A Bull in a China Shop: The War on Terror and International Law in the United States
California Western International Law Journal
A BULL IN A CHINA SHOP: THE WAR ON TERROR AND INTERNATIONAL LAW IN THE UNITED STATESt
MOVING PART
: INTERNATIONAL HUMAN RIGHTS LAW
There are significant differences of opinion about the legal rights of detainees and the legal responsibilities of detaining authorities in the so-called war on terror. Some reflect reasonable differences among reasonable people; others reflect catastrophic errors of judgment and bad faith efforts to obscure the true content of applicable law. Many of these differences of opinion would dissolve if we could eliminate the kind of willful ignorance that the legendary American journalist H.L. Mencken no doubt had in mind when he observed that for every complex problem there is an answer that is clear, simple, and wrong. Detention in the context of counterterrorism is, indeed, a complex issue with many moving parts, both large and small. Before diving into the details, I would like to offer some historical background on the major issues.
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WESTERN
on its agenda were a Universal Declaration of Human Rights, a
Convention against Genocide, and a proposal for an international
criminal court. A long list of international human rights treaties
followed. Regional human rights enforcement mechanisms were
established in Europe, the Americas, and now, in Africa.
MOVING PART 2: INTERNATIONAL HUMANITARIAN LAW
A hundred years before the dawn of the Age of Rights, limits on
the means and methods of warfare and rules for the treatment of
armed conflict detainees began to find their way into international
treaties, most famously, the various Hague Conventions and the
Geneva Conventions of 1864. The law of armed conflict, also known
as the law of war or international humanitarian law (IHL), is related
to, but separate from, human rights law.
MOVING PART 3: A SHIFT IN FOCUS OF INTERNATIONAL LAW FROM
STATE-TO-STATE TO STATE-TO-INDIVIDUAL RELATIONS
Human rights law and humanitarian law have common
characteristics. They are both aspects of international law, a body of
law that began to take shape many hundreds of years ago to bring
order to international relationships, especially in war. But unlike
international law, with its state-to-state underpinnings, IHL and
human rights law are also designed to protect individuals, and in
particular, to govern the state-to-individual relationship.
MOVING PART 4: SOVEREIGNTY
The idea that the world should be divided into sovereign states is
not a reflection of any natural law-it just happened that way. And as
long as international law was limited to the regulation of relations
between states, it impinged little upon the prerogatives of state
sovereignty. But once international law began to instruct states on
appropriate conduct towards individuals, especially towards
individuals within its own borders, the tension between sovereignty
and international law began to mount. Thus, cynical observers have
noted that IHL is at the vanishing point of international law and
international law is at the vanishing point of law.
MOVING PARTS 5, 6, AND 7: A SHIFT IN THE NATURE OF THE
RELATIONSHIP AMONG LEGISLATIVE, EXECUTIVE, AND JUDICIAL
POWER IN THE UNITED STATES
Everyone knows about the balance of powers established among
the legislative, executive, and judicial branches, reflected in Articles I,
II, and III of the U.S. Constitution. The ordering of the three branches
(legislative, executive, and judicial) was not random. The founders
planted the sovereign power of the legislature to make law in the first
Article.2 Today, casual observers may assume that the importance and
power of the legislative and executive branches are reversed, because
for the last quarter century, and especially during the Bush
Administration, the executive has been increasingly elbowing its way
into the territory of an increasingly pliant Congress. 3 The same
executive, despite its lip service to Tenth Amendment visions of
federalism (the reservation to the several states of the powers not
ceded to the federal government), has also had remarkable success in
populating the third branch, the federal courts, with judges who are
enthusiastic foot soldiers in the "executive power" militia.
Human rights law, humanitarian law, the increasing focus of
international law on state-to-individual relations, the pressures this
places on traditional notions of state sovereignty, and finally, the
shifting nature of the relationship among legislative, executive, and
judicial power in the United States provide context to the violations of
international law committed by the United States in the war on terror.
These violations take three forms: treatment of detainees, right to
challenge detention, and trial of detainees.
The war on terror has given us the ultimate brush-off of
international law, most notoriously in the so-called torture memos.
You may recall th (...truncated)