Jack L. Goldsmith

Teddy Svoronos brings this fascinating piece by Jack Goldsmith to my attention. Writing in Slate, Goldsmith offers some useful advice to the next president regarding legal policy and the "War of Terror."  Goldsmith explains:

Don't count on the next president to undo George W. Bush's legal policies in the war on terrorism. All three remaining presidential candidates have pledged to close the detention camp at Guantanamo Bay, pay greater respect to law, tamp down unilateral presidential powers, and enhance America's stature abroad. But many controversial Bush administration policies have already been revised to satisfy congressional and judicial critics. And after receiving a few harrowing threat briefings and absorbing the awesome personal responsibility of keeping Americans safe, the new commander in chief won't rush to eliminate the Bush program as it stands next January. He or she will realize that any legal climb-down that is later perceived as even indirectly responsible for an attack would be a personal and political disaster.

Aggressive counterterrorism policies will thus continue into the next presidency. They will, however, be wrapped in more attractive packaging and adjusted in ways appropriate for an indefinite conflict.

Accordingly, Goldsmith makes the following recommendations:

• Boost trust and credibility
• Work with Congress
• Give the telecommunications carriers immunity
• Close Guantanamo
• Establish a national-security court
• Work with allies to establish an international legal framework for terrorists
• Fix interrogation

Svoronos finds that Goldsmith's most interesting comment relates to his recommendation for establishing an international legal framework for terrorists. Goldsmith notes:

To achieve this goal, the United States must stop talking about which international laws do not govern the detention of terrorists and start talking about which ones do.

He elaborates:

The Supreme Court took a step in this direction when it determined two years ago that Common Article 3 of the Geneva Conventions—which provides minimal and rather abstract rights to enemy combatants—governs the conflict with al-Qaida. The United States can flesh out the meaning of Common Article 3 by drawing on some aspects of Article 75 of the First 1977 Protocol to the Geneva Conventions, which provides more elaborate minimum-warfare standards. The United States has rightly opposed ratifying the protocol in all its details for fear of legitimizing terrorism, and Article 75 itself contains vague provisions that in the wrong hands might be viewed as too restrictive. But these uncertainties are also an opportunity for the United States to draw on higher international standards to flesh out the meaning of Common Article 3 while at the same time shaping these standards to its own conception of appropriate justice.

Is it possible to get an international consensus on this issue? Goldsmith argues:

There is more room for international agreement on these issues than one might think. The foreign affairs committee of the House of Commons recently concluded that the Geneva Conventions "lack clarity and are out of date" and urged the British government to "update the conventions in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detainees." The German foreign minister and an important European security organization have made similar recommendations. And last year, John Bellinger—the State Department legal adviser who has worked hard to bridge differences with allies on these topics—convened an important meeting at West Point with legal advisers from seven allied nations to forge consensus on these issues. The next president with fresh goodwill should build on these developments.

I hope Goldsmith is correct. I think it is time for a new protocol to the Geneva Conventions to address the lacunae in  exisitng law relating to non-state actors, such as al Qaeda. But more on this later.