A Bush Official Blogs His Case
Readers of the international legal and political weblog Opinio Juris were treated to a rare opportunity this week to express their views, raise some questions, and even throw some brickbats at a top Bush administration official who played a central role in crafting and trying to temper the administration's controversial legal strategies in the war on terrorism, implemented after the terrorist attacks of Sept. 11, 2001.
All week, John Bellinger, the legal adviser and, as such, the top lawyer to the Department of State, is making an appearance on Opinio Juris as a guest blogger and offering explanations, context, and a spirited defense of the administration's policies and strategies. Bellinger has intimate inside knowledge of the internal deliberations after the 9/11 attacks on how to respond to the terrorist strikes and how to handle al Qaeda and Taliban members captured on the battlefield in Afghanistan and other countries in the subsequent war on terrorism campaign.
From February 2001 to January 2005, Bellinger served in the White House as senior associate counsel to the president and legal adviser to the National Security Council. In those capacities, he played a critical role, after the 9/11 attacks, in advising the president, then National Security Adviser Condoleezza Rice, and the NSC about all of the hot-potato legal issues pertaining to the war on terrorism, including designating the U.S. Naval Base in GuantÃÂánamo Bay, Cuba, to hold so-called terror suspects, the treatment of detainees captured, the creation of military tribunals to prosecute them, and the administration's interpretation of the law of war and its use of the term "unlawful enemy combatants" to argue that al Qaeda suspects were not eligible for the protections of Article 3 of the Geneva Conventions. Deeply concerned at the administration's extraordinary assertion of presidential authority to carry out these policies without congressional fiat, Bellinger repeatedly tried to modulate many of these policies, resulting in some shouting matches and deep fissures with key players on President Bush's team, including then White House counsel Alberto Gonzales–who's now the attorney general–and, in particular, David Addington, who was at the time the legal counsel to Vice President Cheney and a central architect of the policies of the war on terrorism.
Since moving to the State Department, Bellinger has traveled ceaselessly around the world, in particular to Europe, to try to quell the deep divisions and concerns on the part of European lawmakers and the public at large and to justify the administration's antiterrorism strategies. And this week, in a series of six blogs, he provided similar deep context for those strategies, how they evolved, and the legal justification for them.
"In this post," Bellinger wrote in one blog, "I would like to take issue with the suggestion that the United States invented the concept of 'unlawful enemy combatants' to avoid providing protections under the Geneva Conventions to al Qaeda and Taliban detainees." Bellinger then challenged the widely held charge that the term "unlawful legal combatants" has, as he put it, "no basis in national and international law," and traced the term back to international humanitarian law, "preceding even the 1949 Geneva Conventions."
Bellinger has received many thoughtful responses to his blogs but also some not-so-civil reactions, including from readers accusing him of "obfuscatory mind games" and, in one instance, of being personally "complicit in the torture and murder" of "innocents whose suffering he so blithely ignores."
Bellinger reflected on his blogging in a note to U.S. News:
"I'm not sure whether this was a fit of 'modernity' or 'madness,' but I've enjoyed the experience. It's very important for us to explain our legal positions and respond to the arguments of our critics, and this seemed like a good way to reach a large audience. Most of the comments have been very civil and thoughtful. But the fact that many of the commenters disagree not just with us but with each other simply demonstrates how difficult these issues are and that there are not easy answers."
In a town where government officials are quick to hide behind anonymity and shed responsibility, Bellinger also has been praised for being willing to take a few hits for the team and, in the process, provide invaluable context and understanding of the extraordinarily complicated legal underpinnings of this administration's war on terrorism policies, which will reverberate globally for decades to come.