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.


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?


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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The Printed Word in Peril·

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In February, at an event at the 92nd Street Y’s Unterberg Poetry Center in New York, while sharing the stage with my fellow British writer Martin Amis and discussing the impact of screen-based reading and bidirectional digital media on the Republic of Letters, I threw this query out to an audience that I estimate was about three hundred strong: “Have any of you been reading anything by Norman Mailer in the past year?” After a while, one hand went up, then another tentatively semi-elevated. Frankly I was surprised it was that many. Of course, there are good reasons why Mailer in particular should suffer posthumous obscurity with such alacrity: his brand of male essentialist braggadocio is arguably extraneous in the age of Trump, Weinstein, and fourth-wave feminism. Moreover, Mailer’s brilliance, such as it was, seemed, even at the time he wrote, to be sparks struck by a steely intellect against the tortuous rocks of a particular age, even though he labored tirelessly to the very end, principally as the booster of his own reputation.

It’s also true that, as J. G. Ballard sagely remarked, for a writer, death is always a career move, and for most of us the move is a demotion, as we’re simultaneously lowered into the grave and our works into the dustbin. But having noted all of the above, it remains the case that Mailer’s death coincided with another far greater extinction: that of the literary milieu in which he’d come to prominence and been sustained for decades. It’s a milieu that I hesitate to identify entirely with what’s understood by the ringing phrase “the Republic of Letters,” even though the overlap between the two was once great indeed; and I cannot be alone in wondering what will remain of the latter once the former, which not long ago seemed so very solid, has melted into air.

What I do feel isolated in—if not entirely alone in—is my determination, as a novelist, essayist, and journalist, not to rage against the dying of literature’s light, although it’s surprising how little of this there is, but merely to examine the great technological discontinuity of our era, as we pivot from the wave to the particle, the fractal to the fungible, and the mechanical to the computable. I first began consciously responding, as a literary practitioner, to the manifold impacts of ­BDDM in the early 2000s—although, being the age I am, I have been feeling its effects throughout my working life—and I first started to write and speak publicly about it around a decade ago. Initially I had the impression I was being heard out, if reluctantly, but as the years have passed, my attempts to limn the shape of this epochal transformation have been met increasingly with outrage, and even abuse, in particular from my fellow writers.

As for my attempts to express the impact of the screen on the page, on the actual pages of literary novels, I now understand that these were altogether irrelevant to the requirement of the age that everything be easier, faster, and slicker in order to compel the attention of screen viewers. It strikes me that we’re now suffering collectively from a “tyranny of the virtual,” since we find ourselves unable to look away from the screens that mediate not just print but, increasingly, reality itself.

Photograph (detail) by Ellen Cantor from her Prior Pleasures series © The artist. Courtesy dnj Gallery, Santa Monica, California
Among Britain’s Anti-Semites·

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This is the story of how the institutions of British Jewry went to war with Jeremy Corbyn, the leader of the Labour Party. Corbyn is another feather in the wind of populism and a fragmentation of the old consensus and politesse. He was elected to the leadership by the party membership in 2015, and no one was more surprised than he. Between 1997 and 2010, Corbyn voted against his own party 428 times. He existed as an ideal, a rebuke to the Blairite leadership, and the only wise man on a ship of fools. His schtick is that of a weary, kindly, socialist Father Christmas, dragged from his vegetable patch to create a utopia almost against his will. But in 2015 the ideal became, reluctantly, flesh. Satirists mock him as Jesus Christ, and this is apt. But only just. He courts sainthood, and if you are very cynical you might say that, like Christ, he shows Jews what they should be. He once sat on the floor of a crowded train, though he was offered a first-class seat, possibly as a private act of penance to those who had, at one time or another, had no seat on a train.

When Corbyn became leader of the Labour Party, the British media, who are used to punching socialists, crawled over his record and found much to alarm the tiny Jewish community of 260,000. Corbyn called Hez­bollah “friends” and said Hamas, also his “friends,” were devoted “to long-term peace and social justice.” (He later said he regretted using that language.) He invited the Islamist leader Raed Salah, who has accused Jews of killing Christian children to drink their blood, to Parliament, and opposed his extradition. Corbyn is also a patron of the Palestine Solidarity Campaign and a former chair of Stop the War, at whose rallies they chant, “From the river to the sea / Palestine will be free.” (There is no rhyme for what will happen to the Jewish population in this paradise.) He was an early supporter of the Boycott, Divestment, and Sanctions (BDS) movement and its global campaign to delegitimize Israel and, through the right of return for Palestinians, end its existence as a Jewish state. (His office now maintains that he does not support BDS. The official Labour Party position is for a two-state solution.) In the most recent general election, only 13 percent of British Jews intended to vote Labour.

Corbyn freed something. The scandals bloomed, swiftly. In 2016 Naz Shah, Labour MP for Bradford West, was suspended from the party for sharing a Facebook post that suggested Israel be relocated to the United States. She apologized publicly, was reinstated, and is now a shadow women and equalities minister. Ken Livingstone, the former mayor of London and a political supporter of Corbyn, appeared on the radio to defend Shah and said, “When Hitler won his election in 1932, his policy then was that Jews should be moved to Israel. He was supporting Zionism before he went mad and ended up killing six million Jews.” For this comment, Livingstone was suspended from the party.

A protest against anti-Semitism in the Labour Party in Parliament Square, London, March 26, 2018 (detail) © Yui Mok/PA Images/Getty Images
Nothing but Gifts·

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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.

Though I’d lived there twice during the previous five years, I wasn’t prepared for the economic boom I found upon this latest arrival. Not only had rent increased sharply in all but the most destitute neighborhoods, landlords now routinely demanded first, last, and a hefty security deposit, which meant I was short by about fifty percent. Over the first week or so, I watched with mounting anxiety as food, gas, and lodging expenses reduced the meager half I did have to a severely deficient third. To make matters even more nerve-racking, I was relocating with my nine-year-old son, Ezra. More than my well-being was at stake.

A veteran of cold, solitary starts in strange cities, I knew our best hope wasn’t the classifieds, and certainly not an agency, but the serendipity of the streets—handmade for rent signs, crowded bulletin boards in laundromats and corner grocery stores, passersby on the sidewalk; I had to exploit every opportunity that might present itself, no matter how oblique or improbable. In Eastlake, at the edge of Lake Union between downtown Seattle and the University District, I spied a shabby but vacant one-story house on the corner of a block that was obviously undergoing transition—overgrown lots and foundation remnants where other houses once stood—and that had at least one permanent feature most right-minded people would find forbidding: an elevated section of Interstate 5 just across the street, attended by the incessant roar of cars and trucks. The house needed a new roof, a couple of coats of paint, and, judging by what Ezra and I could detect during a furtive inspection, major repair work inside, including replacing damaged plaster-and-lath walls with sheetrock. All of this, from my standpoint, meant that I might have found a solution to my dilemma.

The next step was locating the owner, a roundabout process that eventually required a trip to the tax assessor’s office. I called the person listed on the rolls and made an appointment. Then came the moment of truth, or, more precisely, untruth, when dire circumstance begot strategic deception. I’d never renovated so much as a closet, but that didn’t stop me from declaring confidently that I possessed both the skills and the willingness to restore the entire place to a presentable—and, therefore, rentable—state in exchange for being able to live there for free, with the length of stay to be determined as work progressed. To my immense relief, the pretense was well received. Indeed, the owner also seemed relieved, if a bit surprised, that he’d have seemingly trustworthy tenants; homeless people who camped beneath the freeway, he explained, had repeatedly broken into the house and used it for all manner of depravity. Telling myself that inspired charlatanry is superior to mundane trespassing—especially this instance of charlatanry, which would yield some actual good—I accepted the keys from my new landlord.

Photograph (detail) © Larry Towell/Magnum Photos
Checkpoint Nation·

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Laura Sandoval threaded her way through idling taxis and men selling bottles of water toward the entrance of the Cordova International Bridge, which links Ciudad Juárez, Mexico, to El Paso, Texas. Earlier that day, a bright Saturday in December 2012, Sandoval had crossed over to Juárez to console a friend whose wife had recently died. She had brought him a few items he had requested—eye drops, the chimichangas from Allsup’s he liked—and now that her care package had been delivered, she was in a hurry to get back to the Texas side, where she’d left her car. She had a …
Checkpoint on I-35 near Encinal, Texas (detail) © Gabriella Demczuk

Acres of crossword puzzles Americans fill in each day:


In Burma, a newly discovered noseless monkey was assumed to be critically endangered because—despite its efforts to keep its head tucked between its legs on rainy days—it sneezes whenever rain falls into its nasal cavity and thereby alerts hunters to its presence.

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Happiness Is a Worn Gun


Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

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