I am not a fan of Tea Party, but do appreciate its creativity. cracks me up.
곽노현 사건, 주범은 무죄 종범은 유죄? 억지 논리
곽노현
사건,
주범은 무죄 종범은 유죄? 억지 논리
[기고] 곽노현을 벌한 사법부의 비극
기사입력 2013-01-17 오전 8:02:19
주범은
무죄인데,
종범은 유죄로 처벌받은 사건. 곽노현 전 서울시 교육감에 대한 법원의 판결 결과다.
곽노현 전 교육감 사건에 대한 법원의 판결과 헌재의 결정은 비상식적인 일로 가득했다. 제정된 지 53년 만에 처음으로 공직선거법상 사후매수죄를 적용한 점도 그렇고,
헌법소원이 걸린 사건에 대해서 헌재가 결정하기도 전에 대법원이 먼저 판결을 내린 것도 그렇다. 헌법재판소는 사건 종결 시한 6개월을 넘겨서 대선이 끝난 뒤인 지난해 12월 27일에야 합법(합헌) 결정을 내렸다. 2명의 교육감이 권한 다툼을 벌일 수도 있는 상황을 차단하고자 하는 정치적
고려 때문이었을까? 헌재의 결정문은 억지로 논리를 만들어내서 곽노현을 처벌해야 한다는 결론에 꿰맞추었다는
느낌을 강하게 준다.
헌재
결정까지 난 지 한참 뒤에서야 이런 글을 쓰는 이유는 한심하게도 법원과 헌재가 공모하여 곽노현 죽이기에는 성공했을지 모르지만, 그 결과 우리 사회 법치주의는 설 자리를 잃었다는 생각을 공유하기 위해서다.
이
사건의 전 과정을 개략적으로 정리해보면 필자의 이런 느낌에 독자들도 공감할 수 있을 것 같다. 검찰은 느닷없이 현직 서울시 교육감이 박명기 후보를 매수하여 후보직을 사퇴하게 만들었다는 피의사실을 공표하였고, 보수 언론들은 이런 검찰의 발표를 기정사실로 여겼다. 그런데 검찰은 곽 전 교육감을 사전매수죄가
아닌 사후매수죄로 기소했다. 제정된 지 53년 동안 공직선거법
232조 1항 2호는 한 번도 적용되지 않았는데,
잠자던 법 조항을 찾아내서 검찰이 기소했다. 마치 미네르바 사건에서 박대성 씨에게
전기통신기본법 조항(제47조 제1항)을 법 제정 30년 만에 처음 적용한 것과 유사했다.
▲
곽노현 서울시 교육감이 지난해
4월 17일 오전 서울 서초동 서울고등법원에서 열린 항소심에서 1년 징역형을 선고 받은 뒤 법원을 나서기 위해 차량에 오르고 있다. ⓒ뉴시스
"검찰과 법원의 공모 : 곽노현을 죽여라!"
그런데 1, 2심 재판부는 가장 핵심적인 혐의인 사후매수죄의 대가성·목적성 여부에 대해서는 심리를 하지 않은 채 '돈을 주었으니 유죄'라고 판결했다. 그처럼 요란하게 떠들었던
보수 언론들은 막상 재판 과정에서 곽노현 전 교육감이 사전 합의를 하지 않았다는 점이 확인됐을 때는 침묵했다. 대법원은 1, 2심이 법리해석을 잘못해서 대가성·목적성을 심리하지 않은 것은 잘못이라고 판단했다.
그러면서 주범이었던 강경선은 무죄로 파기환송하면서 곽노현은 그 제안을 수용한 종범이었음에도 파기환송하지 않고 유죄를 확정했다.
대법원이 정상적인 판결을 했다면 두 사람 모두 파기환송하는 것이 상식과 이치에 맞지 않았을까? 곽노현을 처벌하기로 이미 결정을 해놓고 짜 맞추기 판결을 했다는 느낌을 지울 수 없는 대목이자 대법원의 비겁한 꼼수였다.
그런데
더 기가 막힐 일은 강경선 교수의 파기환송심에서 벌어졌다. 검찰은 강 교수가 후보 사퇴 대가로 금전을 제공한 것을 입증할
수 없다고 답변했다. 결국 강경선 교수는 파기환송심에서 무죄가 확정되었다. 뇌물을 주자고 교사한 강경선은 무죄인데, 그 제안을 수용한 종범은 유죄라니. 검찰의 정치적 의도는 강경선을 처벌하는 것이 아니라, 곽노현이라는 진보 교육감을 처벌하는 데
있으므로 그 목적을 달성한 이상 강경선을 처벌하기 위해서 힘을 쓸 필요도 없다고 실토한 꼴이다.
헌재는
사후매수죄의 불명확성을 인정하면서도 위헌 결정을 내리지 않았다. 다수 의견을 쓴 5명의 헌재 재판관은 합헌 결정 이유 중에 "당해 선거 비용 보전이 선거 문화의 타락을
유발하여 선거 공정성에 대한 국민의 신뢰를 저해하는 정도에 이르지 않는 것으로 판단된다면, 이 사건 법률조항의
대가성이 존재하지 아니하는 것으로 해석될 수 있다"는 문구를 삽입했다. 그러므로 잘못된 법원의 판결을 바로잡기 위해서는 헌재는 이 점을 들어서 위헌을 선언했어야 옳았다. 헌재의 결정을 보면서 6월 민주항쟁으로 탄생한 헌법재판소의 존립 이유가 무엇인가를 생각할 수밖에
없었다.
누군가
적절하게 지적했듯이
"1, 2심은 정치 검찰의 '묻지 마' 기소를 묵인, 방조, 면책해줬고, 3심은 1, 2심이 부실한 법 해석을 피해 갈 길을 열어줬고, 헌법재판소는 검찰과 법원의 실책이 표나지 않도록 적절하게 헌법해석을 해주었다." 이로써
검찰, 법원, 헌재와 보수 언론이 곽노현 죽이기에 성공했다.
"법치주의를 경멸케 하다"
결국
법원과 헌재는 공교육을 활성화하고,
학교 현장에서 인권을 보호하겠다는 공약을 실천에 옮기며 보수 진영의 공적이 되어 버린 곽노현을 죽이겠다는 정치 검찰의
기소를 승인해주었고, 이에 법적 권위를 부여해주었다. 이런 과정에서
법이 걸레가 되고, 법치주의는 경멸의 대상이 되어 버렸다.
검찰의
타락에 대해서는 이미 많은 이들이 공감하고 있다.
그런데 검찰의 타락을 법원이 승인해주었으며, 법원이 타락한 검찰에 편승해서 같이
나락으로 굴러떨어져 왔다는 사실을 사람들은 종종 잊고는 한다. 이번 재판 과정에서 법원은 검찰의 사후매수죄
기소에 대해 분명한 입장을 보이고, 제동을 걸었어야 했다. 검찰의 정치적
의도에 편승할 것이 아니라 분명하게 안 된다는 태도를 보였어야 마땅했다.
법의
타락을 막을 마지막 기회는 헌재가 갖고 있었다.
그러나 헌재는 대법원이 그어 놓은 정치적 선 안에서 항복 선언을 하고 말았다. 헌재가
헌법재판을 포기한 채 대법원 따라가기를 함으로써 지배 세력의 염원에 동참했다. 헌재는 다른 무엇보다도 헌법의
기본권 조항에 충실할 때 빛을 발하고, 그 역할을 했다는 평가를 받을 수 있다. 법치주의의 최후의 보루로 헌재가 기능하지 못할 때 법원에 의한 법의 타락을 방지할 장치가 한국 사회에는 없다.
곽노현
전 교육감에 대한 법원의 재판과 헌재의 결정은 한마디로 말하면 법에 정의를 기대하지 말라는 것이다. 정의보다는 정치적 실리를 택하겠다는 선언이다. 차기 헌재소장으로 내정된 이동흡 씨가 부임하면
이런 경향은 더욱 짙어질 것이다. 법에 정의가 있을 것이라고 믿는 어리석은 이들을 뺀 나머지 인간들은 결국은
세계인권선언이 가리키는 길을 갈 수밖에 없지 않을까? 세계인권선언은 전문에서 "인간이 폭정과 억압에 대항하는 마지막 수단으로서 반란을 일으키도록 강요받지 않으려면, 인권이
법에 따른 통치로 반드시 보호되어야 한다"고 제시하고 있다. 그런데 법에 따른 통치를 마지막 보루인 법원과 헌재에서조차 기대할 수 없는 상황에 이르렀다면? 결국 법원은 정의를 갈구하는 많은 이들을 반란에 내모는 짓을 하고 있다. 그런 짓을 하는 게
자신들이라는 점을 법관들이 알기나 할까?
곽노현
사건에 대한 법원의 판결과 헌재의 결정은 법치주의는 죽었으므로 법에 더는 정의를 구하지 말라는 선언이다. 곽노현 사건이 주는 교훈은 이것이다. 다시는 어리석게 법 앞에서 정의를 찾지 마라!
analysis of the merits of the referral of the Syria Situation to the ICC
Fifty-Seven
Countries Call for Referral of the Syria Situation to the ICC: analysis of the
merits of the referral and concerns as to its implementation
by Jennifer
Trahan January
14th, 2013
[Jennifer Trahan is associate
clinical professor at the Center for Global Affairs at the NYU School of
Continuing and Professional Studies (NYU-SCPS). She is also chair of the
American Branch of the International Law Association International Criminal
Court Committee and was a member of the American Bar Association’s 2010
International Criminal Court Task Force.]
Today,
January 14, 57 U.N. Member States from Africa, Asia, Europe and Latin America,
coordinated by Switzerland, sent a letter requesting the U.N. Security Council
to refer the situation in Syria to the International Criminal Court for
investigation and prosecution.
The
UN Security Council should make the referral; in fact, it should have done so
already months ago. Because Syria is not a party to the ICC’s Rome Statute,
the Court would not have jurisdiction over the crimes in Syria absent the
referral.
Mass
crimes
With
an estimated 60,000 fatalities, and reason to suspect both war crimes and
crimes against humanity have occurred, referral is clearly warranted. Underlying
crimes according to the UN’s independent international Commission of Inquiry on
Syria include “patterns of summary execution, arbitrary arrest, enforced
disappearance, torture, including sexual violence, as well as violations of
children’s rights…”
The
UN Security Council, which may refer “situations” to the ICC pursuant to Rome
Statute article 13(b), has previously referred both the situations in Darfur
(SC res. 1593) and Libya (SC res. 1970) to the ICC for investigation and
prosecution. The latter referral was made after far fewer fatalities had
occurred than have occurred in Syria. Security Council action is needed
if the Council is to retain institutional legitimacy and consistency in its
relationship with the ICC and to show its resolve in addressing large-scale
crimes.
Impunity
at the national level
The
Syrian judiciary is not addressing the crimes that are occurring, and there is
no reason to suspect that, under the current government, there would be
national court trials.
If
there were to be a future change of government, the ICC referral still makes
sense. If a future government were to contain vestiges of the past
regime, national court trials could be impeded by efforts to “shield”
perpetrators from justice. If a future government were to consist of an
entirely new regime, national trials could become vengeful affairs— overzealous
prosecutions lacking due process—such as Saddam Hussein’s trial before the
Iraqi High Tribunal.
If
there actually were to be future credible national trials, the referral would
have done no harm (it would not supplant good faith national investigations and
prosecutions under the “complementarity” provisions of Rome Statute article
17), and in fact could provide incentive for holding national trials.
As
in all referrals, the referral would be of the “situation” in Syria , so would
not be limited to crimes by the Assad government and military, but would
encompass opposing Syrian forces as well.
Whether
to exclude nationals from non-States Parties from the referral
The
Swiss letter states that the referral should be made “without
exceptions.” This is a reference to the fact that past referrals by the
UNSC excluded jurisdiction over nationals of non-States Parties (for instance,
should they become part of a troop deployments in the countries at
issue). This raises a complex question, but suffice is to say that such
automatic exclusion of nationals of non-States Parties appears to engender
resentment in the international community. To begin with, three permanent
members of the UN Security Council are non-States Parties to the ICC (Russia,
China and the U.S.), so there already exists the imbalance that these countries
have the power to vote for or veto ICC referrals, yet crimes committed on their
territories are not subject to ICC jurisdiction (and they have the power to
veto referrals involving their own nationals). A further level of
insulation of troops from non-States Parties as part of a referral increases
such imbalance, but also seems unnecessary in a situation such as the present
one, where no such troops are deployed. (Were there future deployments of
troops from non-States Parties, this issue would no doubt resurface and could
then be addressed.)
Whether
UN funding should accompany the referral
The
Swiss letter also asks that if the referral occur that the Security Council
“commit the necessary resources.” Past referrals of the Darfur and Libya
situations came with no funding. Given the ICC’s tight budget and
ever-expanding docket and expectations placed on it, such lack of funding is
indeed problematic for the Court. Investigating and prosecuting crimes
requires significant financial expenditures. A strong case can be made
that the UN Security Council should not preclude UN funding. While current
U.S. legislation precludes the US from directly funding the ICC, it is unclear
that this necessarily precludes use of UN dues.
The
need for Security Council follow-up
Finally,
the Swiss letter asks that if the Security Council makes the referral, that it
facilitate “execution of potential arrest warrants.” This is
significant. The past Darfur and Libya referrals were made without any
commitment by the Security Council to follow-up efforts to ensure that ICC
trials actually occur. (Thus, for example, none of the Darfur arrest
warrants have ever been executed). It is high time to ensure that when
the Security Council makes a referral that it undertakes some obligation to
conduct follow-up, including in the areas of arrests.
If
the crimes and violence occurring in Syria are going to be deterred to any
extent, that will not occur without a credible threat of prosecutions.
Right now, the only way to make that threat serious is through a UN Security
Council referral. The ICC would provide a reliable, fair and neutral
forum for prosecuting high level perpetrators.
Analysis: Mali - one African war France could not avoid
Analysis:
Mali - one African war France could not avoid
By
Mark John and John Irish PARIS | Sun
Jan 13, 2013
(Reuters)
- Just as its leaders were defining a new "hands-off" strategy for
Africa, France has been thrust onto the front
line of one of the continent's riskiest battlefields deep in the desert of
Mali.
President
Francois Hollande's backing of air strikes to halt Islamist rebels advancing on
the capital Bamako raises the threat level for eight French hostages held by al
Qaeda allies in the Sahara and for the 30,000 French expatriates living in
neighboring, mostly Muslim states.
It
could also trigger an attack on French soil. But, in what could be the biggest
foreign policy decision of his presidency, Hollande bet that inaction bore a
greater peril of producing a jihadist state like Afghanistan under the Taliban.
"We
must stop the rebels' offensive, otherwise the whole of Mali will fall into
their hands - creating a threat for Africa and even for Europe," his
foreign minister Laurent Fabius told reporters to justify backing Mali's
dilapidated national army.
For
months, military planners in Paris had been working on discreet and limited
support for an African-led effort due later this year to try and drive
Islamists out of France's ex-colony.
That
scenario was swiftly overtaken on Thursday as rebels captured the central town
of Konna that is a gateway towards Bamako 600 km (375 miles) further south.
With
Mali's army impotent, Hollande ordered the first military strikes of his
career. Now France has deployed 550 troops, C-160 transport aircraft, attack
helicopters and has Rafale jets on standby the question is: where does it go
from here?
HOLLANDE
HAS WIDE BACKING - FOR NOW
The
intervention came weeks after Paris conspicuously failed to rescue the
incumbent leader in Central African Republic, another ex-colony, leaving President
Francois Bozize no alternative but to accept a power-sharing pact with
insurgents threatening to take over his mineral-rich state.
The
Bozize snub was a sign that Hollande's government was banging another nail in
the coffin of "Francafrique", the decades-old system under which
Paris propped up African leaders aligned to French business interests.
Francafrique
for years helped dictate the Africa strategies of French companies in the
mining and energy sectors such as the oil giant Elf Aquitaine that became Total
SA in 2003. Total's chief executive was quoted last year as saying he believed
Francafrique was dead.
Hollande's
government stresses that by entering Mali, France is not falling back into old
habits.
Its
presence is legitimized by U.N. resolutions mandating foreign intervention to
support Mali forces and approval by the same African leaders irked in 2011 when
France and Britain ordered NATO air strikes in Libya to
oust Muammar Gaddafi.
The
United States and Britain have also signaled backing, and even opposition
French conservatives mostly say Hollande did the right thing. Shocking reports
of public amputations in rebel-held northern Mali as tough shariah Islamic law
is imposed will persuade many French voters the intervention was just.
But
events on the ground could change that quickly.
While
the Mali Islamists are a rag-tag army, they managed to recoup many of the arms
that spilled out of Libya during
its war and can inflict real damage including the downing of a French
helicopter on the first day of strikes.
By
going to help the Malian army, Hollande defied threats by the rebels' allies,
al Qaeda in the Islamic Maghreb (AQIM), to kill the French hostages taken
across the Sahara in past years.
As
the failure of a French commando bid late last week to free a secret agent held
in Somalia since 2009 shows, it will be very hard for him now to guarantee
their safety.
"With
this (Mali) intervention, the French president has shown he did not want to be
taken hostage himself by the issue of the French hostages held by AQIM. That is
an act of political courage," said Mathieu Pellerin, head of the
Paris-based Centre of Strategic Intelligence on the African Continent (CISCA).
Hollande
said he believed the secret agent had been killed during the abortive raid, an
assertion which the Somalian al Shabaab insurgents deny.
REPRISALS
RISK
With
some of the rebel Malian fighters living side by side with their families, the
further risk is of collateral damage that would drain domestic and foreign
support for the action.
"If
we jump in then we could have horrific images of children, women killed,"
said one French diplomatic source speaking before last week's events, noting
how civilian deaths caused by NATO operations in Afghanistan damaged
public support for the Western mission to dislodge Taliban Islamists there.
Fears
will also grow of reprisals on the large expatriate French communities in
neighboring Muslim countries such as Burkina Faso, Niger and Senegal.
"There
are consequences, not only for French hostages, but also for all French
citizens wherever they find themselves in the Muslim world," Sanda Ould
Boumama, of the Malian insurgent group Ansar Dine, warned on Saturday.
But
the real political game-changer for Hollande is the threat of an attack on
French soil.
France
is no stranger to such strikes, with eight killed during a wave of bombings of
the Paris Metro in 1995 by Algeria's Armed Islamic Group (GIA), a guerrilla
Islamist movement from which AQIM traces some of its lineage.
Home
to Europe's largest Muslim population of some five million, France is acutely
aware of the risk of radicalization after an al Qaeda-inspired gunman last
March went on a killing spree in the southern city of Toulouse, killing seven.
Underlining
that he takes the threat of attack seriously, Hollande on Saturday announced he
was stepping up security measures on French transport and in public places.
BAPTISM
OF FIRE
For
now, France said its aim is not to begin an operation to take Mali's north back
out of rebel hands. Hollande has stressed its exclusive goal is to prepare for
a subsequent intervention to be led not by Paris but by the West African ECOWAS
bloc.
French
Defence Minister Jean-Yves Le Drian said on Sunday France was pursuing strikes
on rebel targets and residents said its aircraft had even bombed the northern
rebel stronghold Gao.
But
Mark Schroeder, Africa-watcher for U.S.-based risk and security consultancy
Stratfor, expected French troops largely to focus on holding the line in
central Mali in coming weeks and wait for the operation to take on a more
international feel.
"Behind
that line, the European Union military training mission will come in and African
forces will start to arrive," he said of troops from neighbors including
Niger due to arrive from Monday to build a total force around 3,300 strong.
While
that could help France wind down its exposure, CISCA's Pellerin said that would
still depend crucially on the African-led coalition gaining the necessary size
and strength to lead the fight to push back the rebels - not a given at this
stage.
A
rare dissenting voice, former foreign minister Dominique de Villepin - who led
world opposition to the U.S.-led Iraq war in
2003 - warned France could get sucked into a conflict where military victory
was hollow without political conciliation.
"It
is time to break with a decade of lost wars," he said of wars in Iraq, Afghanistan
and Libya which he argued merely created the grounds for future conflicts.
For
Hollande, whose poll ratings are at record lows because of his hesitant leadership
and failure to cut unemployment, Mali could emerge as his political crucible.
It
was already diverting attention away from a mass march on Sunday in protest at
his plans to legalize gay marriages, and meant that a late-night Friday deal
between trade unions and employers on reforming the labor market went little
noticed.
"This
is not just any old baptism of fire," said Bruno Tertrais, head of
research at Paris's Foundation for Strategic Research. "This is a baptism
of fire in his very role as chief of the armed forces."
“The Conflict Against Al Qaeda and its Affiliates: How Will It End?” by Jeh Johnson at Oxford Union in Nov. 2012
Jeh
Johnson Speech at the Oxford Union
By
Benjamin Wittes Friday, November 30,
2012 at 12:01 PM
At
this hour, Pentagon General Counsel Jeh Johnson is giving the following speech
at the Oxford Union in England:
“The
Conflict Against Al Qaeda and its Affiliates: How Will It End?”
Jeh
Charles Johnson
General
Counsel of the U.S. Department of Defense at the Oxford Union, Oxford
University[1]
November
30, 2012
Thank
you for inviting me. It is a privilege for me to stand here, in the same
place, before the same Union, as the Prime Ministers, Presidents, and other
world notables who have preceded me.
I
am the General Counsel of the U.S. Defense Department. If I had to
summarize my job in one sentence: it is to
ensure that everything our military and our Defense Department do is consistent
with U.S. and international law. This includes the prior legal review
of every military operation that the Secretary of Defense and the President
must approve.
My
counterpart here in the United Kingdom is Ms. Frances Nash, the legal adviser
to the U.K. Ministry of Defence. Like Ms. Nash, I am a civilian, not a
member of the military, consistent with the principle in both our countries of
civilian oversight of the military. Unlike Ms. Nash, who is a civil
servant and a long-time official of the Ministry of Defence, I am a political
appointee. This means I serve at the pleasure of the current
President, and have no expectation of serving for any other.
Here
in the United Kingdom, you refer to July 7, 2005, the day of the terrorist
suicide bombings of the London subway, as “7/7.” I am a New Yorker and a
personal witness to the events of “9/11.” I was a private citizen then,
and like many others that day, wandered the streets of Manhattan asking: “what
can I do to help?”
Over
the last 46 months as a public official, I have tried to answer that question.
There
is a quote from the Brookings Institution in Washington, which motivates my own
public service:
American
government was designed to be led by citizens who would step out of private
life for a term of office, then return to their communities enriched by service
and ready to recruit the next generation of citizen servants. The
Founding Fathers believed in a democracy led by individuals who would not
become so enamored of power and addicted to perquisites that they use
government as an instrument of self-aggrandizement.
Indeed,
it was the British poet Lord Byron who called our First President, George
Washington, the “Cincinnatus of the West” for his decision to surrender his
personal power after the American Revolution and retire to his farm on Mount
Vernon.[2]
As
a member of the Obama Administration for the last four years, I have been
privileged to witness many transformational and historic events in the national
security of the United States.
We
ended the combat mission in Iraq.
We
increased the number of combat forces in Afghanistan and have reversed much of
the Taliban’s momentum in the country. Challenges remain, but violence is
down across the country. We have a timetable for transitioning our efforts in
Afghanistan to the Afghans’ own security forces, and we are adhering to
it. And though we have disagreed with our Afghan partners from time to
time, as of this date we have negotiated and signed understandings with the
Afghan government on detention operations,[3] special operations[4] and an overall strategic partnership,[5] representing major milestones toward the day when the
peace and security of that country is fully in the hands of the Afghan people
and their government.
I
was in Afghanistan last week, to spend Thanksgiving with the troops.
While there I encountered a number of Her Majesty’s armed forces.
The British subjects here should be proud of them all. The British
hospital I visited at Camp Bastion was first-rate and amazing. And the
very good news on that particular day was, at three separate hospitals, I saw
not a single U.S. or UK casualty, except for a U.S. soldier in need of an
appendectomy, a British soldier with a bad knee, and many bored and happy
trauma teams standing around with nothing to do.
We
banned “enhanced interrogation techniques,” consistent with the calls of many
in our country, including our own military, that great nations simply do not
treat other human beings that way. These controversial practices have
been banned, yet we continue to gather valuable intelligence in a manner
consistent with our Army Field Manual, the Detainee Treatment Act, and
international law.
We
worked with our Congress to enact the Military Commissions Act of 2009, which
reformed our system of military commissions to ensure due process and fairness
for the accused. Today, our system of military commissions prosecutions of
Khalid Sheik Mohammed and the other alleged organizers of the September 11
attacks is more credible, sustainable and transparent. One of our
nation’s finest military lawyers, and a Rhodes Scholar, Brigadier General Mark
Martins, is now the chief prosecutor in that system.
We
worked with our Congress to pass the Don’t Ask, Don’t Tell Repeal Act of 2010,
such that gay and lesbian members of the U.S. military can now be open and
honest about their sexual orientation without fear of being separated for that
reason. In the words of one gay servicemember: “you took a knife out of
my back; you have no idea what it is like to serve in silence.”
And,
finally, we have, in a manner consistent with our laws and values, taken the
fight directly to the terrorist organization al Qaeda, the result of which is
that the core of al Qaeda is today degraded, disorganized and on the run.
Osama bin Laden is dead. Many other leaders and terrorist operatives of
al Qaeda are dead or captured; those left in al Qaeda’s core struggle to
communicate, issue orders, and recruit.
But,
there is still danger and there is still much to do. Al Qaeda’s core has
been degraded, leaving al Qaeda more decentralized, and most terrorist activity
now conducted by local franchises, such as Al Qaeda in the Arabian Peninsula
(based in Yemen) and Al Qaeda in the Islamic Maghreb (operating in north and
west Africa). So, therefore, in places like Yemen, and in partnership
with that government, we are taking the fight directly to AQAP, and continually
disrupting its plans to conduct terrorist attacks against U.S. and Yemeni
interests.
Al
Qaeda has sought to attack the UK on a number of occasions. Two years
ago, Her Majesty’s government assessed:
“We
face a real and pressing
threat
from international terrorism, particularly that inspired by Al Qaeda and its
affiliates . . . Al Qaeda remains the most potent terrorist threat to the UK.”[6]
Our
efforts against al Qaeda have involved multiple instruments of the U.S.
government, including the military, civilian law enforcement, and intelligence
services, in partnership with the United Kingdom and other nations.
It
is the U.S. military’s efforts against al Qaeda and associated forces that has
demanded most of my time, generated much public legal commentary, and presented
for us what are perhaps the weightiest legal issues in national security.
It is the topic I will spend the balance of my remarks on tonight.
The
United States government is in an armed conflict against al Qaeda and
associated forces, to which the laws of armed conflict apply. One week
after 9/11, our Congress authorized our President to “to use all necessary and
appropriate force” against those nations, organizations and individuals
responsible for 9/11. President Obama, like President Bush before him, as
Commander-in-Chief of our Armed Forces, has acted militarily based on that
authorization. In 2006, our Supreme Court also endorsed the view that the
United States is in an armed conflict with al Qaeda.[7] Therefore, all three branches of the United States
government – including the two political branches elected by the people and the
judicial branch appointed for life (and therefore not subject to the whims and
political pressures of the voters) – have endorsed the view that our efforts
against al Qaeda may properly be viewed as an armed conflict.
But,
for the United States, this is a new kind of war. It is an unconventional war against an
unconventional enemy. And, given its unconventional nature, President
Obama – himself a lawyer and a good one – has insisted that our efforts in
pursuit of this enemy stay firmly rooted in conventional legal
principles. For, in our efforts to destroy and dismantle al Qaeda, we
cannot dismantle our laws and our values, too.
The
danger of al Qaeda is well known. It is a terrorist organization
determined to commit acts of violence against innocent civilians. The
danger of the conflict against al Qaeda is that it lacks
conventional boundaries, against an enemy that does not observe the rules of
armed conflict, does not wear a uniform, and can resemble a civilian.
But
we refuse to allow this enemy, with its contemptible tactics, to define the way
in which we wage war. Our efforts remain grounded in the rule of
law. In this unconventional conflict, therefore, we apply conventional legal
principles – conventional legal principles found in treaties and customary
international law.
As
in armed conflict, we have been clear in defining the enemy and defining our
objective against that enemy.
We
have made clear that we are not at war with an idea, a religion, or a
tactic. We are at war with an organized, armed group — a group determined
to kill innocent civilians.
We
have publicly stated that our enemy consists of those persons who are part of
the Taliban, al-Qaeda or associated forces,[8] a declaration that has been embraced by two U.S.
Presidents, accepted by our courts, [9] and affirmed by our Congress.[10]
We
have publicly defined an “associated force” as having two characteristics: (1)
an organized, armed group that has entered the fight alongside al Qaeda, and
(2) is a co-belligerent with al Qaeda in hostilities against the United States
or its coalition partners.[11]
Our
enemy does not include anyone solely in the category of activist, journalist,
or propagandist.
Nor
does our enemy in this armed conflict include a “lone wolf” who, inspired by al
Qaeda’s ideology, self-radicalizes in the basement of his own
home, without ever actually becoming part of al Qaeda. Such persons are
dangerous, but are a matter for civilian law enforcement, not the military,
because they are not part of the enemy force.
And,
we have publicly stated that our goal in this conflict is to “disrupt,
dismantle, and ensure a lasting defeat of al Qaeda and violent extremist
affiliates.”[12]
Some
legal scholars and commentators in our country brand the detention by the
military of members of al Qaeda as “indefinite detention without charges.”
Some refer to targeted lethal force against known, identified individual
members of al Qaeda as “extrajudicial killing.”
Viewed
within the context of law enforcement or criminal justice, where no person is
sentenced to death or prison without an indictment, an arraignment, and a trial
before an impartial judge or jury, these characterizations might be
understandable.
Viewed
within the context of conventional armed conflict — as they should be —
capture, detention and lethal force are traditional practices as old as
armies. Capture and detention by the military are part and parcel of
armed conflict.[13] We employ weapons of war against al Qaeda, but in a
manner consistent with the law of war. We employ lethal force, but in a
manner consistent with the law of war principles of proportionality, necessity
and distinction. We detain those who are part of al Qaeda, but in a
manner consistent with Common Article 3 of the Geneva Conventions and all other
applicable law.[14]
But,
now that efforts by the U.S. military against al Qaeda are in their 12th year,
we must also ask ourselves: how
will this conflict end? It is an unconventional conflict, against
an unconventional enemy, and will not
end in conventional terms.
Conventional
conflicts in history tend to have had conventional endings.
Two
hundred years ago, our two Nations fought the War of 1812. The United
States lost many battles, Washington, DC was captured, and the White House was
set ablaze. By the winter of 1814 British and American forces had
strengthened their forts and fleets, and assumed that fighting would resume
between them in the spring. But, the war ended when British and American
diplomats in Belgium came to a peace agreement on December 24, 1814.
Diplomats from both sides then joined together in a Christmas celebration at
Ghent cathedral. Less than eight weeks later, the U.S. Senate provided advice
and consent to that peace treaty, which for the United States legally and
formally terminated the conflict.[15]
In
the American Civil War, the Battle of Appomattox was the final engagement of
Confederate General Robert E. Lee’s great Army of Northern Virginia, and one of
the last battles of that war. After four years of war, General Lee
recognized that “[i]t would be useless and therefore cruel to provoke the
further effusion of blood.” Three days later the Army of Northern Virginia
surrendered.[16] Lee’s army then marched to the field in
front of Appomattox Court House, and, division by division, deployed into line,
stacked their arms, folded their colors, and walked home empty-handed.[17]
The
last day of the First World War was November 11, 1918, when an armistice was
signed at 5:00 a.m. in a railroad carriage in France, and a ceasefire took
effect on the eleventh hour of the eleventh day of the eleventh month of 1918.
The
Second World War concluded in the Pacific theater in August 1945, with a
ceremony that took place on the deck of the USS Missouri.
During
the Gulf War of 1991, one week after Saddam Hussein’s forces set fire to oil
wells as they were driven out of Kuwait, U.S. General Schwarzkopf sat down with
Iraqi military leaders under a tent in a stretch of the occupied Iraqi desert a
few miles from the Kuwaiti border. General Schwarzkopf wanted to keep
discussions simple; he told his advisors: “I just want to get my soldiers home
as fast as possible . . . I want no ceremonies, no handshakes.”[18] In the space of two hours they had
negotiated the terms of a permanent cease-fire to end the First Gulf War.[19]
We
cannot and should not expect al Qaeda and its associated forces to all
surrender, all lay down their weapons in an open field, or to sign a peace
treaty with us. They are terrorist organizations. Nor can we
capture or kill every last terrorist who claims an affiliation with al Qaeda.
I
am aware of studies that suggest that many “terrorist” organizations eventually
denounce terrorism and violence, and seek to address their grievances through
some form of reconciliation or participation in a political process.[20]
Al Qaeda is not in
that category.
Al
Qaeda’s radical and absurd goals have included global domination through a
violent Islamic caliphate, terrorizing the United States and other western
nations from retreating from the world stage,[21] and the destruction of Israel. There is no
compromise or political bargain that can be struck with those who pursue such
aims.
In
the current conflict with al Qaeda, I can offer no prediction about when
this conflict will end, or whether we are, as Winston Churchill described it,
near the “beginning of the end.”
I
do believe that on the present course, there will come a tipping point – a tipping
point at which so many of the leaders and operatives of al Qaeda and its
affiliates have been killed or captured, and the group is no longer able
to attempt or launch a strategic attack against the United States, such
that al Qaeda as we know it, the organization that our Congress authorized
the military to pursue in 2001, has been effectively destroyed.
At
that point, we must be able to say to ourselves that our efforts should no
longer be considered an “armed conflict” against al Qaeda and its associated
forces; rather, a counterterrorism effort against individuals
who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated
with al Qaeda, for which the law enforcement and intelligence resources of our
government are principally responsible, in cooperation with the international
community – with our military assets available in reserve to address continuing
and imminent terrorist threats.
At
that point we will also need to face the question of what to do with any
members of al Qaeda who still remain in U.S. military detention without a
criminal conviction and sentence. In general, the military’s
authority to detain ends with the “cessation of active hostilities.”[22] For this particular conflict, all I can say today is
that we should look to conventional legal principles to supply the answer, and
that both our Nations faced similar challenging questions after the cessation
of hostilities in World War II, and our governments delayed the release of some
Nazi German prisoners of war.[23]
For
now, we must continue our efforts to disrupt, dismantle and ensure a lasting
defeat of al Qaeda. Though severely degraded, al Qaeda remains a threat
to the citizens of the United States, the United Kingdom and other
nations. We must disrupt al Qaeda’s terrorist attack planning
before it gets anywhere near our homeland or our citizens. We must counter
al Qaeda in the places where it seeks to establish safe haven, and prevent it
from reconstituting in others. To do this we must utilize every national
security element of our government, and work closely with our friends and
allies like the United Kingdom and others.
Finally,
it was a warfighting four-star general who reminded me, as I previewed these
remarks for him, that none of this will ever be possible if we fail to
understand and address what attracts a young man to an organization like al
Qaeda in the first place. Al Qaeda claims to represent the interests of
all Muslims. By word and deed, we must stand with the millions of
people within the Muslim world who reject Al Qaeda as a marginalized,
extreme and violent organization that does not represent
the Muslim values of peace and brotherhood. For, if al Qaeda can recruit
new terrorists to its cause faster than we can kill or capture them, we fight
an endless, hopeless battle that only perpetuates a downward spiral of hate,
recrimination, violence and fear.
“War”
must be regarded as a finite, extraordinary and unnatural state of
affairs. War permits one man – if he is a “privileged belligerent,”
consistent with the laws of war — to kill another. War violates the
natural order of things, in which children bury their parents; in war parents
bury their children. In its 12th year, we must not accept
the current conflict, and all that it entails, as the “new normal.”
Peace must be regarded as the norm toward which the human race continually
strives.
Right
here at Oxford you have the excellent work of the Changing Character of War
program: leading scholars committed to the study of war, who have observed that
analyzing war in terms of a continuum of armed conflict — where military force
is used at various points without a distinct break between war and peace — is
counterproductive. Such an approach, they argue, results in an erosion of
“any demarcation between war and peace,” the very effect of which is to create
uncertainty about how to define war itself.[24]
I
did not go to Oxford. I am a graduate of a small, all-male historically
black college in the southern part of the United States, Morehouse
College. The guiding light for every Morehouse man is our most famous
alumnus, Martin Luther King, who preached the inherent insanity of all
wars. I am therefore a student and disciple of Dr. King – though I became
an imperfect one the first time I gave legal approval for the use of military
force. I accepted this conundrum when I took this job. But, I still
carry with me the words from Dr. King: “Returning hate for hate multiples hate,
adding deeper darkness to a night already devoid of stars … violence multiplies
violence, and toughness multiplies toughness in a descending spiral of
destruction … The chain reaction of evil—hate begetting hate, wars producing
more wars—must be broken, or we shall be plunged into the dark abyss of
annihilation.”[25]
Thank
you again for the honor and the opportunity to be in this special place, and
thank you for listening to me.
[1] With the valuable research assistance of David A. Simon,
Special Counsel to the General Counsel (J.D., Harvard Law School; M.Phil.,
International Relations, Oxford University).
[2] George Gordon, Lord Byron, “Ode to Napoleon
Buonaparte.” Available at:
http://theotherpages.org/poems/2001/byron0101.html
[3] Memorandum of Understanding between The Islamic Republic
of Afghanistan and the United States of America On Transfer of U.S. Detention
Facilities in Afghan Territory to Afghanistan, March 9, 2012.
[4] Memorandum of Understanding between The Islamic Republic
of Afghanistan and the United States of America on Afghanization of Special
Operations on Afghan Soil, April 8, 2012.
[5] Enduring Strategic Partnership Agreement between the
Islamic Republic of Afghanistan and the United States of America, May 1, 2012.
[6] “A Strong Britain in an Age of Uncertainty: The National
Security Strategy,” presented to Parliament by the Prime Minister by Command of
Her Majesty, October 2010, available on http://www.official-documents.gov.uk/
[7] Hamdan v. Rumsfeld, 548 U.S. 557,
630-31 (2006) (holding that the United States is in a non-international armed
conflict with al Qaeda).
[8] See Respondent’s Memorandum Regarding the
Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In
re: Guantanamo Bay Detainee Litig., Misc. No. 08-0442, at 1 (D.D.C. March
13, 2009).
[9] See e.g., Al-Adahi v. Obama,
613 F.3d 1102, 1103 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1001
(2011); Awad v. Obama, 608 F.3d 1, 11-12 (D.C.
Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011).
[10] See Section 1021 of the National Defense
Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298
(December 31, 2011).
[11] Remarks by Jeh Charles Johnson, Dean’s Lecture at Yale
Law School, “National Security Law, Lawyers and Lawyering in the Obama
Administration,” (February 22, 2012).
[12] Remarks by John Brennan, Assistant to the President for
Homeland Security and Counterterrorism, Woodrow Wilson Center, Washington, DC,
April 30, 2012, available at:http://www.whitehouse.gov/the-press-office/remarks-assistant-president-homeland-security-and-counterterrorism-john-brennan-csi
[13] Hamdi v. Rumsfeld, 542 U.S. 507,
519 (2004) (“detention to prevent a combatant’s return to the battlefield is a
fundamental incident of waging war”).
[14] Geneva Convention Relative to the Treatment of Prisoners
of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
[15] Treaty of Peace and Amity (Treaty of Ghent), U.S.-Gr.
Brit., art. IX, Dec. 24, 1814, 8 Stat. 218. The treaty entered into force
for the United States on February 17, 1815. The parties to the Treaty were
Britain and the United States.
[16] U.S. Library of Congress, Today in History:
April 9, available athttp://memory.loc.gov/ammem/today/apr09.html.
[17] Id. at 630-631
[18] Shyam Bhatia, Daniel McGrory, Brighter Than the Baghdad Sun:
Saddam Hussein’s Nuclear Threat to the United States, available at: http://tinyurl.com/8rttl4v.
[19] Encyclopedia Britannica, Persian Gulf War, available
at:http://www.britannica.com/EBchecked/topic/452778/Persian-Gulf-War;
History.Com, Topic: Persian Gulf War, available at: http://www.history.com/topics/persian-gulf-war. Gulf
War: Background Briefing, CBS News, available at: http://www.cbsnews.com/2100-500164_162-2524.html.
Philip Shenon, After The War: Cease-Fire Meeting; A Hard-Faced Schwarzkopf Sets
Terms at Desert Meeting, New York Times, March 4, 1991, available at:http://www.nytimes.com/1991/03/04/world/after-war-cease-fire-meeting-hard-faced-schwarzkopf-sets-terms-desert-meeting.html
[20] Seth G. Jones & Martin C. Libicki, How Terrorist
Groups End: Lessons for Countering al Qa’ida 13 (2d ed. 2008) (RAND Corp.).
[21] Remarks by John Brennan, Assistant to the President for
Homeland Security and Counterterrorism, Paul H Nitze School of Advanced
International Studies, Washington, DC, June 29, 2011, available at http://www.whitehouse.gov/the-press-office/2011/06/29/remarks-john-o-brennan-assistant-president-homeland-security-and-counter.
[22] See Geneva Convention Relative to the
Treatment of Prisoners of War, art. 118, Aug. 12, 1949, 6 U.S.T. 3316, 75
U.N.T.S. 135 (“Prisoners of War shall be released and repatriated without delay
after the cessation of active hostilities.”).
[23] Regarding post-hostilities detention during the
conclusion of World War II, see Ludecke v. Watkins 335 U.S.
160 (1948) (holding that the President’s authority to detain German nationals
continued for over six years after the fighting with Germany had ended); See
alsoAlien Enemy Act of 1798 50 U.S.C. §§21-24 (2000). See James
Richards, British Broadcasting Corporation, Life in Britain for German
Prisoners of War, (noting that by the end of 1947, 250,000 of the prisoners of
war were repatriated, and the last repatriation took place in November 1948);
available at:http://www.bbc.co.uk/history/british/britain_wwtwo/german_pows_01.shtml.
[24] The Changing Character of War 10-11 (Hew Strachan &
Sibylle Scheipers eds., Oxford University Press 2011).
[25] Martin Luther King, Jr., Loving Your Enemies 53 (1981).
Don’t Close Guantánamo By JENNIFER DASKAL
Don’t
Close Guantánamo
By
JENNIFER DASKAL Published: January 10,
2013
IN
2010, I was branded a member of the “Al Qaeda 7” — a notorious label attached
to Department of Justice lawyers who were mocked by critics claiming they had “flocked
to Guantánamo to take
up the cause of the terrorists.” My crime: I advocated for the closure of the
detention facility — a position that has also been taken up by the likes of
former President George W. Bush, former Secretary of Defense Robert M. Gates
and former Secretary of State Colin L. Powell — and for more humane living
conditions for those imprisoned there.
At
the time, I reacted defensively. I was indignant. I insisted on the legitimacy
of my convictions. But even then the writing was on the wall. For a core group
of detainees, closing Guantánamo would
not mean release or prosecution, as most human rights and civil liberties
groups have long advocated. Rather, it
would mean relocation to the United States, or elsewhere, for continued
detention.
Now,
almost four years later, I have changed my mind. Despite recognizing the many
policy imperatives in favor of closure, despite the bipartisan support for this
position, and despite the fact that 166 men still
languish there, I now believe that
Guantánamo should stay open — at least for the short term.
While
I have been slow to come to this realization, the signs have been evident for
some time. Three years ago, Barack Obama’s administration conducted a
comprehensive review of the Guantánamo detainees and concluded that about four dozen prisoners
couldn’t be prosecuted, but were too dangerous to be transferred or released.
They are still being held under rules of war that allow detention without
charge for the duration of hostilities.
Others
happened to hail from Yemen. Although many of them were cleared for transfer, the
transfers were put on indefinite hold because of instability in Yemen, the
fear that some might join Al Qaeda forces, and Yemen’s inability to put
adequate security measures in place.
While
the specific numbers have most likely shifted over time, the basic categories
persist. These are men whom the current administration will not transfer,
release or prosecute, so long as the legal authority to detain, pursuant to the
law of war, endures.
President
Obama raised the hopes of the human rights community when during his
re-election campaign he once again said the detention center should be closed.
But it was not clear whether he had a viable plan, and any such plan would
almost certainly involve moving many of the detainees into continued detention
in the United States, where their living conditions would almost certainly
deteriorate.
Guantánamo
in 2013 is a far cry from Guantánamo in 2002. Thanks to the spotlight placed on
the facility by human rights groups, international observers and detainees’
lawyers, there has been a significant, if not
uniform, improvement in conditions.
The
majority of Guantánamo detainees now live in communal facilities where they
can eat, pray and exercise together. If moved to the United States,
these same men would most likely be held in military detention in
conditions akin to supermax prisons — confined to their cells 22
hours a day and prohibited from engaging in group activities, including
communal prayer. The hard-won improvements in conditions would be ratcheted
back half a decade to their previous level of harshness.
And
Guantánamo would no longer be that failed experiment on an island many miles
away. The Obama administration would be affirmatively creating a new system of
detention without charge for terrorism suspects on American soil, setting a
precedent and creating a facility readily available to future presidents
wanting to rid themselves of a range of potentially dangerous actors.
The
political reality is that closure of Guantánamo is unlikely to happen anytime
soon, and if it did, it would do more harm than good. We should instead focus
on finding places to transfer those cleared to leave the facility and, more
important, on defining the end to the war.
In
a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a
future “tipping point”
at which Al Qaeda would be so decimated
that the armed conflict
would be deemed over. Statements from high level officials suggest that
this point may be near. And as the United States pulls out of Afghanistan,
there is an increasingly strong argument that the war against Al Qaeda is
coming to a close. With the end of the conflict, the legal justification for
the detentions will finally disappear.
At
that point, the remaining men in Guantánamo can no longer be held without
charge, at least not without running afoul of basic constitutional and
international law prohibitions. Only then is there a realistic hope for
meaningful closure, not by recreating a prison in the United States but through
the arduous process of transferring, releasing or prosecuting the detainees
left there.
In
the meantime, we should keep Guantánamo open.
Jennifer
Daskal is a fellow and adjunct professor at Georgetown Law Center. She
has served as counsel to the assistant attorney general for national security
at the Department of Justice and as senior counterterrorism counsel at Human
Rights Watch. (
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