UC Berkeley law professor John Yoo can sleep better tonight in the wake of last week's decision by the US Supreme Court, Medellin v. Texas. While the reporting on the Medellin case has emphasized the case's death penalty issues and the court's rejection of a position held by the Justice Department, the decision's most far-reaching effect concerns how US courts should respond to international law.
Yoo, you may remember, is an author of legal torture memos, written while he was working in the US Justice Department. Last year, one of the leading ethical journals of American law, the Georgetown Journal of Legal Ethics, published an article that directly raised the possibility that the authors of the torture memos violated international law to such an extent that they could be tried as war criminals. Historical precedent exists for such scrutiny of lawyers, as in the case of the German lawyers who constructed the legal rationale for Nazi atrocities. It was the work of the torture lawyers that allowed President Bush to claim that everything the United States has been doing in the war on terror is "legal." Many outside the United States, however, have little doubt that the torture practiced by American military, contractors, and its agents violated international norms and treaties.
The reason that there will be fewer nightmares in the Yoo household is that the Supreme Court in Medellin has eliminated the possibility that Yoo could face future prosecution as a war criminal in this country. In order to understand why, a little background is necessary.
A ferocious battle is raging among this country's elite as to the role of the United States in world governance. The fight over the "New World Order" that erupted politically in the Bush I administration never subsided; it has faded from the political landscape. Within the foreign policy elite, the question is: What is the best way for an aging superpower to influence or control world events besides direct military force? Those who believe in the certainty of American dominance favor a system of treaties and agreements that can be imposed on others but that do not affect American activities. This group, which could be called the "America Firsters," has succeeded in blocking US implementation of a number of environmental and human-rights treaties, and in getting American activity exempted from certain international justice and criminal treaties. The other side, the "New World Orderers," argues that it will be impossible to get other countries to adhere to US interests in areas such as trade, intellectual property, and the like unless the United States shows that it is willing to live by the same treaties that it wants to force on others.
One of the areas of dispute concerns international courts of justice. Both sides of the argument favor the establishment and funding of international courts which can give legal standing to actions that otherwise would violate international law — such as the seizure, often by kidnapping, of those believed responsible for genocide. But sometimes these matters get a little too close to home. The prosecution by various countries of CIA-supported General Pinochet of Chile is a case in point. Neither side within this dispute likes prosecution such as Pinochet's. The New World Orderers want to control this through influence and legal procedural devices, whereas the America Firsters argue that since we have the military might, we should just say that these treaties and courts should work when applied to our enemies but not to our friends.
And what about Mr. Yoo and the Medellin decision?
In Medellin, the split between the two sides is evident. The specific issue was whether actions by international courts or through international treaties bind American courts in the context of the death penalty. The Bush Justice Department, which was concerned that the Supreme Court might rule that the United States does not have to comply with international court decisions, sided with the New World Order crowd. How could we claim that other countries had to turn over enemies of the United States to these international tribunals if the United States will not honor their decisions? However, people like John Yoo, who are more optimistic about the ability of the United States to continue its dominance by other than legal means, are still confident of the ability of the United States to have its cake and eat it too. A majority of the court agreed with these America Firsters and drastically limited the effect of international courts and treaties in the United States. As a result, Mr. Yoo will not be facing war crime issues in US courts.
While he may never escape his bad karma, Mr. Yoo is not out of legal hot water for his torture memos. On January 4, he was sued by Jose Padilla, who was convicted of conspiring to commit murder and fund and support terrorism. And based on an op-ed piece he wrote in The Wall Street Journal, Yoo is worried and irritated about the lawsuit. But at least after Medellin he has one less thing to worry about. Those being waterboarded today in locations such as Guantanamo and the US "secret jails" should be so lucky.
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