International law and the torture memos.

Author:Scharf, Michael P.

This article explores the influence of international law in the evolution of the Bush Administration's policies toward detainees in the global war on terror. The detainee case study provides a modern lens for evaluating Jack Goldsmith and Eric Posner's hypothesis set forth in THE LIMITS OF INTERNATIONAL LAW that international law exerts no "compliance pull" on American policymakers in times of crisis.


    The purpose of this article is to ascertain the influence of international law in the formation of American foreign policy in time of crisis, using the case study of the White House Torture Memos as a backdrop.

    This article is a response to two books written by one of the authors of the Department of Justice's Office of Legal Counsel (OLC) "Torture Memos," Professor Jack Goldsmith of Harvard Law School, who had served as head of the OLC during the height of the Bush Administration's "global war on terror." In The Limits of International Law, (1) published in 2005, Goldsmith employs rational choice theory to argue that international law is really just "polities" and that it is no more unlawful to contravene a treaty or a rule of customary international law than it would be to disregard a non-binding letter of intent. (2) In a memoir of his days as one of the Bush Administration's top lawyers, titled The Terror Presidency, (3) published in 2007, Goldsmith reveals the underlying normative purpose behind The Limits of International Law, namely to free the President from the shackles of international law in shaping a response to terrorism in the aftermath of the 9/11 attacks.

    This article begins with a history of the scholarly debate about the binding nature of international law--the so-called compliance debate. This sets the stage for a critique of Goldsmith's contribution to the compliance debate. This is followed by an examination of the role that international law actually played in the Bush Administration's policies regarding the treatment of detainees in the war on terror. The article ends with several conclusions about the influence of international law on American foreign policy during times of crisis.


    Since the decline of the Roman Empire and the attendant weakening of the Roman Legion at the end of the fourth century A.D., there has existed no sort of constabulary to implement rules of international law. Subsequently, international rules have been subject to sporadic enforcement through protest and condemnation, reciprocal suspension of rights and benefits, unilateral or multilateral economic and political sanctions, and sometimes through individual or collective use of armed force.

    Lacking a pervasive and effective enforcement mechanism, scholars and policy makers have pondered whether international law is really binding law. The question has been debated since ancient times and remains one of the most contested questions in international relations. As described below, major historic developments, such as the Peace of Westphalia, the conclusion of the Second World War, the onset of the Cold War, the proliferation of international institutions in the 1970s and 80s, the collapse of the Soviet Union in 1989, and the terrorist attacks of September 11, 2001, have each rekindled and reshaped the debate.

    To understand how the historic context affects the debate about whether international law is really law, it is helpful to draw upon the theory of Semiotics (pronounced sem-ee-AH-tiks). Semiotics (from the Greek semeion, meaning "sign"), was developed by Charles Peirce in the nineteenth century as the study of how the meaning of signs, symbols, and language is constructed and understood. (4) Umberto Eco made a wider audience aware of semiotics through several notable books, including his best-selling novel The Name of the Rose, which includes applied semiotic operations. (5) Semiotics begins with the assumption that phrases, such as "international law," are not historic artifacts whose meaning remains static over time. Rather, the meaning of such terms changes along with the interpretive community or communities. As applied to law, semiotics theory posits that "different conceptions of the nature and character of the legal community give rise to different interpretations of the meaning of the rules and principles of positive law...." (6)

    The modern age of international law is said to have been inaugurated with the 1648 Treaties of Westphalia, which ended the Thirty Years War by acknowledging the sovereign authority of various European Princes. (7) During the next three-hundred years, up until World War II, there were four major schools of thought regarding the binding nature of international law. (8) The first was "an Austinian positivistic realist strand," which held that nations never obey international law because it is not really law. (9) The second was a "Hobbesian utilitarian, rationalistic strand" which held that nations sometimes follow international law, but only when it serves their self-interest to do so. (10) The third was a "Kantian liberal strand," which held that nations generally obey international law out of a sense of moral and ethical obligation derived from considerations of natural law and justice. (11) The fourth was a Bentham "process-based strand," which held that nations are induced to obey from the encouragement and prodding of other nations through a discursive legal process. (12) The modern debate has its roots in these four theoretical approaches.

    In the aftermath of World War II, the victorious Allies sought to establish a "new world order," replacing the "loose customary web of statecentric rules" with a rules-based system built on international conventions and international institutions such as the U.N. Charter, which created the Security Council, General Assembly, and International Court of Justice; the Bretton Woods Agreement, which established the World Bank and International Monetary Fund; and the General Agreement of Tariffs and Trade, which ultimately led to the creation of the World Trade Organization. (13) The new system reflected a view that international rules would promote Western interests, serve as a bulwark against the Soviet Union, and emphasize values to be marshaled against fascist threats. (14)

    Yet the effectiveness of the new system was immediately undercut by the intense bipolarity of the Cold War. In the 1940s, political science departments at U.S. universities received from the German refugees--such as Hans Morgenthau who is credited with founding the field of international relations in the U.S.--"an image of international law as Weimar law writ large, formalistic, moralistic, and unable to influence the realities of international life." (15) With fear of communist expansion pervading the debate, the positivistic, realist strand came to dominate Western scholarly discourse on the nature of international obligation. Thus, one of America's leading post-war international relations theorists, George F. Kennan, attacked the Kantian approach as anathema to American foreign policy interests, saying, "the belief that it should be possible to suppress the chaotic and dangerous aspirations of governments in the international field by the acceptance of some system of legal rules and restraints" is an approach that "runs like a red skein through our foreign policy of the last fifty years." (16)

    Even during the height of the Cold War, however, international law had its defenders, and within the American legal academy a new school of thought arose with roots in the Bentham strand, based on notions of legal process. Thus, the writings of Harvard Law professors Abram Chayes, Thomas Ehrlich, and Andreas Lowenfeld, and Yale Law professors Myres McDougal and Harold Lasswell, hypothesized that compliance with international law could be explained by reference to the process by which these actors interact in a variety of public and private fora. (17) As Abram Chayes, who had himself once served as State Department Legal Adviser, put it: international law may not be determinative in international affairs, but it is relevant and influences foreign policy "first, as a constraint on action; second, as the basis of justification or legitimization for action; and third, as providing organizational structures, procedures, and forums" within which political decisions may be reached. (18) The process approach was later refined by Harvard Law Professors Henry Steiner and Detlev Vagts and Yale Law Professor Harold Koh to include, in addition to States and international organizations, multinational enterprises, nongovernmental organizations, and private individuals, which all interact in a variety of domestic and international fora to make, interpret, internalize, and enforce rules of international law. (19)

    During the 1970s and 80s the legal landscape underwent another major transformation with the proliferation, growth, and strengthening of countless international regimes and institutions. Despite the bipolarity of the Cold War, international cooperation had persisted and was facilitated by treaties and organizations providing channels for dispute-settlement, requiring states to furnish information regarding compliance, and authorizing retaliatory actions in cases on non-compliance. During this period, international relations scholars developed "regime theory," the study of principles, norms, rules, and decision-making procedures that govern such areas as international peacekeeping and dept management. (20) At heart, the regime theorists were rationalists, viewing compliance with international law as a function of the benefits such compliance provides.

    This same period saw a revival of the Kantian philosophical tradition. NYU Law Professor Thomas Franck sought to answer the question "Why do powerful nations obey powerless rules?" in his path-breaking The Power of Legitimacy Among Nations. (21) Frank's answer: "Because they perceive the...

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