Top State Department Lawyer Blogs About Guantanamo

Brian Tamanaha

The Legal Advisor to the State Department, John Bellinger, is guest blogging this week at Opinio Juris (the premier international law blog). Bellinger is articulating detailed legal justifications for the Bush Administration’s policies in connection with Guantanamo, torture, and related issues. To see some of the real world consequences of these policies, read this Washinton Post article about the many people still languishing in limbo at Guantanamo five years on.

Bellinger’s initial substantive post made this request of readers:

My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy.

This request seems reasonable enough, but it is a bit tricky. He sets it up so that opponents are placed in one of two categories: an alternative to the Bush Administration’s position must be “legally required,” or it is a policy preference (and therefore can be ignored). “Legally required” is an extremely high standard, one not easily met in domestic law, never mind in international law. But there are other standards, for example: legally persuasive (supported by compelling legal arguments), or legally authoritative (consistent with rulings by international tribunals), or consistent with the legal interpretation shared by most of the rest of the world. A major problem with the Bush Administration’s positions on some of the critical issues is that they run afoul of these other standards, standards which many international observers consider appropriate.

Bellinger, of course, does not hold the Bush Administration to the same high standard that he applies to opponents, or even to the lower alternative standards that I suggest. As long as the Administration's position is “arguable,” that appears to be good enough.

Consider, for example, Bellinger’s earlier observations about Article 75 of the Geneva Protocol, which the US has heretofore consistently maintained is binding under customary international law:

“Article 75 of Geneva Protocol I does set a generally minimum standard for people who do not benefit from other provisions of the Geneva Convention, and the U.S. has historically said that we think that is customary international law. We are looking at whether we think it is customary international law in this kind of a conflict. There is certainly a good argument that it is, always. But when it comes to customary international law, it is in things that you are customarily dealing with, and people have not had to customarily deal with armies of terrorists where the entire force of the army, not just a few people but the entire force of the army, is in fact intent not on fighting our armed forces, where sometimes guerrillas who have been contemplated by Geneva Protocol I…, but where the entire army of al-Qaeda is in fact intent on combating our civilians.

“So while you make a reasonable point, we have said that that’s customary international law in the past, we are looking at whether that’s appropriate, and we haven’t said that it isn’t, but we have not yet said that it is, because this really is in that regard -- dealing with people whose whole aim in life is to kill civilians -- is sort of a different situation.”

I guess Bellinger's explanation for why a provision we have previously (repeatedly) said is binding might not be binding on us in this situation is arguable (which is not to say that it is convincing), though it is telling that his words are hedged and twisted into a pretzel.

In another interview, Bellinger made the following statements about torture:

State Department legal adviser John Bellinger said the US welcomed the dialogue and would try to answer the committee's [the Committee Against Torture, in Geneva, May 2006] questions.

But he said incidents of abuse were "not systemic" and urged the panel "not to believe every allegation that you've heard".

"Allegations about US military or intelligence activities have become so hyperbolic as to be absurd," he said.

US Deputy Assistant Secretary of Defense Charles Stimson said 120 detainees had died in Iraq and Afghanistan, 29 of whom might have been abused.

He said suspected cases were investigated and "appropriate action taken”.

It’s not clear how to interpret Bellinger’s denials. Various reports have indicated that prisoners in US custody have been subjected to stress positions (many hours standing in restraints), held in cold conditions and doused with cold water, and subjected to waterboarding. Is Bellinger denying that any of this took place (and how does he know?)? Or is he saying that this treatment does not constitute “abuse” or “torture” (which the Bush Administration has suggested implausibly in the past)? [Stimson, by the way, made national news in the past few days by attempting to intimidate the corporate lawyers who defend Guantanamo prisoners, which says a lot about his believability. And how many of those deaths have resulted in prosecution?]

If we are indeed fighting a new kind of war—the so-called “Global War on Terror”—it is essential that the US obtains international support in this effort. Right now we suffer from a lack of credibility.

Bellinger’s willingness to appear on a blog to articulate and defend the Bush Administration’s position on these issues is admirable. No doubt he will have an audience of international lawyers and government officials. Let’s hope one of his primary objectives is to rebuild US credibility. For that to happen, his legal justifications must be more than arguable, they must be legally persuasive and factually credible.

Check out his posts.
Posted 12:10 PM by Brian Tamanaha [link]