| LAWLESS WORLD America and the Making and Breaking of Global Rules from FDR's Atlantic Charter to George W. Bush's Illegal War Philippe Sands New York: Viking Books, October 2005 |
Rating: 5.0 High |
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| ISBN-13 978-0-670-03452-9 | ||||
| ISBN-10 0-670-03452-5 | 324pp. | HC | $25.95 | |
These three excerpts from Lawless World will highlight the change in America's attitude toward international agreements that began in the middle 1990s and reached what I hope is its peak during the first administration of George W. Bush.
The first excerpt hints at the half-century of steady progress in establishing such guarantees. (Sands explains this history more fully in his first chapter.)
Until 1945 there were no general rules of international law which limited a state's treatment of its own citizens and others within its jurisdiction. There were a small number of treaties protecting the rights of some minorities against some discriminatory acts, for example in relation to jobs and languages. And there were some workplace treaties governing working conditions for children and pregnant women. But torture and discrimination, arbitrary detention, mass murder, even genocide, were not outlawed by treaty or prohibited by other clear rules of international law before 1945. The Second World War changed all that. Led by the United States and Britain, the Allies took radical steps to replace the legal vacuum with a rules-based system of minimum human rights which were to apply universally. With the Atlantic Charter, Roosevelt and Churchill committed the Allies to the principle that "men in all lands may live out their lives in freedom from fear and want." The United Nations Charter of June 1945 transformed that principle into an affirmation of "faith in fundamental human rights." The charter identified one of the United Nations' basic purposes as the promotion of "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." With these simple words the door was opened to a new global legal order, one which would eventually lead to the Pinochet judgement in the House of Lords. For the first time states accepted that they had no unfettered right to act, that they were constrained in the treatment of all people within their territories or within their control. The UN Charter catalyzed a hugely ambitious project. Over the next five decades minimum international standards would be put in place which were applicable to all persons, rather than states, across the entire globe. – Page 151 |
The advent of the Bush administration in 2001, with its coterie of neoconservatives in high positions at the Departments of Justice and Defense, marked an incipient reversal of that trend. The trauma of the 9/11/2001 terrorist attacks on American soil brought about a greater determination to cast aside any impediments to bringing the perpetrators to justice and preventing further attacks — inconvenient treaties being among the inconveniences. Yet, as Sands notes here, and as others have convincingly documented, both the elements of that plan and the people willing to carry it out were in place before 9/11. The record clearly shows that this was a conscious effort to abrogate any agreements thought to strait-jacket the administration's efforts, not only in homeland security but in economic matters like reducing CO2 emissions. (Indeed, economic pacts like NAFTA are the only ones the Bush administration consistently honored.)
We now know that the administration took a conscious decision to use the "war on terrorism" as a further means to propel its assault on global rules. The U.S. deputy assistant attorney general, John Yoo, could not have been clearer when, in May 2002, he said of the treatment of Guantánamo detainees: "What the administration is trying to do is create a new legal regime." And, he might have added, without bothering to consult with our allies and treaty partners. What we did not know then, but do know now because of a series of leaked internal legal opinions, which were first published by Newsweek magazine and others, is that shortly after 9/11 a small number of government lawyers started focusing on what a new legal regime should look like. The administration's political masters asked their lawyers to devise ways to minimize the constraints on the administration in fighting its "war". The lawyers assigned to the task were mostly political appointees, not career civil servants, many of whom have objected in strong terms to the advice that was given. One object was to allow as much information as possible to be obtained from detainees. To do that it was necessary to limit, or even suspend, the application of international rules which would constrain techniques of interrogation, including possibly the use of means which could be considered as torture or at least cruel, inhuman or degrading. In December 2001 and January 20002 there was a furious exchange of legal opinions between the Department of State, which plainly wanted to respect the international rules as far as possible, and the Departments of Justice (under John Ashcroft) and Defense (under Donald Rumsfeld), which wanted to limit them. The Ashcroft and Rumsfeld line prevailed. U.S. secretary of state Colin Powell's argument that al-Qaeda and Taliban fighters should be given access to an Article 5 military tribunal was rejected. In his memorandum of January 25, 2002, the then White House general counsel Alberto Gonzales (who is now attorney general) made clear the benefits of a determination by the president that, in the circumstances of this war on terrorism, Geneva Convention III did not apply to al-Qaeda or the Taliban: "This new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions..." – Pages 15 3-54 |
But the most thorough-going attack on international rules was the quest for legal means to absolve the U.S. of responsibility for treating those it captured and detained in the "war on terrorism" according to the Geneva Conventions and related pacts. Here Sands describes an Army lawyer's effort. See subsequent pages of the book for documentation of civilian contributions.
According to the Pentagon, by the summer of 2002 it had become clear that FM 34-52 was not producing the desired results. The Pentagon wanted to use "additional interrogation techniques" on Guantánamo detainees who were alleged to have close connections to the al-Qaeda leadership and planning figures, including "financiers, bodyguards, recruits and operators." This included individuals who were "assessed to posses significant information on al-Qaeda plans" and who demonstrated resistance to the relatively light interrogations set out in FM 34-52. Lieutenant Colonel Diane Beaver, a U.S. army lawyer, was asked to advise on the legal position. More aggressive interrogation techniques than the ones referred to in FM 34-52, she wrote, "may be required in order to obtain information from detainees that are resisting interrogation efforts and are suspected of having significant information essential to national security." Her memorandum of October 11, 2002, described the problem: The detainees were developing more sophisticated interrogation resistance strategies because they could communicate among themselves and debrief each other. This problem was compounded by the fact that there was no established policy for interrogation limits and operations at Guantánamo, and "many interrogators have felt in the past that they could not do anything that would be considered 'controversial.' " According to her memorandum, America's international obligations are irrelevant, and interrogation techniques—including forceful means and restraints on torture—are governed exclusively by U.S. law. Her analysis provided a useful insight on how to get around international law. President Bush's executive order of February 7, 2002, determined that the detainees were not prisoners of war. It followed, therefore, that the Geneva Conventions limitations that ordinarily would govern captured enemy personnel interrogations are not binding on U.S. personnel conducting detainee interrogations at [Gauntánamo]." In fact. Lieutenant Colonel Beaver went even further: "No international body of law directly applies." She is not saying that there are no international rules; rather the international rules are either not applicable or not enforceable. To reach this extraordinary conclusion she reviews various international conventions which establish binding norms for the U.S.—including the 1984 Convention against Terror, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights—and then explains why not one of them creates any obligations which could actually be applied so as to constrain interrogators. . . . The logic of the argument is grotesque. It means that international law is irrelevant. Can you imagine how the U.S. would react if another country tortured an American and defended it by saying, "Oh, terribly sorry, but the international treaty we signed which prohibits torture isn't enforceable in our domestic law, so we don't have to apply it." That is Lieutenant Colonel Beaver's logic. – Pages 211-12 |
Two things should be clear from reading this: that these claims of legal justification don't hold together, and that abandoning the rules protecting human rights will come back to haunt U.S. interests.1 The only questions are ones Philippe Sands also asks: Why was this counterproductive effort allowed to proceed, and when will its mistakes be corrected?
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