Author Archives: Michael Froomkin

The latest from Human Rights Watch: Defense Secretary Donald Rumsfeld may be criminally liable for torture of a Guantanamo detainee in late 2002 and early 2003. (Incidentally, remember when Rumsfeld lied about this stuff on camera? Maybe it wasn’t a slip — maybe it was conscious cover-up due to a guilty conscience?)

The other day I attended a UM Law School Federalist society meeting at which a nationally respected scholar spoke on the proper role of foreign law in the decisions of the Supreme Court (he doesn’t think there is much of any). I went because I’ve met him, and thought well of his work, but it was a very disappointing talk, far below the standard one would expect of such a serious scholar. One almost suspected him of dumbing it down for the Federalists.

During the talk there were a number of quite amazing claims (e.g. that US would be doing a favor to other countries — all of them, apparently — to export its laws to them because ours are better; that the US as world hegemon has the greatest interest in having good law because its law has the widest impact and good laws everywhere are in our interest; that foreign countries’ interests have a form of virtual representation in the US due to the presence of emigrant former citizens and their descendants) but surely the low point was the claim that the US does not torture people.

When challenged on it, the visiting scholar said that while there were obviously some low-level people who had acted wrongly, he’d “seen no evidence” that there were any pro-torture policies directed from the top. Although he didn’t use the actual words, it was the “few bad apples” theory in all its glory.

As regards the non-CIA torture incidents, if one parsed words carefully to distinguish between mere “cruel inhuman and degrading” conditions on one hand, and “torture” on the other, and if one further accepted the Torture Memos’ distinctions that place things like waterboarding outside the definition of torture, in short if one took two rather outlandish things as one’s starting point, this “no clear evidence” argument was perhaps a credible position as the actual public evidence of a national torture policy was primarily circumstantial although not unpublicized. (As regards the officially sanctioned CIA torture, prisoner killings (and US ‘renditions‘), it’s much harder for me to see how a reasonable person could make this claim, although these too were not as publicized as they should have been.)

Anyway, maybe this latest Human Rights Watch report will go some ways towards plugging the gap.