No sooner did I criticize Slate Magainze for not including war law in its military fix-it list, then Jack Goldsmith posts on fixing "The Laws in Wartime."
Among his suggestions:
1) "Close Guantanamo." (He doesn't address what to do with the detainees or why closing Guantanamo is preferable to simply upholding detainee rights there.)
2) "Boost Trust" (By - wait for it - making more threat information available to a public that distrusts the government for inflating threats. Question: to what classified arseal of threat data does Goldsmith have access on which to build this case?)
3) "Fix Interrogation." He thinks we can do this not by preventing the CIA from breaking the rules, but by requiring the President to "make a classified finding giving reasons why aggressive techniques are required":
"This approach would maintain the option of using lawful interrogation techniques that might stave off a crisis, while at the same time addressing legitimate concerns about... legal compliance."Come again? Lawful interrogation techniques are already an "option"; we don't require torture warrants for them. And how would another layer of justification for wanton violations of international law address concerns about the law?
One thing Goldsmith suggests makes sense: that the US should work with its allies to clarify how to apply the laws of war to asymmetric conflicts, instead of contining to interpret international law unilaterally. There is more support than is recognized for modifying the "quaint" old rules, but to be more than just treaty noncompliance the US needs to get its allies on board.
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