The Bush administration has weakened international codes of conduct from Guantanamo to Iraq, says Raustiala.

Kal Raustiala:
One of the really important questions is related to the war in Iraq, which is what is the framework for deciding when a state like the United States can use its armed forces against another state?  Right. So we went in and invaded Afghanistan; we’ve invaded Iraq; perhaps we’re going to attack Iran. Who knows?  Some people think that’s coming. And so the war on terror has really raised in particular this issue of our ability to preempt an attack or to prevent an attack, and the Bush administration has been pushing the envelope on what’s traditionally been allowed. International law has long allowed a state to respond to an attack that’s imminent other than--  You don’t have to wait to be punched in other words. But in a world in which terrorists can blow up a dirty bomb in a harbor without any real warning it’s imperative many people think to be able to act preemptively against that. And so that’s been one of the biggest legal issues is figuring out what ought to be the- what’s the proper balance between the desire to constrain governments from just attacking willy-nilly and at the same time recognizing the realities of danger that can’t be anticipated always.

Question: What is shaping the debate?

Kal Raustiala:  Well, that’s a debate where like a lot of international law you don’t always have a court deciding something so here what you really have is the- kind of the court of public opinion and the role of other governments and their reactions are kind of shaping our perception of the law. This is--  It all gets very murky at this level. So the Bush administration as I say kind of pushed the envelope and I think most people recognize, most other countries recognize, that yes, we need to act a little bit differently in a world in which terrorist attacks can be of the magnitude that we’ve seen and worse. On the other hand, there’s a great resistance in the rest of the world to the notion that the U.S. or any other state can just decide that it has a threat, that it recognizes a threat and is going to act against that threat because once you go down that road you eviscerate the whole point of the UN system, which was to say the security council controls the use of armed conflict except in self-defense. And if you take that way, well, then every other state can do the same thing. India can decide to attack Pakistan. Iran can decide to attack Israel, right, and they can all say, “Well, we’re acting preemptively.”  So there’s a real concern that you unravel this kind of reciprocity, that you need rules to keep states from giving in to their worst impulses, and that’s something that’s still developing. There’s no real consensus as to what the new rule should be.

Question: How do we solve Guantanamo?

Kal Raustiala:  Sure. It’s a good question. Guantanamo’s a hard issue. Let me tell you about the- whether we should use our criminal system. I generally agree. Last summer Wesley Clark and I wrote an op ed in the New York Times about this issue and we took the position that we should not be treating terrorists as soldiers, as combatants subject to the laws of war, POWs and so forth, but instead treating them as criminals, and that is in fact the traditional approach in the United States. So if you think back to the 1990s when the World Trade Center was first bombed, obviously a much less destructive act, those perpetrators were tried in ordinary federal court, and the federal courts have been quite good at handling that. Now you do need some special rules and you need to take in to account classified information and you need to adapt a little bit, but it’s a relatively well-functioning system and so I generally agree with that proposal. That said, there are real hard issues with Guantanamo so what do you do with Guantanamo. Right. You have this group of people many of whom are probably not dangerous but many of whom are dangerous and you can’t simply let them go free. Now we’ve been letting out--  We’ve been reducing the numbers significantly. We still have a couple of hundred at least at this point. And so I think it’s reasonable to imagine taking them, bringing them to the U.S. and putting them in to the criminal justice system and shutting down Guantanamo. And the reason I think it’s reasonable is that Guantanamo has become such a controversial symbol around the world, such a problematic symbol for the United States, that the gains that we get from it have been destroyed by all the ill will. So it’s not going to make for--  It’s not an easy--  There’s no easy solution but I think that’s probably a preferable one. Another thing people talk about is a kind of hybrid court, some kind of specialized national security court that would look a lot like a federal- typical federal court but have a few special rules, a few special nods in the direction of the notion that we’re in a kind of war but fundamentally would be different than a kind of court martial or a military commission, which has been the Bush administration’s preferred approach.

Brett Dobbs: Who advocates a hybrid court?

Kal Raustiala:  It’s been advocated here so you’ve had a couple of people--  Jack Goldsmith is one person who’s--  He was a Bush administration official, teaches at Harvard now. He’s been an advocate for this idea, many others as well, that we need some kind of middle ground, that it’s not an either/or ordinary criminal court versus some kind of military commission of the Bush administration type. And most of the civil liberties groups have been very resistant to that. I don’t necessarily feel strongly against it. I think the key thing is that we need some kind of--  We’ve--  We’re now in 2008 and we still haven’t really had any resolution to these Guantanamo trials. They’ve been just kind of gearing up and gearing up and gearing up forever so I think we need something to begin to give a fair trial to these individuals, and whether it’s a normal federal court or something slightly different I think is less important than it not be what we’re trying to do now, which is this kind of weird- not--I shouldn’t say weird--but just unusual military commission. The other thing that’s important to recognize about Guantanamo is of course why are we using Guantanamo, right, so why are these guys there?  And the reason that they’re there is they were put there to keep them out of the reach of the federal courts, to keep them out of the reach of our legal system on the belief that because Guantanamo is technically Cuban soil that they wouldn’t have the constitutional rights and the ability to reach out to our federal courts that they would have if they were in say South Carolina. Right. So it’s a very deliberate strategy and that of course has raised a lot of concerns overseas.

Question: Could the Bush Administration Face Charges Over Guantanamo?

Kal Raustiala:  I think it’s a possibility in other countries and I imagine that some of these individuals won’t be traveling to certain countries because they’ll fear some kind of indictment. I think here in the United States it’s highly unlikely. I really have a hard time imagining it but many people are advocating for it. Take John Yoo as an example. Some people analogize his role to the role that Nazi lawyers played and we tried Nazi lawyers after the end of the second world war on the grounds that they kind of aided and abetted a criminal enterprise. So there’s a precedent for that notion that government lawyers aren’t immune. On the other hand, politically it’s very difficult to see that happening and I don’t want to necessarily make that analogy ‘cause I’m not convinced that it’s an accurate one. I’m just sort of pointing it out but it’s hard to see that sort of--  It would be viewed as a highly politicized effort by a Democratic administration against a former Republic administration so I don’t envision it, but in other countries that’s a different story. And my guess is that people like John Yoo will probably be circumspect about where they go.