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International law (IL) and political philosophy represent two rich disciplines for exploring issues of global justice. At their core, each seeks to build a better world based on some universally agreed norms, rules, and practices, backed by effective institutions. International lawyers, even the most positivist of them, have some underlying assumptions about a just world order that predisposes their interpretive methods; legal scholars have incorporated concepts of justice in their work even as their overall pragmatic orientation has limited the nature of their inquiries. Many philosophers, for their part, have engaged with IL to some extent—at a minimum recognizing that legal rules may need to be the vehicles for their own theories of justice, or going a step further to appraise them for their underlying moral content.
This essay examines the similarities, but even more the dissimilarities, between (nonrevisionist) just war theory and the laws of war. The similarities are obvious: both just war theory and the laws of war distinguish jus ad bellum from jus in bello, and incorporate the principles of distinction, proportionality, and necessity. The dissimilarities derive from the special character of law. Law needs binary, yes-no standards for drawing lines, for example between armed conflict and lesser forms of violence. Laws come in packages (regimes), so that changing only one law is not always practicable. And legal propositions, unlike philosophical propositions, are often detachable from their reasons and applied in unexpected and unwelcome ways. This is especially important in the stresses of battle, when rules of warfare must be usable “off the shelf” by middle- or lower-ranked personnel with no opportunity for bespoke deliberation. The essay provides contemporary illustrations of these differences.
As Sara Kendall and Sarah M. H. Nouwen rightly notice, “legacy” is a big word, and it may be too soon even to begin to evaluate the legacies of the international criminal tribunals. Legacies are whatever future generations take from the tribunals. That, obviously, is in their hands, not the hands of the tribunals. So the question of legacies is more properly a question of bequests, and the inquiry must be a modest one: how do we evaluate the successes and failures of the tribunals in the here and now rather than the further future? Failures matter as well as successes, and as in science, failures can be as instructive and useful as successes. For example, many observers concluded that the tribunals, operating in The Hague and Arusha without an initial ground game in former Yugoslavia or Rwanda, were too far removed from the peoples who experienced the crimes; that perception helped motivate the movement toward hybrid tribunals. If that is right, the hybrid model counts amongthe “legacies” oftheInternational Criminal Tribunal for the Former Yugoslavia (ICTY)and the International Criminal Tribunal for Rwanda (ICTR), if only in the negative way that they exposed a problem the hybrids tried to remedy. As another example, Kendall and Nouwen remarkthat the impunity of the RPF has also become part of ICTR’s legacy. That too would be an instructive failure—instructive, in this case, as a foretaste of how difficult it is to prosecute cases against an intransigent government in power, a lesson that the International Criminal Court’s (ICC)troubles in Sudan and Kenya confirm.
This volume brings together the most important writing on torture and the 'war on terror by one of the leading US voices in the torture debate. Philosopher and legal ethicist David Luban reflects on this contentious topic in a powerful sequence of essays including two new and previously unpublished pieces. He analyzes the trade-offs between security and human rights, as well as the connection between torture, humiliation, and human dignity, the fallacy of using ticking bomb scenarios in debates about torture, and the ethics of government lawyers. The book develops an illuminating and novel conception of torture as the use of pain and suffering to communicate absolute dominance over the victim. Factually stimulating and legally informed, this volume provides the clearest analysis to date of the torture debate. It brings the story up to date by discussing the Obama administration's failure to hold torturers accountable.
This chapter originated as a speech given at the Thomas J. Dodd Center at the University of Connecticut on the third anniversary of 9/11. It emphasizes civil liberties within the United States, but also argues against the disastrous moral fallacy of supposing that trade-offs of liberty and security are acceptable when it is a matter of one’s own security and someone else’s rights; that is no trade-off. The chapter requires only a few minor updates, plus one larger elaboration of a short argument advanced in the chapter.
This chapter warns about how easy it is for relatively trivial conduct to result in lengthy prison sentences under the draconian statutes defining material support for terrorism (see footnote 4). This has been amply born out in numerous cases of young men with jihadist ambitions but no evident skills or concrete plans who were nonetheless convicted of material support or conspiracy. For example, two youthful cousins from Chicago hoped to become jihadis. They traveled to Egypt, hoping to receive training – what kind of training, or from whom, was never clear. After returning to the United States a month later, they planned to learn the use of firearms, discussed the possibility of taking an online course in gunsmithing, and researched the purchase of weapons. They never made any concrete terrorist plans, however, and according to their indictment, one of them told an unnamed person that they needed five more years to complete their preparations for violent jihad. The indictment does not allege that they ever met with any terrorist group anywhere. They nevertheless pled guilty to conspiring to provide material support for terrorism. In another prominent case, a group of young men drew long sentences for playing paintball in Virginia to prepare for jihad in Afghanistan.
This chapter was written in spring and summer 2002, responding to momentous developments in the previous six months, both “on the ground” and in the US government’s legal strategy. When I wrote it, the ashes of the World Trade Center had not yet settled. Speaking personally, I can report daily fear of another attack as I drove to work on Capitol Hill in Washington; it felt as though I had a target painted on the roof of my car. I was not the only one; public fear was palpable and pervasive. So were the grief and the anger. I shared, and share, that grief and anger.
Five people in my own tiny neighborhood in suburban Maryland died in the September 11 attack. It seemed clear that ideological suicide bombers cannot be deterred by the threat of criminal punishment, and that fact lent force to the government’s aggressive, military-focused strategy. Facing the nightmare scenario in which terrorists acquire weapons of mass destruction, no possible step seemed too drastic.
The chapters of this book focus on policies and positions adopted by the US government during the eight years of the George W. Bush administration. However, to say this does not imply that the themes are time-bound or parochial. The tension between national security and human rights, leaders’ itch to maximize their power during times of emergency (real, perceived, or merely proclaimed), the morality and law of torture, and the ethical dilemmas of professionals in government are here to stay—maybe not forever, but certainly for years to come. Nor are they merely US issues, even though US policies and law raised them in an especially clear form. The threat of terrorism affects much of the world, as do the threats of torture and inflated executive power.
Nevertheless, readers will surely wonder what became of the distinctive views about rights, power, and torture in the Bush administration. The answer, I will suggest, is complex. On the one hand, the Obama administration has explicitly prohibited torture and avoided extreme assertions of executive power. As discussed in the preface to Chapter 2, Obama denies that his role as commander in chief places his decisions outside civilian law. These are major reversals. On the other hand, his administration has deliberately downplayed the torture issue, and there has been no accountability for torture. That creates problems that I shall explore in this concluding chapter.
An astonishing feature of the “global war on terrorism” (GWOT) waged by the United States and its allies against Al Qaeda is the prominent role played by lawyers, civilian and military, representing both the US government and the people it has captured. The conduct of these lawyers has been a topic of surpassing interest to many both in and out of the legal profession since the first “torture memos” were released in 2004. It is a subject of international, not merely parochial, interest. I will discuss the “torture lawyers,” but also lawyers who represent the prisoners. Although most of these are Americans, not all of them are. Some of the leading Guantánamo defense lawyers come from the London-based organization Reprieve. One lawyer I want to discuss, Major Dan Mori, of the US Marines, became a minor celebrity in Australia through his representation of David Hicks. The laws at issue in these cases are by and large international law; and, of course, Guantánamo has become an international symbol of the rule of law and its absence, a point central to the debate.
Lawyers and the torture team
In 1975, Richard Wasserstrom published a paper that arguably inaugurated the modern philosophical discussion of legal ethics. The paper was titled “Lawyers as Professionals: Some Moral Issues,” and it began with the striking assertion that “at best the lawyer’s world is a simplified moral world; often it is an amoral one; and more than occasionally, perhaps an overtly immoral one.”
This chapter originated as a lecture on Jewish ethics, in a series honoring the late philosopher Isaac Franck. My own writing has been almost entirely secular, and I am not a scholar of Jewish philosophy. Nevertheless, I have come to realize from the smatterings of Jewish law I have studied that my approach to many issues is very close in spirit to some central themes in Jewish ethics. This is specifically true of one of my themes in the present chapter, the central ethical importance of respecting human dignity by not humiliating people – a theme, as I hope to show, that similarly occupies pride of place in rabbinic ethics. The particular context for my argument is a subject of surpassing current importance: the torture and degradation of detainees by the US government in the “war on terrorism.”
Eleanor Roosevelt’s tea party
I begin with a famous story, almost a parable, about the drafting of the Universal Declaration of Human Rights (UDHR) – the first and most influential document for the contemporary human-rights movement worldwide.
I wrote this chapter for my book Legal Ethics and Human Dignity, a book about the ethics of the legal profession. It provided an extended case study of one of the main themes of that book, the central role that lawyers providing legal advice to clients play in maintaining the rule of law – or, in this case, subverting the rule of law. The chapter had a second purpose as well, pulling together in a single place a substantive history and critique of all the main torture memos available at the time. Its critique of the Bybee and Levin memos overlaps with, but also extends, the arguments detailed in Chapter 3 of this volume, which I also presented in longer form in Karen J. Greenberg’s The Torture Debate in America.
At the time I wrote this chapter, however, not all the torture memos were known. The Bybee memo referred to another secret memo applying its arguments to specific CIA interrogation techniques, which was not made public. In addition, though, the Office of Legal Counsel’s head Steven G. Bradbury wrote three more torture memos in 2005, and these were unknown when I wrote this chapter. One of these memos revisited the secret Bybee–Yoo “techniques” memo, and once again declared that none of the CIA’s “enhanced” interrogation techniques amount to torture. The second found that the same would be true even if the techniques were used in combination. And the third found that the techniques, singly or in combination, would not constitute cruel, inhuman, or degrading treatment other than torture. These three memoranda – revoked by the Obama administration and then released to the public in 2009 – reach conclusions just as radical as the Bybee–Yoo memoranda, but drew far less criticism. In part that is because the Bradbury memoranda did not include discussions of the commander-in-chief power or of criminal defenses, which were among the most inflammatory portions of the Bybee–Yoo memoranda. But also, the Bradbury memoranda were less obviously tendentious in their handling of legal materials.
This chapter was published concurrently in its present form and in a more extended version that appeared in Karen Greenberg’s collection The Torture Debate in America (Cambridge University Press, 2005). The latter version included a longer and fuller analysis of the torture memos; I have used the shorter version here because other chapters of this book go into the torture memos in greater detail. The chapter received wide circulation: in March 2006 it was excerpted in Harper’s Magazine and published in translation in the German cultural magazine Die Zeit Kursbuch. Together with the following two chapters, it represents the philosophical core of this book’s analysis of torture and its critique of discussing torture through ticking-bomb hypotheticals.
I began writing the chapter when the Bybee–Yoo torture memo became public in the summer of 2004, shortly after the sensational Abu Ghraib revelations. It needs only slight factual updating. At the time I finished it, only two of the torture memos were public. It was not until April 2009 that the Obama administration released the remaining torture memos, all but one of which were shortly republished by David Cole in The Torture Memos: Rationalizing the Unthinkable (New York Review of Books, 2009). The existence of CIA “black sites” – secret prisons in Poland, Romania, and Thailand – had not yet emerged, nor was it clear what interrogation techniques the Justice Department had approved for CIA use. I also wrote before the issue of nonaccountability for torture became salient. By the time the smoke had cleared, only a handful of low-level enlisted personnel had been punished for Abu Ghraib, and, ultimately, none of the 101 potential torture cases investigated by a special prosecutor resulted in criminal referrals. I discuss the issue of nonaccountability in this book’s final chapter.