The Role of International Law in the Global War on Terror
UVA Lawyer asked four Law School professors who represent the expertise of the larger international law faculty—Rosa Brooks, David Martin, John Norton Moore, and Paul Stephan ’77—to share their perspectives in a panel discussion about the role of international law in the global war on terror. The panel met on January 4. An abridged transcript follows.
Rosa Ehrenreich Brooks
Associate Professor of Law
Warner-Booker Distinguished Professor of International Law
Class of 1963 Research Professor
Walter L. Brown Professor of Law
Director, Center for National Security Law
Director, Center for Oceans Law and Policy
B. Stephan ’77
Lewis F. Powell, Jr., Professor of Law
Hunton & Williams Research Professor
Is the United States really the sole actor in the war on terror, and is the administration creating new precedents to support that role?
David Martin: First of all, I think Prime Minister Blair would be startled to hear the United States characterized as being the sole actor in the war on terror. We have tried to bring in other states. The administration often emphasizes that a coalition is involved in Afghanistan and Iraq.
The point is a broader one. There are very contradictory themes in the United States response to September 11th and then beyond in the conflict in Iraq. A number of high-level officials came to the administration quite skeptical of international law and international institutions. That attitude comes through in some of their actions, and it has cost the United States. International law plays an important role and continues to do so, but that fact has been insufficiently appreciated by some of the key actors in the administration. The image certainly has been accepted in many parts of the world that the United States is not interested in international law and in international cooperation.
Set against that, though, are certain U.S. efforts from the very beginning to try to get international players involved. We went to the Security Council, and it adopted a number of significant resolutions immediately after the September 11th attacks. Those have been important in setting the overall framework for the world’s response to terrorism. We did the same thing with other international institutions such as NATO. The other part of the picture is that where the administration has strayed from consulting traditional international law sources, such as the Geneva Convention, it received significant pushback from some unexpected quarters, both internationally and within the U.S. government, particularly the military. Military lawyers have taken a major role in insisting that we not get too far away from the traditional understanding of international rules governing conflicts as we deal with what is admittedly a different sort of conflict.
So we have those contradictory strands, but I think in the end we will come to realize more and more the importance of international cooperation within a framework of the existing international rules as part of this effort against terrorism.
Paul Stephan: If I could just add to what Dave said, while expressing complete agreement with him, I think you have to distinguish international cooperation in general from international cooperation organized by the UN. I think we are seeing a very serious debate, the outcome of which I cannot predict, over the future role of the UN. There are views in Europe that see the UN as a European based organization largely antagonistic to the United States. I still think there is a view in the United States — although it is not the only one in the administration — that sees the UN or something like it as essential for U.S. interests in international cooperation, but that is a debate we’re going to see.
I would like to add one other point. When we talk about the development of rules and standards for the prosecution of the war against terror, we have to talk both about cooperation with other countries and cooperation within our own government. Dave alluded to this. I think one of the problems the administration has had is an unwillingness to ask Congress to commit to some of its objectives and goals, even in areas where they could probably get congressional support. For example, in authorization for the war in Afghanistan, there was fairly clear congressional support. Beyond that, Congress has been more ambiguous. I think it’s a bracing and helpful discipline, and also insurance against some of the mistakes that perhaps have been made, to bring Congress on board in these projects.
Rosa Brooks: I’ll take the “bad news” perspective. You asked originally about the rule of law, and obviously that has a lot of different dimensions. My colleagues have already talked about some of them. I’ll focus on the impact of the war on terror on the rule of law domestically, and in turn the effect that has had on the rest of the world.
It seems to me that one of the biggest casualties of the war on terror within the United States has been the rule of law, although we’re seeing, as Dave suggested, some real pushback on these issues, including from within the government itself. Here I would cite the initial claims made by the U.S. government about Guantanamo : the claim that you can hold people as unlawful combatants indefinitely, not subject to the jurisdiction of any U.S. court, and certainly not subject to the jurisdiction of any non-U.S. court. Note that this is a separate question from whether these people are unlawful combatants or POWs. Whatever their technical status is, the claim that you can keep them incommunicado, essentially forever — with no form of review by any external judicial body — is a pretty frightening claim. Likewise, if you look at Hamdi and other cases involving American citizens, the administration’s claim strikes even closer to home, and is even more chilling. There again, the claim was that the executive branch could — by fiat — say that “you, you, and you are suspected terrorists,” and therefore it can pluck people it designates as enemy combatants out of the civilian court system, take away their constitutional rights, and put them in military detention, potentially forever, without access to a lawyer and without charges.
On all of these issues, in part because of the Supreme Court’s recent decisions, the government has had to take a big step back from their initial positions. But the damaging impact of those initial U.S. government claims is still reverberating, not only throughout the U.S., but throughout the world. To me, the essence of the rule of law — what it has meant as it has evolved historically — is that executive power has to have some check on it. When the government of the world’s most powerful nation — and most powerful democracy — essentially claims that the executive branch can detain people indefinitely with no oversight whatsoever, we’re taking a pretty big step back in human history. Such claims run directly counter to the whole idea of the rule of law.
What has been the effect of this? Domestically, in some ways it may not be a bad thing, because it has sparked a real debate about why it is important to have checks and balances. I think the amount of criticism that the administration faced for some of those extreme positions has forced a really healthy debate about the challenges terrorism presents. We know terrorism is different from ordinary crime. But jettisoning our whole concept of due process and the rule of law can’t be the right way to handle this. I think Paul is right. This is an area where ultimately Congress is going to have something to say.
Internationally, this has been very bad from a human rights perspective. The U.S. is the world’s sole superpower, and other countries, whether they like us or hate us, watch what we do. They imitate what we do. They take advantage of what we do. They’re influenced by what we do. Very quickly after the Patriot Act and the detention of unlawful combatants by the U.S., we saw copycat actions from repressive regimes around the world. Repressive governments from Liberia, to many of the former Soviet republics, to Pakistan were all very quickly using U.S. anti-terrorism rhetoric as an excuse to clamp down on internal dissent of all sorts, not just terrorism. Sometimes, with what clearly were a wink and a nod, they deliberately echoed U.S. government rhetoric. In Liberia, for example, the government of former president Charles Taylor detained several journalists who had criticized him. When this was criticized by the international community, his response was that the journalists were “enemy combatants” and that he was only doing what President Bush was doing. So you can see how U.S. actions are interpreted as giving the green light for abuse. In the name of the war on terrorism, our own actions have essentially given all sorts of really nasty people permission to do some really nasty things. And this is dangerous, because we know that when repressive governments do repressive things, in the long run this is not good for eliminating terrorism.
John Norton Moore: Let’s look at a few additional specifics in which poorly thought out actions have produced substantial costs to U.S. foreign policy and in the war on terror.
The first of these is the unilateral statement by the administration that we were going to follow a new doctrine of preemption. We were presumably no longer going to follow the United Nations charter treaty obligations of the United States in relation to when you could use force. This “preemption doctrine” produced a substantial backlash around the world against the United States. It began to split the coalition that had been remarkably coherent after 9/11 in the war on terror. For example, the Europeans invoked Article 5 of the NATO Treaty on their own to assist the United States following the 9/11 attack. But once we began to depart from what was viewed as a general treaty obligation and a core principle of international law we began to split the coalition.
The preemption concept was really a terrible mistake. In the first place, we didn’t really need it. There is a rule of anticipatory defense that the United States at least has recognized for many years that certainly permitted us to respond in Afghanistan and to deal with the issues of the specific al Qaeda terrorists, so you simply didn’t need it. This was a clumsy effort at trying to add deterrence. In fact, I would argue that from a deterrence standpoint, it probably is counterproductive because now instead of saying you’re going to deter people, you frighten them into believing you might actually be planning a preemptive strike on them. If you believe that, your incentives to develop nuclear weapons, for example, go up, not down.
The second example is something my colleagues have already talked about and that is the series of mistakes in permitting torture and getting well over the line in relation to treatment of protected individuals, either POWs or civilians protected under the Geneva Convention’s core principles. The Geneva Conventions are among the most widely followed conventions in the world. Once again, this failure was in complete contradiction not only to international law but to everything those of us who’ve been teaching national security law have been emphasizing for 20 years. When democracies engage in war fighting, it is essential for the success of that effort that they comply scrupulously with fundamental human rights norms. In failing to do that here, we generated incalculable costs for the United States.
I think a third example of very poor thinking about these issues was the failure to adopt for Guantanamo detainees the standard procedures that we use for trying American armed forces under the system of Uniform Code of Military Justice. International law largely says the way to hold those trials is to use the same procedure that you have for your own military justice system. We have a superb military justice system and while we would have to make a few changes that everybody knows are special to deal with terrorists, to seek to reinvent the whole system generated an unnecessary lack of confidence in what the U.S. was doing. The administration is still trying to dig out from under that mistake.
I believe the top international lawyers in the State Department were largely ignored. Further, the top international lawyers in the Judge Advocate General Corps of the various military services were largely ignored and, as has been indicated, this is the group that is pushing back. The State Department professionals were right and our military attorneys were right. It is a pity that they were initially ignored.
Is the administration retreating from its initial view regarding the treatment of captured insurgents and foreign fighters?
JNM: You’ll find the administration beginning to retreat from all of these mistakes because the real world I think, as my colleagues have indicated, has pushed back. And those within the U.S. government who understand our real national interest in these issues have pushed back. For example, the administration is defining preemption now as simply anticipatory defense. Never mind that it didn’t really fit in Iraq, but they are saying basically what we really meant was anticipatory defense. We’ve seen a Justice Department re-do of the torture memo within the last several weeks and I think while we’re still a little more uncertain about the procedures to be used in the trials at Guantanamo, I think you see a process there of beginning to pull back as well.
DM: I think that’s the key point. The story about the rule of law in this setting is not concluded. I would agree with Rosa that there were enormous setbacks early on and some of the U.S. actions were fairly startling. It should be noted that for an administration that billed itself as compassionate conservatives, their initial reactions to the terrorist challenge were neither compassionate nor conservative. The best understanding of the evolution of international law is conservative and incremental. It builds on practice. If there’s a new development that’s not precisely covered by earlier doctrine, the usual approach is to take as much of earlier doctrine as possible and apply it by analogy.
For example, where you have enemy combatants in a different kind of conflict not involving state actors, the administration could have taken an approach that would have used as much of the Geneva Convention applicable in traditional law of war as possible, modifying it only when we absolutely have to because of the very different nature of this conflict. Instead, there was a group of fairly radical thinkers who initially seemed to have control of some of the administration’s approaches to this, and essentially said we’re going to pronounce new doctrine and we’re going to develop it from scratch. I think that’s part of what John was saying: they didn’t need to do it. That’s the irony of it, the tragedy of it. Existing doctrine could have allowed, maybe with some slight modifications, for achieving the same ends. Taking that approach would have brought so much more of the world’s community along with us from the beginning. I really think that was quite possible.
Use prisoner of war doctrine for example. That’s a regime of preventive detention. We could have said we’re applying the Geneva Conventions to terrorists whom we capture who committed what we could characterize as acts of war on September 11th, and we’re going to detain them for the balance of the hostilities. To put detention in that framework would have been much more acceptable than simply to invent a whole new doctrine of “enemy combatants” whom we would hold forever without the safeguards implicit in the Geneva Conventions. The administration’s position also precluded effective review by domestic courts. Combined with the stance taken in the torture memo, the position was so extreme that many other institutions have reacted, and the administration is scrambling back.
It’s most unfortunate because we didn’t have to go that way. The general framework of the Uniform Code of Military Justice provided ample opportunities for putting on trial those who had committed actionable crimes among those we’ve captured in Guantanamo. We didn’t have to start from scratch. The initial announcement made it seem like we would be developing a whole new set of procedures; that we’d go back to 1942 and the precedent involving Nazi saboteurs and go from there, as though nothing had happened in the intervening 60 years. That’s fully a quarter of our life as a nation — a period that has brought us lots of developments in military justice, in international treaty law governing the law of war, in domestic understandings about the rights of individuals who are detained, in international understandings of human rights. Those are really significant changes, and to think that we would ignore those and go back to 1942 and start over is really fairly striking.
But the extreme positions taken did cause a pushback. We will see it primarily from the courts, perhaps from Congress — although Congress’s relative silence on these issues is pretty striking — certainly from international bodies, our allies in the war effort, some international institutions, pushing things back in the direction that we could easily have taken from the beginning.
PS: I just wanted to maybe raise a slight dissent here. I don’t exempt from criticism some of the final decisions made and implemented, but, on the one hand, I want to distinguish those from internal debates like the so-called torture memo that was part of the internal policy process. The advice the President received was different from the position the President ultimately took in some of his directives. I also think there’s something worthwhile about bringing in outsiders who are willing to discuss new concepts and try to shake things up a bit. I’m not going to take an unreconstructed conservative view here. I think the events after 9/11 invited some rethinking of the norms and rules, although the rethinking could have proceeded in a more deliberate and thoughtful manner perhaps.
The other point I want to make, going back to the point about preemptive defense, is that I think a fair case can be made that the United Nations structure has very serious shortcomings. The United States may not have taken the best possible approach to get around those shortcomings, but I don’t think the French and Germans have entirely clean hands in this process, either. I think the process does require some sort of responsible cooperation that was lacking on both sides. The failures of the French and Germans do not excuse everything that the U.S. ultimately did, but I want to distinguish that from some of the administration’s other shortcomings that I think can clearly be criticized.
RB: Can I just jump in, and say that we need to draw a distinction between two concepts that have been muddled both in the public discourse and the government rhetoric? One concept relates to the claim that terrorism is “different” from other kinds of threats, and that combating it therefore requires new and different approaches. This claim is pretty uncontroversial. We all accept that responding effectively to a threat from globalized terrorist networks is very different from responding effectively to a military threat from a traditional state. So, yes, terrorism is clearly “different” in this sense.
But the valid claim that terrorism is “different” often morphs into a separate claim, which I think is empirically false: that terrorism is not only different from traditional threats, but much worse, somehow more evil and more dangerous than any other threat we’ve ever been faced with before. My apologies to John who has made this point himself in other settings, but this is just silly. Is al Qaeda more evil or more dangerous to the U.S. or humanity than Nazi Germany ? Sure, terrorists are very bad guys. They killed 3,000 people on 9/11, but the damage they have done so far is just miniscule compared to the damage done by Nazi Germany. It doesn’t mean we don’t take terrorists seriously, of course. Even one death caused by terrorist groups like al Qaeda is one too many. But at the same time, a lot of the public support that was generated for extremist and unnecessary tactics — like interrogation techniques that either border on or cross the line into torture, or indefinite detentions without review — get justified by lumping together the claim that terrorism is different from other threats with the claim that it is somehow worse, more evil, and more dangerous to the United States and to the world than any threat has ever been.
If you separate those two issues out again, it helps you see more clearly why there is a big difference between saying that we have to adapt some of our tactics and legal rules to the rise of non-state actors, and particularly terrorists, versus saying that extreme methods that we would previously have dismissed as inhumane, immoral, and indeed evil, are somehow justified now because this al Qaeda is “so evil” that anything goes. When we fought the Second World War, we didn’t claim then that we could torture German detainees. One could have made the same claim that the Nazis are just so bad, so evil, that torture is clearly justified to help learn Nazi war plans. It didn’t occur to us to make that claim then.
My argument here is not that individual Americans didn’t mistreat individual German prisoners in World War II. Of course, some did. That happens in war. But as a matter of top level policy, we didn’t give the green light for that. We didn’t think it was necessary. If it wasn’t necessary then, it’s really impossible to see why that would be necessary now.
JNM: Rosa is making a very important point generally about the war on terror. There’s no doubt that terrorists who have access to weapons of mass destruction can do a great deal of damage. These are, as she has indicated, very evil people, but the bottom line is that for the most part the way terrorists try to hurt you in a macro sense is through fear, is through having you change your lifestyle, to have you change your economy, to harm your economy through activities that are shifted in terms of people flying on aircraft, for example, so that trillions of dollars of damage are done to us and to the global economy. In many respects, I think the bottom line in thinking about the war on terror is that we are not talking about an invasion of the United States of America. As bad as 9/11 was in terms of the number of people killed, World War I is the equivalent of two 9/11 events every single day for 2¼-years. We’re talking about something that is a very different level of threat.
Yes, this is a threat that has to be taken very seriously, but over-reaction and seeking to change the rules in ways that have long-term harmful effects on the U.S. that shoot yourself in the foot are one of the costs that we want to avoid in a sophisticated battle against the war on terror, both in domestic law and in our compliance with international law.…
Following the 9/11 attack I believe we should have been more active in overcoming the economic drag of the attack, for example, by more actively working to remove tariff barriers and to get the price of oil down. The administration has led to some extent through bilateral trade agreements and to some extent is now beginning to move toward the next round in the GATT negotiations. But I think there are a number of things we could have done more effectively in understanding that terrorism by itself is not going to destroy the United States of America or our freedoms, but that economic damage is a key terrorist target. This is something we need to fight in a sophisticated way, but in a way that does not harm our own freedom and that tries to offset the drag on global economies that is a very serious part of waging this war.
PS: If I can add just a couple of my pet peeves to this list that John provided. First, at a somewhat unserious level, I deplore the term “homeland” as in homeland security. The whole notion of America is that we don’t have a homeland. We are a place of refuge for others and losing sight of that I think is very dangerous. To make this point a little bit more serious, although this is an area Dave knows a lot more about than I do, it seems to me that our toughening up of visa restrictions and otherwise erecting impediments to short-term visits and immigration have been very counterproductive. We see this particularly in the academic community, where it’s harder for foreign students and scholars to come here than it was. That can only antagonize people and divide the U.S. from those who have every interest to wish us well.
Do you think separating or creating a distinction about terror being this uniquely evil thing was a political imperative or was it a strategic decision?
PS: There were facts on the ground. I mean, I think it was shortsighted, but politicians by their nature have to be shortsighted. There was an attack and there were threats of even greater attacks on the country. John is absolutely right, that the indirect costs of our responses are probably far greater.…
Did the administration adequately consider past foreign interventions and contrary viewpoints?
JNM: These are good people trying to deal with serious problems. I think part of the difficulty is that we did not get our top national security lawyers involved in this and those who were involved frequently said, no, this is the wrong way to go, and they were ignored. In fact, one of the paradoxes here is that since Vietnam where we had a variety of human rights problems — My Lai for example which hurt us very seriously — the United States military has led the world in developing very sophisticated laws of war and understanding how you make your case in what you do to fight war effectively. The bottom line is we want to win the war against terror. It’s a matter of how effectively you do it and so, sadly, not to listen to those who really have the kind of background to know some of the right answers in this was a mistake.…
DM: Unfortunately, we do have a kind of structural bias toward overreacting to terrorism, over-protecting, and thereby incurring the cost that John was talking about.… The only way to avoid overdoing it and incurring the enormous but quieter kinds of costs in the process is for political leadership to say, okay, we’re going to incur a certain level of risk and we will defend those people who decided to stop short of the maximum possible conceivable levels of security.…
We’re incurring long-term costs such as deterring an awful lot of people who would otherwise come here to study and develop a better sense of what the U.S. is about, in a long-term, friendly atmosphere. We will pay, I fear, an enormous cost.
RB: Look at the mutual pillorying of George W. Bush and John Kerry during the campaign. At one point or another, each slipped and dropped away from the public line that the U.S. is going to completely eliminate the terrorist threat. Kerry said something along the lines of “we’re never going to completely eliminate terrorism, of course, but the goal would be to reduce it to a nuisance like prostitution or crime,” and the Bush campaign jumped all over him. Then Bush, in an off-script moment, made a similar remark, to the effect that we can probably never completely win the war on terrorism, and the Kerry campaign jumped all over him. The problem is that there’s a tremendous public resistance to accepting the cold, hard reality, which is that we’re not going to get rid of terrorism. Remember, “terrorism” is not an ideology; it’s a method, a technique of choice of non-state actors who don’t have big armies. It’s crazy to say we’re going to completely eradicate threats from people who are willing to attack civilians, whether through biological warfare or suicide bombs or hijacked airplanes. It’s as utopian to speak of eradicating terrorism as to speak of a world in which we have permanently eradicated all crime, or permanently eradicated all illegal drug use. Clearly the best we can hope to do is figure out what level of risk that we can tolerate as a society, and do a sort of unpleasant utilitarian balancing of cost and benefits. How much can we reduce the threat of terrorism without having the marginal costs of reducing terrorism further exceed the marginal benefits?
I am a little bit more cynical than John and Paul, though, about whether the rhetoric of terrorism as the “great evil” of human history was politically motivated. I think there was an opportunistic element for some in the U.S. administration, who had an agenda that was probably not politically feasible before 9/11, but became politically feasible thereafter. That’s not to say that anyone was happy about 9/11, or that they didn’t have all sorts of laudable goals, but I think that on the part of many hard line neo-conservatives in the administration, there was an awareness that after 9/11 they could push through various policies that they wouldn’t have been able to win with before.…
Everyone seems to agree that international law standards were violated in some degree or another during the early response of the administration. How long will our missteps remain an issue for the United States in the war on terror, and now that we’re apparently returning to more international law norms, how soon until we repair any damage to our standing?
RB: All we can do is try. It is going to take a long time to undo the damage. This is a little bit of a cliché already, but in some ways the tsunami offered an opportunity to show a different face of U.S. power, a face that is collaborative, a face that is humanitarian. I think that we have to overcome the one image of the U.S. that dominates in the minds of many foreigners: the images from Abu Ghraib. There’s nothing wrong with having one of the images of the U.S. overseas be the face of the American military power, but it certainly shouldn’t be images of American abusiveness.… It’s also important to remember that the Middle East has not cornered the market on extremist religious and political ideologies. We’ve got plenty of them right here at home. Indeed, if you were to poll people on the street in the Middle East, a lot of them would probably say that the biggest danger to world peace is the extremist ideology of many in the U.S. I think that we have to combat the widespread belief that that the U.S. itself is an increasingly extremist “hyperpower.” That doesn’t mean we should ignore our national interests. That doesn’t mean we shouldn’t stand firm, but I think it clearly does mean having a little bit more decent respect for the opinions of people in the rest of the world, and showing ourselves in a helping role, rather than just in a saber-rattling role. That’s smart power.
PS: I would just add one thing specifically about international law. I think one of the problems perhaps we have to a greater extent in international law than in other legal fields is the confusion between policy debates and legal debates. One of my goals is to see in what ways we can make international law more of a technical subject, even if that means draining some of the political excitement away from it and see what as technical experts we can bring to the debate that’s distinctive from our policy preferences, however valuable our preferences might be.
We have to think seriously about what it is that law as law does, to what extent international law is like other kinds of law, and what other kinds of law do to affect human behavior including the behavior of complex organizations, and what as lawyers we bring to international law that’s distinguished from our background in particular policy fields.
JNM: Let me, if I might also, raise the level of generalization here for a moment and just ask the question. In U.S. foreign policy generally, what is an appropriate strategy for the United States ? What are we trying to do? Let me suggest here that our generation is really blessed for a very important reason. We know, as earlier generations assumed but did not have the empirical data, that democracy and the rule of law is really a core element in seeking to achieve all of the common goals of mankind: avoiding war and famine and massive human rights abuses, achieving economic development, protecting the environment and human health; all of these things we know now that democracy and the rule of law correlate with very powerfully. So we certainly have a long-run interest, a milieu interest as some international lawyers and international relations theorists have called it, in working toward democracy and the rule of law.
I do not believe however that we want to engage in that through the use of force. That would be the wrong way to go in seeking to enhance democracy and the rule of law. We want to engage in every other way but not simply try to achieve that goal through the use of force.…
The United States is the most important player internationally. No one is even close militarily. We should be the nation that has the greatest ability to lead among the democratic nations of the world and that means we have to engage. We can have problems with the United Nations. We should understand that there are shortcomings. But we don’t solve those by pulling back and failing to engage. We have to engage. In my experience, when the United States of America engages in the United Nations and elsewhere, we have an extraordinary ability on most issues to influence. I think there is out there, not in the administration particularly on this, but out in the country, a little bit of an isolationist movement today. I think that is very harmful at a time when we need to be engaging and providing greater American leadership. Some of this takes place under a movement fearing that we are in danger of losing our sovereignty. All of us would agree that we should maintain the democratic freedoms that we have in America and maintain our sovereignty in every way possible.
If, however, we are talking about it simply being inappropriate to engage in international agreements that serve the national security interests of the United States, that’s just fundamentally wrong. For example, the Law of the Sea Treaty was attacked by certain groups as interfering with U.S. sovereign rights. This approach treats the U.S. as though we were incompetent, that we have no ability to enter into an agreement. That is profoundly mistaken, but there was enough political power to actually prevent a vote on the Law of the Sea Treaty before the U.S. Senate in the last few months before the election. This was an extraordinary setting in which virtually every American group, all of industry, all environmental groups, the U.S. military, the Joint Chiefs, had been pushing for this for years. No real downside was present on almost any interest in the country that I can find and yet a small group argued that somehow this treaty undercut U.S. sovereignty and they actually had enough political power to stop it from going to a vote. This contemporary isolationism movement just seems not to be interested in whether it’s a good agreement or a bad agreement.
DM: I would follow up on that and come back to your earlier question about what can be done to restore some of the needed strength of international law in the realms in which it can really work. One might be an initiative like the Law of the Sea Treaty where the administration would spend a lot of political capital to show the world community that we will stare down the isolationists and join in treaty regimes. We can be selective about it, but we should not be opposed to treaty relations. In the war on terror, there are some specific steps that we could take that would symbolize a stronger move in that direction. I don’t really predict that we’re going to do these things, but we could.
One step would be to change the so-called practice of ghost detainees, those people detained by our military but who are not recorded in the normal way and don’t come under the normal review of the International Committee of the Red Cross. We could issue a clear directive forbidding this practice, expressly requiring that all prisoners be available for the normal kinds of protective actions — and they’re fairly modest — that the International Committee of the Red Cross takes. The executive branch could say in response to some of the recent setbacks they’ve had in litigation having to do with military tribunals, that we’ve reassessed our tribunal policy. We will go forward using Geneva Convention standards, with perhaps one or two deviations for which there’s very good argument. Just the atmospherics of that announcement would be very important, and the actual results wouldn’t be that different from what we’ve in fact been doing.
And finally, with regard to Abu Ghraib and similar revelations of abusive interrogation tactics, we could adopt a whole new code of conduct for interrogations, one that visibly starts from Geneva Convention standards for human rights. Again, we could perhaps argue for a few necessary deviations, but within the context of general compliance. It would gain us a lot in the international community as a policy matter and also it would really help spur the development of a sound body of international legal doctrine for this new kind of struggle.
RB: Let me make a point that’s not strictly legal but more a moral point. I think that what we have all been saying is that one of the biggest dangers in the world is, and always has been, absolutist thinking of various kinds. Whether it is radical Islamic extremism leading to terrorism, or whether it is simply lumping together into one giant simplistic category of “evil” a lot of different actors with a lot of different sets of motivations and tactics, we need to resist the tendency to think in absolutes.
I come to this set of issues from a background in human rights, and have spent a lot of time studying the question of how it is that really bad things happen, and how you square two facts that seem to me both self evident: one is that most people in the world are pretty nice, and just want to have enough to eat, get their kids an education, stay alive, be healthy, be happy. That’s one fact. And I think it’s important not to forget this. Arabs, Americans, it doesn’t matter; most humans want the same things and have no desire to be cruel to others. But how do you square that with the fact that humans commit genocide? Humans torture each other. Humans do terrible things and no one nation or ethnic group has a clean record here. When you think about Nazi Germany, Rwanda, Bosnia, the big puzzle is always this: how does it come about that ordinary people — who are just like us in every important respect, in their aspirations and their emotions and their psychological make-up — end up being people who, at best, stand by while others are slaughtered, and at worst, actively participate in the slaughter? How does that process occur? It seems to me that the category of “extreme evil” does not have a lot of analytic use. When you study these issues a lot, what you end up concluding is that there is no permanent end-state of innocence or goodness or respect for human rights and the rule of law. There is never a moment when any society can just sit back and say, “hey, we’re a group of nice people, those bad things that happen in other places would not happen here!” Because over and over, it turns out that they can happen anywhere, and they can happen pretty quickly. You can see patterns that recur in different societies as they slide into human rights abuses on a really massive scale. I think one of the biggest dangers for the United States is believing that we are somehow exempt from these forces, that because we are good, decent people, because we believe in human rights and the rule of law, therefore we can do things that we would condemn in other people — because somehow we’re so fundamentally good that we won’t actually step over the brink. That is our own absolutist risk, and it’s terribly dangerous.
To make a slightly goofy analogy, it seems to me that it’s a little bit like an alcoholic who goes through Alcoholics Anonymous and stops drinking for a while, then thinks, “Well, hey, I’m not an alcoholic anymore; I’ll just go out now and have a few drinks. That will be okay. I can stop after a few.” But you just can’t do that. Otherwise, you’ll slide down pretty quickly. I think the same is true for a society that wishes to see itself as respecting human rights and the rule of law. You can never afford to say, “Well, just this once we’ll torture people, just a little bit, very carefully, and it won’t really fundamentally hurt us or hurt our culture.” It can get out of control very quickly.
On a moral — and certainly on a legal level, one can certainly make a distinction between final government actions and internal memoranda and debates, But from the perspective of remaining vigilant that we don’t cease to be the kind of society we want to be, we have to be hyper-attuned to these things. It’s the little tiny things that matter. You can take a series of little tiny steps, and suddenly you’re much further down the road than you ever expected to be. And the biggest risk factor for having that happen is the absolutist belief in your own exemption from those impulses.
Editor’s Note: UVA Lawyer asked this follow-up question after the January 30 election in Iraq :
Now that Iraq has conducted a successful national election, what role does international law play in protecting the sovereign efforts at self-determination by the Iraqi people?
JNM: The election in Iraq demonstrates the strong support for democracy among the people of Iraq. And it is a repudiation of the extremists who seek to block democracy and development. Hopefully the election represents a turning point in the war in Iraq. The twin challenges of the road ahead are to grow Iraqi security forces more rapidly than the insurgents, and for the longer term to ensure that full constitutional democracy, not just an electoral democracy, takes root in Iraq.
Founded by Thomas Jefferson, a pronounced internationalist in his writings and government service, the Law School has long emphasized the importance of international law in its curriculum. That emphasis accelerated in the 1960s under the deanship of Hardy Cross Dillard who later joined the International Court of Justice and left behind the seeds of a curriculum that now includes vibrant programs in immigration, human rights, environmental, comparative constitutional law, as well as private and commercial law in the global arena. These programs offer a wide variety of course offerings, ranging from basic courses in public international law and international business and trade, to advanced courses in human rights, foreign relations law, oceans law, national security law, and international criminal law; and clinics in Refugee Law and International Human Rights Law. Numerous student-run organizations provide opportunities for hands-on experience. For a complete description of the Law School’s International Law Program, please go to www.law.virginia.edu/international.