Update on Rule of Law: Effects of U.S. Torture Policy

2010-02-17

Some interesting comments and emails from my post a couple days ago on China and Western institutions.

Some clarification. When I talk about "Rule of Law" I mean having a system in place where reasonable laws are enforced in a "fair" and transparent manner and not influenced by political actors or corruption. Having such a system that people can rely on for justice as a routine matter is the primary goal.

The U.S., for the most part, is a nation with a strong sense of rule of law. China is still working towards that goal and has made a lot of progress in recent years. It still has a long way to go.

As an expat lawyer in China, I routinely discuss rule of law issues with Chinese lawyers, academics and business people. To the extent that I am critical of the system here (hopefully in a constructive manner), I do sometimes hold out other models as examples.

When folks push back against criticism, one common argument is to find something, anything, that suggests that the U.S., or other Western nation, also has rule of law problems. This is easy to do for the most part. Anecdotes abound just in the international trade area, and recent favorites have included the CNOOC/UNOCAL acquisition that fell through because of political problems.

So every time the U.S. fails to uphold the rule of law, it makes my job more difficult. It becomes that much harder to convince people here in China that I am not a hypocrite.

When I criticize U.S. actions, therefore, it is not to somehow set up an equivalency of the two systems. I just want the U.S. to live up to its reputation and its stated ideals so I can hold it out, when appropriate, as a model worthy of emulation.

When the U.S. flaunts the rule of law in a particularly egregious way, it sets back rule of law arguments significantly. The Iraq War and the use of torture, more than any commercial decision like the CNOOC/UNOCAL case, dramatically injure the rule of law cause.

To make matters worse, this is all out in the open and the U.S. government does not seem to care what anyone thinks:

Dick Cheney went on ABC News this weekend and boasted of the role he played in ordering the waterboarding of detainees. Andrew Sullivan has written several posts accurately describing this statement as a "confession of committing a war crime on national television." Harper's Scott Horton identifies the specific criminal statute Cheney confessed he violated, makes clear that — as the Attorney General himself previously said — there is no reasonable debate possible regarding the criminality of waterboarding under U.S. and international law[.]

Lots of stuff out there about this issue, including citations to specific laws that have been broken — your friendly neighborhood search engine is all you need to get quick confirmation of all these assertions. The above quote is from Glenn Greenwald, a U.S. lawyer and blogger specializing in constitutional issues and an incredible resource on this topic.

You might question the applicability of using torture as an example when it's so different from the rule of law issues I usually talk about on this blog (mostly related to enforcement of commercial law).

A couple of reasons. First, the use of torture was so blatant that it has the potential to influence a lot of other areas of the law with respect to perception of legal enforcement in general.

Second, the legal case itself is rather straightforward. Everyone can understand waterboarding, for example, and honest people will readily admit that this is, indeed, a form of torture. Those who do not are, in my opinion, being disingenuous for political or ideological reasons.

Third, I usually write about China's treatment of foreign companies, a big international law topic. Torture deals with treatment of foreign nationals. Both therefore deal with nation states following international laws in their interaction with foreigners. There is an overlap here conceptually.

Fourth, the U.S. use of torture is an ongoing issue. Apparently these practices were discontinued in 2004. However, until the U.S. government admits to doing this, and until it engages in remedial action, the issue remains hanging out there as an embarrassment. Moreover, who's to say that the U.S. will not do it again? I'll finish this off with more from Greenwald:

What would stop a future President (or even the current one) from re-authorizing waterboarding and the other Bush/Cheney torture techniques if he decided he wanted to? Given that both the Bush and Obama administrations have succeeded thus far in blocking all judicial adjudications of the legality of these "policies," and given that the torture architects are feted on TV and given major newspaper columns, what impediments exist to prevent their re-implementation?

Tags: China News