Legal Commentary

Hello out there and thanks to my colleague Dan for inviting me for another guest stint on Prawfs Blawg.

This past Thursday,  Lieutenant Colonel Stuart Couch, a prosecutor at the Office of Military Commissions, was kind enough to speak at FSU Law School as part of a Human Rights and National Security Series hosted by the FSU Center for the Advancement of Human Rights.  In particular, Lt. Col. Couch focused his talk on his decision to refuse to prosecute Mohamedou Ould Slahi, a detainee at Guantanamo Bay suspected of having ties to the Hamburg cell of Al-Qaeda. Based on his belief that Slahi had been subject to torture, he decided that the evidence acquired after such enhanced interrogation techniques was unreliable.

A few things about Lt Col Couch's speech stuck out to me. The first was that his reliance on faith to describe his moral compass in this situation sounded very similar to the more secular perspective on human rights I teach in my laws of war class. His belief in the inherent dignity of man came at least partly from a religious perspective, but was also couched in the language and framework of international law and international norms.  I thought his behavior and his speech was valuable evidence of the way in which international law and norms are both shaped by and in turn shape domestic actors.  While many in the audience seemed to come from a different starting point, such language and ideas seemed to provide common ground.

Second, while Lt Col Couch made no mention of any overt pressure to prosecute and secure convictions in the Slahi case, it seems likely such pressure existed. Yet he felt the larger international (and domestic norms) dictated his behavior. He said, "It's a violation of our domestic law, it is a violation of our values as Americans, and a violation of international norms and laws. The debatable thing now is whether the cruel, inhumane or degrading treatment of a particular detainee falls under the same category. (...) Some of this stuff gets to the point where it really tears at the fabric of what we are as Americans and our American values." I thought this quotation was nice evidence of the sort of norm internalization that internationalists are hoping to promote in the human rights area.

Finally, I wanted to throw out a quick question to the readers.  When I originally listened to Couch's speech, I was envisioning him as a norm entrepreneur. But the more I think about it,  the more I think that he might be more of a norm abider- as he would characterize his choices as dictated by existing norms and laws. I try to teach my laws of war class with an eye toward norm entrepreneurs such as Henri Dunant (the author of A History of Solferino) and Jody Williams (proponent of the landmine ban). Any nominations for norm entrepreneurs in reference to the War on Terror?