Will Obama Administration Signal Return to Rule of Law?

by Brian Baxter

President-elect Barack Obama will have a lot on his plate during his first 100 days in office.

Foremost among the pressing issues he faces: rebuilding America's reputation in the international arena, says Philippe Sands, author of "Torture Team: Rumsfeld's Memo and the Betrayal of American Values." The book, excerpts of which appeared in a May 2008 Vanity Fair feature story, examines how U.S. lawyers abandoned the Geneva Conventions and other international protocols after the 9/11 attacks. (The Am Law Daily's Brian Zabcik conducted a two-part Q&A with Sands about the book in May. You can find those interviews here and here.)

The Am Law Daily caught up with Sands, a noted British professor and practitioner of international law who has been called to testify before Congress three times, to get his take on how an Obama administration might distance itself from the policies of its predecessor.

In your opinion, how far has the U.S. strayed from international norms during the past eight years?

The worst excesses occurred in the first term, but many were allowed to linger into the second. I think there was a conscious effort to do some minimal cleanup and we saw a few instances of what I call "re-engagement." But taken as a whole, the last eight years have been catastrophic for perceptions of the U.S. around the world and its capacity to fulfill its historic engagement with the rule of law. That's the crucial point.

Is the U.S. still that "beacon of law" to the international community?

We all hold the U.S. to a particular standard because it has been the global leader on the rule of law. And that has significantly eroded. But I think that people distinguish between the U.S. and the administration and so I'm hopeful that however bad it has been, this should not necessarily carry over to the next administration.

I take it the new administration has you hopeful?

With the election of a president who gives every appearance of having a strong connection to the rule of law, I think a lot of people are optimistic that this can be cleaned up. It hasn't been so bad that this is irreparable. The U.S. has a unique place in leading global efforts on the rule of law, which means while there has to be some looking to the past, it's equally important to assist the new administration in repairing the damage and moving on.

What preliminary steps should an Obama administration take that would reassure the international community that change is in the offing?

I think that there are words and then there are actions. I think it would be helpful to go into a little more detail and make explicit the U.S.' re-engagement with the rule of law domestically and internationally. The specifics of that mean no more torture, no more rendition, no more unilateral acts that blatantly violate rules, and developing timetables for shutting down Guantanamo and ending the "assault" on the International Criminal Court. [The U.S.] doesn't need to ratify the ICC but they need to stop demonizing it.

The new administration should also commit itself to strengthening the rule of law by signing on to existing international agreements or helping lead the negotiations of new agreements. In the early days words are going to be important, but a few actions are also going to be needed.

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