Academic journal article Case Western Reserve Journal of International Law

Eroding the Foundations of International Humanitarian Law: The United States Post-9/11

Academic journal article Case Western Reserve Journal of International Law

Eroding the Foundations of International Humanitarian Law: The United States Post-9/11

Article excerpt

It is a real privilege to be back here at Case Western Reserve. As Professor Scharf mentioned, this is my third time standing here and talking to this audience. Some of you have been here for all three, and for some, this is the first, but it really is a privilege. I mean, for two counts:

Mainly, it is good to be out of Washington. The air just seems much fresher here in Cleveland than Washington. If you were up last night, as I was, watching to see if our government was going to pass a budget and get back to work, it just seems a lot fresher here than it does back in D.C. So I am glad to be here and not there.

Second--and probably most importantly--I told my wife before I left, I said, "God, I hope they give me another one of those Case Western pullover police jackets," because I got a blue one when I was here the first time, and I got a tan or a beige one the second time, and this time I got a gray one. And I have just about worn out the first two. So I have to come here at least every two years to get a new pullover because I wear those things constantly in the summer.

Apparently, there are a lot of Case alumni in the D.C. area because when I wear it, I get stopped quite often. "Hey, did you go to Case, too?" And this is my fourth trip because Henry King invited me back for the Niagara Moot Court competitions. So I think after four trips here, I at least qualify for a Masters or something.

So it really is a privilege, and thank you to Professor Scharf, Professor Cover, and to Ms. Pratt and all the others who have gone out of their way to make this possible. And also, thank you to Howard University for allowing me to be here.

As Professor Cover mentioned, I resigned during the Bush Administration, which didn't endear me to the Republican side, and then I criticized President Obama for back peddling on Guantanamo, which didn't endear me to the Democrats. And in Washington, when you aggravate both the Republicans and the Democrats, finding a job can be difficult. So I am very grateful to Howard University for giving me a home for the last three years and the freedom to go out and write and speak and do the kind of things that I think are important. And so it is a great privilege to be here.

At times I feel like Don Quixote, tilting at this windmill at Guantanamo that has been there now for eleven and a half years and this military commissions process that President Bush authorized on November 13, 2001. So almost a dozen years we have been attempting this process, and it has been a failure.

And it is discouraging at times, but to me, I am optimistic because of people like you; that you will take an hour out of your day and come and sit and listen, and you came before to hear General Martins. And I really appreciate that: that you are willing to take time to think and listen where, for the vast majority of the public, this is out of sight and out of mind, and they don't really care. So I commend you for your commitment.

So what I want to talk about today is how I went from the guy on the top row (when I am standing on the steps of the courthouse in Washington or standing on the steps of the courthouse in Guantanamo) defending the process, as the leading advocate for Guantanamo, to the person on the bottom row who is speaking out in the media, who went from standing on the steps of the courthouse to standing on the steps of the White House leading a protest to close Guantanamo. It seems like a change of position that seems impossible to imagine, and I am often asked if--at the top row--if I was insincere in just toeing the company line, and what I hope to show you today is that I wasn't. I believe we were committed to doing this right.

I told the first meeting I had with the prosecution team in 2005, I mean, this school has a close connection to Nuremberg and Henry King. When I was here in 2006 and I spoke, there was a faculty luncheon, and I did a presentation for the faculty at the luncheon. …

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