Remarks of John B. Bellinger, III 1 Rule of Law Symposium International Bar Association Vancouver, Canada October 8, 2010 It is a great pleasure for me to be here in Vancouver, a city I have heard much about but never visited. And it is a great honor for me to address the International Bar Association, whose work I have much admired during my years in government. I have been fortunate to get to know the IBA s Executive Director, Mark Ellis, quite well over the past five years; Mark represents the IBA very well around the world. It is also an honor for me to share the podium today with Chief Justice McLachlin, whom I have had the privilege to meet several times in Washington. The theme for today s Rule of Law symposium is whether western democracies -- and the United States and Canada in particular -- have been setting a good example in applying the rule of law. I applaud the IBA for choosing this topic, because it is important for the world s leading democracies to practice what we preach. Several years ago, 1 Partner, Arnold & Porter LLP, Washington, DC; Adjunct Senior Fellow in International and National Security Law, Council on Foreign Relations. Legal Adviser, Department of State (2005-2009) and Legal Adviser, National Security Council, The White House (2001-2005).
when I was Legal Adviser, I urged the State Department to start its annual Human Rights Report, which is not often well-received by other governments, with a statement that the report was being issued at a time when the U.S. Government s own policies were being questioned. I will focus my own remarks today on the actions the United States has taken to deal with international terrorism, and in particular what has and has not changed during the last two years under the Obama Administration. These are issues that are dissected and debated in detail in Washington, but reported to a lesser (and not necessarily accurate) extent in the international press, so I welcome this opportunity to discuss them with the international bar. Let me begin by saying that I am acutely aware that many U.S. Government policies adopted after the 9-11 attacks -- Guantanamo, military commissions, renditions, the concept of a Global War on Terror -- were deeply unpopular internationally. As the Legal Adviser for the State Department, it often fell to me to try to explain the legal basis for these policies and to hear the strong concerns raised by other countries, international organizations, and civil society, including international legal organizations. As a result, I know first-hand that many in the international human rights and legal communities believed
that U.S. policies were not only unlawful but undermined the rule of law internationally. Without belaboring the point, I will also say that I did not agree with many of these policies, and I argued internally that they undermined the long-standing moral authority of the United States as a world leader on human rights. In the Bush Administration s second term, the Administration changed many of these policies, for example, by ending its practice of secret detention and transferring more than 500 people out of Guantanamo. I might also add that, in its second term, the Bush Administration worked hard to demonstrate its commitment to international law and international legal institutions in other ways, such as by engaging with the International Criminal Court on Sudan, implementing the judgment of the International Court of Justice in the Avena case, and pushing more than 90 treaties through the Senate in its last two years. These actions were little noticed by the international legal community, and the Obama Administration has not worked as diligently on many of these issues. But that is a subject for a different speech. In any event, because of their strong opposition to the Bush Administration s counter-terrorism policies, human rights groups and
many in the international legal community welcomed the election of President Obama and expected major changes. During the Presidential campaign, then Senator Obama had criticized many of these policies and pledged to restore the U.S. commitment to the rule of law. The Obama Administration started off strong. On his second day in office, President Obama signed three executive orders directing the closure of Guantanamo within one year, the termination of the CIA s controversial interrogation program, and a review of all detention policies. These initiatives were widely acclaimed around the world, and I supported them publicly at the time. Several months later, in May 2009, President Obama gave an important speech at our National Archives, in which he laid out his Administration s policies for detention and prosecution of terror suspects in greater detail. Against the backdrop of the American Declaration of Independence and our Constitution, the President affirmed his commitment to fight terrorism while abiding by the rule of law. Indeed, the President referred to the rule of law no fewer than eight times during his remarks. Analyzing the past, the President said that after 9-11, the U.S. Government had made a series of hasty decisions and went off course. The decisions that were made over the last eight years, President Obama said, established an ad hoc legal
approach for fighting terrorism that was neither effective nor sustainable -- a framework that failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass. The President promised to reshape military commissions and detention standards to ensure that they comply with the rule of law. And he committed to work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution. To many observers, President Obama s statements reflected a substantial change in tone from the Bush Administration. And his orders to close Guantanamo, terminate the CIA interrogation program, and conduct a comprehensive review of detention policies and individual cases marked significant break from the previous Administration. Unfortunately, the President was unable to close Guantanamo within his one-year deadline. The U.S. Congress, even though it is overwhelmingly controlled by Democrats, passed legislation in 2009 prohibiting the President from moving Guantanamo detainees to the United States, and this legislation is likely to be extended. It is a remarkable thing that Democrats in both the House and Senate, many of whom owed their own elections to President Obama, would block his first signature foreign policy initiative. But the White House apparently
failed to understand that there is more ambivalence about the need to close Guantanamo among the American people, and among their elected representatives, than in the international community. And in this election year of 2010, with Democrats worried about being accused of being soft on terrorism, the White House has not wanted to press the issue of Guantanamo closure. Accordingly, Guantanamo will not be closed this year, and it may well not be closed during in 2011 or 2012. The State Department, nonetheless, has worked hard to continue to reduce the population at Guantanamo by persuading other countries to resettle another sixty detainees, reducing the population to 174. President Obama has been more successful in formally closing down the CIA interrogation program. I might note, however, that this controversial program had actually stopped in practice during the Bush Administration s second term, in part because of objections raised by the Department of State. Although the CIA program has ended, there continues to be a robust and highly partisan debate in the United States about what constitutes appropriate and lawful interrogation procedures, and in particular whether terror suspects must be given access to counsel before being questioned. After the attempted bombing of Times Square in May, the Administration announced that it would seek legislation to create an exception from the U.S. Miranda warnings in cases of international terrorism. If there were another serious terrorist attack or
attempted attack against the United States, I can imagine that the Obama Administration would be under heavy pressure, and might well agree, to use more flexible interrogation practices. President s Obama order to close Guantanamo and the end of the CIA program have been the two most visible shifts from the Bush Administration s counter-terrorism policies. In most other areas, however, there has been more continuity than change. Perhaps most significant, and contrary to international expectations, the Administration has not abandoned the Bush Administration s overall law of war paradigm to use force against and detain members of al Qaida and the Taliban. Indeed, President Obama has repeatedly emphasized that the United States remains in a war with al Qaida. Rather than adopt an overall human rights law or criminal law framework, under which detained persons would have to be prosecuted or released, the Administration has continued to hold detainees at Guantanamo and in Afghanistan as combatants in a war, potentially indefinitely and without criminal trial. The Administration continues to assert the right not only to detain but also to kill members of the Taliban and al Qaida because they are combatants in a war. Under this theory, the Obama Administration has
not only continued, but has dramatically increased, the use of drone strikes against al Qaida leaders in Afghanistan and Pakistan. The Administration s increased reliance on drones has kicked off a fierce debate about their legality and whether they constitute a violation of human rights law or even extrajudicial killings. The debate has been sharpened further by the apparent targeting of the American-born Muslim cleric, Anwar al-awlaki, in Yemen. Two human rights groups recently sued the U.S. Government claiming that his targeting would violate both international law and the Constitution. The Obama Administration, however, has insisted that drone strikes are lawful. My successor as Legal Adviser, Harold Koh, who is a well-known human rights lawyer and the former dean of the Yale Law School, gave a lengthy address in May defending the legality of drone attacks. The Obama Administration has continued to emphasize that the U.S. is in a war with al Qaida, not only in Afghanistan, but also in other parts of the world, which it has not precisely defined. Accordingly, the Administration continues to assert the right to use force to kill, or detain, members of al Qaida in Pakistan, Somalia, Yemen, and potentially elsewhere.
The Obama Administration has made some changes in terminology. For example, Administration officials no longer refer to a Global War on Terror, which was a term detested by human rights groups and many in the international community, especially in Europe. The Bush Administration had used the term in a rhetorical sense, rather than a legal sense, although personally, I had never liked the term because it suggested that the U.S. was in a war with all terrorist groups and that military force was the only way to deal with terrorism. Although the Obama Administration has dropped the phrase from its lexicon, nonetheless it continues to wage -- in effect -- a global war on al Qaida, by asserting the right to use military force against al Qaida in areas outside of Afghanistan. Similarly, the Administration has dropped the term unlawful combatant, which was another term much criticized by human rights groups. Here again, however, although the Administration has stopped using the term, it continues to detain many hundreds of Taliban and al Qaida as combatants under the laws of war. Although the Obama Administration has concluded that it is not required to prosecute or release detained terror suspects, it has nevertheless announced that it intends to prosecute some detainees. But to the surprise of human rights groups and many foreign governments, the
Administration has retained military commissions to prosecute certain detainees for violations of the laws of war. President Obama pledged to reform the commissions, however, to ensure that they would be fair. In the fall of 2009, Congress passed legislation to amend military commissions, for example, by prohibiting the use of evidence derived from coercive interrogations. I would note here that, while I have never been a proponent of military commissions, I have never been convinced that military judges would ever have admitted coerced evidence even in the absence of a prohibition. The military judges who preside over military commissions are experienced judges who have been trained in the military s court-martial system, which is very pro-defendant. While the statutory prohibition may have been unnecessary, it did emphasize the Administration s commitment to fair trials that meet international standards. Despite these changes, the Administration s decision to keep military commissions has remained controversial, even though no trials have begun. Although the Obama Administration has retained military commissions, it has broken with the Bush Administration by stating that it will prosecute some Guantanamo detainees in federal courts for federal crimes. Last November, Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other alleged planners of the 9-11 attacks would be prosecuted in federal court in New York. At the same
time, he announced that Abd al-rahim al-nashiri, the alleged mastermind of the bombing of the U.S.S. Cole in Yemen in October 2000, would be prosecuted by military commission. The Justice Department was almost immediately forced to abandon its plan to prosecute the 9-11 planners in federal court in New York, because of security concerns raised by New York city residents. For nearly one year, the Administration has been exploring other options to try the 9-11 planners, including conducting federal trials in other locations, or even on a military base, or giving up altogether and prosecuting them in military commissions. For reasons that are unclear, the Justice Department also announced in August that it was indefinitely postponing the military commission trial of al-nashiri, which was to have begun this month. In sum, the Obama Administration s future plans for prosecution of terror suspects captured outside the United States remain uncertain. The Administration will certainly not announce any prosecution decisions until after the U.S. mid-term elections in November. After that, I hope and expect that the Justice Department will announce that the 9-11 planners will be tried in a federal court, perhaps in a more secure location in New York state.
I do not believe that all terror suspects must be tried for federal crimes in federal court. I agree with the Obama Administration that federal courts are appropriate for the 9-11 planners and certain other cases, but that military commissions are appropriate for those who have committed war crimes. It is certainly true that our federal courts have proved highly effective in past terrorism cases, and that is why I support their use for the 9-11 planners. But they have rarely, if ever, been used to prosecute individuals captured by soldiers on a foreign battlefield in the midst of an armed conflict, and I question whether it is appropriate to use federal courts for this purpose. I believe that military commissions can provide fair trials, and it is appropriate to use them in certain cases. Being in Vancouver, of course, I must pause here to mention the case of Omar Khadr, whose trial by military commission was to have begun in August but has been postponed until mid-october. As many of you know, Khadr was born in Canada of parents with well-established connections to al Qaida. He was captured on the battlefield in Afghanistan in 2002, when he was 15 years old. He has been charged by U.S. military prosecutors with war crimes, including throwing a hand-grenade that killed an American soldier. Human rights groups, including the U.N. s Special Representative for Children and Armed Conflict, have claimed that U.S. military commissions are unfair, and
that it is a violation of international law to try Khadr because he is a child soldier. Despite these criticisms, and contrary to expectations that they would release Khadr or prosecute him in federal court, the Administration has forged ahead with making Khadr the first person to be tried by military commission since 9-11. It is a controversial case for the Administration to begin with, and I do not know their reasons for doing so. I suspect it is because the prosecutors believe they have strong evidence, and that there is an identifiable victim whose wife and children lost their husband and father. The case is a tragic one, but I believe that the U.S. military will give Khadr a fair trial. Moreover, while Khadr s father may have coerced his son to become a child soldier for al Qaida, international law does not prohibit the prosecution of minors for war crimes. Renditions The Obama Administration has also refused to give up the practice of renditions, that is, transfers of persons outside the normal legal framework of extradition or deportation. The practice of rendition has been criticized by some human rights groups and international lawyers as illegal. However, in July 2009, the Justice Department announced that the Obama Administration would continue to use renditions, not
only to bring terror suspects back to justice in the United States, but potentially to transfer them from one country to another, provided that there are adequate safeguards against mistreatment. Legal Framework In his Archives speech in May 2009, President Obama committed to construct a legitimate legal framework for detainees who could not be transferred or prosecuted. This framework, the President said, must have clear, defensible, and lawful standards that are in line with the rule of law. But since that time, the Administration has actually done nothing more to clarify the legal framework under which detainees are being held, as a matter of either U.S. domestic law or international law. Under U.S. domestic law, the Administration continues to hold detainees pursuant to the Authorization for Use Military Force Resolution of September 2001, which Congress passed immediately after the 9-11 attacks. The Administration has not sought new legislation that might clarify who may be detained, for how long, and subject to what review mechanism. Instead, the Administration has left it to federal courts to craft the rules as they hand down decisions in individual habeas cases.
Nor has the Administration clarified what international rules apply to its detention of individuals under the laws of war. President Obama has repeatedly reaffirmed his commitment to abide by the Geneva Conventions -- even earning international applause when he reemphasized this in his Nobel Prize speech last fall -- but he has not applied the Geneva Conventions as a legal framework any differently that the Bush Administration. In particular, he has not said that the U.S. is holding al Qaida and Taliban detainees as Prisoners of War under the Third Geneva Convention, or as Protected Persons under the Fourth Geneva Convention. Nor has the Administration suggested that human rights law treaties, such as the International Covenant on Civil and Political Rights, apply to the detention of individuals outside U.S. territory. Why has the Obama Administration been unable to clarify the legal rules for detention? The reasons are both legal and political. First, the Administration has found that traditional international humanitarian law and human rights law rules -- the Geneva Conventions and the ICCPR -- do not apply neatly to the detention of non-state actors outside U.S. territory. In sixty years, no U.S. Administration has accepted that the ICCPR applies outside U.S. territory. More important, because of the continued political polarization of national security issues in the United States, the Administration has been unable to develop a political
consensus on appropriate legal rules. Human rights groups, and their supporters in Congress, have opposed the passage of legislation that would specifically authorize detention without trial. And many Republicans oppose giving additional rights to terror suspects. As a result, in this election year, as with the closure of Guantanamo, the White House has given up on the President s pledge to construct a more legitimate legal framework for detention. Summing up, President Obama has made some significant changes in U.S. counter-terrorism policies, including ending the CIA interrogation program and directing the closure of Guantanamo. These actions and the President s emphasis on fighting terrorism consistent with the rule of law and international standards have helped to restore the reputation of the United States as a defender of human rights, a reputation which was unfortunately tarnished during the Bush Administration. In many other areas, however, there has been more continuity than change in U.S. policies, including a continuation of indefinite detention without criminal trial under the laws of war, targeted killings, renditions, trial by military commission, and a lack of clarity in the domestic and international legal rules for detention.
I expect, and hope, that we will see some further changes in U.S. policy after the election, such as the announcement of federal trials for the 9-11 planners and clarification of the domestic and international law applicable to detention. But overall, I do not expect the Obama Administration to give up the law of war framework, indefinite detention without trial for some individuals, renditions, or drone strikes. How should the international legal community react to this lack of change in U.S. counter-terrorism policies which it has previously criticized? Perhaps they should simply acquiesce because they like and trust President Obama more than President Bush, and they think he is trying to do the right thing? Or perhaps, after failing to see significant changes after two years, the human rights and international legal community should begin to criticize and condemn President Obama as bitterly as they criticized President Bush? My own hope is that we will see a greater acknowledgment that international terrorism in the 21 st century poses new challenges and that we can have a more substantive international dialogue to discuss the applicable rules. President Obama said in his Archives speech that we do need to update our institutions to deal with the threat from al Qaida and its affiliates. I fully understand that, during the Bush Administration, many in the international community were reluctant to
acknowledge any gaps, or even any lack of clarity, in the international legal rules applicable to fighting terrorism, lest they inadvertently give cover for these unpopular policies. But ten years later, with the threat of serious terrorist attacks from al Qaida still continuing and the Obama Administration continuing many of the same controversial policies, the international legal community must be prepared to engage in serious discussions about the law applicable to killing, detaining, questioning, and prosecuting suspected terrorists who launch plan and launch attacks from ungoverned areas, and who may not be subject to existing international humanitarian or human rights law. It is not enough for the international legal community to continue to say that the fight against terrorism must be conducted in accordance with the rule of law without a serious effort to identify what the applicable rules are or should be. For example, is it lawful to hold terror suspects under the laws of war? If so, how long may they be held and what international rules apply? Are drone strikes and renditions lawful? What about military commissions? When I was Legal Adviser, in 2006, I began a series of discussions on counter-terrorism legal issues between the U.S. and EU countries. The purpose was not to try to reach a consensus, but simply to try to understand each other s concerns. In 2007, I began at West Point a
focused dialogue with a smaller but geographically more diverse group of countries who face serious terrorist threats and also engage in international military operations. I am pleased that both of these dialogues have been continued by the Obama Administration. Indeed, the sixth meeting of the West Point group of countries was held here in Vancouver just two weeks ago. These inter-governmental discussions have been very valuable, but the international legal community, including the International Bar Association, can also contribute to the international dialogue on counterterrorism legal issues by hosting discussions among knowledgeable experts. It is important that these discussions include government officials and lawyers trained in international humanitarian law. Too many international organization and NGO reports on terrorism and human rights issues during the last decade have been prepared by academics and lawyers trained only in human rights law and who are not familiar with the basics of international humanitarian law. The Role Of Judges It is also important for the international legal community to understand that the U.S. judiciary continues to play a very active role in reviewing the counter-terrorism laws and policies of the U.S. Congress and the
Executive branch. The U.S. Supreme Court has issued four important decisions involving the detention and prosecution of detainees in Guantanamo, including ruling that Common Article 3 of the Geneva Conventions applies to the U.S. conflict with al Qaida, that military commissions must be established by congressional legislation, and that all detainees held in Guantanamo have a right to bring habeas corpus suits in federal court to challenge their detention. As a result of this latter decision, more than a hundred Guantanamo detainees have filed suits, and federal trial judges in Washington have issued more than 50 decisions granting or rejecting habeas petitions. In each case, a federal judge has carefully reviewed the U.S. Government s evidence for holding the detainee to determine whether the detainee was a member of, part of, or provided material support to al Qaida at the time he was captured. So, even if a detainee does not have a criminal trial, every detainee in Guantanamo has the opportunity to challenge his detention before an independent federal judge. The detainees are assisted by expert and effective counsel, many from universities and some of the finest law firms in the United States. As a result of these habeas challenges, federal judges have ordered more than 30 detainees released.
In this regard, it is worth noting that U.S. judges, including the U.S. Supreme Court, have agreed with both the Bush and Obama Administrations that the U.S. has been in a state of war with al Qaida and that international humanitarian law is applicable to that conflict. Some in the international legal community may continue to disagree with that conclusion, but it is difficult to argue that the United States has not allowed its counter-terrorism laws and policies to be governed by the rule of law. Conclusion In closing, let me emphasize again the value of discussing the rule of law not only in countries with less-developed legal traditions but also in major democracies. Sadly, international terrorism continues to threaten countries around the globe, and all states, including the United States, Canada, and other major western democracies, will continue to struggle to find appropriate policies and legal rules to ensure the security of their citizens while protecting human rights and individual liberties. The International Bar Association should continue to promote informed dialogue about these issues.