Wednesday, December 31, 2008

"Lawfare" and Bush Administration War Crimes Trials

In my essay, "Enhanced Interrogation's in the Charts Again," I suggested that the radical left will "ratchet-up its push for war crimes prosecutions in the weeks ahead."

The funny thing about it, though, is that even the most die-hard foes of the administration's war on terror admit that
criminal prosecutions of Bush administation officials are a pipe dream. The most recent essay conceding the point is David Cole's new piece at the New York Review, "What to Do About the Torturers?" Cole reviews Philippe Sands', Torture Team: Rumsfeld's Memo and the Betrayal of American Values, praisng the book as "the most unusual and deeply revealing take on the subject."

What makes Sands special? It turns out that Sands, a British attorney, professor of law, and long-time anti-American antagonist, is apparently one of the best able to make the case for the primacy of international human rights over state power and sovereignty. For all that, and despite the "deeply revealing take" on the Bush administration's alleged criminalilty, Cole at most is left with recommendations for "an independent, bipartisan, blue-ribbon commission to investigate" to "assess responsibility for the United States' adoption of coercive interrogation policies."

I have a sneaking suspicion that that's not going to be enough for the left's America-bashers
who want President Bush executed at the Hague.

Well, there's more on all of this in the news today, with the Wall Street Journal's report, "Gonzales Defends Role in Antiterror Policies." Of course, all the lefty bloggers at
Memeorandum are up in arms about it, for example, Think Progress, TPMMuckraker, Spencer Ackerman, Talking Points Memo, Raw Story, Law Blog, Paul Krugman, Steve Benen, and Lawyers, Guns and Money.

Alberto Gonzales is the left's prime candidate for "torture trials," right up there with the president, Vice-President Dick Cheny, and former Justice Department attorney John Yoo, to name just a few. But trials aren't going to happen. Leftists are simply foaming at the mouth, and they'll be in another uproar when the Barack Obama administration turns the page on the whole affair sometime next year.
Robert Stacy McCain summed things up on this recently:

Frankly, I don't even give a damn. If I turned on the TV sometime next year to see Paul Wolfowitz in the dock at the Hague, I'd shrug in mute acceptance, and if I blogged about it, would do so in an insouciant way.
Still, even if the political pressure in the U.S. for war crimes prosecutions trails off, the global human rights (and anti-American) constituency won't let such things go. Since the 1990s, when the increased globalization of legal rules resulted in the establishment of the International Criminal Court, Augusto Pinochet's arrest, trial, and attempted extradition in 1998, calls for war crimes prosecutions against Henry Kissinger, and other efforts to bring "tyrants to justice," global left activism has pushed relentlessly for universal jurisdiction, and the push for torture trials against the "evil BushCo regime" will linger interminably at the fringes of global left activism.

So let me leave readers with a nice response to all of this from Michael Chertoff, the administration's Secretary of Homeland Security, in his essay at Foreign Affairs, "
The Responsibility to Contain: Protecting Sovereignty Under International Law."

Chertoff makes a powerful case for the expansion of international law and justice grounded in a legal doctrine of "a consent-based model of national sovereignty." That is, justice in international law will become increasing irrelevant in a world of great-power sovereign states unless international legal regimes become embedded in robust norms of national consent. Chertoff suggests that the global left's "lawfare" against the United States is in fact the biggest impediment to the longstanding global legal order arising out of the ashes of the World War II. In the face of constant attacks on American policy and sovereignty, the U.S. has been increasingly encouraged to reject wholesale the entire appartus of international law. Such an outcome, of course, would deprive the world of the first-mover hegemon that's been at the center of mulitlateral institution-building and the cooperative regimes underwriting world order.

Chertoff's discussion of the left's push for universal jurisdiction is particularly good, and worth quoting at length:

The typical strategy of international legal activists today is to challenge the idea of national sovereignty. This is a revolutionary tactic, particularly because sovereignty has played an important role in the development of the international system for over three centuries. Under the Westphalian model of sovereignty - which dates back to 1648 - an independent state is not subject to external control over its internal affairs without its consent ....

Imposing international legal mandates on a nation without its consent undermines this traditional concept of sovereignty and conflicts with the democratic will. For this reason, international law has often been based on the consent of nations by way of treaties, in which nations voluntarily agree to abide by certain rules, or through customary international law, which infers tacit consent through widespread state practice. To be sure, not all sources of international law are explicitly based on sovereign consent. So-called peremptory norms, or jus cogens norms, are rules -- such as those forbidding slavery or genocide - considered to be so deeply embedded in international law that they bind all nations, even absent national consent.

An international legal framework founded on a consent-based model of sovereignty is advantageous for several reasons. By requiring the explicit or implicit consent of nations before a particular international standard binds them, this approach gains the legitimacy that democratic legal traditions and processes provide. Consent-based international law also allows states to protect their own critical interests by bargaining for or withholding consent from certain provisions of a treaty. Finally, grounding international law in consent acknowledges national differences in culture and legal philosophy by ensuring that international rules fit within an international consensus - one shared by real governments, not merely endorsed by intellectual elites.

Academics, lawyers, and judges who challenge the continued relevance of consent in international law often treat "sovereignty" as a pejorative term or an antiquated concept. Many of these critics depart from the traditional view of international law as consisting primarily of reciprocal obligations among nations. For example, some have argued in particular cases that international agreements automatically confer legal rights on individuals that may be enforced directly without state support or even against the laws of the individuals' own countries. And some further argue that international law is not limited to what is agreed on by nations in treaties or accepted through widespread practice; they claim it also encompasses a set of standards based on highly general and "evolving" universal principles.

For example, the international legal scholar Philippe Sands argues that "to claim that states are as sovereign today as they were fifty years ago is to ignore reality." Sands describes international law as a set of obligations that "take on a logic and a life of their own" and that "do not stay within the neat boundaries that states thought they were creating when they were negotiated." The late Harvard Law School professor Louis Sohn went even further in unmooring international law from consent, positing, "States really never make international law on the subject of human rights. It is made by the people that care; the professors, the writers of textbooks and casebooks, and the authors of articles in leading international law journals." Even the conservative commentator Robert Kagan has called on U.S. policymakers to "welcome a world of pooled and diminished national sovereignty," arguing that the United States "has little to fear and much to gain in a world of expanding laws and norms based on liberal ideals and designed to protect them."

Of course, not all who seek to diminish the role of sovereignty in the development of international law are so explicit. International legal jurists and scholars often purport to recognize sovereign consent as the foundation of international obligations but then proceed to "identify" and apply norms or principles of customary international law that are not evidenced by actual state practice. For example, a court may proclaim that there is a rule that prohibits particular government actions without considering whether most nations indeed adhere to that rule. Alarmingly, some jurists rely for support on academics and commentators who do not merely catalog international law but rather seek to influence its development according to their own policy preferences. It makes no practical difference that these jurists may pay lip service to the importance of sovereignty; the effect of their efforts is to undermine nations' prerogative to choose their own laws.

Whether invoked explicitly or implicitly, the most common justifications for rejecting sovereign consent as the foundation of international law are flawed. One argument is that the growing global activity among nations creates the need for more comprehensive systems of international law to govern global conduct. This need, however, does not justify eliminating sovereign consent as the basis for imposing international obligations. Indeed, requiring the consent of nations has not prevented the international community from addressing a host of substantive issues, ranging from trade to arms control to endangered species protection. Moreover, individuals still principally identify themselves as part of a particular national community and resist decisions imposed on them by foreign actors and institutions without their consent. A visible case in point was the rejection of the European Constitution by voters in France and the Netherlands in 2005 and the more recent rejection of the Lisbon Treaty by voters in Ireland in 2008.

Another objection to sovereign consent holds that all humans possess certain fundamental rights that cannot be denied, even by the consent of the majority. But the recognition of fundamental human rights raises the harder and more particular question of how those rights should be defined and applied, and by whom. Bodies such as the United Nations include member states that often do not share a common position and whose values often clash with those of the United States and other democratic states. For example, the UN Human Rights Council has passed resolutions urging states to adopt laws combating the "defamation of religions," which would prohibit the type of open discussion about religious and political matters that is protected under the First Amendment to the U.S. Constitution. The UN has also held a conference to examine gun-control provisions, ones that would be at odds with the Second Amendment. And the UN recently passed a resolution calling for a moratorium on capital punishment with "a view to abolishing the death penalty," even though the U.S. Supreme Court has repeatedly upheld it. Ironically, many of the states supporting such initiatives have a poor record when it comes to respecting the rights of their own citizens.

In short, absent an express treaty or convention, giving international bodies the power to decide what are new and expanded fundamental rights would allow countries to advance nationalist or bloc political agendas under the guise of human rights. It would also empower an often self-perpetuating international legal establishment - courts, advocates, academics, and activists - to "discover" international human rights by relying selectively on transnational agreements that may express only regional consensus or by drawing on philosophical or academic texts that reflect particular intellectual fashions. Such amorphous sources provide questionable grounds for mandatory international obligations.
The remainder of the article sets forth a model of consent-based international law. Chertoff focuses on three core principles of a regime of "reciprocal responsiblity" in international law and protection against emergent threats: nonsubordination of actor's sovereign rights, collaborative security in generally non-controversial international regimes (e.g., global trade and finance), and reciprocal sovereignty.

It's a great piece of policy writing, grounded in realism and respect for the sovereign rights of peoples in democratically-legitimated contitutional regimes, much unlike that wild unhinged rants of the "lawfare" advocates of the global left.

21 comments:

Ema Nymton said...

.

You seem to be gloating that USA government officials can knowing break the law and avoid accountability. At what point does one become above the law?

Is USA a land of laws? Does the law apply to all?

Is torture a crime?

.

Philippe Ohlund said...

Great post, Donald! :-)

I think it is wrong to accuse the American leadership for war crimes.

The U.S. is the greatest democracy on Earth.

Of course no government, or for example company, on our Planet is perfect, but democracy must always be defended.

As you certainly have figured out, I am against both the death penalty and torture, but I of course understand the fact, that the U.S. presently is engaged in wars, both here and there around the world, which puts ts population in harms way...

By all your posts during 2008, you have greatly contributed to my knowledge and understanding, and especially of U.S. politics and during the Presidential election.

I am very grateful for that.

Your blog is outstanding, Donald, and I will keep reading you every day, I promise! :-)

Donald Douglas said...

Ema: No, I'm not gloating. There is a body of law, international and domestic, that applies. The left wants international organizations and norms to override the legal systems of nations. Please address the argument. I'll respond to any substantive points you make.

King Politics said...

Politically speaking it would be better for the left to let go of any thoughts of prosecuting Bushies for Human Rights violations. The left would eviscerate their political capital and it would end in a boondoggle.

Happy New Year!

Ema Nymton said...

.

"... There is a body of law, international and domestic, that applies. ..."

You seem to be trying to make this a left/right distraction. Does political science issues override the enforcement of laws? What has happened to the rule of law?

Which laws of USA do top USA government officials have to follow?

At what point do USA government officials become above the law?

Is torture a crime?

Why do you see this as a 'leftist' issue?

.

TRUTH 101 said...

Professor: your post was another mind numbingly long ramble of which the only thing coherent was when you wrote "Frankly, I don't even give a damn." I admire loyalty Professor but every now and then it's OK to disagree with your sides establishment views. Just as I support the rights of law abiding citizens to own firearms, you my friend can tell your Neocon companions you don't give a damn if President Bush is prosecuted for war crimes without the War and Peace like apology.

We're Americans Donald. Individuality is a good thing.

dave in boca said...

Which laws of USA do top USA government officials have to follow?

How about starting with our immigration laws?

Donald, I've been watching the American left trying to put the US under UN and other jurisdictions since back in the seventies, when I worked in the UNP Office in the International Organizations Bureau in the DoState. Among the canards being touted back then was control of our national press by UNESCO, believe it or not!

Lots of numbnuts will always be preaching Categorical Imperatives, but let's let each country decide for itself at the end of the day.

And if Hamas decides to allow rocketing Israel from its territory, it can live with the consequences. Ditto for what the numbnuts call "torture," which in the Islamic world is ten times worse than anything inflicted on terrorists in U.S. interrogations.

Having lived and worked in France and the U.K., I can affirm that it's better to be interrogated in the US than those two bastions of Kantian flimflammery. And having lived in three Arab countries, there's no comparison......!

Donald Douglas said...

Ema: Because the "left" is that group of actors pushing it, and they're the one's pushing for prosecutions. The administration's been taken to the Supreme Court numerous times, and legally the adminstration's positions and interpretations have prevailed as a matter of law. It is not factually accurate to say the administration's above the law. We are nation of laws, and nothing in the past eight years in my sense disproves it. The Democrats have been in power for two years in Congress. They already released reports. There have been about 10 "nonpartisan" investigations, and a number of actual perpetrators of inhumane acts have been convicted and sent to jail.

What more in your sense is required for the U.S. to be seen as a "nation of laws"?

Donald Douglas said...

Truth101: You should probably stop reading here if you think my posts are "too long." That's how I write.

"I don't give a damn" is a pithy quote. If you're unable to unpack the argument, you're really over your head at American Power.

Donald Douglas said...

I believe, Dave!

TRUTH 101 said...

Your hypocrisy amuses me professor. President Bush "doesn't do nuance" and you praise him up one side and down the other. Then you dare use an elitist word like "pithy" to attack my critique of your post. I'm sorry that you are frustrated that one who hasn't completed the level of education you have can condense your manifestos to one or two sentences Professor. Would it make you happy if I typed 20 or 30 paragraghs saying you don't give a damn and you agree with Nixon. If the President does it, that makes it legal.

Donald Douglas said...

Truth101: You're really just insulting me rather than addressing the substantive issues at the post. There are complicated issues here. Read some of the articles and come back and comment if you're able.

Grace Explosion said...

I think Ahmadinejab, Putin, China, North Korea, Cuba, the African nations where so many abuses occur regularly, etc., etc. and all the other socialist and Islamic countries - and all their terrorists, administrations, leaders, rebel forces, etc., etc. - well, all these people really must be dealt with first and then maybe we can focus our attention on the US. The US is the best nation in all the world in protection, defense, and advancement of human rights as I see it.

I'm 100% against torture. But how is it the Bush administration is being "called to justice" for what are really "small potatoes" compared to what REGULARLY goes on in the world in other nations... and I don't see any other world leaders, terrorists, communists, and all these who perpetuate incredible human rights abuses regularly being tried or convicted. Seems like it's all political to me.

The US will take care of it's own issues. Let me see the UN create world peace and justice around the world that equals what we have here in America - and then maybe they'd have a shred of moral authority. Right now, they have no moral authority... no authority at all. We are a sovereign nation and the best nation on earth, imo, in regards to lawfulness of human rights.

Grace.

Donald Douglas said...

Grace: I think you're starting to see some of the issues involved in the "torture trials" controversy. Folks who say "we don't torture" are the same one holding up "BusHitler" signs, IMHO!

The legality of the issues is complicated as noted. But you can see that war crimes tribunals are politically motivated attacks on this administration.

cracker said...

No Doctor... and Grace, I disagree

"small potatos" will become "big effin potatos" if not immediatly nipped in the bud.

This issue of "torture" the issue of vigilanti-ism or "pre-emptive strikes" must be put to rest.

(there's a great film called "The Ox-bow Incident" that clearly explains why vigilantism is not part of the American code....and why the results we have now from the Iraq invasion.....are just as speculative and disrespected.)


Why? ....if its not reviewed investigated and dealt with?... it becomes a cancer in the body of this land, a Big effin potato."

Dont let your loyalty to a person or party override your common sense.

Not all Admins are gonna be stellar, in fact some are gonna out right " and with the best intentions" jeopardize the larger American Destiny. We may have already had our 666 beast, as Gracy puts it.

It is the precedent that becomes the reality. We as a nation NEED precedents for what to do with bad behavior at these high levels.

So Bush is a casualty of his own war. Welcome to Reality.

If this example sets a precedent for future Admins in "what not to do" then welcome to a working Republic, with democratically elected officials, held accountable by law.....

This admin is and will be one of many to lead this great nation, they (Bush and Co.) have no "Special VIP PASS" just cause the goin got tough, and now he wants to retire on the ranch. No, be a man, say "I broke the law cause I thought it was the best decision at the time......and let a jury/panel decide. If you blew it, pay the price....at least your not a punk hiding behind your circumstances.

Youre fools to think that sooner or later we were'nt going to get a defect.....and in many middle American eyes.....we got a problem with the last eight years.

I am a Republican (voted that way since 1980) telling you, we got a bill a goods.

Dr. I enjoy your blog, and I read as many blogs from all sides of the coin to stay reasonably well informed.

The Neo-con movement(far right) is just as unrealistic a movement as any far left agenda in the mainstream. This is why both most be monitored at all times, and never allowed by a crisis, to seize control.

It is in the centers best interest,the Nations best interest to continue to demand accountability, legally; from the left (neo -liberals) AND the right (neo-conservatives). To set precedents so that we can begin to work among it.

It is the legal precedent that must be addressed, it was avoided with Nixon and botched with Clinton, if GW is the example that keeps this country on the up and up...so be it.

My curiosity is, has the lack of political and judicial will to take an admin to task also been corrupted.

A soldier promises ultimatley to "Protect and Defend the constitution of the United States from enemies both foreign AND DOMESTIC...in other words , we take our orders from the C in C....unless He or
She Breaks the Law,

This issue must be addressed.

TRUTH 101 said...

To further simplfy your 3:51 comment for your followers Professor; When I agree with the Professor about Israel defending herself I'm welcome here. When I take issue with the Professor he wants me to go away.
And just so you know Don: should Congress foolishly decide to allow anyone from the Bush Administration to be prosecuted for torture or war crimes, they need to also turn themselves over for sitting idly by while the Administration was allegedly doing the bad deeds.

Donald Douglas said...

Cracker: Well, I respect your opinion having served, but from a legal perspective, we need to maintain coercive methods. More later on that.

cracker said...

"Coercive methods" you sayyyy

i look forward to it Dr. : )

Right now, my beautiful wife has her arms crossed and is tapping her foot.

Gota go fella's

Take care be safe, see ya next year!

Anonymous said...

Ditto for what the numbnuts call "torture," which in the Islamic world is ten times worse than anything inflicted on terrorists in U.S. interrogations.


I guess that's why al-Libi was flown to Egypt to be tortured into giving false testimony in support of the Iraq war. And Arar was renditioned to Syria for torture for no reason whatsoever.

Is it forgivable when there's a degree of separation? We didn't accept that defense from the Germans and Japanese.

Ema Nymton said...

.

The calls for war crimes investigations and prosecutions (when needed) are attempts to get the rule of law back into USA government. It is not a left/right issue (and you know it).

Remember, every power and 'surrendered right' you have given to the current president will pass onto the next president on 20 January 2009. Your defending this administration's use of torture, warrant-less 'wire-tapping' of USA citizens, and 'disappearing' of unarmed citizens of USA in USA (among others) in the past will make it impossible for you and the rest of the Neo-cons from complaining of the loss of rights and freedoms in the future.

"...The legality of the issues is complicated as noted. ..."

No it is not. To try to use the argument, "following the law is too complicated" is pure banana oil. The top government leaders of this administration have 'gamed the system' and are banking on this canard to avoid accountability. And you and your Neo-con cohorts are enabling them.

"...But you can see that war crimes tribunals are politically motivated attacks on this administration. ..."

No it is not. You are trying to use "politically motivated attacks on this administration" to make excuses for not following the law and as cover for your failure to stand up for the rule of law.

Those who govern use the first principle of, "It is the law, follow it. Those who rule try to use as its first principle, "It is the law, how to get around it."

Regardless, you are blowing blue smoke in hope to distract from the truth and to help assuage your own culpability.

.

courtneyme109 said...

The recent ABC IView with the refreshingly unrepentant VP shared a bit of humint.

"I think, for example, Khalid Sheikh Mohammed, who was the number three man in al Qaeda, the man who planned the attacks of 9/11, provided us with a wealth of information. There was a period of time there, three or four years ago, when about half of everything we knew about al Qaeda came from that one source."

Whoa! So as recent as 2004 and 2005 nearly 50% of known knowns about AQ came from a single source.

This is significant.

"It means that three to four years after 9/11, everything else the
U.S. Government did to learn about al Qaeda equaled, in terms of overall value, the intelligence collected from the interrogations of a single terrorist.
This means that all of the other techniques and intelligence programs
put in place to understand al Qaeda have been, comparatively speaking, less effective (in terms of a basic cost-benefit analysis).
While these other programs certainly led to some successes, they
clearly did not produce a relatively large amount of actionable intelligence if KSM’s interrogation alone produced half of what they knew."

Ex CIA cat Geo Tenet's "At the Center of the Storm" reveals that after one especial session with the Korean war era Chinese refined water torture, quizzing KSM ignited a chain of events that gave AQ's planners and operatives a nasty surprise that pre empted and prevented the 2nd wave of attacks.

Obviously, AQ has more gossip and secrets stashed than KSM knew, knows, could or can guess at. Kinda makes you wonder what all Great Satan didn't know then or doesn't know now.

A few future quizes remain - after charges of torture and rendering hapless murderous jerks, creep and retards uncomfortable, how should Great Satan conduct leisured, thorough investigations and interrogations?

How and what techniques will be used? Will any procedures be as effective or as controversial in the future as certain ones are now?

And what about such magical humint enhancing locales like Gitmo?
VP Cheney admits that is a great question.

"One suggestion is, well, we bring them to the United States. Well, I
don't know very many congressmen, for example, who are eager to have 200 al Qaeda terrorists deposited in their district."