Everything must change so that everything can stay the same." - Il Gattopardo, Giuseppe Tomasi di Lampedusa.
As the events of September 11, 2001, were happening, I was teaching an Alternative Dispute Resolution class at Texas Wesleyan Law School. Among the points of discussion for that day's negotiation readings was the question of how to negotiate with Middle Eastern terrorists. Once news broke, students ran out of class sobbing to check on family and friends working at American Airlines. After making sure those students were safely able to get on their way, I thought about whether to cancel class, but instead decided to ask my remaining students to imagine that President George W. Bush intended to meet with them and seek their advice on what he should do about the crisis. I emphasized that we are all impacted by the same emotions, including the president. However, each student was told to think objectively in order to give the best advice possible to the president. Of the various suggestions that were made, what stood out then and what continues to stand out for me today was the comment of an older student who had been in the Navy, who said that our first task was to go back to our fundamental principles, and then decide where to go from there.
Ten years later, it appears that the fundamental instruments, and therefore the rules and principles of international law, have not changed. None of the international agreements forming the core of international humanitarian law, human rights law, or even Article 51 of the UN Charter have been altered since 9/11, nor has customary international law. Even if we look at the complicity of many states in rendition and torture, the approach was clearly not done out of a sense that the law had changed. So, with regard to all of the concerns of this JURIST Feature with national security, Guantanamo, civil liberties, human rights and the law of war since 9/11, international law has not changed.
So if international law has not changed, what has changed? Among the changes are the policy, practice and domestic law of the US. Further, the security state has expanded in an unprecedented manner at the federal, state and local level, with surveillance being a permanent feature in the lives of Americans. Law enforcement and armed conflict paradigms are traded with and against an ostensibly new self-defense paradigm to provide legal rationales for the use of various types of force in Afghanistan, Pakistan, Iraq, Yemen, Somalia and surely other places around the world.
While it is said that torture is no longer performed, meaningful high-level accountability for torture and cruel, inhumane and degrading treatment has so far been blocked. The detention facilities at Guantanamo Bay have been opened, expanded, announced to be closed, and yet have remained. The US domestic crime of material support for terrorism and material witness statutes have morphed into terrorism fighting tools. History has been reinterpreted as far back as the Seminole Wars to argue that some domestic law of war crimes are to be applied as if they were international law of war crimes pursuant to congressional definitions in the ersatz justice of the military commissions. Courts have used or expanded doctrines of state secrets and national security at the request of the federal government to block redress to foreigners for excesses alleged to have been committed. Ironically, one can get more evidence about "torture flights" in a garden variety commercial contract dispute in a New York court than through any procedure attempting to redress the consequences of physical and psychological violence.
The architects of these American policies, whether political leaders from the executive or legislature, lawyers, psychologists and many others, blithely walk the streets unimpeded and often times heralded in media and print. Our government works overtime to dissuade foreign or international tribunals from disturbing these architects of the new US and its policies in the world. Taking the country to war in Iraq on false pretenses is bemoaned by some, challenged by others, but nonetheless eventually forgotten.
The Arab Spring reveals state security apparatuses and their roles in aspects of the American-led War on Terror. Books are published in which political leaders sing the praises of their decisions. At the same time, detainees are shifted around, or languish incommunicado. Some have been driven insane by their treatment.
Of course, the major change since 9/11 is the thousands who died or were injured that day and those who continue to suffer health issues, in addition to those who have died or been wounded in the ensuing conflicts, civil unrest and civil wars since. We should remember all the dead and wounded as we keep them, and the future of this world, in our prayers.
In sum, international law has not changed but the US has. A more fundamental inquiry, however, is whether it is only American leaders who have changed, or is it also the ordinary Americans who have changed? Have Americans kept faith with their fundamental principles or have they succumbed to panic and fear and become more coldly indifferent to the world? This is the question that haunts me.
I have been struck by the inability of Americans to countenance criminal prosecution of high-level civilians while permitting it in the cases of low level persons. Charles Graner, a low-level ringleader at Abu Ghraib, was recently released from prison, yet the high level types like Dick Cheney, Porter Goss, George Tenet, Donald Rumsfeld, Jay Bybee, John Yoo, John Rizzo and the rest, who created a torture superstructure in the American military and intelligence apparatus, are made to fear nothing. They protect themselves relentlessly through a smokescreen defense of mid-level intelligence professionals and military that did their bidding. Alternatively, they point to the current administration's passivity in seeking their accountability and urge us to see that as vindication through continuity. Further, on the Iraq war, the broad consensus among the American people that their leaders lied to them has not lead to accountability for those former leaders. Rather, quite interestingly, the Iraq war is examined as a "model of intervention" (to be compared, for example, to Libya) as if unleashing an aggressive war without the authorization of the UN Security Council nor a basis in Article 51 of the UN Charter was just another acceptable "policy option" for the US in the world. On both fronts, leaders of our foreign counterparts mirror our fecklessness at home in turning a blind eye to demands for accountability and justice.
What seems to be lost from view is that the professed "tough on terrorism" American leaders have done much to weaken America by abandoning fundamental American principles. As leaders draw from the darker chapters of American history to find precedents for what they seek to do, there appears to be little willingness to step back and ask why those parts of history were left in the dark. The willingness of leaders to recall these dark chapters demonstrates an almost pathological misapprehension of what the American project is. A city upon a hill cannot wallow in these dark chapters of history.
What is to be done? Those who oppose these dark matters that fill our present and recent past must continue to shed light on what is going on as a form of earnest struggle to reclaim the American project. Americans must continue to insist on accountability for those in past and current administrations who betrayed our fundamental principles and the peremptory norms of international law. Keeping in mind those who died and were wounded on 9/11, we must renew our faith in the best aspects of American history. International law has not changed and is not in crisis. What has changed is American law and, as is seen sadly each day, it is America that is in crisis.
Benjamin Davis is an associate professor of law at the University of Toledo College of Law. He has served as legal counsel for the International Court of Arbitration of the International Chamber of Commerce. He led the effort to adopt the American Society of International Law Centennial Resolution on Detainee Treatment and the Laws of War.
Suggested citation: Benjamin Davis, International Law and the American Project Since 9/11, JURIST - Forum, Sept. 11, 2011, http://jurist.org/forum/2011/09/benjamin-davis-american-project.php.
This article was prepared for publication by Nathan Marinkovich, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org