Rule of Law and the Global War on Terrorism, November 13-14, 2008 - The Way Forward (transcript)

Thomas Romig: I'd like to make a couple clarifications before we get into the way forward, and that is first, I don't want to leave any doubt in anybody's mind, waterboarding is torture. There is no doubt about it. We prosecuted it historically and it is torture.

Secondly, Bob Turner talked about Abu Ghraib and he is correct, in large part, that the unit that was involved in the photographs was a misfit unit. The evidence goes back way before they deployed that they were a misfit unit and had problems. The majority of the people that were in the pictures were not being interrogated; they, were in fact, criminals. But that misses the point that there had been an attitude that allowed abuse and that had abusive conduct and it had been done by interrogators. Maybe not to that extreme. Maybe not that kind of conduct, but abuse and dogs and other humiliating conduct. So this may have given the individuals in that unit the feeling that they had a free hand to do what they do or they did rather.

Okay. Our panel today, this final one, is The Way Forward: Legal Choices for the Global War on Terrorism. I'm going to very briefly introduce our panelists because you've heard their backgrounds before. First we have Mary Ellen O'Connell. She is the Robert and Marion Schwartz Professor of Law at the University of Noter Dame School of Law. Professor Philippe Sands is Professor of Law and Director of the Center on International Courts and Tribunals, the University College of London. And finally, Colonel Retired David Graham, the Executive Director of the Army's Judge Advocate General's Legal Center and School.

Now, we've had a couple very interesting and thought provoking days. I would say the discussion were even riveting at times. We now come to the point that we have an opportunity to suggest to the new administration ways forward what they should consider doing.

Now, to help us focus on this way forward, I'm going to pose a few questions. The first question is one I've posed at the very opening yesterday morning. And that was, have the changes to our long standing rules and practices governing detainee treatment and interrogation, have they been necessary and have they been effective? And if the answer to either of these questions is no, where do we go from here?

A couple other questions include how do we rebuild our international standing as a leader in the rule of law? Next should there be some sort of truth commission in order to shine the light of day on what has happened since 9/11. Get it all out and air it all.

And finally, in this area of legal aspects of the global war on terrorism, what are going to be the greatest challenges for the Obama administration? And with that I will start with our panelist, Mary Ellen.

Mary Ellen O'Connell: Well, I thought I would try to come up with a 12 step plan for the United States on these issues but I've only come up with eight and I'm going to mention them very briefly. They go from the broadest to the most specific, but I think they'll answer your three questions, Dean.

First let's recommit to the rule of law in this country. Let's recapture tradition of commitment to international law that was present at our founding — the drafters of our Constitution were very knowledgeable about international law. They included treaties as a supreme law of the land. They gave Congress the duty to define and punish crimes against the law of Nations. They were men who knew international law. And that was our tradition until the 1960s and then we got offtrack. We got offtrack, I think, particularly because realists in the schools of international relations in this country were telling leadership that we were the biggest gorilla on the block. We didn't have to listen to international law we were the exceptional nation. We were above it and at the same time our Civil Rights movement was riveting the attention of Constitutional Law professors inward to our Constitution to the Civil Rights movement that we needed. And as a result of that combined movement, the subject of public international law declined in our law schools and I think we've now produced a generation of Judges who know very little international law, who don't understand the importance of it to our country and who are befuddled when they get a treaty question who don't know what a customary international law is and certainly never heard of a general principle. So I think we have to just in a basic way, the way that we did after Vietnam in terms of our military where we recommitted to the international rule of law. We instituted a rule of law program. I think that has to go throughout our law schools nationwide, rebuild our expertise. I'm not talking about just knowing human rights. You have to know what a treaty is. You have to know what Customary international law is. We have to get back to this deep, rich knowledge of international law in this country that we once had. We're going to have to tell off the realists. That is the biggest and broadest thing that we need to do. But I think soon after that we do need to end, close Guantanamo Bay, along the lines that Gabor Rona told us about. I think that we have to even before that end the global war on terror as Bob Turner has said. Let's just declare that we have won that and end it or declare it over and then we don't have to talk about whether we've won or lost. It's been a very misguided concept from the beginning, unnecessary, and we now know, I think, counter productive.

Fourth, we have to go back to that rule of law program in the military. I'm afraid that with the country drifting in international law and our leadership and our courts, we'll have to go back to that and reinvigorate why the rule of international law is so important to our military. As I heard some of the other panels I remembered that wonderful article by Hays Parks, why we teach the rule of law. In the military it is so important for our forces in every respect in terms of discipline, in terms of morality, in terms of legality and we have to get back to that. We need to repeal the Military Commission's Act. We need to restore the war crimes act to what it was before Congress started tinkering with it and the tenant torture statute. We have to withdraw any authorizations. This would be my most specific recommendation to President Obama, withdraw any authorizations that may be out there to use methods of interrogation other than those approved under international law. I'd go back to 3452 for everyone, especially the CIA.

And finally, we have to prosecute those who are guilty of the most serious war crimes, even to the top. That will send the immediate message that we're serious about this law. I don't think other countries are going to do it. They're not going to — as we just discussed in the last panel — even the Germans who have one of the best statutes for holding persons who violated the Geneva Conventions responsible just have not shown the backbone. And it's our responsibility. We need to do it.

David Graham: I would like to just clarify or make clear that everybody knows, 3452 is the Army Field Manual on interrogations. Okay, Philippe.

Philippe Sands: Thank you, Tom. I'm going to go through the four questions you've raised, which I think Mary Ellen has also addressed. I just want to say by way of sort of umbrella, this is an important set of questions not just for the United States but for the rest of the world. Quite simply because there is no other country in the world that is able to provide the sort of leadership that will give us a values rules based system internationally. And I think the reason there has been so much unhappiness about what has happened over the past few years is because the diminution of the place of the United States is something which causes unhappiness in many parts of the world. It's quite the converse ironically of the anti Americanism that people think exists. It's a distinction that people draw between the country and between a particular government of the country. And I think we've seen in particular in many countries since the election — the Presidential election last week a strong sense that people are very ready to cut slack, to reengage with the United States and to allow the United States to resume the place that it has played so well, I think, in the period after the Second World War. The system of rules that was put in place after the Second World War largely are a system of rules that reflects the values of the United States. And it is a system of rules that has served the United States well.

Without those rules, the United States would not be where it is today; whether it is the humanitarian rules reflected in Geneva or the trade rules reflected now in the WTO or the intellectual property rules or the foreign investment protection rules. Those rules have all contributed. And my about it is that 20 years from now, the United States will have reengaged very, very firmly, if only because it will have recognized that it needs a rules based system to ensure that the new powers that are plainly emerging, the Chinas of the world, the Indias of the world, the Brazils of the world. Play within a level playing field.

Now, to your question, have the changes to our practices been necessary and effective? Let me just focus about what I know about the one story that I wrote in my book, the answer is that they were not necessary and they were not effective. How do I know that? The administration on the 22nd of June, 2004, told a story about all the wonderful stuff that had been gotten out of Mohamed Al Khatami. I went off and tracked down the head of Al Khatami's exploitation team. I write about him in my book. I have a whole chapter about it. Basically, he told me they got nothing out of him. Basically, he explained to me, as many interrogators did, that there is an important distinction to be drawn between the moment of capture at which point it may be that harsher type of interrogations may produce something; although he was very careful to point out to me that he was not proposing those types of interrogations. And, on the other hand, an interrogation practice that takes place a year after capture which, I think, most interrogators I've spoken to is completely useless. And I've heard the same thing frankly on the British intelligence side about the treatment of Khalid Sheikh Mohammed. I am told the material they got out of him is basically useless. It produced a lot of information, but no one knows what part of that information is accurate and reliable. And I escout basically everything I am told about what has been brought out of these methods of interrogation because of what Al Khatami's head of exploitations team told me and because of what the British intelligence folks that I know have told me about what they are told has come out of these interrogation techniques.

Two, how do we rebuild our international standard? I don't think it is actually going to be that difficult. As I already said, I think there is a strong desire for the United States to reengage and a reengaged United States will be welcomed very warmly by many, many countries around the world. One of the great tragedies I think of September the 11th. And there were many. I was there on that day. I know many people who were directly involved and lost their lives. One of the great tragedies is that there was a moment after those terrible events when the world was ready to accommodate the United States and to fight with it in the struggle against the terror that it and my country undoubtedly faced and that moment was squandered. It was a remarkable achievement of President Bush's administration to throw away in a matter of weeks the goodwill of the world. What does the United States need to do? Let me just identify three things.

First, it's been said before, the global war on terror so called is really a misnomer. It is not only misguided, it's been catastrophic. Why has it been catastrophic? The British came over on September the 12th and told the administration, don't elevate the status of the people we are struggling to contain. By calling it a global war on terror, you transform individuals from criminals into warriors. And by making them into warriors, you legitimate their struggle in the eyes of a great number of people. And I have testified on this now several times, please, please, please, everyone in this room, stop using the words "global war on terror."

Some of you will compare the English version of my book, Torture Team, with the American version of my book. The English version, everywhere those words "global war on terror" appear are in parentheses.

My American editor would not allow me to have those words in parentheses because — because, she said, oh, they'll think you're some sort of Brit lefty who is anti American and is undermining the arguments. And, you know, frankly I struggled and I struggled and I struggled and I did not prevail in that particular context, but it is deeply damaging.

Secondly, re engaged strongly in what no country has been better at doing. The rule of law and the dignity of every human person. That is what the United States is about. That is what I believe the United States is about. I don't need to repeat everything that has been said on how that is done. There are many ways forward for doing that. I think as soon as that is done, irrespective of the political direction, I don't think it's a left/right issue of Republican/Democrat issue and many of the people I describe in the book have rather different political views from my own. And I think they have achieved a certain heroic status.

What it is basically about is values: Who we are; why we do what we do; what inspires us. And the rest of the world, I think, is passionately ready to receive that message and to re engage.

And thirdly, I think across the board, the very first thing the President needs to do on the first day is basically say, no torture, no cruel and human degrading treatment under any circumstances. It is not who we are. And that can be done, I think, very easily. And it must go beyond, I think, what has already been done. I think there is no question, this does not happen formally, certainly in the U.S. military. It needs to be extended to the CIA and to all other actors.

Third question you raised, sir, was in relation to truth commissions. I have discussed this at length. I have been in Washington this week. I've had two meetings and dinner with the Chair of the House Judiciary Committee what is on his mind, what is on the mind of the Senate Judiciary Committee, what is on the mind of the Obama transition team is what needs to be done. And I think there is now an emerging consensus.

It's not about engaging in a witch hunt. It's not about committing to investigations or prosecution, although that may be something that comes later. What needs to be done now is the country needs to be able to move on. In order to be able to move on, it needs to come to terms with what has happened. And that is best achieved, in my view on the bases of what I know of this country with some form of bipartisan committee chaired by people of unimpeachable authority who are able to establish the fact who are given sub penile powers to obtain everything that they need to obtain and perhaps have the recommendation to go very far in terms of what happened next.

I think there is a growing consensus that that is something that can be done. I think we can all imagine the names, the kind of names of individuals, unimpeachable characteristics, whether Democrat, whether Republican, who are able to assist in doing that. I don't think that should be put off for a year. I think that needs to happen quickly. And I think part of the reason it needs to happen quickly is the longer it is delayed, the less quickly we will all move on to deal with the things we really need to deal with, which is how do we deal with these challenges that we face? That's the real issue. But I don't think we can fully deal with that without coming to terms with what has happened.

What are the greatest challenges facing the Obama administration? You've got to have — irrespective of your views — some sympathy for a President Elect coming into a country with an economy that is really in a shocking state, with a raft of entry materials dealing with foreign relations that is overwhelming. And yet that I think it provides an opportunity to do some remarkable things.

Plainly, the economy is Item No. 1 that has got to be sorted out, to restore a sense of well being, to restore a sense of confidence in the direction that the country is going, to make people feel that they have a strong future.

But I think the real challenge the President faces — and this is something that I think everyone in this room has to face — is that it is a different world situation. I think the legacy that President Bush has bequeathed to this country is he has brought forward the moment at which the United States writ in the world is diminished. It is a different world. What the United States has learned in the past eight years is in a sense what Britain learned in the 1920s and in the 1930s. It is no longer able to impose its will on the rest of the world, whether in relation to the economy, whether in relation to military matters, whether in relation to the struggle against terrorism. It requires allies. It requires cooperation. Cooperation requires rules. And that's going to require a very, very different mindset. It's going to require a President who can tell the people of this country across the spectrum, we are not able to impose the kind of changes on the world that we want to impose on our own. And I think that, in a sense, is a very, very big challenge because people in this country have gotten used to being told, they are the best. They are the strongest. They are the most powerful economically. They are the most powerful militarily. Those days are over. It is gone. It is finished. It is a different world now. Other countries are coming up and it has got to be in cooperation. And the leadership of the United States can provide like no other country is a leadership by inspiration, by authority, by ideas, by creativity, by innovation and by commitment to the values that have made this country as strong and as powerful and as great as it has been in the last 50 years. And that is by a commitment to the rule of law. But that is a very, very big challenge for the next President of the United States.

David Graham: Well, I'm thankfully aware that I'm the last speaker on the last panel on the last day of the symposium. And if that's not a challenge enough I have to follow Philippe with his impeccable British accent. I'm respond to the questions I think in a collective manner. Let me start from a macro perspective and work pie way down to definitive recommendations.

I am now in my 37th year in the practice of public international law. A lot of that focused on the law of war and the law of armed conflict. And because of that I have traveled to many international conferences. And as I travel to international conferences in the post 9/11 era and I see friendly colleague as cross the room and folks that I've known for years and years, I know what's coming. They almost drop their cups of tea or coffee as they charge across the room toward me. And about halfway across the room they say, What are you people doing? What are you people thinking? Now they always put that in much more colorful language. But that's the essence of it. What are you thinking? What are you doing? And then they say, you know, we don't mean to minimize or denigrate the horrific nature of 9/11. But, after all, David, these are simply acts of terrorism. They say now you may relate it to state sponsored terrorism and we don't deny your right to enter into combatant activity with Afghanistan as a state sponsor of terrorism. But, after all, they're acts of terrorism and for years as acts of terrorism occurred in Africa and Asia and Europe, the U.S. was quite content with the legal regime that applied to terrorism. Both your domestic law and your international law. And now instead of terrorism happening to us, it's happened to you. And overnight the United States says, the world has changed. The law must change. All the rules must change. So you've declared a global war on terrorism by the way of concept we've been unable to define but, nevertheless, you've declared a war on terrorism. Every international terrorist is now an unlawful combatant, and every unlawful combatant is going to be placed before something that you're going to call a military commission.

My point is that I think the administration has to begin as Philippe has indicated by saying, we fully appreciate the grave threat that terrorism has for the United States. But we will no longer approach our counter terrorism and anti terrorism activities as a war on terrorism. It will no longer be done in the context of the war. We will do this with good law enforcement. We'll do it with good intelligence. We will support it with special elements of the Armed Forces when it's appropriate to do so and when it is legitimate to do so. It will be a combined effort, but we will no longer approach it as a war. We will no longer define terrorists as unlawful combatants.

I agree completely with Philippe. And this is an argument I put forward beginning in 2002. By declaring terrorists to be unlawful combatants, all that you do is to afford them a degree of credibility and status that they do not deserve. Whether you define them as enemy combatants or unlawful combatants, it accords them a status that criminals, that thugs do not deserve. They're terrorists. And because of that, we're not going to try them in a military Court, before any military commission. We're going to try them in Article 3 courts.

I would oppose a National Security Court. I think it has more faults than it has positive elements. I think in trying it before an Article 3 Court you should review the Federal Code and see if there are modifications that you could make to the Federal Code that would facilitate terrorist prosecutions but still fall within the parameters of due process and procedural safeguards as guaranteed by the constitution. They will be tried in Article 3 courts.

I'm unsure at all what aimless is talking about when he's talking about thousands of detainees that will be subject to trial. I really have no idea and I didn't have a chance to talk to him about that. The United States has no jurisdictional basis to try these individuals outside of the United States. And the United States, as someone has indicated, has said that it's not their intent to try these individuals. So as Bob says, the number of detainees in issue is really a fairly limited number that we're talking about. And I think that we can do it with Article 3 courts. It goes without saying that this means that we have to close Guantanamo.

Now, there have been any number of studies done on this, human rights first as Gabor indicated has done a very thorough study. The Center for the American Progress has done a very thorough study on that. They take it from the first week right through the first year as for what can be done. There are problems, there are obstacles with respect to how you prosecute the really bad guys, but I would rather wrestle with that particular problem than to continue to have Guantanamo as an albatross around our neck.

This means that this will end the CSRT process. And here I'm getting into more definitive recommendations. I would terminate completely the military commission process. The military commission process was a mistake from the beginning. I've used these words before and I'll use these words again. The military commission process has bastardized the military justice system and it has prostituted the military attorneys forced to attempt to make this system work for political appointees.

The only reason that the military commission process is constituted the way it is constituted is it, is because it is the only way that we could successfully prosecute and convict individuals against whom we had used coercive intelligence techniques nooks. The military process has to go. That means that you have to rescind the military order that established the military commission process. You have to repeal the Military Commission's Act. There is no way that you can fix the Military Commission's Act. It is replete with too many errors. You need to repeal it and go back and return many of these provisions to the status quote.

You have to amend the Detainee Treatment Act. There are problems with the Detainee Treatment Act as well. The Detainee Treatment Act establishes a dual system for the interrogation of detainees in Sections 1002 and 1003, one for DOD, 1003 for CIA. We don't have time to get into it, but that particular regulatory system depends on violations of the 5th, 8th, and 14th Amendment. That shocks the conscience of the Court's standard considering all the circumstances and that is broad enough to drive a truck through and that's what the Central Intelligence Agency has done.

You have to withdraw Executive Order 13440. We've talked about that before. That's the Executive Order that flows from the Military Commission's Act, the one in which the President was supposed to define the interrogation techniques that could be used by the Central Intelligence Agency but still comport with Article 31(c). Of course it does not do that. It simply justifies prior decisions made by the administration and qualifies interrogation techniques.

In terms of commission to — truth commission, for lack of a better term, I think that we should establish a bipartisan commission to examine what was done, what laws need to be repaired, what statutes need to be amended. I have been contacted by any number of people saying would you join us in urging the prosecution of individuals who provided bad legal advice? I'm not one of those who supports attempting to prosecute individuals. I'll leave that to the international community if they want to assume that.

Now, why do I say that? Because I think in order to achieve all the other things that I recommended were going to need a great degree of bipartisan support. And I think if you start to go after individuals in any kind of truth commission, you're going to lose that bipartisan support. And I think the good of the whole is better than the prostitution of a number of individuals. At least from a U.S. domestic perspective. All right, that's from the macro to the definitive and I think I'll end there.

Mary Ellen O'Connell: David, we just disagreed on this one last point. Sorry. We just disdisagreed on this one last point about prosecutions; otherwise, I think we were very, very close in our points. And I'm just curious, do you feel that the United States does not have an obligation under the Geneva Conventions to prosecute those who violated, who committed grave breaches under the third or fourth conventions?

David Graham: I think we do have an obligation. I'm not sure that you have enough evidence available to you to demonstrate that those grave breaches occurred and I think the damage that would occur, Mary Ellen, in trying to achieve those prosecutions would rob us of the bipartisan support that we need to write the many things that need to be righted. To include a revision of legislation, to include repeal of the Military Commission's Act, withdrawal of the Executive Order, which establishes, which I did not say — it establishes one standard for interrogation and treatment. That's the standard that was set forth in FM 34 52. 222.3 may have some problems. But there should be one standard for everybody. I've never been able — I have never been convinced by anybody that we should have one standard. So I think, yes, if you could demonstrate that the violations have occurred, there definitely is that obligation under the conventions. I'm just not sure that we're at that point, Mary Ellen.

Mary Ellen O'Connell: I agree with that.

Philippe Sands: Of course there is a way. You could bring that back and throw rotten tomatoes at them for a day. Would you go with that?

David Graham: I told you he was British.

Michael O'Connor: Yes, as far as the issue of our adherence and sometimes reluctance to embrace international law — and maybe this is best for Mary Ellen and David — but, Philippe, please join in as well — it is my contention that I'm — our primary founding document, as much as I love the constitution and to interpret the constitution, is not the constitution, but is the Declaration of Independence. And in the Declaration of Independence we have the expression of certain inalienable rights that are endowed by a creator and are our natural rights which really form the bases for a lot of customary international humanitarian law. And it's expressed in that document as, of course, life, liberty and the pursuit of happiness. But we go on — that document really kind of lays out a notion about international law and when certain nations might be appropriate to rise up when certain people's might have to rise up against a tyrannical form of government. And I think that in that document is perhaps one of the clearest articulations of an originalist's notion that we, in fact, very much embrace international law and embrace a law of nations before that really existed in a real sense. And I'm wondering if — if you think that this is perhaps something that we ought to be re embracing as a driving force behind us saying, yes, we are committed to international law and international law norms such as customary international humanitarian law.

Mary Ellen O'Connell: I absolutely agree, Michael. In the research I did for the book On the Power and Purpose of International Law, I really wanted to get to this question, why is international law treated so poorly on law faculties? Why do people seem to dismiss it, not consider it very important? Many of you may not know that for a period in the 1980s five of our 10 top Law Schools didn't have a professor of public international law and our country, as Michael correctly described, that was founded on this understanding of the essential nature of international law for the very definition of statehood for our privileges and rights in the club of states. That's just extraordinary. It would have been extraordinary to the drafters of the declaration and of the Constitution. And I think I give the story, I had a wonderful insight from — withhold from University of Alabama, a wonderful legal historian who said as positivism really rose is the only acceptable legal theory in the United States. Our law professors, our judges, our lawmakers could not understand how you could have an international law because there was no legislature. There was no tangible institutions of law making. Once they had laws understanding that you could have law making outside of those kinds of formal institutions, you can have other ways of doing it that the authority of international law and all law actually rests in acceptance and belief, these nonmaterial sources and that we've always had these peremptory and higher norms. This is part of all law. We have this notion that things were in — that people couldn't accept international law. And I think we have to get back to an authentic understanding of what international law really is and really educate ourselves much more fully in that. I would just add briefly that we're confronting a movement in theory in the United States in which the movement is away from what you just suggested. There's a very determined group of Constitutional Law scholars who want to argue that international law, all of international law is part of State Law. I find this absurd. The great scholars, Lewis Hankin, Philip Jessup, Harold Coe have all said, this doesn't make any sense. It is not true historically, but the top Law Reviews in our country — I just read a colleagues news article in which he makes this argument again. It will be published in the Columbia Law Review. That international law is not part of Federal Law. There's only two kinds by the way, treaties and customary law. And it's part of State Law. And that this is — they draw a historic — accurate historic evidence. So we're really in a moment of transitioning in many ways in this country. And how we reproach international law, which Philippe and David made very clear. If we're going to actually be a success in the world, whether it's the economy or security or an advancing human rights or protecting the environment, we have to be fully engaged in a coherent way with international law through all our law making institutions. But that's going to really take some effort on all our parts to resist and respond to this very wrong headed notion of what international law is and where it is in our system.

Philippe Sands: I hijacked this on the way to you today, David. I mean, I don't know anything much about the U.S. constitution. But I just want to address two points from a slightly different perspective. Firstly, I see these writings and these legal theories as really the output, the last gasp of a dying empire. It's basically the same position that was put in the United Kingdom in the 1920s and the 1930s, this group of scholars and politicians who just tried to hold back the floodwaters, the inevitable floodwaters of what was happening.

And the whole of the way of understanding this stream of scholarship, is what is in the United Kingdom we call the output of little Englanders, you know, that we are somehow an island. We can somehow hold back all of this dreadful foreign stuff that is coming. But the reality is, there is no country in the world that takes its international obligations more seriously than the United States, that complies with more of its obligations, more fully and effectively than the United States. And the idea that somehow the United States is a lawless country that doesn't engage with international rules is a nonsense. It's just not the case.

What's happened is a distinction has been drawn by the upper echelons of political society, between good international law and bad international law. And the bad international law is that stuff which has sort of meant that we can't interrogate people in certain ways. But the good international law is all the economic stuff and all of the related stuff. And you find that articulated most clearly in a really weird recent judgment of the Supreme Court, an opinion by Chief Justice Roberts, in the case of Medina (sp) where he basically says we're not going to listen to the International Court of Justice tell us that we've got to give these wretched Mexicans conciliary rights when they're arrested.

Audience Member: You didn't really say wretched now?

Philippe Sands: Okay, I added the word wretched. I'm

Mary Ellen O'Connell: I think it was the wretched International Court of Law.

Philippe Sands: But then he adds a footnote, which is incredible. And the footnote basically says, but if this was an award of an exit arbitral tribunal dealing with foreign investment protection bilateral investment treaties, it would be different. Why did he put that in? Well, obviously someone said to him, hang on a second, Chief Justice. We've got all these American investors who have been using exit to enforce international arbitral awards, and if your judgment goes too far, the Constitutional Court in Argentina is going to say, oh, you don't have to enforce this exit arbitral award from this American investor against the Argentine state. And so he put it in a little footnote, a footnote which is replete with the greatest hypocrisy frankly because in its ratification of the exit convention and of the U.N. Charter, there's no distinction drawn between judgments of the International Court of Justice and arbitral awards of exit. So what it's really about is isolating bad international law, putting it on one side. And I think the challenge for the Obama administration, and for future administrations, is to persuade the American people that they actually have an interest in a safe, effective and functioning international law. That doesn't mean blindly ratifying every convention law. I think if the United States wants to or not ratify the international criminal court statute, that's a matter for the United States. The U.S. can't be criticized for not ratifying the ICC's statute. But what it means is, once you join on Geneva, the torture convention and other instruments, you are bound, you are free to leave. But so long as you are a party, you are bound. And that means people like David Graham and others, doing their work whether in teaching or whether in practice or whether in scholarship and making sure that the United States leads the world in honoring its obligations as it does in 99.99% of its international commitments.

David Graham: And anything I would say in response to that question would be redundant at this point. So why don't we open it up for another question.

Thomas Romig: Other questions, yes.

Mark Coulter: Obviously as a law student any discussions about legal education and public international law are of interest to me. And it seems that the discussions regarding public international law will continue to surround discussions of norms, competing norms, finding norms, to finding norms. And in some respects I think the symposium, in and of itself reflects that where we only had one panel that spoke on some of the empirical evidence coming out of Northern Ireland and it seems to me that legal education and public international law is lacking a sort of empirical bases. Am I just out of my mind or is there things that we can do to try to bring back I guess a little bit of social science bind the law and behind the discussion of norms?

David Graham: When I teach international law I always say that international law — one of the fascinating things about international law it is about half law and half politics and I think it — it does reflect international norms. I think there is a lot of empirical knowledge out there that really briefs the international norms. I don't think it is simply pie in the sky. International law usually gets a bad name only when it fails in conflict management situations. The world would not function without international law. Public international law. It would not function without private international law. International business transactions. So I think there is a lot of empirical experience out there that dictates that international law is very real. The rights of international law are very real. So I don't think it is so much a shortcoming on the part of international law and international experience that drives international law.

There is a school of thought that's been touched upon in the United States right now. Largely set forth by the Federalist society and other folks who have the same views that unless it is Federal Law it simply doesn't count. I think it is one of the reasons that the Supreme Court got it wrong in Ahmed, when it said that Article 31(c) applies to al Qaeda. I would have wished that they would have said the principals of Article 31(c) apply as a matter of customary international law without having to turn non international conflict into some kind of transnational conflict because I think that's bad legal reasoning. But I think that they didn't want to do it because the Court felt that unless it was treaty law or it couldn't be enforced in Federal Courts if it was customary international law, that's not enforceable in Federal Courts. And that's one of the problems associated with that particular concept. But I think there's a lot of empirical information and knowledge out there that drives home the point that international law is very relevant and very real.

Mary Ellen O'Connell: Just briefly. You know, we've had this big wave of movement in the U.S. and scholarship toward imperialism, and I'm nervous about that. I think that we're trying to mimic methods used in economics that political scientists have adopted. The economists are backpedaling from it very quickly and are much more sophisticated in what they're doing now and the political scientists have really painted themselves into a corner, and I'm sorry to see that some lawyers are following in that path. I think it's got limited survey data, yes, but to try to do some of the quantitative assessment of law is — I think very problematic, especially for international law because of the variables we have to take into account. The book, The Limits of international law by Eric Posner and Jack Goldsmith, a writer of one of the most reprehensible memoranda, the one that said that we could send persons protected under the fourth Geneva Convention off to secret detention, he wrote the limits of international law right after he left the Bush Administration and the timing I think is noteworthy. He tries to use a rational choice methodology which I find so incredibly flawed that I had to, of course, use rational choice methodology in my book to respond to him. It was very painful but I did it. So it is not that we want to not take any account of social science methodology and new developments but I think our field is so complex and so much better subject to our observation than to try to reduce it to formulas. So that's what I would urge, you know, to be open minded of course and to move this field that we need so much forward as best we can but I would just say in response to Philippe's view that we don't have to really worry about these folks from the Federalist society that David just described to us.

Our Chief Justice of the Supreme Court is a very young man who holds these views quite firmly that international is not important law in — when we decided it's not but very important when we decide that it is. And I find that a very troubling perspective from the Chief Judge of this country. So I'm not as sanguine as Philippe. I think we're going to need to put in our brief to say inform our students to write the kind of articles that can create a broad and general new information program in this country to respond to the very heavy damage I think that's been done since the 1960s.

Thomas Romig: We'll take some more questions.

Member of the Military: I would like to ask the panel if you feel that there is ever a time — I'm speaking of situations where the very continued existence of our country is at stake. If there's ever a time when it would be appropriate to stray from the bodies of law that together we have termed international law here in the last couple of days, if appropriate to do so, in order to again when our existence is at stake. And, if so, what is that cut off? What is the criteria?

Thomas Romig: Philippe.

Philippe Sands: I was involved in a case a few years back, International Court of Justice, which raised a very stupid question: Are there any circumstances in which the legality of the use of nuclear weapons is lawful? And with a stupid question you got, not surprisingly, a stupid answer — with great respect to my friend on the International Court of Justice. They concluded that advisory opinion, with a view that there may be circumstances not entirely predictable in which the very survival of a state is at stake such as to justify the unthinkable. Not, I think, in legal terms a particularly helpful approach to the analysis. And I think, your question reminds me of the argument in relation to that situation.

To bring it down to something more direct, I think what you're getting at — and it is a hugely important question — are there — it's the ticking time bomb theory in a sense. Are there circumstances in which we could countess the use of torture, let us say, or other cohesive forms of interrogation, to obtain information in order to protect those we love who may be damaged on a very wide and unmentionably wide scale. And I thought a lot about that question. I thought greatly about that question as I went around America talking to people who were charged constitutionally with protecting the citizens of the United States. Many of whom I think genuinely believe that they were in that situation, in seeking to take steps to project the United States.

And I think the conclusion that I've come out with in relation to that narrow refinement of your question is that there are no circumstances in which the use of torture is justified as a matter of law.

There may be circumstances in which an individual is willing to take on the responsibility of engaging in certain acts but should do so in the knowledge that the full weight of the law may come down on him or on her in the event that he ever faces some sort of legal process.

And it is an important distinction because it places the responsibility on the individual to make that determination, and that isn't hypothetical. That has just been a very interesting case in the German courts involving a German policeman who threatened the use of torture on a man who had — was thought to have abducted a child in order — in desperate situation of time to try to recover that child before the child died. And, in fact, that didn't happen. They found the body of the child but only after he had been killed. And then a question arose as to whether the policeman concerned should be prosecuted. And the German courts eventually — the European Court of Human Rights essentially came up with a solution that I've come up with. It is a matter of individual determination. And it comes back to something I said earlier, that in such circumstances, the individual has to take that responsibility, and ultimately it becomes a sentencing issue. But more broadly, I don't think it's sensible or prudent to proceed on the bases there are gaps in the law. It may be that the Geneva Convention, or other norms of international law, are inadequate to deal with certain situations that we face. What you do in those circumstances is not what Alberto Gonzales did. You don't say, those words are quaint so we're just going to get rid of them. What you do is you get together with your allies — and I think you'd be pushing an open door — and say right. There's a new situation that we face. Let us move collectively to put in place appropriate new rules. But a law's based system basically tells you that until those new rules are put in place you are stuck with the old rules. And if you begin to dramatically change the old rules, you — you unilaterally, you get yourself into great difficulty.

And this comes back actually to something that we discussed yesterday where I think, if I understood correctly, I disagree with Mary Ellen and that concerns a subject that perhaps we can put on the agenda — the circumstances in which a state can use force when it is attacked as the United States was on September the 11th, 2001.

The day after that, the Security Counselor adopted a resolution unanimously recognizing the right of the United States to use force — military force in self defense, notwithstanding the fact that the attack appeared to have come by an unknown state or actor. And that is important for two reasons; firstly, it confirms that there are circumstances, as there must be, in which the International League or order is pragmatic and realistic and recognizes, oh, you can't have a situation where you can attack if it's a state, but you can't if it's not plainly. That would be absurd. But also it shows how quickly the international legal system is actually able to move and create an effective workable solution to deal with a particular situation. I think, I hope that answers your question. I think the system of rules we have is delicate. We need to look after it. And the United States there has uniquely important role in helping us move forward on these issues.

Mary Ellen O'Connell: Can I just say something about the Security Council resolution? Philippe, I would urge caution on your analysis of the Security Council Resolution. It is very limited. It says that the United States has the right of self defense. But it doesn't in any way eliminate the other elements that you have to show for lawful self defense that you have to take the defense against the responsible party, that your defense has to be necessary and proportionate. None of that is in the Security Council Resolution. There is just an acceptance that, yes, at tack could lead to the rise of an Article 51 self defense and that I absolutely agree with.

David Graham: Just a couple of points. I think your question is a good question. It is a question that is posed at almost every symposium of this nature. Is there not some situation in which torture, because we're talking about torture or even something less than torture could be justified. And I agree with Philippe. I don't think the law can ever justify that. There may be a point at which the President or someone responsible will make the decision I'm going to engage in coercive techniques and then I'll defend myself for the use of those techniques. Military lawyers are very familiar with the concept of extent and mitigation. But the problem that we've always had in the military with that red herring, that isn't there always an exception is, we weren't dealing with coercive techniques as a matter of exception. What we were dealing with was an administration that was using coercive techniques as the norm, not an exception. In setting up a system that relied on coercive techniques and there is a world of difference between that and a very unusual situation where a Commander in Chief may have to make a decision which he would have to defend but still couldn't be legitimatized by law. And I have to — the second I have to align myself with Philippe. I disagree with Mary Ellen. I think one of the main points of the British white paper that she made reference to in terms of drawing that line of connectivity between al Qaeda and the Taliban government of Afghanistan was the fact that the United States did request the turnover of those responsible. And al Qaeda and the Intel government, and I think this is never going to happen again because I think countries will learn from this — simply said, come hit us. Not only are we not going to turn these people over, but, hey, we're complicit. We completely agree with what they did. That's a pretty good line of conductivity in terms of demonstrating statement responsibility. So those are the two responses that I would make.

Thomas Romig: We have time for a couple more questions.

Mark Coulter: Thank you. This last discussion ended with how the international community and international law has sort of developed over the years and I think over the course of the 20th Century it really looks like international law was very reactive. If you look at the developments from post World War I, post World War II throughout the Cold War, throughout what happened after the Cold War with ICTY. The Rwanda issues. Moving from that to how this administration and Dean Romig's question how this administration should address it from here on out, it has been widely discussed and it is understood at this point that some roll backs need to be made, some changes need to be made to regain our place in the world as it was pre 9/11 and how the world viewed us. My question then is, it's two parts: one, what can this administration also do to address the problems that were — that made the United States a target on September 10th in a perfect world where they have made all the changes that have rolled back the issues from post September 11th and how can the international community and how can international law be changed to — this almost sounds tongue and cheek — but honestly to protect the United States from non state actors that make the United States a target because of its unique position in the world, whether or not it is an empire any more, whether or not we're in the throws of the passing throws of an empire. If that is the case then the international community has always strived to protect nations from other nations. What can the international community do and what can this administration do to address those very large, broad issues?

Mary Ellen O'Connell: I'll make a stab. I appreciate the question. First I think we have to dismiss the myth — I mean (inaudible) I spoke to this I don't take quite as extreme abuse as he does but there is no such thing as perfect security. We will never be perfectly safe. We need a healthy military. We need our police forces. We need to be vigilant. We need very good FBI language skills. We need a healthy intelligence gathering. We need all those things. We're never going to get back to the Garden of Eden. There is no hope of that and we have to recognize that and do what we can within the rule of law because what we have learned over time is that the closest you stay to the rule of law to what you consider to be the rule of law, the more you set that demonstration affect that this is the way to live and this is what has had positive affects. Violence — I mean, we've actually through law eliminated some of the most egregious forms of military force. We have empirically confirmed success of the impact and the power of norms. And I'll just point out the most dramatic example. After the Second World War when the use of form as an instrument of foreign policy was finally made unlawful in the United Nations charter with an institution to back it up, we ended conquest as a form of military force. It became unlawful. And it was never used. There was never the elimination of a member of the United Nations through the use of military force. Iraq tried and invaded Kuwait. A coalition of states came together. Almost every state in the world pushed Iraq back maccording to the United Nations Charter, librated Kuwait. The United States made money out of the deal because we had such strong normative and resource support for that. It was such a positive reinforcement of a very important and successful rule. That is the model I would like to take forward. I would like to continue to support building the norm of nonviolence, spredding it out beyond just interstate war and conquest to where it really should be going. For example, the greatest use of force and the greatest loss of life is within countries and Civil Wars and the United States is so caught up in using military and violence — significant violent responses to what happened on 9/11. We haven't been there to try to respond to what has been going on internally in countries and Conga where millions, over a million people have died and to continue to say that we have to have non violent responses within countries is for me the way to go forward. When you build successful countries that have prosperity and education, the will to violence and people have jobs, the desperation and so forth that leads into these alternatives begins to end. This may seem like pie in the sky but remember we've done it. We have been able to eliminate some forms of major military force through norms. And that's the way I'd like to go. That's why I'm so restrictive on the use of force even in self defense and why I think the Afghanistan example should be dealt with very cautiously. While I think the case can be made, I think it is slim. And I think the United States would have done better if we had erred on the side of robust law enforcement methods in responding to Afghanistan. Lawrence Wright's excellent book, The Looming Tower, talks about how the Taliban had become fed up with al Qaeda. They wanted them out. They had been misusing the hospitality of the Taliban and launching violent attacks in violation of Islam. The negotiations to get rid of them were proceeding and after the outrages of 9/11 may have gone better. We don't know that. There was some case — and I don't say there was no case for self defense under Article 51. But I hope the lessons that we're learn from this current violent period in which the United States has used too much military force in these situations and holy unlawful military force in Iraq will be a new era in which we move forward renewing our commitment not only to the rule of law in general but to the non use of force an to the peaceful settlement of disputes and alternatives to these incredibly grave problems. That's how I think we'll build our security of the future. [Applause]

Philippe Sands: To coin the phrase, tough on crime, tough on the causes of crime. Coming to your modest little question, what does the U.S. do, I think there are two issues in relation to what it is that has made the U.S. such a target. The first is dependence on oil, and the second is the Israeli Palestinian issue. And if there are two issues more than any other that need to be addressed it is those two issues.

President Obama really wants to address these issues, recognizing that in large part U.S. foreign policy and military policy over the last three decades, since the early 1970s, has been driven by an excessive dependence on oil. He would think — he would do the unthinkable. He would basically say, right, we will, within 10 years, cut our dependence on foreign oil totally. Ten years from now we will not need to import a single barrel of oil from anywhere else in the world.

And if that were to be achieved through the type of innovation, technological creativity that this country we know is well able to do, you would extraordinarily quickly completely transform the circumstances. Think out of the box. Imagine what that means in terms of the United States's desire to impose a degree of stability in the Gulf. It becomes far, far less significant if you can find ways of meeting domestic energy needs, whether it's through nuclear, whether it is through renewables, whether it through other alternative sources of energy. It could be transformative. And that sort of thinking leads you essentially to really deal with the unthinkable. Let General Motors collapse, for example. Imagine a United States without a single major car maker.

The lobby that promotes foreign oil would collapse very, very soon because the two are very closely connected.

I'm not saying that that is what should be done. But if you really want to address what's at the heart of the problem, the problem of fundamentalism and of terrorism is reactive to other concerns. And it's about presence and it's about imposition of values and it's about other things.

In relation to Israel and Palestine, it's clear. It's not a politically correct thing to say in this country. It's a politically correct thing to say in Britain which is a close friend of Israel. Israel has to go back to the 1967 borders. It's got to be given an absolute guarantee of security.

But the situation of allowing any particular country to do what it is doing in terms oh exceeding its rights under international law is intolerable. And I think if Obama is brave, which I suspect on this issue will be impossible, he will say to the Israelis, we will continue to support you and we will strengthen our support for you, but we will only do so if you go back to the borders that you have undertaken to respect, which relate to your 1967 borders. And that would break the deadlock in those negotiations. And I think in that scenario, with the sound pushing very strongly right now for an Israeli/Palestinian piece accord, with a Syria that is willing to engage on this issue, as Jordan did and as Egypt did — and let's not forget those piece accords have now been maintained in the case of Egypt for nearly three decades and for Jordan for more than 15 years — perfectly workable and working successfully. I think you would transform the political process. It requires some bright new thinking. It requires thinking the unthinkable. But I think if you really want to address, if you really want to address these issues, it's not going to be just about promoting the rule of law, returning to a system in which you don't do torture. But addressing what are the root causes of the real challenges the United States phases. And I think it's only once those issues arrest dressed that one gets to term on the issues.

And the experience of Britain in relation to the IRA, which was talked about, I think teaches some very, very powerful lessons.

In 1970 and '71, Britain moved to abuse, internment, bloody Sunday. And on many people's accounts that extended the conflict by between 10 and 15 years. And it was only when starting in the government of Jordan Major they began to look at what the underlying causes of the conflict were — discrimination against the Catholic community in Northern Ireland and related issues — when they really genuinely began to address those issues that the political transformation took place.

And, ultimately, it does also mean, as happened with the IRA, you're going to have to talk to these people. Let's call a spade a spade. We are going to have to talk to al Qaeda. That is not a happy thing to say, but they exist. They are real. They are there. They have demands.

And just as Britain said publicly, we will never engage with the IRA. We will never talk with the IRA. Of course what we learned with the passage of time was that at crucial moments there was, indeed, contact through informal channels. It doesn't mean a Prime Minister sitting down with Jerry Adams. It doesn't mean a President Obama or a President Bush sitting down with someone on behalf of al Qaeda. There are ways of having these conversations. And it wouldn't surprise me in the least if they are already going on right now.

Thomas Romig: Okay, I want to thank our panel. I want to leave you with one quote and one thought about this symposium. It was not an accident that we chose rule of law at the beginning of the title of this symposium. Most of us here are lawyers. Words are very important to lawyers. They have meaning. And it's important in how used. I would like to leave you out there with a quote that was made by the President shortly after 9/11. He said, we will bring justice to our enemies or our enemies to justice. I just ask the question, in the context of lawyers, have we done that? And so thank you so much. I want to thank a few people for this great symposium and I want to start off with all of you. All of you that are participating, all of our presenters, all of our panelists, you have done a great job and you have made this just a superb symposium. There are a group of people I'm going to thank I thanked at the beginning but our Washburn Law School crew who helped make this symposium so successful. Professors Bill Merkel, Myrl Duncan and Tim Belsan from the Law Journal who moved me to consider having this symposium back last spring. For all of those who worked so very hard — and there's a growing list of people that have made this so successful. Professor Lyn Goering, Donna Vilander, Martin Wisneski, Marcia Boswell, Donna Murray, Jessica Dorothy, our Law Journal staff, all of them. But particularly, Johnathan Rhodes and Troy Larson. And one person who's been behind the scenes for the last two days, but has really made our audio and our video go so well, Glen McBeth. Thank you, Glen. So thank you for being here and thank you for participating in this symposium.


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