Balkinization  

Tuesday, January 16, 2007

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.

Comments:

Professor Tamanaha: “Legally required” is an extremely high standard...

My question, Professor, is how best to proceed after having thusly scuttled a premise which is so central to someone's argument. To say this standard is "extremely high" is extremely gracious. I would tend to say such a standard is suitable for Fow News consumers but is simply laughable in a legitimate legal venue. Nonetheless, the question remains, how best to engage known cheats of this nature? For I realize we ignore them at our peril.
 

From the WaPo article Prof. Tamahara linked to:

In the administration's effort to obtain raw intelligence, officials said, it was easier to ship hundreds of men with unclear allegiances to a naval base in Cuba in early 2002 and ask the hard questions later. But with a government focused on interrogations, a bureaucracy lacking tolerance for risk and a detention policy under legal attack, the United States has found it difficult to free many of the detainees, regardless of the information it has on the threat they pose.

In part, the maladministration is hampered in "doing the right thing" because they are so unwilling to admit mistakes; to admit that they may, in certain cases, have done the wrong thing. The maladministration is remarkably thin-skinned and sesitive to substantive criticism. Acknowledgeing mistakes detracts from the public image of them and their competency and goodness, at a time when they know they're on perilous grounds, both morally and most important politically (their response to el Masri and Arar is just emblematic of that). The latter has driven maladministration policy from the start; they care about appearance, and they'll use any trick in the book to gussy things up on that count, including unabashed propaganda programs.

The question is whether there will come a "breaking point", a point at which the population undergoes a phase change and sees them as the connivers and hacks they are, and acts en masse to throw them out. Will they see the danger (to them) in time, and start a more conciliatory and apologetic course? Perhaps (and there are those in the Republican party that fear this and are pressing hard to avoid such a political disaster). But the signs are not good; from the recent disavowal of the Baker-Hamilton ISG report, to the firing of the nay-sayers, to the "all in" approach they've charted.

Cheers,
 

OK, someone enlighten a layperson here to a fine legal distinction I do not really follow. To me "a difference course is legally required" would mean the current course is legally prohibited, ie, illegal. I thought that was exactly what the Administration's opponents have been arguing (including here on this blog) from the very start.

Also, can someone refer me to a good source on military or international law in such cases?
 

Oooops. Sorry. Prof. Tamanaha. Mea culpa.

Cheers,
 

OK, someone enlighten a layperson here to a fine legal distinction I do not really follow. To me "a difference course is legally required" would mean the current course is legally prohibited, ie, illegal. I thought that was exactly what the Administration's opponents have been arguing (including here on this blog) from the very start.

I think it depends on the specific issue. For example, torture is a case where the alternative is "legally required". FISA warrants also. In contrast, the exact type of hearing for detainees is more in the category of "legally consistent".
 

Mark Field:

To make sure I understand you, are you saying an alternative is "legally required" in the case of torture of warrantless surveillance means that these practices are illegal? And, alternately, in the case of the type of hearings for detainees, a variety of types are allowed. What the Administration is offering may, indeed, be legal, but other types of hearings may be more commonly used, or better supported by law and precedent.

Am I understanding right?
 

Powerful stuff...
 

I think the "legally required" as used by an administration that consistently legally mischaracterizes and obscures as "secret" behaviour that is - over and over - found to be different than what it was characterized - is basically an advanced search version of, "Have you been legally required to stop beating your wife yet"

In any event, when an agressor nation invading another country brings in people who were living in that country and took up arms against the agressor, I think it IS a requirement of the laws of war that they be treated as legal combatants and pows unless and until there is competent evidence to the contrary. Similarly, when a nation engages in the purchase of other individuals, not taken on the field of battle, or otherwise on the detention of persons who were rounded up in occupied territory but not taken on the battlefield, then there is a requirement for an actual Geneva compliant "real" status hearing.

It is very easy to understand why there is a strong negative reaction to these fairly self evident matters - matters which do not require anything in the manner of "giving terrorists more rights."

If anyone bought or taken was not actually an illegal combatant, it was unquestionable illegal and a war crime to ship them off to GITMO and to do any of the many things that have been catalogued.

So the first admission that even one person was sent to GITMO incorrectly is a prima facie war crime. That's why there is so much, and such disingenous, argument about the "power" and legal authority to handle "al-Qaeda" in this manner.

The bright shiney arugment to distract from the realities of legal authority to treat innocent civilians in this manner.

Has anyone, anywhere in DOJ, JAG or at State, formulated their legal argument for buying a non-combatant and shipping them, shackled like a slave, to GITMO for years of abuse?

Over and over there are admissions - varying only in number - that we bought and shipped people who were not terrorists, not Taliban and not even the broader "jihadist" unspecified category.

Where is the legal justification for that?
 

To make sure I understand you, are you saying an alternative is "legally required" in the case of torture of warrantless surveillance means that these practices are illegal?

Yes.

And, alternately, in the case of the type of hearings for detainees, a variety of types are allowed.

Yes.

What the Administration is offering may, indeed, be legal, but other types of hearings may be more commonly used, or better supported by law and precedent.

Well, the Administration's idea of a hearing is, IMO, not adequate to meet the minimum, legally required, standard. The exact extent of the "extra" required for a minimally acceptable hearing could be the subject of reasonable debate.

Am I understanding right?

Basically, yes. The lawyers here and on other blogs tend to get caught up in a subject which they are familiar with and they don't make the distinctions all that clear to non-lawyer readers. We should do a better job of making it clear that legal arguments are rarely clear cut.

Nevertheless, most such arguments take place within a range of generally accepted possibilities. What's unusual about this Administration is its willingness to make arguments far outside that range. They are, IMO, as far outside the norm as, say, the communists were in the other direction.
 

To Mark Field:

Thanks. I will say, FWIW, that I have found most of the discussions here to be free of legalese and understandable. (That is why I have dared to post here).
 

I will say, FWIW, that I have found most of the discussions here to be free of legalese and understandable. (That is why I have dared to post here).

QFE. (Same here.)
 

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