Humor is a fickle thing. So much of it is culturally specific, and the result is that comedies can be the most challenging literature to translate. But occasionally we have the comic genius who finds a way of making his works universal. Aristophanes was, I think, the first such comic genius, and The Birds was among the greatest works of the comedic form. Its concept is brilliant, at once hilarious and profound, and its comic memes leap easily over the confines of cultures and ages (who can forget the threat of the chorus of birds to drop their guano on the audience unless it gives their play first prize, for instance). But the fantastic concept at the center is the construction of some impossible aerial city, a new society to be the envy of men and gods alike, and plainly something which does not exist and never could be. “Cloudcuckooland” Aristophanes calls it. And this expression made the transition into English – a place that does not exist and indeed is somewhat crazy. But then there is the internal comedy of the piece, a profoundly sad comedy of human stupidity – of a king who sets out to found an ideal state but builds instead a tyranny. How often in the course of mankind has that happened. Indeed, how current is that tragic-comedy.
So look at this speech offered in the Hague by one of Condoleezza Rice’s most trusted aides, John Bellinger, the Legal Advisor to the Department of State.
By way of background, in December 2005 and early in 2006, Rice and Bellinger made a series of trips to Europe in which they loudly drummed this message: America takes its international law obligations seriously; American abides by these obligations; America does not use torture; America does not have a policy of extraordinary renditions or maintaining “blacksite” prisons.
As Rice was out making these speeches, a senior European diplomat told me: “While it’s true that some define diplomacy as ‘lying in the interests of one’s country,’ what Rice and Bellinger have done is positively breath-taking. I’ve never seen anything quite like it.” Indeed, I was told that Rice, appearing briefly in Sofia, Bulgaria, delivered herself of one of these speeches, then proceeded directly to a closed meeting with Bulgarian officials at which agreements were signed relating to the maintenance of a CIA blacksite. It was theater of the absurd. Or diplomacy. Take your pick.
I was invited shortly after this Rice-Bellinger roadtrip to meet with the European parliamentary committee of inquiry and explain to them the curious aberrations of the Rice-Bellinger lexicon. For instance, when they say “America does not torture,” they mean this in the sense that John Yoo does. America can do whatever it likes, and if the president approves it, it is not torture. And when they say “America has no policy…” they mean exactly that – there is no policy, not, of course, that America does not in fact engage in extraordinary renditions. And as I offered these explanations, I saw the parliamentarians from the formerly Communist states of Eastern Europe smiling and nodding their heads. “Yes,” one of them told me, “we understand this sort of game very well. This is exactly what our Soviet ‘friends’ did for so many decades.”
On September 6, 2006, President Bush announced that some CIA blacksites were being closed down and their prisoners were being moved to Guantánamo, where they would soon face justice. Rice and Bellinger were extremely busy in the 48 hours before this announcement speaking with reporters at major publications, hyping this as a watershed event. The State Department had triumphed in its efforts to end the CIA renditions program, they claimed. A number of the headless cavalcade that constitute the Washington press corps actually transcribed these claims and reported them as news. However, the more serious journalists in Europe read carefully and noted that Bush was essentially acknowledging that the claims from the Rice-Bellinger visit to Europe were lies. Not a single major U.S. newspaper took cognizance of this obvious fact. Sometimes, of course, the best way to conceal something you want overlooked is to hide it in plain view. This is a particularly effective technique when dealing with the Washington press corps.
But now back to Bellinger’s speech:
To put it simply, our critics sometimes paint the United States as a country willing to duck or shrug off international obligations when they prove constraining or inconvenient. That picture is wrong. The United States does believe that international law matters. We help develop it, rely on it, abide by it, and – contrary to some impressions – it has an important role in our nation’s Constitution and domestic law. Three days after she was sworn in to office, at a meeting to which all State Department employees were invited, Secretary Rice declared:
“This Department, along with the rest of the Administration, will be a strong voice for international legal norms, for living up to our treaty obligations, to recognizing that American’s moral authority in international politics also rests on our ability to defend international laws and treaties.”
Tonight I will show you how we have kept the Secretary’s promise. I will demonstrate that our approach to international law – how and why we assume international obligations, how we implement those we have assumed, and how international law binds us in our domestic system – all reinforce our commitment to international law.
And then Bellinger turns to the specifics, starting with commercial law matters – as to which there is general agreement that the U.S. does a respectable job. And not to forget, the U.S. opposition to New York City’s efforts to collect taxes and fines from deadbeat diplomats, which Bellinger trumpets loudly.
Does Bellinger think for a second that this is what the current commotion is about? What about the laws of war? Torture? The practice of extraordinary renditions? That is the source of complaints, not trade and tariff agreements which cement globalization and transparently benefit America as a global center of finance and capital. Well, at length he does come to a couple of these issues:
In the case of the Convention Against Torture, our Constitution already prohibited cruel and unusual punishment, which we interpret as encompassing torture. The United States directly enforces our obligations under Article 15 of the CAT by prohibiting the use of statements obtained through torture in legal proceedings, including military commission proceedings. Congress also adopted a statute imposing criminal sanctions on persons who commit torture, consistent with our obligations under the Convention. I should add that contrary to what you might hear from some critics, no one in the United States government has sought to disregard or avoid these obligations.
To take another example, the United States directly enforces the obligations of the Geneva Conventions, including by disciplining military personnel who violate those obligations. Moreover, Congress has enacted laws imposing criminal sanctions on U.S. nationals who commit a grave breach of these Conventions.
These statements are shockingly dishonest or misleading. As Bellinger knows, the Administration in which he serves continues to reserve for itself the right to use, and has used, waterboarding, the cold cell, hypothermia, and sleep deprivation in excess of two days, all of which are “torture” as that word is understood throughout the world – and all of which have been called “torture” in formal documents issued by the Department of State. Torture remains at the top of the policy agenda today. Vice President Cheney continues as its zealous advocate and the Department of State – if it continues Colin Powell’s opposition to torture (which is not entirely free from doubt at this point) has clearly not prevailed within the administration on this point.
Bellinger’s claims of adherence to the Geneva Conventions are likewise not credible. He needs to take the time to read Hamdan, where he will find the High Court concluding that the United States has not adhered to the Geneva Conventions. And the Military Commissions Act of 2006, far from being a commitment to abide by the Conventions, may be the gravest challenge yet to its authority. That’s a conclusion evident, among other things, from the rulings of two very brave military judges earlier this week. And the Europeans are engaged on this too. Indeed, the Supreme Court of Spain rendered its decision recently. Reviewing what was being done in Guantánamo, the highest Spanish court concluded: this is a “legal black hole,” a “lawless place.” Nothing that transpired there could be given legal effect. This mirrors decisions of the Spanish judiciary with respect to the torture camps established by Augusto Pinochet, and foreshadows criminal proceedings which will likely be brought there against American officials – for crimes against humanity and torture. Yes, Mr. Bellinger, America had a long and honorable record of scrupulous adherence to the Geneva Conventions – through Democratic and Republican presidents. The administration in which you serve brought that to an end.
And what about renditions? This is the issue that has weighed heaviest with his European audience. And surely you were aware, as you spoke in the Hague, of that a trial will shortly commence in Milan in which 26 American civil servants – largely CIA agents – are accused of kidnapping, assault and other crimes, in connection with the extraordinary renditions program. Similar prosecutions are now underway in Germany and Spain. Well, on this topic, Mr. Bellinger has gone silent.
And today, six human rights organizations have published a report documenting the continuation of this program. Thirty-nine persons are held as “disappeared” in CIA blacksites. This program constitutes a criminal act both under United States and international law. Those who have driven it will surely, with time, be held to account, and the first steps to that end are being taken in the criminal court in Milan.
A few days ago, I sat at a conference in a magnificent Tuscan villa filled with some of the best known investigating magistrates and law enforcement officers of Europe, and senior U.S. Justice Department officials. At one point in his remarks, one of the European judges, looking straight at the American delegation said
“In my country, we earn the public’s support for law enforcement, among other things, by prosecuting public figures when they act outside of the law – by engaging in acts of kidnapping and assault, for instance.”
He was, of course, referring to the renditions program, and he was calling it a common crime. And outside of the American officials to whom these remarks were addressed, the balance of the gathering was nodding in agreement, a good reflection in that room of the dynamics of the world outside. That demonstrates how hollow are Mr. Bellinger’s claims of being a good international law citizen. Mr. Bellinger delivered a report from Cloudcuckooland. And no one in the room believed him. Least of all Mr. Bellinger himself.