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November 6, 2008 2:48 PM

Will Obama Administration Signal Return to Rule of Law?

Posted by Brian Baxter

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President-elect Barack Obama will have a lot on his plate during his first 100 days in office.

Foremost among the pressing issues he faces: rebuilding America's reputation in the international arena, says Philippe Sands, author of Torture Team: Rumsfeld's Memo and the Betrayal of American Values. The book, excerpts of which appeared in a May 2008 Vanity Fair feature story, examines how U.S. lawyers abandoned the Geneva Conventions and other international protocols after the 9/11 attacks. (The Am Law Daily's Brian Zabcik conducted a two-part Q&A with Sands about the book in May. You can find those interviews here and here.)

The Am Law Daily caught up with Sands, a noted British professor and practitioner of international law who has been called to testify before Congress three times, to get his take on how an Obama administration might distance itself from the policies of its predecessor.

In your opinion, how far has the U.S. strayed from international norms during the past eight years?
The worst excesses occurred in the first term, but many were allowed to linger into the second. I think there was a conscious effort to do some minimal cleanup and we saw a few instances of what might be called 're-engagement.' But taken as a whole, the last eight years have been catastrophic for perceptions of the U.S. around the world and its capacity to fulfill its historic engagement with the notion of the rule of law. That's the crucial point.

Is the U.S. still that 'beacon of law' to the international community?
We hold the U.S. to a particular standard because it has been the global leader on the rule of law. That leadership role has significantly eroded. But I think that people distinguish between the U.S. and the administration. And so I'm hopeful that however bad it has been, there will be a willingness to distinguish between the responsibility of the administration, the individuals associated with it, and the country as a whole. Negative perceptions will not necessarily carry over to the next administration.

I take it the new administration has you hopeful?
With the election of a president who gives every appearance of having a strong connection to the rule of law, I think many people are optimistic that the situation of disrepute can be cleaned up. It hasn't been so bad that this is irreparable. The U.S. has a unique place in leading global efforts on the rule of law, which means while there has to be some looking to the past, it's equally important to assist the new administration in repairing the damage and moving on.

What preliminary steps should an Obama administration take that would reassure the international community that change is in the offing?
There are words and then there are actions. I believe it would be helpful if the new administration could, early on, go into a little more detail and make explicit the U.S.'s re-engagement with the rule of law, both domestically and internationally. The specifics of that means recognizing that there are times when global rules can help. It also means no more torture, no more rendition, no more unilateral acts that blatantly violate global rules, and developing timetables for shutting down Guantanamo and ending the 'assault' on the International Criminal Court. [The U.S.] doesn't need to ratify the ICC but they need to stop demonizing it.

The new administration should also commit itself to strengthening the rule of law by signing on to existing international agreements or helping lead the negotiations of new agreements. In the early days words are going to be important, but a few actions are also going to be needed.

What about domestically?
Significant parts of the Military Commissions Act of 2006 should be revoked. It purports to provide immunity for any person associated with criminal wrongdoing in relation to the treatment of detainees. A law like that sends out a signal that this administration is willing to tolerate wrongdoing and criminality. That needs to be reversed.

How soon do you think the U.S. can rebuild its 'rule of law' image internationally?
I think a great deal of the damage can be undone pretty expeditiously. President-elect Obama has already sent very strong signals that he represents a return to multilateralism, a return to cooperation, and a return to a U.S. that recognizes international rules as a useful means for addressing global problems and not as a threat to American sovereignty.

You've written several books, some of which deal with the U.S. and international criminal justice. How likely is it that we'll see a Cheney or Rumsfeld involved in some sort of criminal inquiry?
I've testified three times [before Congress] on those issues. Even since the election, I've been reached out to and it seems this issue will be firmly on the agenda. I have refrained from calling for a criminal investigation or indictment of anybody. The first thing that needs to happen is establishing the facts. But if the facts are as they appear, then something is going to have to happen to allow the country to move on.

Does the U.S. need a South Africa-style Truth and Reconciliation Commission?
You can have truth and reconciliation or other far-reaching commissions of inquiry, but if those things don't sort things out then the stick or carrot of criminal investigation--either in the U.S. or elsewhere--could be on the agenda. My thinking though is that we need the facts first and that'll need to be sorted out fairly quickly.

Are there investigations already underway?
You'll be interested to know that within the past couple of weeks the British government has initiated a criminal inquiry of potential individual responsibility of CIA and British intelligence officials for issues of detainee interrogation and abuse. This subject is not going to go away and the new president is going to have a delicate balancing issue. But as long as he relies on the bigger picture--that the U.S. is a rule of law society--I think he'll be fine. [President-elect Obama] won't engage in witch hunts. But he'll have others, such as a new attorney general, to look at all of this very carefully. Congress is already doing that.

What about presidential pardons for those involved in detainee issues?
It would be a most stupid thing to do, making it more likely that there would be investigations overseas. The U.S. is not a country that does impunity or immunity. If anything, it is a country that believes in the dignity of every human individual under the law. And when the Bush administration moved away from that, I think we all felt more vulnerable and threatened. I'll be talking at Berkeley Law School on November 18 about the issue of criminal responsibility and detainee abuse.

Will you be meeting John Yoo?
I'll be talking about him and his role as well as other administration lawyers. We've met before but I don't think he'll be engaging with me on this occasion.

All interviews are condensed and edited for grammar and style.

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