"Lawfare" and Bush Administration War Crimes Trials

In my essay, "Enhanced Interrogation's in the Charts Again," I suggested that the radical left will "ratchet-up its push for war crimes prosecutions in the weeks ahead."

The funny thing about it, though, is that even the most die-hard foes of the administration's war on terror admit that criminal prosecutions of Bush administation officials are a pipe dream. The most recent essay conceding the point is David Cole's new piece at the New York Review, "What to Do About the Torturers?" Cole reviews Philippe Sands', Torture Team: Rumsfeld's Memo and the Betrayal of American Values, praisng the book as "the most unusual and deeply revealing take on the subject."

What makes Sands special? It turns out that Sands, a British attorney, professor of law, and long-time anti-American antagonist, is apparently one of the best able to make the case for the primacy of international human rights over state power and sovereignty. For all that, and despite the "deeply revealing take" on the Bush administration's alleged criminalilty, Cole at most is left with recommendations for "an independent, bipartisan, blue-ribbon commission to investigate" to "assess responsibility for the United States' adoption of coercive interrogation policies."

I have a sneaking suspicion that that's not going to be enough for the left's America-bashers who want President Bush executed at the Hague.

Well, there's more on all of this in the news today, with the Wall Street Journal's report, "Gonzales Defends Role in Antiterror Policies." Of course, all the lefty bloggers at Memeorandum are up in arms about it, for example, Think Progress, TPMMuckraker, Spencer Ackerman, Talking Points Memo, Raw Story, Law Blog, Paul Krugman, Steve Benen, and Lawyers, Guns and Money.

Alberto Gonzales is the left's prime candidate for "torture trials," right up there with the president, Vice-President Dick Cheny, and former Justice Department attorney John Yoo, to name just a few. But trials aren't going to happen. Leftists are simply foaming at the mouth, and they'll be in another uproar when the Barack Obama administration turns the page on the whole affair sometime next year. Robert Stacy McCain summed things up on this recently:

Frankly, I don't even give a damn. If I turned on the TV sometime next year to see Paul Wolfowitz in the dock at the Hague, I'd shrug in mute acceptance, and if I blogged about it, would do so in an insouciant way.

Still, even if the political pressure in the U.S. for war crimes prosecutions trails off, the global human rights (and anti-American) constituency won't let such things go. Since the 1990s, when the increased globalization of legal rules resulted in the establishment of the International Criminal Court, Augusto Pinochet's arrest, trial, and attempted extradition in 1998, calls for war crimes prosecutions against Henry Kissinger, and other efforts to bring "tyrants to justice," global left activism has pushed relentlessly for universal jurisdiction, and the push for torture trials against the "evil BushCo regime" will linger interminably at the fringes of global left activism.

So let me leave readers with a nice response to all of this from Michael Chertoff, the administration's Secretary of Homeland Security, in his essay at Foreign Affairs, "The Responsibility to Contain: Protecting Sovereignty Under International Law."

Chertoff makes a powerful case for the expansion of international law and justice grounded in a legal doctrine of "a consent-based model of national sovereignty." That is, justice in international law will become increasing irrelevant in a world of great-power sovereign states unless international legal regimes become embedded in robust norms of national consent. Chertoff suggests that the global left's "lawfare" against the United States is in fact the biggest impediment to the longstanding global legal order arising out of the ashes of the World War II. In the face of constant attacks on American policy and sovereignty, the U.S. has been increasingly encouraged to reject wholesale the entire appartus of international law. Such an outcome, of course, would deprive the world of the first-mover hegemon that's been at the center of mulitlateral institution-building and the cooperative regimes underwriting world order.

Chertoff's discussion of the left's push for universal jurisdiction is particularly good, and worth quoting at length:

The typical strategy of international legal activists today is to challenge the idea of national sovereignty. This is a revolutionary tactic, particularly because sovereignty has played an important role in the development of the international system for over three centuries. Under the Westphalian model of sovereignty - which dates back to 1648 - an independent state is not subject to external control over its internal affairs without its consent ....

Imposing international legal mandates on a nation without its consent undermines this traditional concept of sovereignty and conflicts with the democratic will. For this reason, international law has often been based on the consent of nations by way of treaties, in which nations voluntarily agree to abide by certain rules, or through customary international law, which infers tacit consent through widespread state practice. To be sure, not all sources of international law are explicitly based on sovereign consent. So-called peremptory norms, or jus cogens norms, are rules -- such as those forbidding slavery or genocide - considered to be so deeply embedded in international law that they bind all nations, even absent national consent.

An international legal framework founded on a consent-based model of sovereignty is advantageous for several reasons. By requiring the explicit or implicit consent of nations before a particular international standard binds them, this approach gains the legitimacy that democratic legal traditions and processes provide. Consent-based international law also allows states to protect their own critical interests by bargaining for or withholding consent from certain provisions of a treaty. Finally, grounding international law in consent acknowledges national differences in culture and legal philosophy by ensuring that international rules fit within an international consensus - one shared by real governments, not merely endorsed by intellectual elites.

Academics, lawyers, and judges who challenge the continued relevance of consent in international law often treat "sovereignty" as a pejorative term or an antiquated concept. Many of these critics depart from the traditional view of international law as consisting primarily of reciprocal obligations among nations. For example, some have argued in particular cases that international agreements automatically confer legal rights on individuals that may be enforced directly without state support or even against the laws of the individuals' own countries. And some further argue that international law is not limited to what is agreed on by nations in treaties or accepted through widespread practice; they claim it also encompasses a set of standards based on highly general and "evolving" universal principles.

For example, the international legal scholar Philippe Sands argues that "to claim that states are as sovereign today as they were fifty years ago is to ignore reality." Sands describes international law as a set of obligations that "take on a logic and a life of their own" and that "do not stay within the neat boundaries that states thought they were creating when they were negotiated." The late Harvard Law School professor Louis Sohn went even further in unmooring international law from consent, positing, "States really never make international law on the subject of human rights. It is made by the people that care; the professors, the writers of textbooks and casebooks, and the authors of articles in leading international law journals." Even the conservative commentator Robert Kagan has called on U.S. policymakers to "welcome a world of pooled and diminished national sovereignty," arguing that the United States "has little to fear and much to gain in a world of expanding laws and norms based on liberal ideals and designed to protect them."

Of course, not all who seek to diminish the role of sovereignty in the development of international law are so explicit. International legal jurists and scholars often purport to recognize sovereign consent as the foundation of international obligations but then proceed to "identify" and apply norms or principles of customary international law that are not evidenced by actual state practice. For example, a court may proclaim that there is a rule that prohibits particular government actions without considering whether most nations indeed adhere to that rule. Alarmingly, some jurists rely for support on academics and commentators who do not merely catalog international law but rather seek to influence its development according to their own policy preferences. It makes no practical difference that these jurists may pay lip service to the importance of sovereignty; the effect of their efforts is to undermine nations' prerogative to choose their own laws.

Whether invoked explicitly or implicitly, the most common justifications for rejecting sovereign consent as the foundation of international law are flawed. One argument is that the growing global activity among nations creates the need for more comprehensive systems of international law to govern global conduct. This need, however, does not justify eliminating sovereign consent as the basis for imposing international obligations. Indeed, requiring the consent of nations has not prevented the international community from addressing a host of substantive issues, ranging from trade to arms control to endangered species protection. Moreover, individuals still principally identify themselves as part of a particular national community and resist decisions imposed on them by foreign actors and institutions without their consent. A visible case in point was the rejection of the European Constitution by voters in France and the Netherlands in 2005 and the more recent rejection of the Lisbon Treaty by voters in Ireland in 2008.

Another objection to sovereign consent holds that all humans possess certain fundamental rights that cannot be denied, even by the consent of the majority. But the recognition of fundamental human rights raises the harder and more particular question of how those rights should be defined and applied, and by whom. Bodies such as the United Nations include member states that often do not share a common position and whose values often clash with those of the United States and other democratic states. For example, the UN Human Rights Council has passed resolutions urging states to adopt laws combating the "defamation of religions," which would prohibit the type of open discussion about religious and political matters that is protected under the First Amendment to the U.S. Constitution. The UN has also held a conference to examine gun-control provisions, ones that would be at odds with the Second Amendment. And the UN recently passed a resolution calling for a moratorium on capital punishment with "a view to abolishing the death penalty," even though the U.S. Supreme Court has repeatedly upheld it. Ironically, many of the states supporting such initiatives have a poor record when it comes to respecting the rights of their own citizens.

In short, absent an express treaty or convention, giving international bodies the power to decide what are new and expanded fundamental rights would allow countries to advance nationalist or bloc political agendas under the guise of human rights. It would also empower an often self-perpetuating international legal establishment - courts, advocates, academics, and activists - to "discover" international human rights by relying selectively on transnational agreements that may express only regional consensus or by drawing on philosophical or academic texts that reflect particular intellectual fashions. Such amorphous sources provide questionable grounds for mandatory international obligations.

The remainder of the article sets forth a model of consent-based international law. Chertoff focuses on three core principles of a regime of "reciprocal responsiblity" in international law and protection against emergent threats: nonsubordination of actor's sovereign rights, collaborative security in generally non-controversial international regimes (e.g., global trade and finance), and reciprocal sovereignty.

It's a great piece of policy writing, grounded in realism and respect for the sovereign rights of peoples in democratically-legitimated contitutional regimes, much unlike that wild unhinged rants of the "lawfare" advocates of the global left.