Of the many vast differences between Barack Obama and John McCain, perhaps the most important is their respect – or lack thereof – for international law. Over the past 8 years, the United States under George W. Bush has embarked into an abyss of international lawlessness that threatens to destroy world civilization as we know it.
In the preface to the book, “
International Justice and Impunity – The Case of the United States”, Nils Andersson and the other editors of the book describe how the United States currently poses a serious obstacle to international cooperation and peace:
Confronted with the US policies, its “war on terrorism” and its disastrous impact on global efforts to deepen and entrench the rule of law, the Association for the Defense of International Humanitarian Law, in cooperation with … assembled leading human rights intellectuals, historians, lawyers and NGO representatives… to spearhead international civil society’s response to this threat, for the well-being and positive development of humankind…
International justice cannot be credible if, on the one hand, persons responsible for crimes committed in African countries… are rightly prosecuted, while at the same time powerful countries benefit from a quasi total impunity. Since it is the world’s foremost economic and military power… the United States should provide the world with the best example of the observance and practice of human rights. It is instead responsible for some of the worst war crimes of these last decades, torture, inhuman treatment, intense bombardments causing grave civilian losses…
The Unites States record in relation to the very international law that it supposedly helped to establish is terrible. It did not ratify some of the most important treaties of humanitarian law… Nor does it respect other treaties it ratified, such as the 1949 Geneva Conventions… nor does it respect the Charter of the United Nations which prohibits wars of aggression.
George W. Bush on international lawNo U.S. President has consistently exhibited as much contempt for international law as George W. Bush. Ramsey Clark, former U.S. Attorney General under Lyndon Johnson and Assistant Attorney General in the Kennedy administration, has some words to say about that in a second preface to “International Justice and Impunity”:
George Bush, by his every act, makes it clear that he thinks he is, and ought to be, above the law… He wants the United States to be exempt from the
Comprehensive Nuclear Test Ban Treaty… He crushes Iraq on the false statement that they are preparing to develop a nuclear weapon. Even if they were, you can’t attack them. But they weren’t. And they had been bled down to where they could barely stand… While destroying this country… Bush was pushing for, and got Congressional approval for three new generations of nuclear weapons – a clear violation of the Non-Proliferation Treaty and a clear and present danger to life on earth…
Perhaps the most obvious and blatant activity by the United States, or perhaps any other country in history, to show its intention never to be accountable – has to do with the history of the International Criminal Court (ICC) … I have always believed that you have to have an international court if you want peace. It has to have authority and power and jurisdiction to hold all leadership accountable for international crimes…The US fought that in every way…
Philippe Sands, a lawyer specializing in international law, provides a great primer on international law and how the Bush administration (and Tony Blair) undermined international law, especially including the ICC, in his book “
Lawless World – The Whistle-Blowing Account of How Bush and Blair Are Taking the Law into Their Own Hands”.
Though the Bush administration provides many excuses for its hostility to the ICC, the underlying issue appears to be that it cannot tolerate the possibility that an American could ever be tried before the Court. For example, Bush claims that the Court’s jurisdiction cannot extend to Americans because that will undermine “the independence and flexibility that America needs to defend our national interests around the world”. Sands poses the following pertinent rhetorical question to that excuse:
The flexibility to do what? The flexibility to commit war crimes? The flexibility to provide assistance to others in perpetrating crimes against humanity? The flexibility to turn a blind eye when your allies commit genocide?
Consequently, though
President Clinton signed the Statute, George Bush announced in 2002 that he was
unsigning the statute. And he has gone well beyond non-participation, to active sabotage. For example, the
American Service members’ Protection Act authorizes the American President to “use all means necessary and appropriate” to release any American national who is “being detained or imprisoned by, on behalf of, or at the request of the ICC”; it prohibits all American cooperation with the ICC; and it does much more to undermine the ICC.
COMPARISON OF OBAMA V. MCCAIN ON RESPECT FOR INTERNATIONAL LAW From almost everything we know about Obama and McCain, it is evident that McCain would largely continue the Bush/Cheney policies of contempt for international law, whereas Obama would radically change that pattern, to bring our country back into the community of law abiding nations. Consider the following areas of international law:
The rights of prisonersThere is perhaps nothing more basic to our system of justice than
habeas corpus, which grants the right of prisoners to challenge the right of government to hold them in detention. According to
Article I, Section 9 of our Constitution, a person’s right to habeas corpus cannot be suspended “unless when in cases of rebellion or invasion the public safety may require it”.
In the absence of rebellion or invasion, George W. Bush indefinitely suspended the right of his “War on Terror” prisoners to habeas corpus or any other rights when he declared in a signed order on February 7, 2002, that “
none of the provisions of Geneva apply” with regard to his “War on Terror”. That was a remarkably irresponsible action, overturning more than half a century of international law designed to introduce some civility and decency into the way that wars are prosecuted. And that assertion by George Bush set the framework for all subsequent legal advice and rulings by White House, Justice Department, and Pentagon lawyers. Not counting when President Lincoln
temporarily suspended habeas corpus in response to the rebellion of our Southern states during our Civil War of 1861-65, this was the first
indefinite suspension of habeas corpus in our ancestral history since it was
first enacted in 1215.
McCain’s position on the rights of prisonersJohn McCain made his views on this matter perfectly clear when
he commented on a U.S. Supreme Court decision that presumably restored the right to habeas corpus in our country:
The presumptive GOP nominee said the decision, a 5-4 ruling Thursday that determined Guantanamo detainees have the right to seek release in civilian courts, would lead to a wave of frivolous challenges.
"We are now going to have the courts flooded with so-called ... habeas corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate…
In other words, forget nearly eight centuries of basic legal rights in western civilization. Forget more than a half century of international law. And forget our Constitution.
Obama’s position on the rights of prisonersIn response to the same court decision, Obama expressed the opposite view:
“The Court's decision is a rejection of the Bush administration's attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain," he said. "This is an important step toward re-establishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus….
Obama has
commented on why, out of a sense of basic fairness, it is so important to maintain the protections of international law and our Constitution in the treatment of our prisoners:
Instead of detainees arriving at Guantanamo and facing a Combatant Status Review Tribunal that allows them no real chance to prove their innocence with evidence or a lawyer, we could have developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused…
And in a
separate statement, Obama left no doubt as to what actions he would take to get our nation back on track:
While we're at it, we're going to close Guantanamo. And we're going to restore habeas corpus.... We're going to lead by example, by not just word but by deed. That's our vision for the future.
TortureMcCain’s position on tortureThough McCain has achieved a reputation for challenging George Bush’s torture program, and he has in fact said that torture “
should never be condoned”, for which he deserves credit, when push comes to shove, he almost always
votes with Bush on supporting his torture plans.
Obama’s position on tortureObama has been universally and
strongly against torture. This is what
Obama had to say about George Bush’s Military Commissions Act (which
McCain voted for) and his torture programs:
The five years that the President's system of military tribunals has existed, not one terrorist has been tried. Not one has been convicted. And in the end, the Supreme Court of the United found the whole thing unconstitutional, which is why we're here today. We could have fixed all of this in a way that allows us to detain and interrogate and try suspected terrorists while still protecting the accidentally accused from spending their lives locked away in Guantanamo Bay…
Instead of allowing this President – or any President – to decide what does and does not constitute torture, we could have left the definition up to our own laws and to the Geneva Conventions…
But politics won today. Politics won. The Administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on terrorism
Nuclear non-proliferationMcCain on nuclear non-proliferationJohn McCain’s idea of controlling nuclear proliferation is to put aside international law, to use our military might to prevent our “enemies” from developing nuclear weapons, without stopping to consider that maybe we should be subject to international law as well. He had this to say at the
second presidential debate:
Let -- let -- let me say that we obviously would not wait for the United Nations Security Council. I think the realities are that both Russia and China would probably pose significant obstacles. And our challenge right now is the Iranians continue on the path to acquiring nuclear weapons, and it's a great threat.
Obama’s position on nuclear non-proliferationObama has made clear that he
recognizes the futility of trying to prevent nuclear proliferation of other countries while holding ourselves above international law:
That's why it's so important for us to rebuild the nuclear proliferation – nonproliferation treaty that has fallen apart under this administration. We have not made a commitment to work with the Russians to reduce our own nuclear stockpiles. That has weakened our capacity to pressure other countries to give up nuclear technology.
And he has
made clear what he would do to reverse the Bush/Cheney policies on this issue:
As president, I will work with other nations to secure, destroy, and stop the spread of these weapons in order to dramatically reduce the nuclear dangers for our nation and the world. America must lead a global effort to secure all nuclear weapons and material at vulnerable sites within four years – the most effective way to prevent terrorists form acquiring a bomb.
America must not rush to produce a new generation of nuclear warheads. And we should take advantage of recent technological advances to build bipartisan consensus behind ratification of the Comprehensive Test Ban Treaty. All of this can be done while maintaining a strong nuclear deterrent. These steps will ultimately strengthen, not weaken, our security.
Aggressive warMcCain’s position on aggressive warJohn McCain’s position on aggressive war – which is a war crime – can be
summed up in a single sentence of his: I agree with the (Bush) doctrine (of preemptive use of force)..." The reason that preventive war is a war crime is very simple. It’s just too easy for any country that wants to invade another country for some nefarious purpose to claim that they’re doing it in order to preemptively prevent an attack at some unspecified date in the future. So, to allow preemptive war is tantamount to allowing almost all war.
McCain’s stance on preventive war in general is mirrored by his stance on the Iraq War, for which he was a major supporter from the beginning. He co-sponsored the
Iraq War Resolution that facilitated Bush’s plans for war. His
saber rattling was as aggressive as anything we heard from Bush, Cheney, or Rumsfeld:
I believe Iraq is a threat of the first order, and only a change of regime will make Iraq a state that does not threaten us and others, and where liberated people assume the rights and responsibilities of freedom.
And his claims (though he later claimed otherwise) of
how easy the war would be were also similar to those made by the Bush administration:
I know that as successful as I believe we will be, and I believe that the success will be fairly easy, we will still lose some American young men or women.
In summary, McCain supported Bush every step of the way on the Iraq War. In fact, he
announced a few months ago on Mike Gallagher’s right wing radio show that “No one has supported President Bush on Iraq more than I have.” Indeed, that’s one statement of his that is absolutely true. And he has said that we should
stay in Iraq for 100 years.
Nor is McCain’s hawkishness limited to Iraq, by any means. He is much more inclined than Obama to favor war to diplomacy, giving every indication of extending our war to Iran if elected President. That is evident when he
makes jokes by singing about bombing Iran, and when he tries to set the stage for a war against Iran by
lying about Iran harboring al Qaeda, despite
being corrected about that lie several times.
Matthew Iglesias in an article titled “
The Militarist – When it Comes to Foreign Policy, John McCain is More Bush than Bush”, sums up McCain’s enthusiasm for preventive war:
The strategic concepts he outlined back in 1999 came to be at the core of what we today term the Bush doctrine. Most significant is the emphasis on preventive war as a tool of policy. As outlined in McCain's disquisition on North Korea, the fact that some state does not, in fact, pose an imminent threat to the United States is no reason to refrain from attacking it. On the contrary, the fact that a state is non-threatening is a reason to attack it as soon as possible, lest it become more powerful over time. In Bush's hands, this concept has led not only to the fiasco in Iraq… McCain has pushed this doctrine longer, harder, and more consistently than has Bush.
Obama’s position on aggressive warObama, in stark contrast,
does not believe in preventive war, and he was against the Iraq War from the very beginning. Here is
a sample of Barack Obama’s judgment prior to the Iraq War:
That’s what I’m opposed to. A dumb war. A rash war. A war based not on reason but on passion, not on principle but on politics... Now let me be clear – I suffer no illusions about Saddam Hussein. He is a brutal man…
But I also know that Saddam poses no imminent and direct threat to the United States, or to his neighbors, that the Iraqi economy is in shambles, that the Iraqi military a fraction of its former strength, and that in concert with the international community he can be contained until, in the way of all petty dictators, he falls away into the dustbin of history.
I know that even a successful war against Iraq will require a US occupation of undetermined length, at undetermined cost, with undetermined consequences. I know that an invasion of Iraq without a clear rationale and without strong international support will only fan the flames of the Middle East, and encourage the worst, rather than best, impulses of the Arab world, and strengthen the recruitment arm of al-Qaeda.
THE CONSEQUENCES OF U.S. CONTEMPT FOR INTERNATIONAL LAWNo human community, large or small, can function under a law based system when the most powerful members of the community refuse to abide under the rule of law, unless the other members of the community have enough will, organization and power to force them to do so. Thus, the consistent contempt for international law shown by the leaders of the most powerful country in the world puts in serious jeopardy the law based international system built up so carefully during the 20th Century. It tends to create what Philippe Sands calls a “Lawless World”.
Within nations, persons who refuse to abide by the laws of the land, and whose actions are generally restrained by law abiding citizens, are known as criminals. When similar types of people
cannot be restrained by law abiding citizens they are known as tyrants. It is a terrible tragedy that the leaders of the United States today have placed themselves in that position within the international context: If they can be restrained by the rest of the world they are international criminals; if not, they are international tyrants.
As long as the Bush administration or people like them, such as John McCain or Sarah Palin, retain power in the United States, they will either wreak death and destruction on the rest of the world in their attempt to get what they want, or else the law abiding nations of the world will succeed in restraining them from doing so, probably relegating them to second class power status in the process. The former has been an unmitigated catastrophe, which would expand greatly over time in the absence of restraining influences.
If John McCain becomes our next President, that’s what we have to look forward to over the next 4-8 years.