Sometimes the surgery ran into complications. For instance, Article 2.2 of the Convention against Torture, to which the US is signatory, states: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ By the standards of legal covenants, this seems pretty plain. But the waters muddy when attention turns to the definition of ‘torture’. A reservation entered by the US to the Convention specifies that torture is to be understood as set out in the US Constitution. Sands argues that a second memo signed by Yoo wrongly advised Bush’s counsel Alberto Gonzales that the reservation meant that the US could legally set a higher threshold for physical and mental torture and remain in compliance. But, as Yoo’s memo to Gonzales points out, it’s not clear that any of the provisions of the Vienna Convention (to which, anyway, the US is not party) limiting the scope for treaty parties to enter reservations apply. Sands remarks that the US ‘could not change the international legal obligation’ (his emphasis); but that still leaves room to specify more closely what kinds of act the obligation proscribes.This I think it absolutely correct, and something that has to be more readily admitted by the anti-Bush brigade. Much of the argument was not that 'torture is ok' in times of crisis etc. A lot of the most sophisticated argument was simply that the acts in question did not meet the relevant threshold of torture. Certainly, a lot of people are coming out of the woodwork at the moment saying 'actually it was torture', but I don't think that negates the fact that at the time the strategy of the Bush administration was simply to say - look, we're allowed to use some methods of interrogation that go further than torture - of course we are.
[And this is a problem that I think international lawyers have to face up to squarely. It seems to me that international law 'forces us' to think like a bourgeois state, insofar as people making legal argument have to accede to 'reasonable' demands such a state might make, like - 'well of course we have a right to defend ourselves' or 'well of course we are allowed to interrogate people' etc. It strikes me that once you step into this particular discursive field everything just becomes a matter of degree, which makes things rather murky. A case in point is - I think - Israel, once we adopt the 'legal' viewpoint we are forced to acknowledge the 'reasonable' demand that Israel must have some recourse against Hamas rockets, once you're in this place you also have to accede to the reasonable demand that this right can't just extend to 'killing the same number of people' and you're already at least entertaining Operation Cast Lead as a possibility. This is the exact same thing that goes on with the war on terror, once you enter international law's discursive field on these issues and you are forced to 'think like a state' it becomes very difficult to resist a good deal of the war on terror's logic.
This is obviously quite badly phrased but I think there could be something to this. Note to self - link this back to Orford's stuff on international law as 'narrative'.]
Sands rues the fact that the law was fitted to the policy. But law is not an organic whole for politicians and bad lawyers to mangle. No doubt the mangling is real enough. But law is a shape-shifting congeries of norms, precedents, opinions, opinions about opinions, claims to authority, and – when reasoning fails to deliver a decisive outcome – power-broking, for example by vote, as in the Supreme Court’s verdict on Hamdan.Firstly, one is tempted (and Newey may already be saying this) to push the last sentence a bit further. Because when he says 'right-thinking' judges this can surely only refer to 'judges that share my views', as Schmitt noted all those years ago, the apparent recourse to judicial decisionism is always always just a displacement of the political. So actually, I don't think we're dealing with - and indeed we cannot be dealing with - a simple reversion to charismatic authority, even Dworkin has judges who he doesn't like (especially as he's from the US) Indeed, to my mind, anyone that reads Dworkin cannot help but notice that he really, really sounds like a liberal-Schmittian (I know the term sounds like a contradiction in terms, but read him and you'll see what I mean), simply putting a happy gloss on Schmittian decisionism.
In other words, it’s all a bit like politics. Faith in the ‘majesty’ of the law as transcending or trumping the grubbiness of politics looks like what it is: a reversion to charismatic authority. That is why those, like Ronald Dworkin, who like to supplement or supplant democracy with judicial decisionism, think that there must always be a ‘right answer’ to questions of law. The right answer turns out to mean identifying the rights that right-thinking judges think we should have.
Secondly, I think the whole 'fact that the law was fitted to the policy' is something that has to be examined further. Ultimately, I think, as does Newey, that if the law is indeterminate - or at least under-determinate enough that there can plausibly be a number of 'right answers' - what else do political actors do except shape the law around their policies. That being said, it's not necessarily the conscious, cynical manipulation that this might imply (although this obviously happens too) I often suspect that the legal justification advanced is 'naturally' the one that fits. This could also - I think - be linked to the 'state perspective' that international law provides; international lawyers are naturally pre-disposed towards thinking 'reasonable' interpretations are those which reflect state interests. There's also the third - empirical - consideration to make, from what I can see this is the standard procedure for states: they have a problem and they ask their legal advisors to evaluate its legality, with this there is going to be explicit and implicit pressure to 'make the case' (and this may be the way the question is put) for the policy.
I think this deserves more, but my mind has kind of turned to mush. But I will close by talking about some of the interesting observations of others. Firstly, Scott Newton, at the thing in Glasgow (who has a wonderful turn of phrase) described the legal form as constituted of subjects who are 'operated' by social actors in a strategic context. Secondly, China Miéville on recognition (in Between Equal Rights, 2005: Brill):
Of course to claim, based on this political understanding of recognition, that such recognition is illegitimate, is to stick to the implausible theory of international law as a body of rules. If it is instead understood as a process, then such politically informed manipulation and creation of legal facts is precisely the constitutive fabric of international law itself. Recognition, in this case, might be criticised as imperialist, immoral, stupid, or many other things, but it is nonsensical to criticise it as illegal.If international law is a constitutive part of the political process (if indeed we are to take international law seriously) then it is no surprise to see that political argument is expressed in legal terms and that international law is intimately interconnected with international politics.