Transcript from Session with Legal Adviser to Secretary of State Condoleezza Rice: John Bellinger Argues Case for International Law


John Bellinger is the best that it gets in the Bush administration.
As I’ve written before, there is a multiple personality reality in any presidential administration, and the trick is to try and make sure that the “dominant personality” of the administration gets the nation on what is mostly a constructive, enlightened course. In my view, particularly in foreign policy, the better players were overshadowed and outmaneuvered for quite a long time by the Douglas Feiths, Scooter Libbys, Paul Wolfowitzes, John Boltons, and Richard Cheneys of the administration.
Thursday last’s dinner may signal a change of course in how the Bush administration frames and approaches its engagement in global affairs.
I have thought for some time that the President’s “foreign policy soul” may be out for bid again — and the refreshing recent foreign policy footprints of Condoleezza Rice (though mostly low-hanging fruit) vs. the convulsions over whether Don Rumsfeld stays or leaves present a genuine opportunity for America to possibly get on a different track. Brewing problems with Iran make a change in course very difficult — but I’m one who believes that if the administration is trying to put a constructive foot forward in foreign policy, the initiative — and that is what Bellinger is launching — should be studied and discussed.
John Bellinger, who previously served as a senior lawyer on the National Security Council staff, and I don’t agree on everything and certainly have significant disagreements over what appear to me to be blurry and disengenuous definitions of torture and the application of coercive force on resistant prisoners.
However, I give John Bellinger enormous credit for fighting hard inside the administration against policies being pursued by well-known torture advocates.
I give him credit for being willing to walk into a room of top tier public policy intellectuals and journalists and have a genuinely candid discussion about the administration’s views on rendition, torture, detainee legal rights, the International Criminal Court, and other hot-button legal issues.
I give John Bellinger credit for taking a constructive approach to America’s legal and foreign policy challenges and not taking easy pot shots at others inside the administration who might be tugging in different directions. He is a real professional, but he’s also working very hard to do the right things.
Bellinger is the anti-John Yoo, in my view (though not his). I think John Bellinger walks a hard-to-walk line in putting forward a new and “different” frame regarding America’s attitude towards international law and, at the same time, carrying water for several years of war-time decisions that his bosses — the Secretary of State and the President of the United States — have made and been party to.
Bellinger’s obsession with getting America back into serious international law discussions are a good thing, not a bad thing, for this country.
I am posting some of the highlights of a dinner discussion with John Bellinger that I helped organize last Thursday evening.
The transcript of the “on the record” portions of the talk are available here.
I can’t post the off the record discussion but in the future, and without attribution, I will find a way to flesh out some of the issues and themes that were “intensely” discussed.
The “international law” stance that John Bellinger is designing is tough because I think that he wrongly thinks he needs to defend most of the administration’s decisions, some of which were clear mistakes, rather than simply moving forward. Part of what John Bellinger suggests seems like public relations gloss — or “framing” as the politically hip call it now — over decisions that seem troublesome. But part of what Bellinger suggests is substantively new and different — and given the repeal of much of John Yoo’s work — is extremely important in filling the void that Yoo’s really troubling legal rationales once occupied.
And I’ll say it anyway, framing matters. Part of what has bothered me about the first four years of the Bush administration was not only substance, but tone. Tone matters. Civility matters. Treating allies with respect matters — and communicating serious respect for international law and treaties matters.
John Bellinger gets this. John Bolton does not.
Highlights of John Bellinger commentary on “Getting America Back into the Arena of International Law Discourse”:

~~ As I think you’ll recall, the Secretary had a theme that we developed during the transition period from November (2004) to January when she was confirmed that now is the time for diplomacy.
We had been in two wars in four years. The security issues facing the country had been front and center. The Defense Department actually had been in the lead in fighting the war but those wars, while ongoing, the lead was behind us, now was the time for diplomacy. And one of the key aspects that she and identified was the questions that were being asked about U.S. commitment to international law, our treaty obligations, and, really, the law in general and to commitment to the law. And this was something that was very troubling to both of us.
~~ But for me the job (as the Secretary of State’s Legal Adviser, previously held by William Howard Taft IV) has changed a good deal in the last year because of this issue we identified and really it’s been the need to get out and talk about the traditional U.S. commitment to our international obligations and to the rule of law. It’s something that’s very important to the Secretary and to me personally. And so that’s really what I want to talk about tonight. Both what she’s been doing and what I’ve been doing.
~~ . . .about three-quarters of the way through these questions (in the first meeting between Secretary Rice and State Department staff) about staffing and public diplomacy and things like that a person stood up and asked a very substantive question. It turned out to be a lawyer in the office that I now head up. I was a little worried when she asked this because I knew at that point that I had been designated to take over this office. And I just want to read this to you and the reason is that the Secretary’s completely unscripted answer on this point shows really where she is on this issue of international law.
And the question was this — a young woman who was in the legal adviser’s office and she said — “My question is on a slightly more serious note than the last one. My question is what is your view of the role of international law in international diplomacy.” And Dr. Rice said:

International law is critical to the proper function of international diplomacy. And not only that, the United States has been the most important voice for international legal norms and international politics. We depend on a world in which there is some international legal order.
Because there are so many countries in the world that don’t have our domestic order, our legal order. We depend on norms of behavior in international politics. And I want just to be very clear about this. We are a country of laws, we will be a country of laws, we respect international obligations and treaty obligations and international law and we’re going to continue to make that very clear to the world.

~~ The legal issues relating to the detention of terrorists in the war on terror are some of the most complicated legal issues you can imagine and people really do not understand what is the applicable law. And since we had more or less ceded the public diplomacy front to critics, people began to just sort of assume things and make things up. And there’s much that can be in fact criticized about administration policy related to detention and one can have reasonable debates about these issues.
But there are a lot of things out there that are just simply wrong. And so I have gone out to Europe to meet with people, to answer questions, to explain the legal framework that we’re applying. And I’ll just give you one or two examples so you get a sense of the generalities I’m talking about.
You know, every one of you all knows and probably most of you all believe that we in fact made up this term “unlawful combatants” and it fits people’s theories that, of course, the Bush administration is just making up rules, throwing the established legal framework out the window and sort of made up its own terms. And it’s just not true at all.
The term unlawful combatant is a term that’s been around for about 40 or 50 years, clearly accepted in all of the international law textbooks. It applies to the category of people who are fighting you in a war, but are doing so in an unlawful way, i.e they’re fighting your civilians rather than you or their otherwise not following the rules. And so therefore they’re not entitled to the normal protections of the Geneva conventions. So they’re called unlawful combatants.
~~ Similarly I’ve walked people through our legal theory on the Geneva conventions. And we get conflicting criticisms through Europe. Just in the last few weeks we had the U.N. (unclear) wishers come out and say “the U.S. has got it all wrong, flagrantly violating international law. The people in Guantanamo are criminals who need to be tried in the criminal system or let go.”
But at the same time we are regularly getting communications from people saying, “No no! These people are people captured on the battlefield. You need to be making them prisoners of war and applying the Geneva conventions.”
~~ And I think frankly that we’re beginning to make a little bit of headway on this argument; that we’re at a deep hole on the issue of detainees. We know that there are those concerns that are out there. I think that we’re beginning to persuade some European audiences after Secretary Rice’s trip in December and our talks on these issues. But these are not as easy as people would think. And that in fact that maybe the rules are not quite as clear as critics would have one believe and that we need to begin to work together. There is a desire in Europe to be with us on these issues and a desire to work together. And if we can begin to try to reach common ground on what the legal rules are that apply to people like this. So we’ve been doing a lot of work in the detainee area.
~~ And so there’d become a familiar mantra that all of you all can recite, particularly European colleagues, “Well the United States didn’t ratify the Kyoto protocols. We unsigned the Rome statutes and we ignored the Geneva conventions. And the United States is not a believer in international law and international institutions.”
The Secretary is really committed to find, to combat this perception, and both she and I have gone and talked about just the general issue of international law a good deal.
~~ The United States benefits from international law more than any country in the world on a daily basis. And we are the beneficiaries of it and we need to emphasize that and it’s important for us to do.
Now words are cheap. And sometimes well it’s fine for Secretary Rice to just go and talk about these issues, but you need to prove that you in fact are committed. And we in fact have followed through on a number of very, very difficult issues.
~~ Last year one of the first speeches (Secretary Rice) gave was to the American Society of International Law, the first Secretary in about 30 years to go and do it, it was an important audience for her. Just two weeks ago, she changed her entire trip plan and Anne Gearan of the Associated Press who is here with us this evening didn’t get any sleep at all — all night long — and all the people on the press plane because she went and spoke at the centennial of the American Society of International Law about five o’clock at night before they left for her trip to London and Paris. Again, it was something that was important to her. So, we’ve been just emphasizing that the commitment to international law, our international law obligations, and rule of law in individual countries around the world as a general theme.
~~ Now, the last part is to emphasize our commitment to international criminal justice and accountability. Unfortunately the debate over the ICC has overshadowed the U.S. commitment and this administration’s commitment to international criminal justice around the world. And people, particularly your European colleagues will confirm this, are left thinking that the United States is not a believer in international criminal justice because we have got some concerns about the ICC.
And nothing could be farther from the truth. The United States provides more financial backing for international criminal tribunals than any country in the world. We have provided half-a-billion dollars over the last 10 years to the ICCY, the ICCR, the special court for Sierra Leone, and yet all of this really just ends up being overshadowed over sort of an artificial debate over the ICC.
So, during the last year, again, what the Secretary and I have tried to emphasize is our commitment to the values of international criminal justice and accountability. And we’ve done that in a couple of ways. One, just simply talking more about it. Two, in cases where there actually is an ICC nexus as there has been in some cases to emphasize that actually we can work together with other countries and respect each other’s mutual positions.
As Javier Solana said about a year ago, and it’s a theme that I’ve picked up, is that there can be a modus vivendi with respect to the ICC. We need to respect each other’s positions.
~~ Now we’re actually in the middle right now of one of the more exciting episodes of international criminal justice. It’s unfolding right now. And that is the transfer to justice of Charles Taylor, which is something the United States has worked extremely hard on behind the scenes to get done. It’s one reason why it’s very frustrating when we have critics suggest that: “Oh the United States is not committed to these values.” No country worked harder in the world no country provides more resources no country provides more operational support to international criminal justice than the United States.
And the bringing of Charles Taylor to justice is a good example. . .This is still unfolding. We hope each time that we will be able to secure a U.N. Security Counsel resolution that will provide the guts, the legal authority to hold Charles Taylor and have Taylor moved to the Hague so he can be tried there. But we continue to work very hard on these issues and to emphasize our commitment.

I think that there is both new framing and new substance in what John Bellinger presents. His entire speech is worth reading, though I am positive that many readers here will debate Bellinger’s sincerity as well as the substance of what he is proposing. That’s OK.
Bellinger himself is fairly thick-skinned about this debate and knows that the administration has a tough sell in some areas given the fact that tough judgments have been made during a time of national crisis over the last several years.
The Q&A was not quite a tempest, but it wasn’t calm either. It was real — and that is good.
I hope that this material helps further civil discourse about U.S. foreign policy, Secretary Rice’s views, and that the administration gathers itself together behind a genuine commitment to a new American internationalism, which rejects both pugnacious and selfish nationalism as well as isolationism, which I think may be a strong current when the true costs and consequences of Iraq are fully and consciously realized.
As I said in my introduction of John Bellinger last Thursday night, he is one of the heroes inside the Bush administration who may not see eye to eye with progressives about foreign policy but who nonetheless values deeply international institutions and international legal consensus in many key arenas.
I find that a potentially significant development.
— Steve Clemons
Update: Here is a thoughtful treatment of comments made by John Bellinger in March 2006 in London by Anthony Dworkin of the Crimes of War Project.