No Comment — November 5, 2007, 5:03 am

The Bellinger-Sands Debate

When was the last time that the American secretary of state’s senior legal adviser was an object of near-universal ridicule in the international legal community? In my lifetime, only once: right now. The legal adviser in question is John Bellinger. Earlier this year, he delivered a talk at The Hague. A British colleague who had attended alerted me to it, and I wrote about it in “The Report from Cloudcuckooland.” The audience’s reaction, I was told, was “derisory, barely polite.” And the reason for the public contempt consistently shown Bellinger by the legal community is simple: He finds it impossible to condemn torture. No legal adviser before him had any problem with that proposition. Alas, Bellinger is responsible for defending the posture of the Bush Administration, which “does not torture,” except, of course, when it tortures with gusto.

Bellinger professed his defense of torture most recently in a debate with Professor Philippe Sands, one of Britain’s preeminent international-law authorities. And in so doing, Bellinger used almost exactly the same studied dodges and evasions that were used by Michael Mukasey in his recent appearance before a Senate committee, which suggests that they have now emerged as some fairly formal doctrine. The Guardian reports:

The top legal adviser within the US state department, who counsels the secretary of state, Condoleezza Rice, on international law, has declined to rule out the use of the interrogation technique known as waterboarding even if it were applied by foreign intelligence services on US citizens. John Bellinger refused to denounce the technique, which has been condemned by human rights groups as a form of torture, during a debate on the Bush administration’s stance on international law held by Guardian America, the Guardian’s US website. He said he would not include or exclude any technique without first considering whether it violated the convention on torture.

The inability of a senior US official to rule out such an interrogation method even in the case of it being used against Americans underlines the legal knots in which the administration has tied itself. The dispute over alleged US involvement in torture has threatened to derail the confirmation of Michael Mukasey as President George Bush’s nominee for attorney general. Mr Mukasey, a retired federal judge, faces a confirmation vote from the Senate judiciary committee tomorrow and is facing opposition from Democratic members over his stance on waterboarding. In earlier hearings, Mr Mukasey said he found the method repugnant, but refused to declare it illegal. There has been speculation that he refrained from doing so out of fear that such a declaration would expose US interrogators, as well as their chain of command, possibly up to the level of the president, to possible criminal prosecution.
Waterboarding is a technique in which a prisoner is made to believe he is drowning by placing a cloth over his face and pouring water over it. The procedure is banned by the US military, but has been used in an unknown number of interrogations of terrorist suspects by the CIA. Reports have suggested the CIA outlawed the method last year, but the Bush administration has yet to confirm this.

Mr Bellinger made his remarks during a Guardian debate with Philippe Sands QC, professor of international law at University College London. Mr Sands asked whether he could imagine any circumstances in which waterboarding could be justified on an American national by a foreign intelligence service. “One would have to apply the facts to the law to determine whether any technique, whatever happened, would cause severe physical pain or suffering,” Mr Bellinger said.

Note the depravity to which the Bush Administration is now descending. It is prepared to accept the torture of American intelligence personnel as legal . . . just so long as it gets to torture whenever it would like.

If you think you can stomach being this embarrassed by a representative of your government, listen to the Bellinger–Sands debate or read the full transcript here. As debates go, it’s not a very evenly matched affair. Bellinger is left as a grease spot on the stage. Which demonstrates the majesty of the Bush Administration’s international-law policy.

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