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What War Does to Law
By Benjamin G. Davis
Thank you for the opportunity to address the subject of what war does to law. As an initial matter, I draw your attention to two books that I think are relevant for the work of this conference.
First, I draw your attention to the recently published work of a German author of the early to mid 20th century named Hans Fallada and entitled Every Man Dies Alone. The fictional account about a couple called the Quangels is based on the true story of a German couple named Otto and Elise Hampel who, after the death of the brother of Elise in the German assault on France during World War II, started a clandestine anti-Nazi effort in Berlin. The couple wrote little postcards calling for the overthrow of Hitler and dropped these postcards surreptitiously in public places around Berlin. Their dissenting effort lasted two years until they were arrested by the Gestapo, were tried, and ultimately executed. At one point in the novel, the husband explains to the wife what he intends to do and the wife takes the view that the form of dissent – writing these little postcards – is a pretty insignificant form of dissent. The husband agrees but also says something to the effect that if they are caught doing this insignificant thing, it was certain they would be killed.
I draw the attention of the conference participants to this book and this exchange because persons may sometimes feel compelled to dissent or do acts of dissent but ultimately not do anything because they feel their small protests are insignificant and meaningless. We may feel overwhelmed by the state and feel powerless to dissent from actions with which we disagree. Yet, it is important that we each in our modest ways make our voices heard, drop our little postcards on the street in the manner of the Hampels. It is the aggregation of those dissenting voices and acts of dissent that with time can have an influence and, at a minimum, provide inspiration for generations afterward confronted with similar situations.
Second, on movements, the best book that I have found is by an Italian sociologist named Francesco Alberoni and entitled Movement and Institution. While we are all warned to beware of systematizers, what is refreshing about Alberoni is that he is agnostic about the content of the movements and yet also analyzes movements from the largest transnational ones like capitalism or communism down to the smallest ones such as a couple falling in love, what he describes as a movement of two people. In addition, Alberoni goes further in that he describes the process by which a person changes prior to becoming part of a movement. He discusses the contradictions that arise in a person between what they feel or think inside and what they experience in society. The result is that the person reaches a state Alberoni describes as “depressive overload” when the contradictions become too much. The person then is spurred by these contradictions to react to what is happening in their environment – and that moment of change is what he calls “the nascent state.” Once a person reaches that changed state they tend to seek others who are of a similar view – to seek affinity in Alberoni’s terms. It is the process of these persons all sharing the “nascent state” through the process of developing affinity that leads to the birth and growth of the movement. Alberoni goes farther in describing the four generic reactions of the institutions (or “everyday life”) with result that the movement is ultimately institutionalized, made extinct, repressed, or dissolves in illusion. An example of a person going through depressive overload is Rosa Parks refusing to stand up on the bus. We are all familiar with the events that transpired subsequent to that brave act.
I submit that many of the participants at this conference are experiencing the depressive overload and have felt a need to dissent to current events. In coming together in this conference, we are each in our nascent state and seeking the affinity with others. Through that process that Alberoni describes, I am comforted in saying that a movement has arisen. Our efforts and learning will reveal in due course to what extent the interaction of this movement with institutions will lead to an outcome and, if so, which of the potential generic outcomes described above. The key for me is that a process is going forward as we each experience the contradictions of today. It is Alberoni’s description of this process that gives me comfort for it foreshadows the possibility of possibilities for change – though it does not guarantee that such change can occur. All we each can do is to try to express our vision of what we hope should be changed and work toward that change.
Dropping the postcards in Fallada is a symbolic expression of the process of reaching the nascent state of dissent that is at the heart of Alberoni. I hope these two references assist persons in understanding their current status and in helping to see how a way forward might be developed.
II. International Law and the American Project since 9/11
Everything must change so that everything can stay the same." - Il Gattopardo, Giuseppe Tomasi di Lampedusa.
It is important to keep in mind two types of law: international law and domestic law. International law is defined as international agreements (colloquially treaties), customary international law and general principles of law recognized by civilized states. Domestic law is all the law from the Constitution on down inside a state such as the United States. One of the fundamental rules of international law is that a state may not invoke the provisions of its internal law as justification for its failure to perform its international obligations. What this international law rule means is that as long as the United States has an international law obligation, the internal law changes are of no moment or ability to extract the United States from its obligations. If the United States changes its domestic law or acts in a manner pursuant to that domestic law that is inconsistent with its international legal obligations the United States is in breach of those obligations – the obligations do not disappear just because of the domestic law modification.
Ten years after 9/11, 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 United Nations 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 current concerns such as 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 that were noted in Jeff Fogel’s presentation. 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 and international precedents strained to argue that some domestic law of war crimes (material support for terrorism and conspiracy) 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.
In sum, international law has not changed but the US domestic policy, practice and law has.
It is very important for Americans to understand the view from the international plane of the United States’ international legal obligations and the view from the domestic plane of the United States legal obligations because any differences between the two sets of obligations highlight a dissonance in the view of the United States between the rest of the world and the internal view promulgated by our government. Being able to see what the rest of the world might understand and compare it with what is being stated in the United States provides an ability to see more clearly what is being undertaken by the United States government and why the reactions of the rest of the world are as they are. In addition to the military commissions decisions discussed above here are a couple of further examples.
First, on the War in Iraq, 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, in the internal discussions the Iraq war is examined as a "model of intervention" (to be compared, for example, to Libya). This vision looks at the War in Iraq through the lens of the Congressional Authorization for Use of Military Force Against Iraq Resolution of 2002 (i.e. from a domestic law perspective). This vision leaves to the side the international law perspective that unleashing an armed conflict without the authorization of the United Nations Security Council nor a basis in Article 51 of the UN Charter was aggressive war, the supreme crime.
Second, on torture, all of the dubious definitions of torture and cruel, inhumane and degrading treatment in the infamous torture memos, the invocation of the state secrets privilege and other national security privileges are pursuant to interpretations on the domestic plane of both domestic law and international law obligations. However, these domestic law permutations do not change the nature of the international law obligations on the United States under the relevant treaty law.
Whether on the War in Iraq, on torture or on the military commission decisions discussed above, being able to view these seminal events of the 9/11 period from both the domestic law and international law perspective allows one to have great clarity as to what the United States government is doing. Where the United States approach diverges substantially from what is considered appropriate as a matter of international law, one begins to see reasons for disquiet and dissent.
III. Bringing Light to Dark Matters
One of the benefits of being able to appreciate the same actions of the United States from the domestic and international law perspectives is that one can better see the source of one’s disquiet. For example, as discussed above, the crime of material support for terrorism was codified in the Military Commissions Act of 2006 and 2009 by the United States Congress. Such a crime is alleged to be an international law of war crime. The military commissions addressing cases where a defendant has been charged with that crime have worked hard to find precedents in the United States and abroad for charging persons with that crime as an international law of war crime. Some of the key precedents cited in the United States take us back to the Seminole Wars and military commissions at that time in which executions of defendants were viewed years later as murder. In a sense, the successful “proof” based on alleged precedents derived from what we might term dark moments in our history requires us to confront those moments or bring light to those dark matters.
The fact that what occurs today is supported by those dark matters helps us confront a current reality where we are asked to go back to somber occasions in the American past to provide a basis for difficult actions done ostensibly in the name of the American people today. The fact that we go to those somber arenas should hopefully give us pause and cause some disquiet. It was for this precise reason, I submit, that Judge James Robertson of the United States District Court for Washington, D.C. in his opinion of July 18, 2008 in an earlier stage of the Hamdan case harkened back in this enemy combatant case to the Jim Crow era, to a case in which African-Americans in the South during segregation were abused in an interrogation. By bringing light to dark matters in our history, I believe that Judge Robertson carefully reminded the United States of a time when hysteria led to profoundly unfair processes.
As leaders draw from the darker chapters of American history to find precedents for what they seek to do, we are called in turn 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.
But I would go farther in thinking about these dark matters.
A colleague brought to my attention an article concerning the effort to extradite former Acting General Counsel John Rizzo of the Central Intelligence Agency to places such as Pakistan for him to stand trial for murder with regard to persons killed by drone strikes. This article struck a chord with me because John Rizzo played the key role in authorizing drone strikes on individuals in this administration, but also was a key player as detailed in the Department of Justice Office of Professional Responsibility Report released by Attorney General Holder in seeking legal cover/clarity for the CIA persons engaged in the torture under the Bush Administration. Rizzo also spoke at my law school last year as part of a law review symposium on the Military Commissions in which persons from the floor raised issues about his role in the torture.
The legality of drone strikes has been the subject of much debate as persons have argued whether they should be analyzed under the legal regimes of international humanitarian law, international human rights law, domestic law such as the Authorization for Use of Military Force, or a construct that has sought to be seen as emerging that might be called international self-defense law. The analysis of the torture over the past years has also sought to look for treaty, customary international law, and domestic federal statutes. For example, we have recently been made aware that two criminal cases concerning torture and the CIA are going forward at the suggestion of US Attorney John Durham. Durham was tasked by the Attorney General at the Department of Justice to review 101 cases regarding detainee treatment and the CIA to see if there were any cases where the treatment was outside the boundaries of the legal advice given. Finally, the definition efforts for the crime of aggressive war in the Rome Statute that recently occurred at Kampala are another aspect of trying to articulate rules for criminal responsibility for actions taken by state actors.
I have looked at drone strikes under different lenses of law. I have urged criminal prosecution of high-level civilians and military generals in U.S. domestic courts for torture and cruel inhuman and degrading treatment. I have questioned the legality of the War in Iraq.
It occurred to me over the past couple of days that there is a common thread across these issues of drones, torture, and illegal wars. The unifying thought was that the use of drones, interrogation, and armed conflict each have various legal regimes that shape them and form the universe of what we see as what is legally permissible. The legality of the manner in which state actors operate in these areas are derived from both domestic and international law rules. The powers of any individual official to act are derived from the internal state structure such as the Constitution.
Just like there is the known universe of these rules that apply for these areas, I started to wonder about what is not seen in the universe: when state actors act with malice aforethought or sufficient mens rea and actus reus to be a crime. It occurred to me that this part of the universe of law might also be viewed as the dark matter in a similar fashion to how the term is used in astrophysics. Dark matter has not been seen but is used as a way to explain certain phenomenon that are inexplicable by what is seen in the known universe.
An example of dark matter would be a drone strike which does not fit within the proper categories of legality. I thought of this type of dark matter when reading a February 13, 2011 Newsweek article (http://www.newsweek.com/2011/02/13/inside-the-killing-machine.html) on the use of drones which states:
“A look at the bureaucracy behind the operations reveals that it is multilayered and methodical, run by a corps of civil servants who carry out their duties in a professional manner. Still, the fact that Rizzo was involved in “murder,” as he sometimes puts it, and that operations are planned in advance in a legalistic fashion, raises questions.
More than a year after leaving the government, Rizzo, a bearded, elegant 63-year-old who wears cuff links and pale yellow ties, discussed his role in the CIA’s “lethal operations” with me over Côtes du Rhone and steak in a Washington restaurant. At times, Rizzo sounded cavalier. “It’s basically a hit list,” he said. Then he pointed a finger at my forehead and pretended to pull a trigger. “The Predator is the weapon of choice, but it could also be someone putting a bullet in your head.”
From the quote, the person tasked with the determination of who would be subject to a strike would sometimes refer to these actions as “murder.” For me, it is not possible to dismiss out of hand the use of that type of language about some of the State’s action. Such use of the term murder brought up the possibility that some drone strikes might not be legally justified (whatever the legal regime one asserts) and thus would be properly defined by someone with expertise as murder. Such a murder by the state that was not under a legally permissible regime would form, it appeared to me, part of the dark matter of state responsibility without state legality. In that space, one is tasked with finding how the legal superstructure should respond to the illegality. Do the normal tools of immunity etc. still operate in this sphere of dark matter or are the constructs we normally view no longer protective of the State’s servitors precisely because they have stepped outside the outer perimeter of what is legally permitted?
A similar view of dark matter can be seen in two phases in thinking about torture. First, those acting outside the confines of the legal advice on torture would be operating in the state’s administratively determined legally impermissible space of this dark matter. Next, are those who operate within the confines of legal advice or those who draft legal advice where that advice itself forms part of the dark matter by trying to make legal things that are not. Again, what is the response of the legal superstructure to persons in these two areas of the dark matter?
A further view of dark matter can be seen in the taking of a country to war on false pretenses. While constitutional forms are followed, at a fundamental level, what if the leader has the mens rea that causes a war that resembles or is aggressive war? Do the outer perimeters of the leader’s Constitutional and Congressional powers protect the leader? Has the leader by so stepping outside of rules moved into a space of dark matter in which the normal protections may no longer be operable? If so, what then should be the approaches to the person who has an official capacity yet who departs from the constraints upon that official capacity through his mens rea in doing his acts?
Whether in drones, torture, or illegal wars, the evidence of things not seen suggests that there is dark matter here too that might need to be brought to light to help us more completely understand the universe of the State in which we live. In understanding, maybe we can learn to comprehend the manner in which such departures by leaders into the dark matter can be properly addressed and integrated to complete our sense of what we need to confront in this existence.
A question that John Rizzo asked in the article above that seemed to be directed at law professors is, “How many law professors have signed off on a death warrant?” Such decisions are no doubt terrible in the context of proper state authority, but when said state authority goes after persons who are only perceived as threats, I sense that we are stepping into the dark matter. The question reminded me of a veiled threat made to me at an American Society of International Law meeting when I called out a former CIA person on the importance of criminal prosecution of even paper pushers.
IV. The Deal – Bring Light
We can be made fearful by such aggressive language about bringing death. In fact, at a time when we are led to understand that the surveillance state has been greatly expanded, at a conference like this each of us might wonder whether in fact what we are saying is being monitored.
I assume that everything that I do is being monitored by the surveillance state. So, as I did in the conference, in this brief presentation I speak to those in the surveillance state who are reading my words. It is a strange situation where one is writing to someone one knows is there, they know you are there, yet you both do not know each other.
The assumption that one is being monitored by the surveillance state should not lead one to cower but to rather take the approach of speaking one’s mind. If one is free, then one must act free even when what one is doing is monitored. To self-censor in such a setting is to allow the secret of the surveillance state to cause one to cower. It is to betray such important concepts in the American soul as that enshrined in the motto of the State of New Hampshire where I lived for three years as a child “Live Free or Die.” As I have grown older and the fear of the post-9/11 experience has been pushed at me, the need to live free even in the monitored surveillance state of our current times, has never been more important to me.
At the conference, I went so far as to say “F*ck the Surveillance State.” I did that as a means of encouraging those in the room to see how far back the boundaries of freedom can be pushed to counteract the oppressive feeling of being watched. Like those postcards described in the Fallada book or maybe as a result of a profound sense of “depressive overload” about many things done in my name and in the name of all Americans, the act of speaking with freedom has become vitally important to me.
So law professors like myself and each of us as ordinary citizens must think to renew our vigilance and play the role of bringers of light to help understanding of our state. I think this “deal” of bringing light is the set of cards we have been dealt in this time of surveillance. By bringing light on these dark matters, we push back the shadows and keep hope of a bright future alive.
If we do not continue to bring light then one can imagine increased repression. For me, the dark matter might come to include even worse questions in the future such as, “How many death warrants have you signed for law professors?” A perceived threat by the state from any of us becomes the only measure for the state to react lethally. Such a future would truly be a dark time.
Therefore, one of our central tasks is to bring light to dark matter in various areas of the law and society in an attempt to hold back the state’s lethality to assure the space of dissent, dialogue, and human liberty with security. The other central tasks may be to train those around us to in turn do the same when we are gone. The third may be to write things as I have tried to do most imperfectly here, so that the memory of these efforts remains for future generations faced with the same or similar dark matter - like the memory of the Hampels dropping those postcards in the streets of Hitler’s Berlin.
We see what war does to law. 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. But, by our faith and love of our country, we can work to bring our country back to the light.
 Associate Professor of Law, University of Toledo College of Law. This paper is based on a presentation made at the “Military Industrial Complex at 50 National Conference,” Charlottesville, Virginia, September 16-18, 2011. All errors are the responsibility of the author. Parts of this paper are derived from “International Law and the American Project since 9/11,” dated September 11, 2011 and available at http://jurist.org/forum/2011/09/benjamin-davis-american-project.php and “Bringing Light to Dark Matters: Drones, Torture and Illegal Wars,” dated July 20, 2011 and available at http://www.saltlaw.org/blog/2011/07/20/bringing-light-to-dark-matter-drones-torture-illegal-wars/
 Hans Fallada, Every Man Dies Alone (Michael Hofmann, Translation) (Melville House 2009) (First published in 1947 as Jeder stirbt fur sich allein)
 Francesco Alberoni, Movement and Institution (Columbia University Press 1984),
 Article 38, Statute of the International Court of Justice
 Article 27, Vienna Convention on the Law of Treaties and a rule of customary international law.
 United States v. Ali Hamza Ahmad Suliman Al Bahlul, CMCR 09-001, United States Court of Military Commission Review (September 9, 2011) available at http://www.lawfareblog.com/wp-content/uploads/2011/09/al-Bahlul-USCt-Mil-Comm-Review-Sept-9-2011-1.pdf
 “Billing dispute reveals CIA torture flights,” The Raw Story, September 1, 2011 available at http://www.rawstory.com/rs/2011/09/01/billing-dispute-reveals-cia-torture-flights/
 Benjamin G. Davis, No Third Class Processes for Foreigners, 103 Nw. U. L. Rev. Colloquy 88 (2008).
 Or help create the legal basis to prosecute at Nuremberg the international crime of crime against the peace (aggressive war) as did William C. Chanler, a Wall Street lawyer, See Jonathan A. Bush, “The Supreme… Crime” And its Origins: The Lost Legislative History of the Crime of Aggressive War, 102 Columbia Law Review 2324-2424 (2002).