The Bush Administration and International Law

November 19, 2008Duke Law News

Nov. 21, 2008 -- Professor Curtis Bradley said “there are lessons to be learned from the relationship of the Bush administration to international law, but they are much more complicated than the conventional story of simple disregard for international law as law,” during a lecture at the Law School Nov. 19. Bradley spoke as part of the “Lessons Learned” series co-sponsored by the Program in Public Law and the Duke Journal for Constitutional Law and Public Policy.

An expert on international and foreign relations law, Bradley is the Horvitz Professor of Law and Professor of Public Policy Studies and senior associate dean for Academic Affairs. He served as counselor on international law in the Legal Adviser's Office of the U.S. State Department in 2004, and serves on the Secretary of State's Advisory Committee on International Law.

Bradley addressed some of the prevalent criticisms of the administration’s international law legacy, including its decision to withdraw from treaties regarding ballistic missiles and the international court of justice, the decision that the Geneva Convention does not apply to certain detainees in the war on terror, and Bush’s “preemption doctrine.”

The administration’s authorization of the use of waterboarding and other coercive techniques considered torture by most of the international community, and its position on torture set out in an infamous 2002 memo from the White House Office of Legal Counsel, overshadowed a more nuanced picture of its interaction with international law, which included many positive steps, he said.

Regardless of the efficacy of these decisions, they all involve a much more considered and extensive engagement with international law than understood by the conventional wisdom, he said. “I will even suggest that in many of the controversial examples… the administration has advanced perfectly respectable legal arguments to support its views.”

Among its overlooked foreign policy success are the administration’s leadership in fighting international cybercrime and organized crime, and infusion of “huge amounts of resources” to bolster the international commitment to nuclear non-proliferation.

“One of the major successes of the first Bush term was to get Libya to comply and give up all of its nuclear materials, which were literally flown by U.S. government officials out of Libya,” Bradley noted.

The decision to withdraw from international agreements, notably a longstanding anti-ballistic missile treaty with Russia, has been misunderstood, he added.

“International law is quite well-settled and generally allows for nations to withdraw from treaties to which they are a party,” he said, adding that the negative publicity surrounding treaty withdrawals obscured the fact that the Bush administration participated in more bilateral and multi lateral international agreements on average than the Clinton administration.

The decisions to preemptively invade Iraq and withhold Geneva Convention rights from detainees in the war on terror from Afghanistan may or may not have been wise, but the administration did not ignore international law when making them, Bradley said.

The decision not to confer POW protections to Taliban fighters in Afghanistan was essentially a legal decision, Bradley argued. “Their argument was that, to qualify, you have to wear a uniform to distinguish yourself from civilians… you have to have a good enough command structure and, perhaps most importantly, you have to, as a general matter, comply with the standards of the law. In their view, the Taliban met none of those requirements.”

The administration also made a legal argument, using existing international law, to support the “preemption doctrine,” which states that there is a preemptive right to intervene with force in states that are making weapons of mass destruction, Bradley said.

“Interestingly, if you look at the big strategic paper that Bush issued on this point, it is very focused on the preexisting international law and trying to make an argument that that international law supports this new direction,” he said. “You may or may not be persuaded by it, but it very fully engages with international law and does not run away from it.”

Bradley said that the decision to sanction torture, especially as explained in the leaked 2002 OLC memo, may be the most problematic interaction between the administration and international law.

“When this memo leaked out, it was hugely controversial on all sorts of fronts, and I will say, to sort of summarize a lot of thinking I’ve done about it, the memo does contain bad legal reasoning,” he said. “Among other things, it does not take adequate account, since this is an international treaty, of the views of the terms of the treaty of other parties to the treaty, and indeed most of other parties would not agree with the OLC’s views. And that’s important when you’re talking about a multilateral document.”

Ultimately, the Bush administration’s international law legacy is more nuanced than commonly understood, Bradley said.

“The bottom line is, despite some over-generalizations, maybe even caricatures, of the Bush administration, I don’t think it’s accurate to say they simply ignored international law or failed to treat it as law. Indeed I think they’ve made some important contributions… to international law,” Bradley said. “In many of the controversial examples, the debate is about policy, and in terms of the law there have at least been respectable arguments, and sometimes better than that.”