I’m finding it difficult to usefully add to the debate over the “Guantanamo Lawyers”/”al-Qaida Seven” that has emerged over the last week or so. Basically, the fundamental issue is that people “we” dislike or who have (allegedly) done horrible things are actually entitled to certain fundamental rights under both American and international law – including international law signed and ratified by the US Senate. That this law applies to terrorists has been the subject of several now high profile Supreme Court decisions (notably Hamdan).
So the legal issues here, the right to a fair trial (or, in the words of Common Article 3 to the 1949 Geneva Conventions, “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”) and adequate representation, are pretty straightforward.*
Therefore, what is interesting (if not somewhat soul-crushingly disappointing for those of us who care about these things) is the political rhetoric about the law.
From a neo-conservative (or some would say extreme “New Sovereigntist”) perspective, is the idea that the justness or rightness of your cause may be tied to the tactics you employ in warfare. Put in a more banal way –the ends justify the means. America is engaged in a just cause, therefore the tactics employed may be more broad than what international law (treaty or customary) traditionally permit.
As pointed out above, this is not a legal argument. Nor is it just a political one either. It’s a moral argument about what steps a nation may take to defend itself against the threat of terrorism against its citizens.
It is, therefore, in this sense, I feel it is wrong to suggest that it is a cynical argument. It is one based on values – albeit values that I mostly very much disagree with.
Additionally, (as I have argued in an article here – sorry, you’re going to need some kind of access) this is not a particularly new argument. It is one that actually pre-dates the Bush administration.
For example, the idea that the tactics employed by a nation should be linked to the justness of the cause for which it is fighting was argued for during the Kosovo campaign by Ruth Wedgwood, a Yale Law professor who served on the Defense Policy Board under Bush. Reflecting on the Kosovo Campaign, and the concerns raised by some in the international legal community, she argued before 9/11:
It is commonly believed that the tactics of war must be judged independently of the purpose of a war… But this asserted independence of the two regimes may be no more than a fiction…Whether one’s framework is utilitarian or pure principle, it is possible to admit that the merits of a war make a difference in our tolerance for methods of war fighting. This teleological view can be incorporated, albeit awkwardly, in the metric for “military advantage” in judging proportionality, for surely we do not value military objectives for their own sake. But it may be better to be forthright, even at the cost of questioning homilies… Democratic leaders and publics may believe that there is an important link between the legitimate purpose of a war and its allowable tactics – at least within the limits of basic humanity and the protection of civilian lives.
Admittedly Wedgwood was hardly the architect of Guantanamo. However, her argument is clearly reflected in that of the “Keep America Safe” crowd.
Yet, interestingly, Dan Drezner at Foreign Policy challenges the idea that many conservatives have actually united around the “Keep America Safe” line of argumentation.
The thing is, I’m not seeing a lot of evidence that anyone in the conservative legal community is really lining up behind Keep America Safe. The Times story by John Schwartz has a quote by John Yoo that kinda sorta supports the ad, but it’s really weak tea — Yoo “said he had not seen the material from Ms. Cheney’s group,” according to the story.
Indeed, as Drezner points out, other “New Sovereigntists” like David Rivkin have suggested that the “Keep America Safe” approach is “not the right way to proceed”.
Personally, I distinguish between “conservative” international lawyers and “neo-conservative” international lawyers. I see the former being those who are sceptical about international law and exactly how far it can help international society to progress, but do not doubt its existence or the idea that it is law. (Maybe like grumpy military lawyers) The latter, neo-conservatives (aka: New Sovereigntists) being those who believe that international law amounts to what John Bolton called “political obligation”.
Therefore, I would suggest the division seems to be not amongst conservatives per se, but rather between different strands of neo-conservatism – between that which places the rule of law/Constitution first, and those which place “American values” first.
Finally – if you’re still with me – I think there is a moral dilemma here as to how “we” justify giving rights to people who want to do horrible things to us. It is understandable that an average person who sees these suspects as those who wish to kill them and destroy their society as a threat. If they do not respect and, in fact, hold in distain, the values upon which the west is founded upon, why should they get any? (ie: The conversation I have with my family over major holiday dinners when I am trying to justify my academic existence.)
I’m just not convinced that we have become very good at this yet – maybe because it is an argument which points to abstract legal ideas rather than the “gut” feeling of loathing that these individuals provoke?
*To be fair, there are still significant issues here. In particular, the issue of secret evidence, or evidence gained through torture is important and has not yet been resolved as this story from the BBC suggests.