Eroding the foundations of international humanitarian law: the United States post-9/11.

Author:Davis, Morris

It is a real privilege to be back here at Case Western Reserve. As Professor Scharf mentioned, this is my third time standing here and talking to this audience. Some of you have been here for all three, and for some, this is the first, but it really is a privilege. I mean, for two counts:

Mainly, it is good to be out of Washington. The air just seems much fresher here in Cleveland than Washington. If you were up last night, as I was, watching to see if our government was going to pass a budget and get back to work, it just seems a lot fresher here than it does back in D.C. So I am glad to be here and not there.

Second--and probably most importantly--I told my wife before I left, I said, "God, I hope they give me another one of those Case Western pullover police jackets," because I got a blue one when I was here the first time, and I got a tan or a beige one the second time, and this time I got a gray one. And I have just about worn out the first two. So I have to come here at least every two years to get a new pullover because I wear those things constantly in the summer.

Apparently, there are a lot of Case alumni in the D.C. area because when I wear it, I get stopped quite often. "Hey, did you go to Case, too?" And this is my fourth trip because Henry King invited me back for the Niagara Moot Court competitions. So I think after four trips here, I at least qualify for a Masters or something.

So it really is a privilege, and thank you to Professor Scharf, Professor Cover, and to Ms. Pratt and all the others who have gone out of their way to make this possible. And also, thank you to Howard University for allowing me to be here.

As Professor Cover mentioned, I resigned during the Bush Administration, which didn't endear me to the Republican side, and then I criticized President Obama for back peddling on Guantanamo, which didn't endear me to the Democrats. And in Washington, when you aggravate both the Republicans and the Democrats, finding a job can be difficult. So I am very grateful to Howard University for giving me a home for the last three years and the freedom to go out and write and speak and do the kind of things that I think are important. And so it is a great privilege to be here.

At times I feel like Don Quixote, tilting at this windmill at Guantanamo that has been there now for eleven and a half years and this military commissions process that President Bush authorized on November 13, 2001. So almost a dozen years we have been attempting this process, and it has been a failure.

And it is discouraging at times, but to me, I am optimistic because of people like you; that you will take an hour out of your day and come and sit and listen, and you came before to hear General Martins. And I really appreciate that: that you are willing to take time to think and listen where, for the vast majority of the public, this is out of sight and out of mind, and they don't really care. So I commend you for your commitment.

So what I want to talk about today is how I went from the guy on the top row (when I am standing on the steps of the courthouse in Washington or standing on the steps of the courthouse in Guantanamo) defending the process, as the leading advocate for Guantanamo, to the person on the bottom row who is speaking out in the media, who went from standing on the steps of the courthouse to standing on the steps of the White House leading a protest to close Guantanamo. It seems like a change of position that seems impossible to imagine, and I am often asked if--at the top row--if I was insincere in just toeing the company line, and what I hope to show you today is that I wasn't. I believe we were committed to doing this right.

I told the first meeting I had with the prosecution team in 2005, I mean, this school has a close connection to Nuremberg and Henry King. When I was here in 2006 and I spoke, there was a faculty luncheon, and I did a presentation for the faculty at the luncheon. And Henry King came up to me afterwards and stuck his finger out and said "It was important to Robert Jackson that we do it right at Nuremberg. Don't you screw it up at Guantanamo."

And I told the prosecution team in that first meeting that we are going to do this right. We are not going to use evidence used by the enhanced interrogation techniques that went too far, and I don't want any of you to do anything you feel is illegal or immoral or unethical. I would like for our grandkids to be able to look back at Guantanamo the way that we look at Nuremberg. And so I believe that we were committed to doing that for a number of years, but by the summer of 2007, I became concerned that that wasn't our commitment, and that's when I chose to resign.

So I have kind of an aggressive agenda for today. There are really four segments to this talk, and I have done hour-long talks for each of those segments, and trying to take four hours and cram it into about thirty minutes is going to be a challenge. So hang on, and we will try to get through this because I think it is important.

President Obama has given a series of talks. Unfortunately, we don't need a lecturer; we need a leader, and I think that's where this Administration has failed in providing leadership on this issue on the War on Terror and how we choose to respond to it, because as the President said in the speech he gave at the National Archives back in May of 2009, it really is our values and our principles. When you talk about American exceptionalism, that's what made us exceptional--our belief and the rule of law. (1)

Unfortunately, since 9/11, rule of law are laws that are consistently well-known and consistently applied, but unfortunately, we have treated the rule of law as a slide rule, where it slides to fit whatever we find convenient at the moment, and I think it is in our interest to get back to being the champion of the rule of law and not just people that talk about it. And there have been a number of critics of the Administration and the U.S. in this post-9/11 policy that we have adopted. There are rules that apply to others. You know, we condemn others for doing things that we condone when we do it ourselves.

And I think you have to question, you know, we have this incredible technology. We have the strongest fighting force in the world: this country with incredible capability, but are we accomplishing what we really want to accomplish when we are using this power in ways that I think may be tactically advantageous at the moment, but I think long-term, strategically, we are going to regret some of the decisions we have made?

So real quickly, if you think about it, it seems like an oxymoron: the law of war. You know, if you are angry enough to go to war, then it ought to be in some people's mind any means necessary to win, and this notion of having rules that apply just doesn't seem to fit for many. But if you think about conflict, if you go back to the early days (the original first days of man), if you want to kill someone, you had to actually have physical contact with them. You had to pick up a rock and hit them in the head or strangle them or something. You had to actually physically contact them. And then the sword came along, so you could stand three feet off and kill them. And then the bow and arrow--you could be twenty or thirty yards away--and then the musket, and then all the things that have evolved.

We have made it so much more convenient to kill each other. I mean, for example, currently, there is a debate about the drone policy, which I think is a bit of a misnomer. I will talk about drones more a little later, but you have got the drone operators at Creech Air Force base in Nevada. So picture base housing at Creech Air Force base: they get up in the morning, they have breakfast with the kids, go off to the office, sit in a comfortable chair in an air conditioned room, and then 7,650 miles away on the border of Afghanistan and Pakistan is where the drone strikes take place. And then at the end of the day, they go home, they attend their kids' soccer game and go to bed and get up the next morning and do it all over again without ever actually having to see or have contact with the people that are being impacted on the other end. So we have made it so convenient to kill one another that I think it is critically important that we have rules in place for how we use that power.

Now the evolution of international humanitarian law or the law of war is not something that just occurred. I mean, you can go back as far back as Moses--go back to Deuteronomy--and in there, it talks about the rules that apply when you are holding a city in siege. And then up to Hugo Grotius and the just war theory (2) or Henry Dunant in his book A Memory of Solferino and the battle that took place there that led to him leading the effort to create the International Committee of the Red Cross (3) that to this day is still the leading organization in IHL. You know, Henry Dunant was the winner of the first Nobel Peace Prize, which President Obama went on to win later, and whom I think is the only Nobel Peace Prize winner with a kill list. And then on to Francis Lieber, who during the Civil War, drafted--at Lincoln's request--the Lieber Code that Lincoln implemented, that were rules governing the conduct of Union forces during the Civil War. (4) So we have had this long history of having rules on how we conduct conflict.

So I want to jump forward from that to a modern era, which I think really began with World War II. You know, one of the nice things about being the United States is we won. I mean, if you notice the people that are held accountable in war crimes tribunals, you don't see the winners showing up in those tribunals, because I think people could argue reasonably the use of the atomic nuclear weapons. We are the only country that has ever used nuclear weapons. And I think you can make an argument on proportionality, necessity and all those things. But...

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