No Comment, Six Questions — March 15, 2010, 3:51 pm

Is International Law Really Law? Six Questions for Michael Scharf

Neoconservative legal scholars and their allies argue aggressively that international law isn’t really law because the nations who make it–through treaties and conventions and by practice–don’t really treat it as law. But Michael Scharf and Paul Williams, two alumni of the Legal Adviser’s office in the State Department–known inside the Beltway as “L”–decided to take a deep look inside the process of policy decision making to test this theory. They convened the ten living legal advisers in meetings in Washington and later also gathered some of their equals from Russia, China, and the United Kingdom, and asked them to address the question directly. Did their governments in fact treat international law as law in making decisions? Working through crises including Vietnam, Watergate, and Iran-Contra, they found that international law did in fact directly shape executive decisions. I put six questions to Case Western Reserve University Law Professor Michael Scharf about his new book, Shaping Foreign Policy in Times of Crisis.

1. Jack Goldsmith and Eric Posner argued in their 2004 book, The Limits of International Law, that international law was really just policy, that modern nation states may sign a lot of treaties and agreements but a study of their conduct suggests that they don’t feel bound by them. Your book comes to just the opposite conclusion. Explain the different approaches you used and how you came to opposed results.

scharfclevelandmagazinebillydelfs

Goldsmith and Posner based their conclusions on selective use of anecdotal case studies, and their identification of the motivations of the decision makers is based entirely on conjecture. They made no attempt to penetrate the black box of foreign-policy decision making. In contrast, our research was based on a series of meetings with the ten living former State Department legal advisers, from the Carter, Reagan, elder Bush, Clinton, and Bush Administrations. The legal advisers provided remarkably candid accounts of the role international law actually played in behind-the-scenes deliberations on foreign policy during the major crises that occurred during their tenure. They confirmed that senior U.S. policy makers of both parties perceived international law as real law, that international legal rules contained in treaties and customary international law are often clear enough to constrain policy preferences, that the policy makers understood that there were serious consequences to violating international law, and that they recognized that it was almost always in America’s long-term interest to comply with international law.

2. Can you cite any specific cases in which a president has been advised not to take a contemplated action because of international law and he followed that advice?

If international relations are to be more than just power politics, international lawyers must be moral actors who see their job as more than simply doing as they are told.
— Harold Hongju Koh, Obama Administration Legal Adviser
—From Shaping Foreign Policy in Times of Crisis
Reprinted by permission of the publisher, Cambridge University Press. Copyright © 2010 Michael P. Scharf and Paul R. Williams

The ten former State Department Legal Advisers provided a number of examples spanning thirty years. Examples detailed in the book include President Carter’s 1979 decision not to use force against the Iranian Embassy in Washington during the hostage crisis, President Reagan’s 1985 decision not to authorize the shooting down of an Egyptian airliner carrying the terrorists responsible for the Achile Lauro cruise-ship hijacking, President Clinton’s 1994 decision to halt the supply of counter-narcotics intelligence to the Peruvian air force after it shot down a civilian aircraft, and President Bush’s decision to direct the State of Texas not to execute a Mexican national convicted of rape and murder in order to comply with an International Court of Justice order. The legal advisers said there were only four times during the past thirty years in which they were intentionally cut out of the decision-making process on issues involving the interpretation or application of international law, and they described each as a “train wreck.” The first was the mining of the Nicaragua harbor, the second was the Iran-Contra affair, the third was the kidnapping of Mexican doctor Humberto Álvarez Machaín, and the fourth was the drafting of the so-called “torture memos.”

3. Goldsmith and Posner were at the heart of a political movement that (in Goldsmith’s words) “was skeptical about the creeping influence of international law on American law.” Looking back over the last eight years, do you see the influence of that movement within the Bush Administration? How did it manifest itself in terms of process?

Goldsmith and Posner, along with University of California Berkeley Law Professor John Yoo, were part of a group of scholars whose self-proclaimed agenda was to convince government officials, political elites, and the general public that it is permissible for policy makers to ignore international law whenever they perceive it to be in their interest to do so, especially in the context of the war on terror. After the 9/11 attacks, a small cabal of government lawyers, which included John Yoo, then an assistant deputy attorney general in the Office of Legal Counsel, formed what they called “the War Council.” The War Council drafted a series of legal memos, now known as the “Torture Memos,” that opined that international law did not prevent the government from detaining suspected terrorists indefinitely without judicial process, sending suspected terrorists to CIA black sites for interrogation, or employing extraordinary interrogation techniques such as waterboarding. John Yoo has admitted that the War Council cut out the State Department Legal Advisor from the “clearance” process because it anticipated that the Legal Adviser would issue contrary conclusions about the legality of these proposed tactics. The Department of Justice ethics probe documented that the War Council accomplished this by classifying the memos above “top secret.” William Taft, who was the State Department Legal Adviser at that time, told us that he thought his office had been cut out for fear that it might leak the conclusions of the draft memos in an effort to prevent them from becoming policy. It is worth speculating whether if Taft had been permitted to weigh in about the legality of the proposed tactics, this might have been sufficient to keep them from being approved by the President and implemented.

4. The Chilcote Inquiry, currently running in Britain, has had a strong focus on the legality under international law of the military intervention in Iraq. A review of the British media coverage in the run-up to the war shows the same strong focus, across political dividing lines. Yet in the United States, the “legality” issue was something on the fringe, for law professors perhaps, and not a matter for serious public concern–neither then nor now. How can you explain the differing attitudes between the United States and Britain on the importance of international law?

I am convinced that if we had been involved and our views considered, several conclusions that were not consistent with our treaty obligations under the Convention against Torture and our obligations under customary international law would not have been reached.
–William Taft, Bush Administration Legal Adviser
—From Shaping Foreign Policy in Times of Crisis
Reprinted by permission of the publisher, Cambridge University Press. Copyright © 2010 Michael P. Scharf and Paul R. Williams

The Bush Administration initially argued that the 2003 invasion of Iraq was justified under the doctrine of pre-emptive self-defense because Iraq had stockpiled weapons of mass destruction and was supporting Al Qaeda. There wasn’t much debate at the time because the Bush Administration kept the predicate intelligence confidential, and the American public were largely willing to trust their government about matters involving U.S. security in the aftermath of 9/11. Months later, it was revealed that the intelligence did not in fact support either of those conclusions. That revelation was part of the reason the Iraq war ultimately became so unpopular in the United States. Interestingly, in contrast to the “torture memos,” the State Department Legal Adviser was fully consulted on the issue of the legality of invading Iraq. The Legal Adviser at the time, William Taft, opined that the invasion could be justified based on the UN Security Council’s 1991 Resolution authorizing use of force against Iraq, and the subsequent cease-fire resolution which set forth several conditions that Iraq later breached. As detailed in our book, the acting Legal Adviser in Britain’s Foreign and Commonwealth Office, Elizabeth Wilmshurst, did not agree with the U.S. interpretation of the resolutions, and resigned from office when Prime Minister Tony Blair disregarded her legal opinion. When we discussed Wilmshurst’s resignation, one of the former State Department Legal Advisers said that “when there is an important matter and the government refuses to follow advice that you consider to be essential, you are supposed to resign.”

5. In his effort to minimize the influence of international law, John Yoo advanced the notion that treaties and conventions were not law except as adopted by Congress, and then became law only through Congressional acts. Even in the recent Justice Department ethics review, the Convention Against Torture was seen as creating law only through the Anti-Torture Statute, 18 U.S.C. sec. 2340A, and was not otherwise seen as controlling on the Executive. How does this perspective compare with the view historically taken by the Legal Adviser at the State Department?

Historically the Legal Advisers have taken the position that all treaties that are ratified by the United States are binding on the United States on the international plane, but that non-self-executing treaties are not enforceable in a U.S. court unless there is federal implementing legislation. In this case there are federal statutes that make it a crime to commit war crimes or torture. As implementing legislation, those federal statutes must be interpreted in harmony with the treaties they implement, taking into account international precedents as persuasive authority. In other words, the torture memos should have cited the international precedent that indicated that waterboarding was clearly torture.

6. Under the principle of complementarity, international and foreign legal tribunals don’t need to concern themselves with matters upon which the criminal investigators and courts of the nation state most directly involved are engaged. Stephen J. Rapp, the U.S. war crimes ambassador, argued on January 25 that the United States Justice Department was seriously looking into allegations of torture as a consequence of policy in the Bush-era War on Terror. The next day, the Spanish Audiencia Nacional issued a decision in Madrid concluding that it was not, and opening a formal criminal investigation into the role played by Bush Administration lawyers in the torture of a Spanish citizen at Guantánamo. Who’s right?

scharfwilliams

Prosecution of former Bush Administration officials may be politically inexpedient for the Obama team. But the United States has an international obligation under the Geneva Conventions and the Torture Convention to investigate diligently and prosecute in good faith cases of war crimes or torture committed by American officials, including lawyers whose advice is intended to facilitate commission of such crimes. Because these are crimes of “universal jurisdiction,” if the Obama Administration does not in good faith pursue prosecution of former officials where there is probable cause to conclude they have been complicit in war crimes or torture, other countries may legitimately pursue criminal complaints against such individuals in their courts. The recent controversial decision of David Margolis, the Associate Deputy Attorney General, to override the advice of the Department of Justice ethics probe concerning responsibility for the “torture memos,” and the very limited mandate of the special prosecutor’s torture inquiry may give countries like Spain valid reason to perceive that the United States is not in fact pursuing these cases in good faith. Special prosecutor John Durham has been given the authority to evaluate whether a criminal investigation is warranted, not to commence a criminal investigation, and Attorney General Holder has made clear that the focus of Durham’s preliminary inquiry would be on individuals who went beyond what was authorized in the OLC memos, not on the drafters of those memos or the higher-level officials who pushed for the memos as a way to get around the law criminalizing torture and inhumane treatment. In any event, in this particular case, Spain has a right under international law to pursue criminal charges whether or not the U.S. decision to forego prosecution was made in good faith, because the victim of the alleged torture was a Spanish citizen.

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If necessity is the stern but respectable mother of invention, then perhaps desperation is the derelict father of subterfuge. That was certainly the case when I moved to Seattle in 1979.

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