterizes our policies in the Middle East. Historians and experts on the Middle East have time and again patiently detailed the many reasons our foreign policy in the region will have ‘blowback’ effects, will be unsuccessful, indeed, harm our hallowed ‘self-interest’ far more than suit it. Those who embarked on this reckless and ill-considered plan were not deeply versed in the history and cultures of the region, and made little effort, prior to this time, to work with those on the ground avocating political liberalization in the region, in fact, we gave support and succor to the regimes that actively denied or ignored such efforts. What incentives (and sanctions) were used to prompt the likes of Egypt or Saudi Arabia to begin the arduous transition to more open societies, transitions which at the same time would show an appreciation of, and respect for, Islamic religious traditions? Kuwait is making some progress in this direction, but its situation is in many respects different from those of its neighbors. (In fact, ‘one size fits all’ policies in the region are doomed to failure.) The kind of work being done, say, by Muslims and others associated with the Center for the Study of Islam and Democracy exemplify the sorts of activities that will plant the seeds of Islamic democracy in the Middle East (the prospects for which have been spelled out by Noah Feldman, among others). There’s much more I would like to say on this topic but this will have to suffice.
You must have missed my prior comments (as ‘Seamus’) in several posts that addressed the alleged intent of Iran to ‘wipe out Israel off the map.’ But again, I would argue you’re far off the mark here, most recently evidenced in the following from Professor Juan Cole:
Ahmadinejad: We are Not a Threat to Any Country, Including Israel
‘Believe it, don’t believe it, that’s up to you. But at least we should know what exactly he said, which is not something our US newspapers will tell us about Mahmoud Ahmadinejad’s speech on Saturday:
Kayhan reports that [Pers.] Ahmadinejad said, “Iran is not a threat to any country, and is not in any way a people of intimidation and aggression.” He described Iranians as people of peace and civilization. He said that Iran does not even pose a threat to Israel, and wants to deal with the problem there peacefully, through elections:
“Weapons research is in no way part of Iran’s program. Even with regard to the Zionist regime, our path to a solution is elections.”
Ahmadinejad seems to be explaining what his calls for the Zionist regime to be effaced actually mean. He says he doesn’t want violence against Israel, despite its own acts of enmity against Middle Eastern neighbors. I interpret his statement on Saturday to be an endorsement of the one-state solution, in which a government would be elected that all Palestinians and all Israelis would jointly vote for. The result would be a government about half made up of Israeli ministers and half of Palestinian ones. Whatever one wanted to call such an arrangement, it wouldn’t exactly be a “Zionist state,” which would thus have been dissolved.
The schlock Western pundits, journalists and politicians who keep maintaining that Ahmadinejad threatened “to wipe Israel off the map” when he never said those words will never, ever manage to choke out the words Ahmadinejad spoke on Saturday, much less repeat them as a tag line forever after.
Supreme Jurisprudent Khamenei’s pledge of no first strike against any country by Iran with any kind of weapon, and his condemnation of nuclear bombs as un-Islamic and impossible for Iran to possess or use, was completely ignored by the Western press and is never referred to. Indeed, after all that talk of peace and no fist strike and no nukes, Khamenei at the very end said that if Iran were attacked, it would defend itself. Karl Vicks of the Washington Post at the time ignored all the rest of the speech and made the headline, ‘Khamenei threatens reprisals against US.” In other words, on Iran, the US public is being spoonfed agitprop, not news.
Although Iran’s protestations of peaceful intentions are greeted cynically in the US and Israel, in fact Iran has not launched a war of aggression in over a century. The US and Israel have launched several during that period of time.
Ahmadinejad made the remarks in a speech inaugurating work on a heavy water nuclear reactor in Arak. I don’t think that work is very advanced. The Iranians maintain that it is for peaceful energy generation.
Much of the electricity produced in France, South Korea and Japan is generated by nuclear plants.’
The fact that Israel possesses oodles of nuclear weapons and has not signed onto the Nuclear Non-Proliferation Treaty effectively makes it a force for de-stabilization in the region, providing incentives for other states to arm themselves in this manner (I’m not at all convinced that this is an intention of the Iranian regime) by way of the logic of deterrence, etc. (Richard Falk and David Krieger have written in some depth on this).
Incidentally, and as you should know, the US has often supported ‘tyrants and murderers’ (including Sadam Hussein): ask Henry Kissinger. And this Administration has continued the practice when it’s been christened in our ‘self-interest’….
read ‘advocating’
Professor Teson,
All of President Bush’s reasons for the invasion of Iraq have systematically been exposed as empty, false, without merit: today’s Los Angeles Times has the following headline: ‘Senate: Hussein Wasn’t Allied With Al Qaeda—Iraq rebuffed Bin Laden and wanted to capture Zarqawi, the Intelligence Committee reports, contradicting Bush’s argument for invasion’
I would not be surprised if the Administration at this very moment is feverishly fashioning yet another reason to feed the public for the invasion….
Update for Professor Teson,
Please see Rosa Brooks, ‘All the wrong places’ in today’s Los Angeles Times Book Review, wherein she perceptively remarks that, ‘Despite the five years that have passed since the Sept. 11 attacks, we’re nowhere near defeating our enemies — in large part because we’ve never made the slightest effort to understand them.’ For example, ‘By refusing to consider that terrorists may have any legitimate grievances, the Bush administration has radicalized moderates throughout the Islamic world and has wasted opportunities to deprive terrorists of the community support so critical to their survival. From the war in Iraq to the abuse of detainees, U.S. anti-terror tactics have backfired, driving more and more recruits into the arms of Al Qaeda.’
This reiterates several points I made or referred to above (especially in the ‘Cyber-Jihad’ essay), but since I lack the ‘authority’ possessed by Brooks, I thought you might be more liable to persuasion hearing it from her.