State Department Legal Adviser: Obama faces tough choices on Guantanamo

BY ANDREW KALLOCH

John Bellinger ’86, Legal Advisor to the Secretary of State

Describing the detention of enemy combatants at Guantanamo Bay (GTMO) as a “net loss” for the United States, John Bellinger ’86, Legal Advisor to the Secretary of State, called for the new administration to close the beleaguered military base in a lecture sponsored by the International Law Journal on Friday, November 14.

Bellinger, who served as Senior Associate Counsel to the President and Legal Adviser to the National Security Council from 2001 to 2005, admitted that closing GTMO is easier said than done. Bellinger stated, “Most of these countries that the individuals at GTMO came from do not want their nationals back…and many of the detainees have the additional problem of coming from countries with human rights problems.” Despite widely-reported use of extraordinary rendition, in which enemy detainees are sent to nations the U.S. has declared support torture, Bellinger insisted that without high-level assurances that the detainees will be treated humanely, the U.S. is not willing to release GTMO detainees to their home countries. Bellinger noted that the Secretary of State “has been leading negotiations with over two dozen countries trying to get them to take their nationals back and treat them with respect.” Whatever solution President-elect Barack Obama ’91 comes to, Bellinger stated that GTMO is clearly “topic A in Washington right now.”

Another issue related to the closure of GTMO is the continued viability of the U.S. military commissions system. Describing himself as a “persistent critic of military commissions since the order came out in November 2001,” Bellinger assessed that “on paper, the procedures [of military commissions post-Hamdan and the Military Commissions Act of 2006] are about 90% fine. They are fundamentally different from [those] created by executive order in November 2001.” Bellinger asserted that the widely held view, especially in Europe, that the commissions constitute kangaroo courts is no longer accurate.

Indeed, Bellinger stated that the military commissions “are being applied by the military lawyers and judges who have a real personal and institution interest in proving to the word that our military can get this right,” and have been, “bending over backwards…to provide fair trials.”

In addition to the improvement of military commissions procedure, Bellinger warned that a shift to domestic criminal courts would be extremely difficult, largely because many of the detainees committed crimes beyond the reach of federal courts.

For example, Bellinger stated, there is no extra-territorial reach of material support statutes. “President Obama is going to face some very difficult decisions. What is going to happen when the intelligence agencies think some of these people are incredibly dangerous, but there is no evidence that can be used?”

In addition to GTMO, Bellinger touched on two other international law issues facing the incoming administration. First, he referenced the case of Medellin v. Texas, which concerned the President’s authority to direct states to comply with the orders of international tribunals. In Medellin, a case in which the U.S. admitted to a breach of the Vienna Convention on Consular Relations, the Supreme Court held that the President lacked the authority to direct states to review state court decisions as a result of a decision of the International Court of Criminal Justice.

Despite this ruling, Bellinger noted that the “Secretary of State and Attorney General wrote to Governor Rick Perry of Texas, urging him to give effect to the nation’s international obligations.”

Securing the Governor’s support was crucial, given the U.S. desire to enjoy reciprocal protections from other nations. Obama will also have to grapple with the International Criminal Court, to which the U.S. is not a party. Bellinger stated that despite the perception “particularly in Europe, that the U.S. did not believe in international Law because it was not a party to the ICC…we hold the same fundamental goal…end[ing] immunity for those who have committed war crimes.”

Indeed, Bellinger noted that the U.S. has become one of the ICC’s “principal defenders.” While many European nations wanted to defer the prosecution of President Omar al-Bashir of Sudan, for war crimes associated with the genocide in Darfur, the U.S. urged the prosecution to go forward as planned. Ultimately, Bellinger warned, Europe should not expect “a complete 180” on the issue when Obama is inaugurated.

Responding to a question about the usefulness of academic work on international law, Bellinger stated, to chuckles from the audience, “most of it is not useful…you cannot write intelligently about these issues unless you understand the constraints government is under.”

Lastly, Bellinger implored HLS students to apply for work within the State Department, calling it, “the place to go if you want to practice international law in Washington.” He lauded the Department’s recent success in negotiating a $1.5 billion settlement with Libya as “one of the most extraordinary feats I have seen in government.”

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