We Don't Violate International Law--"We have simply not reached the result or interpretation that [our] critics prefer"

Marty Lederman

That's the Orwellian message from State Legal Advisor John Bellinger at the Hague on Wednesday, in a lecture entitled "The United States and International Law."

What are these "results" and "interpretations" of international law that our critics do not "prefer"?

That "extreme sensory deprivation" is permissible.

Not to mention waterboarding.

And hypothermia.

And stress positions.

And severe sleep deprivation.

And detaining six-year-olds in order to use them as leverage against their parents.

And disappearances, outside the purview of any legal system.

And renditions to nations in which torture is common, or to CIA "black sites" in Poland and Romania in which some or all of the above techniques are used.

And refusing to cooperate with an Italian prosecution of CIA and Italian agents who engaged in such lawbreaking, even when the prosecutors are those who have been fighting terrorism for years.

And, when confronted with the evidence of such barbarism, to send Mr. Bellinger to Europe with the explanation that we can hardly be faulted because "there is a legal murkiness that applies to international terrorism."

And, to send Mr. Bellinger to Europe once again to also assert that the Convention Against Torture does not apply at all to the armed conflict against Al Qaeda, because it is superseded by the Geneva Conventions -- treaties that the Administration insisted do nothing at all to protect our detainees. (In his Hague speech on Wednesday, Bellinger stated that "I should add that contrary to what you might hear from some critics, no one in the United States government has sought to disregard or avoid these obligations [under the CAT]." Well, except that the Bush Administration has rendered legal opinions that (i) interpreted away to nothing the prohibition on cruel, inhuman and degrading treatment, particularly overseas; (ii) insisted that the prohibition on rendition does not apply if the rendition begins in a European nation rather than in the United States; and, for good measure, (iii) concluded that the CAT is completely inapplicable to our current armed conflicts. Other than that, we don't seek to disregard or avoid our CAT obligations.)

To his credit, Bellinger addressed these issues directly in his speech. But what he said is quite remarkable:

This Administration has worked hard to identify and implement international rules applicable to these terrorist suspects. We have not ignored, changed, or re-interpreted existing international law. In fact, last year, our Supreme Court ruled that the one provision of the Geneva Conventions that does apply, even if the Conventions as a whole do not, is Common Article 3.

Did Bellinger utter this with a straight face? The Supreme Court, of course, is not the "Administration." And the actual Administration fought tooth and nail against that very holding for five years, because the conclusion that Common Article 3 did not apply was the critical cornerstone of its interrogation practices, which employ the "cruel treatment" CA3 forbids.

Bellinger concluded:

[T]he United States, and this Administration in particular [!], has worked hard to uphold international law. The efforts we have made are not always easy to see or to appreciate. But our having taken such steps even when it was not easy or costless, and our struggles to identify an appropriate path even when one was not clear, demonstrates the respect in which the United States holds international law.

What's most odd about this, as Scott Horton explains here, is that Bellinger is more aware than anyone how little this account comports with reality. To me, it reads very much like the recent speech in which Phil Zelikow claims that under the new Bush "paradigm" they're closing GTMO and reserving military commissions for the "worst of the worst" terrorists, "not bin Laden's driver." Both speeches -- Zelikow's and Bellinger's -- read as if they are fantasies of what the world would look like if the State Department had prevailed in the internal Administration debates. But time and again, the President has opted to go the route urged by the Vice President instead.

I know John slightly. He's a good guy; and, more importantly, I've heard numerous accounts that I trust that he's been leading the charge at the State Department to push the Administration back to the better traditions of our government, fighting the good fight. He is certainly to be commended for engaging the Administration's critics directly, often at a high level of seriousness and sophistication. I don't dispute that there may be some real value in John giving speeches such as this one -- perhaps, over time, they might shame the Administration into actually doing what Bellinger describes. But for now, anyway, the idea that John actually believes that his account has any relation to the truth outside Foggy Bottom is simply implausible .

Bellinger's timing here was uncanny, because the very next day after his address, the Committee on Legal Affairs and Human Rights of the European Council's Parliamentary Assembly issued this report entitled "Secret detentions and illegal transfers of detainees involving Council of Europe member states."

The report is a comprehensive account of the CIA's "High-Value Detainee" program at black sites in Europe. I can't possibly do it justice here. Please read the whole thing.

For starters, here are some of the Introductory remarks. Keep in mind, however, that these views are merely "interpretations" that the U.S. government does not "prefer."

1. What was previously just a set of allegations is now proven: large numbers of people have been abducted from various locations across the world and transferred to countries where they have been persecuted and where it is known that torture is common practice. Others have been held in arbitrary detention, without any precise charges levelled against them and without any judicial oversight – denied the possibility of defending themselves. Still others have simply disappeared for indefinite periods and have been held in secret prisons, including in member states of the Council of Europe, the existence and operations of which have been concealed ever since.

2. Some individuals were kept in secret detention centres for periods of several years, where they were subjected to degrading treatment and so-called “enhanced interrogation techniques” (essentially a euphemism for a kind of torture), in the name of gathering information, however unsound, which the United States claims has protected our common security. Elsewhere, others have been transferred thousands of miles into prisons whose locations they may never know, interrogated ceaselessly, physically and psychologically abused, before being released because they were plainly not the people being sought. After the suffering they went through, they were released without a word of apology or any compensation – with one remarkable exception owing to the ethical and responsible approach of the Canadian authorities . . . .

3. While the strategy in question was devised and put in place by the current United States administration to deal with the threat of global terrorism, it has only been made possible by the collaboration at various institutional levels of America’s many partner countries. [T]hese partners have included several Council of Europe member states. Only exceptionally have any of them acknowledged their responsibility – as in the case of Bosnia and Herzegovina, for instance – while the majority have done nothing to seek out the truth. Indeed many governments have done everything to disguise the true nature and extent of their activities and are persistent in their unco-operative attitude. . . .

4. The rendition, abduction and detention of terrorist suspects have always taken place outside the territory of the United States, where such actions would no doubt have been ruled unlawful and unconstitutional. Obviously, these actions are also unacceptable under the laws of European countries, who nonetheless tolerated them or colluded actively in carrying them out. This export of illegal activities overseas is all the more shocking in that it shows fundamental contempt for the countries on whose territories it was decided to commit the relevant acts. The fact that the measures only apply to non-American citizens is just as disturbing: it reflects a kind of "legal apartheid" and an exaggerated sense of superiority. Once again, the blame does not lie solely with the Americans but also, above all, with European political leaders who have knowingly acquiesced in this state of affairs.

5. Some European governments have obstructed the search for the truth and are continuing to do so by invoking the concept of “state secrets”. Secrecy is invoked so as not to provide explanations to parliamentary bodies or to prevent judicial authorities from establishing the facts and prosecuting those guilty of offences. This criticism applies to Germany and Italy, in particular. It is striking to note that state secrets are invoked on grounds almost identical to those advanced by the authorities in the Russian Federation in its crackdown on scientists, journalists and lawyers, many of whom have been prosecuted and sentenced for alleged acts of espionage. The same approach led the authorities of “the former Yugoslav Republic of Macedonia” to hide the truth and give an obviously false account of the actions of its own national agencies and the CIA in carrying out the secret detention and rendition of Khaled El-Masri.

6. Invoking state secrets in such a way that they apply even years after the event is unacceptable in a democratic state based on the rule of law. It is frankly all the more shocking when the very body invoking such secrets attempts to define their concept and scope, as a means of shirking responsibility.

14. We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. However, we believe that the end does not justify the means in this area either. The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. . . .

15. We have said it before and others have said it much more forcefully, but we must repeat it here: having recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. Moreover, in the process, we give these criminals a degree of legitimacy – that of fighting an unfair system – and also generate sympathy for their cause, which cannot but serve as an encouragement to
them and their supporters.

Posted 4:02 AM by Marty Lederman [link]