Philippe Sands
LAWLESS WORLD
Making and breaking global rules
404pp. Penguin. Paperback, £8.99.
0 141 01799 6
John Yoo
THE POWERS OF WAR AND PEACE
The Constitution and foreign affairs after 9/11
366pp. University of Chicago Press. $29. Distributed in the UK by Wiley. £20.50.
0 226 96031 5
For more than fifty years, the United States and Britain stood as two of the great defenders of international law. In 1941, Churchill and Roosevelt drafted the Atlantic Charter, a vision of a future world order based on limiting the use of military force which served as the inspiration for the grounding principles of the United Nations. In the waning days of the Second World War, the two countries energetically supported the creation of the world’s first international criminal tribunal, to punish Nazi aggression and atrocities. More recently, the US pushed strongly to establish international tribunals to try war criminals from the Balkans and Rwanda, backing these courts with substantial financial and logistical support. And if the Clinton Administration never entirely overcame its suspicions of the International Criminal Court, it nevertheless signed on to the tribunal’s enabling statute.
Yet since the events of September 11, 2001, the US and Britain have largely assumed a different stance towards global rules. In Philippe Sands’s provocative formulation, the United States under George W. Bush has engaged in nothing short of a “war on law”. Britain, meanwhile, has weakly turned into a “handmaiden to some of the worst violations of international law”. Sands is a prominent practitioner and Professor, at University College London, of International Law, and in Lawless World: Making and breaking global rules he has written an important book that documents President Bush’s contempt for international law and Tony Blair’s endorsement of his ally’s strong-arm tactics.
Originally published in 2005, Lawless World now appears in an updated version that already has made international headlines. Sands devotes more than adequate space to such topics as the Bush Administration’s regrettable decision to opt out of the Kyoto Protocol on global warming. Sands’s best work, though, is on the war against terror and its murky relationship to the invasion of Iraq. In an investigative coup (and the focus of recent front-page coverage in the New York Times), he describes a sensitive meeting between Bush and Blair that took place on January 31, 2003. As Sands reports, the President was already dead-set on war in Iraq and even discussed tactics of provocation – such as luring Iraq into firing on US reconnaissance aircraft painted in UN colours – in order to produce pretexts for invasion.
Why Blair agreed to join in America’s military adventurism remains, for Sands, “a great mystery”. What is clear is that many people within the British Government, particularly in the Foreign Office, harboured serious reservations about the soundness of the legal justifications for war. These concerns appeared to be answered by Lord Goldsmith’s statement to the House of Lords on March 17, 2003, which offered an emphatic, if terse, defence of the legal basis for launching hostilities. And yet, in the weeks before his statement, the Attorney General himself had appeared to belong to the doubters. Sands, ever the expert lawyer, does an excellent job of establishing a circumstantial case that Goldsmith changed his mind not because of a sober reassessment of the legal case but because he “succumbed to external pressures”.
Sands, however, evinces little sympathy for the beleaguered Goldsmith. The war, he argues, clearly lacked a sound justification in international law and therefore demands to be condemned as illegal. Ominously he concludes: “Those most closely associated with the initiation of recent events in Iraq may also want to avoid holidays in those countries that have criminalized the planning, preparation or conduct of aggressive war”. Sands recognizes, of course, that his threat is largely toothless. At Nuremberg, the launching of aggressive war was treated as an international crime – indeed, it was the gravamen of the prosecution’s case. The freshly minted International Criminal Court, however, may not at present exercise jurisdiction over the crime of aggressive war, and it never will until the day that the Court’s member states can agree on a satisfactory definition. And while Kofi Annan has likewise publicly condemned the Iraq war as illegal, Britain and America’s veto powers on the UN Security Council suggest that no ad hoc war crimes tribunal will ever pass judgment on their decision to invade.
That no institution is capable of imposing legal penalties for what Sands views as blatant violations of international law explains his book’s tone of frustration and indignation: no one likes to see the bully break the rules with impunity. It also explains the obvious Schadenfreude in Lawless World in detailing the war’s drift to disaster. Yet, however galling the US attitude might be, Sands’s outrage does not fully answer the challenge posed by American conduct. For the “war on law” is not without articulate justification. One need not be a political troglodyte to argue that international norms are not obligatory in the same way that domestic laws are, and that, as a consequence, international norms may be freely interpreted – or even ignored entirely – in order to respond to novel threats.
This position was most doggedly voiced in the Bush Administration by a mid-level lawyer in the Office of Legal Counsel in the Department of Justice. John Yoo has since left Government to take a post teaching law at Berkeley, but his name will for ever be associated with the notorious “torture memos” that he penned as a Deputy Assistant Attorney-General. In these documents, Yoo variously argued that the President was constitutionally empowered to abrogate the Geneva Conventions and to authorize interrogation practices that amounted to torture. Sands characterizes these arguments as “wretched”, “impossible” and “shocking”, and even the Bush Administration, cowed by the public relations fallout over the Abu Ghraib abuses, has distanced itself from the more extreme positions staked out by Yoo.
Yoo himself, however, remains unapologetic. His new book, The Powers of War and Peace: The Constitution and foreign affairs after 9/11, offers an elaborate justification for the positions he defended in Government. Unfortunately readers who open the book expecting to find a feisty defence of frontier justice in an age of global jihad will be sorely disappointed. His writing is relentlessly dull (“Examination of constitutional text and structure yields unnoticed insights . . .”), and the book, its subtitle notwithstanding, spends less time in the early twenty-first century than in the late eighteenth. Yet Yoo’s foray into early American history does claim to enlighten and guide contemporary political practice.
At its core, The Powers of War and Peace is a revisionist reading of the “original meaning” of the US Constitution. Specifically, Yoo examines those brief snippets of Constitutional text that involve the power to make war and treaties. Historically, scholars have interpreted the Constitution’s grant that “Congress shall have Power . . . to declare war” to mean that the legislature is vested with the power to begin or authorize a war. Not true, says Yoo. By examining materials surrounding the framing and ratification of the Constitution, he concludes that this language was meant simply to serve “as a recognition of the legal status of hostile acts” and not “as a necessary authorization for hostilities”. Congress’s power to declare war was intended, then, simply to serve as a “courtesy to the enemy” and to permit the executive to exercise certain domestic wartime powers.
Yoo’s examination of treaty-making powers yields similarly striking results. The Constitution declares that “all Treaties . . . shall be the Supreme Law of the Land”. Historically, this has been understood to mean that treaties are legally binding and enforceable by domestic courts. Yet Yoo insists that the original intent of the framers and ratifiers was something quite different: treaties were not meant to be self-executing and legally obligatory ex proprio vigore. On the contrary, the Founders wanted the President to have the power to interpret and terminate treaties as he saw fit. Yoo’s Constitution thus contemplates a remarkably powerful foreign-affairs executive, vested with the power unilaterally to start wars and abrogate treaties.
How persuasive is this revisionist history? Yoo makes a plausible case that certain framers of the Constitution wanted a strong executive to enjoy such plenary powers. But he fails to demonstrate anything like a consensus among the Founders. His account is sternly challenged by the likes of George Washington, who, in Cass Sunstein’s words, insisted that “no offensive expedition of importance can be taken until after they [Congress] have deliberated on the subject and authorized such a measure”.
Yoo responds to such challenges with a bizarre qualification. Admittedly, the Founders believed that the “president could not unilaterally take the nation into a total war”, but that they did authorize him to “engage the nation in hostilities short of that”. Unfortunately, Yoo never tells us what he means by “total war”, and his use of the term, coined by General Ludendorff in his Der totale Krieg (1935) and deployed by Goebbels in his notorious Sport-palast speech of 1943, smacks of anachronism.
But even if Yoo’s revisionist history were convincing, what is the normative significance of “original meaning”? Reading the Constitution in the light of its original meaning currently enjoys something of a vogue on the US Supreme Court, or at least on its conservative flank: Clarence Thomas, Antonin Scalia and the recently appointed Samuel Alito all subscribe to forms of “originalist” interpretation. Originalism claims to ensure that members of the Court, who answer to no electorate and enjoy life tenure, render judgments faithful to the Constitution. Whether a jurisprudence of originalism actually guarantees such fidelity can, of course, be debated; the critical point remains that originalism is a theory tailored to guide Court practice. Yoo’s book, however, is not a primer for judicial review. It addresses the elected branches of government, the executive branch and the legislature, and original intention has no clear normative purchase on these institutions. It is, then, far from clear why original intention should trump long-settled practice or sound policy arguments when debating the proper powers of the President and Congress.
John Yoo tries to answer this by insisting that the purported intentions of political actors from centuries past provide “a more flexible, dynamic approach” to addressing the crises of today. Yet what has this “flexibility” achieved? As Philippe Sands demonstrates in Lawless World, it has justified torture in Abu Ghraib and prisoner abuse in Guantánamo Bay; it has sponsored a disastrous and arguably illegal war; it has under-written extraordinary rendition and secret CIA prisons; it has placed terrorist suspects in a legal limbo and American citizens under unwarranted surveillance. If these are the achievements of “flexibility”, then we need to recall Sands’s defence of the virtues of restraint. Restraint, after all, lies at the core of the rule of law.
