JURIST Contributing Editor Mary Ellen O'Connell of Notre Dame Law School says that five years after 9/11 - five years that have witnessed Guantanamo Bay, Iraq, Abu Ghraib and CIA "black sites" - there are hopeful signs that America is returning to the rule of law that a handful of powerbrokers urged be cast aside in the immediate aftermath of the terrorist attacks...
The Supreme Court started us on this road to recovery with its 2004 decision in Hamdi v. Rumsfeld. Justice O'Connor reminded the President he has no blank check to violate the law even in wartime. The recovery was helped immensely when the Court stated in Hamdan v. Rumsfeld this past summer that the Geneva Conventions do in fact apply to battlefield captives facing trial. Following Hamdan, Secretary of State Rice apparently succeeded in persuading the President to close - at least for now - "black sites" where terrorism suspects were being held secretly for years on end. The U.S. military has stood firmly against adopting unlawful interrogation techniques, and the new Army Field Manual 2-22.3, "Human Intelligence Collector Operations" (the replacement for the 1992 FM 34-52 "Intelligence Interrogation") does ensure that Army interrogators will use only lawful techniques, at least with respect to some detainees.
Congress now has the opportunity to ensure that trials of detainees will meet our legal obligations under international law and to ensure that the CIA uses only lawful interrogation methods. Congress can also keep us in compliance with the Geneva Conventions by rejecting proposed changes to the War Crimes Act. If the Administration would then renounce the practice of extra-judicial killing and the policy of pre-emptive force, the country will have rejected the worst of the lawless policies developed in the wake of 9/11.
Five years after that day, we might have expected to be in a very different place. We might have thought our leadership would have put every effort into developing a comprehensive treaty against terrorism, that we would have created new, powerful international institutions to coordinate counter-terrorism efforts by police around the world, and that we would have put our best legal talent to work in strengthening the legal norm against terrorism, internalizing it, making it more effective. We had the full support and sympathy of the world community following 9/11 - all of these possibilities were open to us.
Instead, we abandoned international law and today we fear an attack on America as much as we did five years ago. And worse, we are disrespected, even hated around the world, as perhaps never before. Secretary Rice finally chose to support the closing of the black sites because our allies were refusing to cooperate with a state that would operate such places. Today, many people in the world associate 9/11 not with the horrible wrong done to us, but the wrongs we have done to others in the name of 9/11. When 9/11 is mentioned, many people think of it as a pre-text for Iraq, Guantanamo Bay, Abu Ghraib and waterboarding. But thanks to the courts, Secretary Rice, our friends and allies abroad, human rights lawyers, members of Congress, reporters, and numbers of courageous private citizens, we appear to finally be moving in the right direction. Congress now has its chance to do the right thing and keep us moving again toward the rule of law.
Perhaps it will help if our elected representatives consider how we arrived at this dark place in our history. How could it be that we threw away sixty years of legal developmentâlaw that reflects the moral consensus of nations? Yes, 9/11 was disorienting. We were in shock. But it seems to me that our leaders allowed a handful of men to take advantage of that disorientation to push through policies of their own, policies that did not reflect U.S. or international law. Vice President Cheney and his inner staff wished to strengthen the presidency. In the ideology of neo-conservatism, a nation needs a very powerful leader who will ruthlessly press for supremacy. The Vice President had a useful ally in this goal, John Yoo, in the Justice Department's Office of Legal Counsel. In Yoo's personal theory, courts cannot restrain presidential conduct in wartime.
In the confusion of 9/11, the decision was made to declare a "global war on terrorism." The president would then have unlimited power. The first public indication of the deadly seriousness of these policies came November 13, 2001, with the executive order on detention and trial of al Qaeda members, something that even the conservative columnist William Safire called a dictatorial grab for power.
John Yoo was also writing memos together with a few colleagues (Bybee, Delahunty, Goldsmith) arguing that the Geneva Conventions did not apply to al Qaeda in the President's worldwide war, that the President could authorize torture and abuse in interrogation, that he could declare anyone even an American citizen an enemy combatant and put him beyond the protection of the courts. One memo opines that even where the Geneva Conventions do apply, they do not stop the president from shipping people to black sites. 
Real experts on international law, military law and interrogation put other views before the president, but these were rejected. (Just as the advice of military experts was rejected prior to the Iraq invasion.) It may not even be that the White House actually believed the fallacious legal analysis of Yoo and company - think how much more powerful the president can be if he is actually above the law. And that seemed to be the real argument going on post-9/11. How could anyone really believe that the Geneva Conventions did not cover everyone on a battlefield in a signatory state or permitted detainees to be hidden from the International Committee of the Red Cross? What these memo writers really seemed to be saying is that the president need not respect the law in this "new kind of war".
Principally the Supreme Court and our allies have rejected these dangerous assertions. Secretary Rice sees the price we have paid for acting lawlessly. Much of the nation is shocked that we, a rule of law people, a moral people, have treated human beings like dogs.
Now it is Congress's turn. Congress tried to stop the use of cruelty and abuse in interrogation in the McCain Amendment last December but was outsmarted by Vice President Cheney. It has another chance to do the right thing with respect to trials of detainees and CIA interrogation. One step that should help is if Congress listens to real experts on international law and interrogation instead of ideologues and amateurs. The Vice President is not an expert on interrogation. Neither is John Yoo. These men appear not to care a fig about the Geneva Conventions, let alone international law. But they have never served in combat on a foreign battlefield. Congress should ask military lawyers whether we should undermine the Geneva Conventions.
Military lawyers have told Congress, when we undermine law-of-war protections, we undermine them for our own troops as well as the enemy. We have an obligation to afford our troops on the battlefield every protection we can - physical and legal. If our enemies do not respect the law, we need to demand that they do, not cease respecting it ourselves.
Troop protection is a vital reason to honor the Geneva Conventions. Still, there is a more important reason than self-protection and that is self-respect. Anyone who has tried to fight honorably in combat knows the value of the Geneva Conventions. In trying to gain advantages or power for the president by dismissing the Geneva Conventions, we do not retain their value for our troops.
In many respects, we have lost five years in the struggle against terrorism. For the foreseeable future, much of our diplomacy and legal talent will be devoted to dealing with the fallout from lawless post-9/11 policies. Still, it looks as though we are through losing time, that we are on the road to recovery. As Justice Stevens said in the final line of his historic opinion in Hamdan v. Rumsfeld: "â¦ [T]he Executive is bound to comply with the Rule of Law that prevails in this jurisdiction." That is good news five years after 9/11.
1. See Dafna Linzer and Glen Kessler, Decision to Move Detainees Resolved Two-Year Debate Among Bush Advisers, WASH. POST, Sept. 8, 2006, at A01.
2. See, e.g., John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996).
3. A number of these memoranda have been collected in THE TORTURE PAPERS, THE ROAD TO ABU GHRAIB (Karen J. Greenberg & Joshua L. Dratel eds., 2005).
4. For a restatement of the relevant international law on many post-9/11 issues, see Mary Ellen O'Connell, The ASIL Centennial Annual Meeting Adopts a Resolution on the Use of Armed Force and the Treatment of Detainees, May 19, 2006, ASIL INSIGHT, www.asil.org/insights/2006/05/insights060519.html
Mary Ellen O'Connell holds the Robert and Marion Short Chair in Law at the University of Notre Dame