Will Obama Administration Signal Return to Rule of Law?

Friday 07 November 2008

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by: Brian Baxter, Law.com

photo
(Artwork: www.thehindubusinessline.com)

Foremost among the pressing issues he faces: rebuilding America's
reputation in the international arena, says Philippe Sands, author of
"Torture Team: Rumsfeld's Memo and the Betrayal of American Values."
The book, excerpts of which appeared in a May 2008 Vanity Fair feature
story, examines how U.S. lawyers abandoned the Geneva Conventions and
other international protocols after the 9/11 attacks. (The Am Law
Daily's Brian Zabcik conducted a two-part Q&A with Sands about the
book in May. You can find those interviews here and here.)

The Am Law Daily caught up with Sands, a noted British professor
and practitioner of international law who has been called to testify
before Congress three times, to get his take on how an Obama
administration might distance itself from the policies of its
predecessor.

In your opinion, how far has the U.S. strayed from international
norms during the past eight years?

The worst excesses occurred in the first term, but many were
allowed to linger into the second. I think there was a conscious
effort to do some minimal cleanup and we saw a few instances of what I
call "re-engagement." But taken as a whole, the last eight years have
been catastrophic for perceptions of the U.S. around the world and its
capacity to fulfill its historic engagement with the rule of law.
That's the crucial point.

Is the U.S. still that "beacon of law" to the international
community?

We all hold the U.S. to a particular standard because it has been
the global leader on the rule of law. And that has significantly
eroded. But I think that people distinguish between the U.S. and the
administration and so I'm hopeful that however bad it has been, this
should not necessarily carry over to the next administration.

I take it the new administration has you hopeful?

With the election of a president who gives every appearance of
having a strong connection to the rule of law, I think a lot of people
are optimistic that this can be cleaned up. It hasn't been so bad that
this is irreparable. The U.S. has a unique place in leading global
efforts on the rule of law, which means while there has to be some
looking to the past, it's equally important to assist the new
administration in repairing the damage and moving on.

What preliminary steps should an Obama administration take that
would reassure the international community that change is in the
offing?

I think that there are words and then there are actions. I think
it would be helpful to go into a little more detail and make explicit
the U.S.' re-engagement with the rule of law domestically and
internationally. The specifics of that mean no more torture, no more
rendition, no more unilateral acts that blatantly violate rules, and
developing timetables for shutting down Guantanamo and ending the
"assault" on the International Criminal Court. [The U.S.] doesn't need
to ratify the ICC but they need to stop demonizing it.

The new administration should also commit itself to strengthening
the rule of law by signing on to existing international agreements or
helping lead the negotiations of new agreements. In the early days
words are going to be important, but a few actions are also going to
be needed.

What about domestically?

The Military Commissions Act of 2006 should be revoked. It
purports to provide immunity for any person associated with criminal
wrongdoing in relation to the treatment of detainees. All of these
[laws] send out a signal that this administration is willing to
tolerate wrongdoing and criminality. That needs to be reversed.

How soon do you think the U.S. can rebuild its "rule of law" image
internationally?

I think a great deal of the damage can be undone pretty
expeditiously. Obama has already sent very strong signals that he
represents a return to multilateralism, a return to cooperation, and a
return to a U.S. that recognizes international rules as a useful means
for addressing global problems and not as a threat to American
sovereignty.

You've written several books, some of which deal with the U.S. and
international criminal justice. How likely is it that we'll see a
Cheney or Rumsfeld involved in some sort of criminal inquiry?

I've testified three times [before Congress] on those issues. Even
since the election, I've been reached out to by Congress and this
issue is very firmly on the agenda. I have refrained from calling for
a criminal investigation or indictment of anybody. The first thing
that needs to happen is establishing the facts. But if the facts are
as they appear, then something is going to have to happen to allow the
country to move on.

Does the U.S. need a South Africa-style Truth and Reconciliation
Commission?

You can have truth and reconciliation or other far-reaching
commissions of inquiry, but if those things don't sort out then the
stick or carrot of criminal investigation either in the U.S. or
elsewhere could be on the agenda. My thinking though is that we need
the facts first and that'll need to be sorted out fairly quickly.

Are there investigations already under way?

You'll be interested to know that within the past 10 days the
British government has initiated a criminal inquiry of potential
individual responsibility of CIA and British intelligence officials
for issues of detainee interrogation and abuse. This subject is not
going to go away and a new president is going to have a delicate
balancing issue. But as long as he relies on the bigger picture --
that we are a rule of law society -- I think he'll be fine. [Obama]
shouldn't engage in witch hunts but he'll have others -- like a new
attorney general -- to look at all of this very carefully. Congress
already has.

What about presidential pardons for those involved in detainee
issues?

It would be a stupid thing to do because it would make it more
likely that there would be investigations. The U.S. is not a country
that does impunity or immunity. If anything, it is a country that
believes in the dignity of every human individual under the law. And
when the Bush administration moved away from that, I think we all felt
very vulnerable and threatened. I'll be talking at Berkeley Law School
on November 18 about the issue of criminal responsibility and detainee
abuse.

Will you be meeting John Yoo?

I'll be talking about him. We've met before but I don't think
he'll be engaging with me on this occasion.

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This article first appeared on The Am Law Daily blog on
AmericanLawyer.com.

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