Martin LeFevre: Can International Law Evolve?

A leading international lawyer representing defendants in international criminal tribunals, Guénaël Mettraux, says that Guantánamo detainees should “be placed under international control and their trials held on neutral ground.” That’s a hoot.

Mettraux goes on to say, presumably with a straight face, that by initiating international criminal tribunals for Guantánamo prisoners, the “United States would reassert its core values and demonstrate the supremacy of those values over the evil that has been challenging them.”

What about the suppurating wound of the prison at Bagram Airfield in Afghanistan? What about the thousands of people hidden away in unknown hellholes around the world, overseen by the overlords of rendition?

To say that Mettraux is being politically naïve and philosophically shortsighted is to be generous. For as Benjamin Wittes, Senior Fellow at the Brookings Institution points out, “only about 800 people have passed through Guantánamo. The United States military, since the beginning of the war on terror, has held literally tens and tens of thousands of people around the world. So the focus on Guantánamo as the locus of the problem of detention was always quite delusional.”

In a terrible irony, people are still holding out hope that Obama will do the right thing, even though “the Obama administration has adopted the Bush Administration’s position that individuals captured by the United States anywhere in the world can be taken into custody and held indefinitely without charge, so long as they’re not brought to Guantánamo,” as Tina Foster, executive director of the International Justice Network said.

But the first reason the Obama Administration will never allow “enemy combatants” to stand trial in an international tribunal is that it would be political suicide.

America not only upholds an extreme form of sovereignty; it upholds its sovereignty above that of all other nations combined.

Second, an international tribunal for detainees in the “war on terror” would open up inquiries and investigations into the illegality of the invasion of Iraq, even if no Iraqi citizens were put on trial.

Indeed, the entire concept of the “war on terror,” which the Obama Administration has thrown out rhetorically but held fast to policy-wise, would come into question.

More to the point, what international criminal tribunal is going to put CIA interrogators on trial for threats to kill one suspect's children and to force another to watch his mother sexually assaulted?

The revelations coming out of Washington this week make a mockery of what was already a mockery: Obama’s mandate to fundamentally change Bush-Cheney foreign policies. The Obama Administration is making a last ditch effort to put off the whole issue of Americans torturing prisoners (even as they continue the rendition policy of snatching and sending people to third countries to be interrogated) until, they pray, it blows over.

Toward that end, the Obama has appointed a prosecutor to investigate ‘rogue’ interrogators who went beyond even the liberal guidelines for “enhanced interrogation techniques” of the Bush Administration.

I guess all this is what Obama meant when he said during the campaign, “to build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American people.”

Despite the announcement of the criminal probe, President Obama continues to declare that on the subject of prisoner abuse and torture, he “wants to look forward, not back” at Bush tactics. But there can be no going forward until there is a reckoning with the past. As the saying goes: “The past isn’t over; it isn’t even past.”

The White House is also using the transparent trick of saying that any prosecutions of Americans in American courts would be up to Attorney General Eric Holder, not the White House. I’ve lost count, how many layers of removal from responsibility is that?

Obama is creating a new interrogation unit for "high-value" detainees, which will be under the direction of the FBI rather than the CIA, supervised by his own national security adviser. And overseen by Jesus himself.

Barack is trying to pull off a political trifecta: political sleight of hand by coming out with a plan (sort of) to close Guantánamo; having it both ways by inveigling against torture while continuing rendition; and throwing the public a bone of a special prosecutor in hopes the issue will go away.

We’re supposed to be comforted by the promise that all U.S. interrogators will follow the rules for detainees laid out by the Army Field Manual. Aren’t those the same rules that were in place when detainees were forced to stand naked in excruciating positions for hours, threatened with military dogs, exposed to extreme heat or cold, subjected to mock executions, and deprived of food, water, or medical care? And oh yes, let’s not forget waterboarding.

The phrase “international law” is now, quite rightly, only spoken with derision. To say that our indisputably global society has an increasingly inadequate inter-national legal structure, is not just to utter an understatement, but an absurdity.

Examples abound. At the whim of the United States government, people are being locked up in Afghanistan without a trial until the end of the war. The Obama Administration is beginning to condition the American public into thinking in terms of at least a decade in Afghanistan, even as Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, says the situation there is “serious and deteriorating.” Send more troops!

Even a right-winger such as Richard N. Haas, President of the Council of Foreign Relations, says Obama should consider “withdrawing all United States military forces from Afghanistan and center on regional and global counterterrorism efforts and homeland security initiatives to protect ourselves from threats that might emanate from Afghanistan.”

The law evolves when new paradigms are recognized. Can the international legal framework, woefully imperfect as it is, evolve into an effective, but carefully constrained global structure of laws for the regulation of nations and their institutions? It must.

Rendition, indefinite detention, and military tribunals, much less invasion, torture, and “enhanced interrogation” are outside the rule of the law, no matter how they’re dressed up.

The internal laws of a nation, and the increasingly inadequate quasi-laws between nations, have had their day. America and China, the main upholders of sacrosanct national sovereignty, are spitting against the wind.

There is a higher law, but we must live or perish within the laws people make here on earth. However you define civilization, its cornerstone is the law. The question we have to ask ourselves, as cultures disappear and the old civilizations erode, is whether, in this global society, we are peoples of law or not.

For without the law, this hellish jungle we call the world will only become more and more unlivable.

Martin LeFevre is a contemplative and philosopher. More of his work and an archive can be found at the Colorado-based site Fountain of Light (fountainoflight.net). martinlefevre@sbcglobal.net

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