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Shaping Foreign Policy in Times of Crisis
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Shaping Foreign Policy in Times of Crisis
Cambridge University Press
9780521766807 - Shaping Foreign Policy in Times of Crisis - THE ROLE OF INTERNATIONAL LAW AND THE STATE DEPARTMENT LEGAL ADVISER - By Michael P. Scharf and Paul R. Williams
Frontmatter/Prelims

SHAPING FOREIGN POLICY IN TIMES OF CRISIS

Shaping Foreign Policy in Times of Crisis grew out of a series of meetings that the authors convened with all ten of the living former U.S. State Department Legal Advisers (from the Carter Administration to that of George W. Bush). Based on their insider accounts of the role that international law actually played during the major crises on their watch, the book explores whether international law is real law or just a form of politics that policymakers are free to ignore whenever they perceive it to be in their interest to do so.

Written in a style that will appeal to the casual reader and serious scholar alike, this book includes a foreword by the Obama Administration’s State Department Legal Adviser, Harold Koh; background on the theoretical underpinnings of the compliance debate; roundtable discussions with the U.S. State Department Legal Advisers and with Foreign Ministry Legal Advisers; an in-depth case study of the treatment of detainees in the war on terror; and a comprehensive glossary of the terms, names, places, and events that are addressed in the book.

Michael P. Scharf is the John Deaver Drinko–Baker & Hostetler Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law.

Dr. Paul R. Williams holds the Rebecca Grazier Professorship in Law and International Relations at American University, where he teaches in the School of International Service and the Washington College of Law.

Scharf and Williams both served in the Office of the Legal Adviser during the elder Bush and Clinton Administrations. In February 2005, Scharf, Williams, and the Public International Law and Policy Group, a nongovernmental organization they cofounded and direct, were nominated for the Nobel Peace Prize by six governments and the Chief Prosecutor of the Special Court for Sierra Leone for their work in helping with peace negotiations and war crimes prosecutions.


Shaping Foreign Policy in Times of Crisis

THE ROLE OF INTERNATIONAL LAW AND THE STATE DEPARTMENT LEGAL ADVISER

Michael P. Scharf

Case Western Reserve University School of Law

Paul R. Williams

American University Washington College of Law


CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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www.cambridge.org
Information on this title: www.cambridge.org/9780521167703

© Michael P. Scharf and Paul R. Williams 2010

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2010

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication dataScharf, Michael P., 1963–Shaping foreign policy in times of crisis : the role of international law and the statedepartment legal adviser / Michael P. Scharf, Paul R. Williams.p. cm.Includes bibliographical references and index.ISBN 978-0-521-76680-7 (hardback)1. International law – United States. 2. United States – Foreign relations – Law andlegislation. I. Williams, Paul R. II. TitleKF4581.S33 2010342.73′0412 – dc22 2009036861

ISBN 978-0-521-76680-7 Hardback
ISBN 978-0-521-16770-3 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.


Dedicated to the memory of Henry T. King, 1919–2009

Henry King was the youngest prosecutor at the Nuremberg trial; he subsequently served as General Counsel of the Agency for International Development during the Eisenhower Administration; worked as chief corporate international counsel for TRW Inc. and as counsel for Squire, Sanders & Dempsey LLP; headed the ABA's International Law Section; founded the Greater Cleveland International Lawyers Group; was appointed Honorary Consul of Canada to Cleveland and Northeast Ohio; and served for twenty-eight years as a Case Western Reserve University School of Law Professor and Director of Case's Canada–United States Law Institute.

He was an extraordinary colleague, mentor, and friend.


Contents

Acknowledgments
ix
Foreword: America’s Conscience on International Law Harold Hongju Koh
xi
Introduction
xix
1     The Compliance Debate
1
2     A Brief History of L
15
3     The Path to L
19
4     The Carter Administration – Herbert J. Hansell (1977–1979)
37
5     The Carter Administration – Roberts B. Owen (1979–1981)
47
6     The Reagan Administration – Davis R. Robinson (1981–1985)
55
7     The Reagan and Bush Administrations – Abraham D. Sofaer (1985–1990)
65
8     The Bush (41st) Administration – Edwin D. Williamson (1990–1993)
87
9     The Bush (41st) Administration – Michael J. Matheson
95
10    The Clinton Administration – Conrad K. Harper (1993–1996)
103
11    The Clinton Administration – David R. Andrews (1997–2000)
113
12    The Bush (43rd) Administration – William H. Taft IV (2001–2005)
127
13    The Bush (43rd) Administration – John B. Bellinger III (2005–2009)
135
14    Department of State Legal Advisers’ Roundtable
147
15    Foreign Legal Advisers’ Roundtable
169
16    Lawyering the Treatment of Detainees in the War on Terrorism
181
17    Conclusion
201
Glossary of Terms
217
Notes
251
Annex: Legal Advisers of the U.S. Department of State
283
Select Bibliography of Legal Scholarship by Department of State Legal Advisers
285
About the Authors
291
Other Books by the Authors
295
Index
297

Acknowledgments

Several people and entities deserve special recognition for the assistance they have furnished us during this project. Foremost among those are the ten former State Department Legal Advisers, who provided their candid accounts of the role of international law during the crises that occurred on their watch: Herbert Hansell, Roberts Owen, Davis Robinson, Abraham Sofaer, Edwin Williamson, Michael Matheson, Conrad Harper, David Andrews, William Taft IV, and John Bellinger III. Special thanks also to Harold Hongju Koh, the current occupant of that position, who provided such an insightful foreword to the book.

In addition, we would like to thank Professor Carol Fox for editing the transcripts of the sessions with the Legal Advisers; attorneys Lauren Baillie and Bridget Rutherford from the Public International Law & Policy Group for their research assistance; Jennifer Hines for preparing the index; and the following Case Western Reserve University School of Law and American University Washington College of Law students, who helped with the footnotes: Sarah Antonucci, Andrew Bramante, Brant Dichiera, Corey Fredericks, Kavitha Gridhar, Jennifer Hoover, Brian Klesh, Allison Kretz, Jared Livingston, Jennifer Mesko, Obiahjulu Okuh, Tom Renz, Mathew Shupe, and Nadeah Vali.

Moreover, we would like to express our gratitude to the following academic colleagues, who provided comments on an early draft of the book manuscript: Laura Dickinson of Arizona State Law School, Charles Garraway of Chatham House, Larry Helfer of Duke Law School, Linda Malone of William and Mary Law School, Greg McNeal of Penn State Law School, Michael Newton of Vanderbilt Law School, Mark Osiel of the T.M.C. Asser Institute, Elies van Sliedregt of Free University in Amsterdam, and Ingrid Wuerth of Vanderbilt Law School.

We are also deeply appreciative of the financial and institutional support provided by the Carnegie Corporation of New York, the Public International Law and Policy Group, Case Western Reserve University School of Law, and American University, without which this project would not have been possible. In addition, we thank the American Society of International Law (ASIL) for hosting our U.S. and foreign Legal Adviser roundtables, and then ASIL President Anne Marie Slaughter for moderating the session with the U.S. Legal Advisers.

We are also indebted to John Berger, who had faith in this project from the beginning, and his team at Cambridge University Press, who improved our text in innumerable ways. Many thanks to freelance copy editor, Ellen Tirpak.

We also thank the editors of the Cardozo Law Review, noting that portions of this work were originally published in Michael P. Scharf, International Law in Crisis: A Qualitative Empirical Contribution to the Compliance Debate, 31 Cardozo L. Rev. 45 (2009).

Finally, and most importantly, we would like to thank our wives, Trina Scharf and Kathy Williams, and our families, who permit us to live, work, and write in ways that often complicate their lives.




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