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Monday, August 04, 2008

Laws of War and Norm Entrepreneurs

Hello out there and thanks to my colleague Dan for inviting me for another guest stint on Prawfs Blawg.

This past Thursday,  Lieutenant Colonel Stuart Couch, a prosecutor at the Office of Military Commissions, was kind enough to speak at FSU Law School as part of a Human Rights and National Security Series hosted by the FSU Center for the Advancement of Human Rights.  In particular, Lt. Col. Couch focused his talk on his decision to refuse to prosecute Mohamedou Ould Slahi, a detainee at Guantanamo Bay suspected of having ties to the Hamburg cell of Al-Qaeda. Based on his belief that Slahi had been subject to torture, he decided that the evidence acquired after such enhanced interrogation techniques was unreliable.

A few things about Lt Col Couch's speech stuck out to me. The first was that his reliance on faith to describe his moral compass in this situation sounded very similar to the more secular perspective on human rights I teach in my laws of war class. His belief in the inherent dignity of man came at least partly from a religious perspective, but was also couched in the language and framework of international law and international norms.  I thought his behavior and his speech was valuable evidence of the way in which international law and norms are both shaped by and in turn shape domestic actors.  While many in the audience seemed to come from a different starting point, such language and ideas seemed to provide common ground.

Second, while Lt Col Couch made no mention of any overt pressure to prosecute and secure convictions in the Slahi case, it seems likely such pressure existed. Yet he felt the larger international (and domestic norms) dictated his behavior. He said, "It's a violation of our domestic law, it is a violation of our values as Americans, and a violation of international norms and laws. The debatable thing now is whether the cruel, inhumane or degrading treatment of a particular detainee falls under the same category. (...) Some of this stuff gets to the point where it really tears at the fabric of what we are as Americans and our American values." I thought this quotation was nice evidence of the sort of norm internalization that internationalists are hoping to promote in the human rights area.

Finally, I wanted to throw out a quick question to the readers.  When I originally listened to Couch's speech, I was envisioning him as a norm entrepreneur. But the more I think about it,  the more I think that he might be more of a norm abider- as he would characterize his choices as dictated by existing norms and laws. I try to teach my laws of war class with an eye toward norm entrepreneurs such as Henri Dunant (the author of A History of Solferino) and Jody Williams (proponent of the landmine ban). Any nominations for norm entrepreneurs in reference to the War on Terror? 

Posted by Lesley Wexler on August 4, 2008 at 02:19 PM in International Law | Permalink


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I don't think Marty and I have a disagreement, actually, as my comment wasn't meant to suggest that the Slahi situation is one in which the relevant norm is too contested to provide a predicate for the norm-abiding/norm-entrepeneur distinction. I was inspired to comment because Lesley framed her question more broadly (the war on terrorism generally, rather than just interrogation standards), and that brought to mind various issues where the relevant norms are more plainly contested (detention process, detention scope, and the meaning of direct participation for purposes of targeting are a few of the things I had in mind), but one might nonetheless see the "norm abider" label applied to participants in the debate. Anyway, for clarity's sake, let me state that I agree with Lesley's characterization of LT COL Couch as playing the role of norm abider rather than norm entrepeneur in the Slahi situation.

Posted by: Bobby Chesney | Aug 4, 2008 9:07:43 PM

I propose a new category: "norm guardians." And thus I would nominate Marty and several of his colleagues at Balkinization, Kevin Jon Heller over at Opinio Juris, all those wonderful law profs at IntLawGrrls. Also: Phillipe Sands, Amartya Sen, Louis Fisher, Tobias Thienel, Marko Milanovic, Ceasare Romano, David Golove, Allen Buchanan, Jane Mayer, Richard Falk, Karen Greenberg, Martha Nussbaum, Charles Jones, David Held, Thomas Pogge, Kok-Chor Tan, Robert Hockett, Sanjay Reddy, Kwame Anthony Appiah, Carol Gould, Jack Donnelly, among others. While performing some of the functions of the Third and Fourth Estates, I suggest we view them as indispensable members of that cosmopolitan category: the Fifth Estate.

Posted by: Patrick S. O'Donnell | Aug 4, 2008 8:34:31 PM

I dunno, Bobby, about the contested norms. Here's what we did to Slahi:


His was the "second special interrogation plan" described in the Schmidt Report:


At the very least -- giving the military the benefit of all factual disputes -- Slahi was placed in "the freezer" (short of hypothermia), and his life and the lives of his family members were repeatedly threatened. Thus, at a minimum, the conduct violated two criminal statutes -- Article 134 of the UCMJ and the federal "stalking" statute, 18 USC 2261A. Of course, it's also "cruel treatment" barred by Common Article 3 (although at the time the President said that didn't apply). And it's difficult to see why the threats of death are not also torture.

We can quibble about just how many legal norms were violated. But the interrogation was plainly unlawful, and should have subjected those responsible to exposure under the pre-MCA War Crimes Act. Thus, it's not hard to see why Lt. Col. Couch thought it beyond the pale that the *subject* of such conduct crimes would be put on trial himself for alleged violations of the laws of war, using evidence that was itself obtained by conduct constituting war crimes and/or federal felonies.

Posted by: Marty Lederman | Aug 4, 2008 7:28:56 PM

Very interesting post Lesley, and a still-more interesting question. If posed to critics of administration policy, that question will illicit names like John Yoo, David Addington, and so forth, on the theory that administration attorneys purposefully sought to alter status quo rules relating to IHL, IHRL, and, for that matter, the Constitution. If posed to the administration's supporters, on the other hand, they would on the same theory no doubt name the various institutions and individuals involved in advancing more restrictive interpretations of these bodies of law (ICRC, HRF, HRW, etc., not to mention detainee attorneys themselves). And both would be correct, insofar as we are talking about essentially contested norms. Both sides would of course disagree about which norms are open to contest (i.e., both sides on at least some issues see themselvs as the norm-abiders and others as the norm entrepeneurs). All of which is simply to suggest that in order to answer your question in a thoroughgoing way, one must be prepared to make the case that the particular norm in question is more or less settled. I think that case can be made as to the prohibition on torture, for example, whereas I think it is much less clear that it can be made with respect to the procedures required in connection with military detention and the problem of false positives.

Posted by: Bobby Chesney | Aug 4, 2008 4:21:37 PM

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