LawCulture

Hamdan and the War Crimes Act

I posted on this issue at the new Georgetown Law Faculty Blog, which is here.

More on Zarqawi, GTMO, law and war....

In this op-ed by David Luban in today's LA Times:

At war with Iraqi law

Killing Zarqawi robbed Iraqis of the chance to bring him to justice.

Was it something we said?

[The NYT reports on the latest Pew Research Center poll]:

"Global Image of the U.S. Is Worsening, Survey Finds"

Oops.

The bad news: "As the war in Iraq continues for a fourth year, the global image of America has slipped further, even among people in some countries closely allied with the United States, a new opinion poll has found. "

For instance, "Support for the fight against terrorism led by the United States is also down, Pew found. Although strong majorities in several countries expressed worries about Iran's nuclear intentions, in 13 of 15 countries polled, most people said the war in Iraq posed more of a danger to world peace."

The good news: "Many respondents distinguished between their largely negative feelings about President Bush and their feelings about Americans in general."

War & Law

Following up on my last post about Bush Admin blurring of the lines between violence and law-- consider the various official responses to the three suicides of Guantanamo inmates. Camp Commander Admiral Harry B. Harris Jr. insisted that the suicides were "not an act of desperation, but an act of asymmetrical warfare waged against us." Then the NYT reports that Gen. Bantz J. Craddock, commander of the United States Southern Command, thinks the suicides "may have been timed to affect the Supreme Court decision on the Hamdan case. 'This may be an attempt to influence the judicial proceedings in that perspective.'"

So, I think I get it. The Guantanamo inmates didn't kill themselves because being detained indefinitely -- maybe forever-- made their lives seem not worth living; they killed themselves in order to strike out at the United States. More specifically, they killed themselves so that they could strike the US from within by making the Supreme Court feel sorry for them, which could in turn influence the Court in the Hamdan case. So a defeat for the Administration in Hamdan would actually be a cleverly planned victory for the terrorists.

I think this actually makes sense to someone.

Delivering "justice" to Zarqawi?

President Bush's statement on the death of Zarqawi: "Last night in Iraq, United States military forces killed the terrorist al Zarqawi.  At 6:15 p.m. Baghdad time, special operation forces...delivered justice to the most wanted terrorist in Iraq." (emphasis added).

Zarqawi's death is difficult to mourn. He was a brutal terrorist, and there's no reason to doubt that the air strike that killed him was justified. But though it was justified, was it really "justice"?

You might say that Bush was merely using a figure of speech-- that "justice," in this context, simply meant that Zarqawi got what he deserved. But I don't think it was just a figure of speech. On the contrary. Clausewitz saw war as "a continuation of politics by other means." Bush takes it a step further, seeing war as form of law by other means.To Bush, war is a form of law, and law is a form of war.

This administration has repeatedly sought to blur the boundaries between law and violence in the context of the war on terror, both through efforts to "legalize" various forms of violence (including once impermissible forms of violence, through the torture memos, for instance) and through efforts to militarize law and legal process (consider the Administration's largely sucecssful efforts to conceptualize Padilla, Hamdi, et al. as enemy combatants).

I'm not sure "militarizing law" is the right way to put it- but think of the term "lawfare," used to suggest that "the enemy" is using international law aginast the US as part of a "war" against us (and also used to suggest that those who raise legal objections to US war on terror tactics are somehow aiding the enemy). 

I'd be the first to say that the boundaries between "law" and "violence" or "force" are inherently blurry and socially constructed - but the administration's efforts to further blur those boundaries strikes me as both interesting and disturbing.

A Sustained Attack on the Culture of Death

Last December, the Stanford Law Review published a pro-death penalty article by Cass Sunstein and Adrien Vermeule, with a response by Carol Steiker. Sunstein and Vermeule argued that even if capital punishment violates someone's right to life, it is still morally obligatory if through deterrence it would save more people than it kills. My colleague Eric Blumenson has just posted an article on SSRN outlining heretofore unanalyzed logical and moral problems with the Sunstein-Vermeule approach. Importantly, Blumenson's article is relevant not only to the Sunstein-Vermeule specific death penalty argument, but to the similar, lesser-evil logic behind post-9/11 proposals to "violate the human rights of some in the name of human rights for all." The article pointedly shows whats wrong with this thinking, and how radically life would change in a country that took the Sunstein-Vermeule rationale to heart.