Saturday, August 26, 2006

Laurence Douglas on global law in the TLS online

While I'm at it mentioning reviews in the TLS, this review available online in the TLS, here, is well worth reading. Laurence R. Douglas, "Interpreting Global Law," TLS, May 10, 2006, reviewing Philippe Sands, Lawless World, and John Yoo, The Powers of War and Peace.

I have met Philippe at a couple of conferences and think he is a terrific guy. But I must demur from the tears that, in effect, he sheds for the Saddam regime - as Douglas puts it, ironically I assume in his case, but not ironically in Sands' case, referring to the United States, "no one likes to see the bully break the rules with impunity." Surely this carries the mania for global law a bit far? What, one wonders, of Saddam - no bully there, eh? It is of a piece with the current nostalgia of the new liberal-realists for Saddam, suddenly forgetting the vicious history of that regime in order to tout the new liberal-realist virtues of containment of and accommodation to murderous dictators. And forgetting about his if anything even crazier (happily now dead) sons.

As for John Yoo - I like John as well, and I think that his arguments get far shorter shrift than they deserve. All you have to do to write off his book is say the word "torture," and that's that. I don't pretend to be a con law scholar, but Yoo's actual arguments seem far more intellectually powerful, even if one does not finally accept them, than his too-quickly dismissive critics give credit.

My own view is split - in the purely intellectual space of my attic study, I think Yoo makes a powerful academic case for his view of executive power. Does he persuade me? I have on days and off days. Mostly, though, I don't reach that question. In the real world, as the political world stands today, the fact is that one has to choose between an abstract view of executive discretion and pursuing the war on terror is just how it is. The Bush administration should mark well that "what lives by executive discretion also dies by executive discretion."

The Bush administration, that is, having gone to a great deal of trouble to persuade me that the war on terror is real and will be long, should not leave it as a discretionary activity of some future administration. It should go to Congress and institutionalize it as policy of the US as a whole, not merely of a, or any, presidential administration. If I have to choose - as I think we today have to do - between an abstract theory of presidential power and actually, practically pressing forward the war on terror, I'll pick the latter, each and every time.

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