By John Minnis
Legal News
While former judge advocate general John Hutson has deep respect and love for the law, he has utter contempt for the way it was twisted to justify torture.
The dean and president emeritus of the University of New Hampshire School of Law (formerly Franklin Pierce Law Center) minced no words Wednesday, March 2, as a guest speaker hosted by Wayne State University Law School's Program for International Legal Studies and the International Law Student Association.
His talk was titled, "Rules of Engagement in Counterinsurgency Campaigns."
"Jay Bybee should be impeached," he said of the assistant attorney general in the Bush administration who signed off on the so-called "Torture Memos" and who was later nominated and confirmed to the U.S. Court of Appeals. "There is no excuse. He should not be sitting on the bench anywhere."
A North Muskegon native, Hutson earned a Bachelor of Arts degree from Michigan State University, a juris doctor from the University of Minnesota Law School and a Master of Laws from Georgetown University Law Center.
Hutson served as dean and president of the University of New Hampshire School of Law from July 2000 through January 2011. He is a retired rear admiral, and former judge advocate general of the U.S. Navy. He was awarded the Distinguished Service Medal, the Legion of Merit, the Meritorious Service Medal, the Navy Commendation Medal and the Navy Achievement Medal. Hutson also serves on the board of directors of Human Rights First.
"We are very lucky indeed to have John Hutson with us here today," said Wayne Law Professor Gregory Fox, director of the Program for International Legal Studies. "There are many titles that could go before John's name. We're very lucky to have him."
"It's great to be back in Michigan," Hutson said. "I haven't been here since the Obama campaign. I have many good memories of living here."
One memory was reveling on the streets of Detroit in 1968 following the Tigers' winning the World Series in the seventh game against the Cardinals in St. Louis.
"It is good to be back in what I think of as home," he said. "I want to take a moment to congratulate you who are law students who have selected this school and have decided to make the law your profession. It is very special what you are doing."
Hutson said lawyers have to know the law, but they have to practice in the real world. "Great lawyers know the law and real life," he said.
The former admiral said war is a "necessary evil in this day and age" and that "we're not going to get rid of it in this lifetime."
He said fewer and fewer Americans understand war. In testifying before Congress in the 1980s, Hutson said, "virtually everyone on the Armed Services Committee served in the military." It is nearly the opposite today, he said.
The former JAG said he has practiced law for nearly 40 years, and yet the legal fallout in response to the Sept. 11, 2001, terrorist attacks in the United States surprised him.
"Since 9/11," he said, "I learned the law is less important than I thought it was and lawyers are more important than I thought they were."
Hutson pointed out that lawyers can distort the law to make it mean anything they wish--wrong is right, black is white, torture is not torture.
"The law is the floor below which we must not fall, though I submit we have," he said. "The law is the bare minimum of what we must achieve, but I fear we have forgotten that."
The "War on Terror" in Iraq and Afghanistan is not an "existentialist war," he said. "We commit national suicide by calling this an existentialist war. The Cold War was existentialist. This war is not."
He further noted that the current war is not our worst, at least in terms of American body counts. Some 406,000 American died in World War II, he said, and 600,000 died in the Civil War at a time when the population was a 10th of what it is today.
"It is not the last war we are going to fight," he said.
Hutson claimed war is a prelude to peace ... and the next war.
"America's greatest export is not democracy. It is justice," he said. "Justice can exist in the absence of democracy, but democracy cannot exist in the absence of justice."
The law school dean and former admiral cited Irish rock band U2 leader Bono, saying America is more than a nation; it is an "idea."
"We cannot forget who we are as Americans," Hutson said, "or suspend who we are for the duration of the war. That's what some thought. . . It's like virginity: Once you lose it, it's gone."
Hutson said the role of the military is to provide the time and space for a "real solution" to take place. "But the military cannot be the solution itself," he said. "The fighting and dying in remote corners of Afghanistan are not the solution."
The military is not designed to build nations, he said. Rather, "as the Marines say," they are trained to "kill people and break things."
"Bono had it right," Hutson said. "Our strength is not our military, our economy, our resources or our land. Our strength is our ideas, our ideals.
"The enemy is bereft of ideas. Our mistake, and mine too, was calling it a War on Terror, because we defined it on the enemy's terms. We should have called it a War of Ideals.
"The enemy can't beat us militarily. The enemy does not have enough bombs, bullets or body bags. The enemy's goal is to change us, to make us like him. Every time we suspend habeas corpus, every time we have places like Abu Ghraib, the enemy has won a little bit.
"This is the first war where the enemy does not want it to end. Terrorists cannot survive in peace. We thrive in peace."
The admiral discussed the difficulties of fighting a defensive, counterinsurgency war. The goal of counterinsurgency is to win the support of the population, but in many cases the insurgents are the population, he said.
Hutson said "rules of engagement" go back some 1,600 years. Early on, nations required a "reason" for going to war, but once hostilities commenced, there were no rules. Later, nation states could enter war without a reason, but there were rules for conducting the war. After World War II, going to war required justification and the waging of war had rules.
Such rules of engagement prohibited attacking hospitals, flying false flags, issuing "wanted dead or alive" orders and using torture, Hutson said.
"The harsh reality is we violated all of these," he said. By comparison, "in World War II, we sentenced a colonel to 10 years in prison for water boarding."
Hutson pointed out that all soldiers are required to carry a card with the rules of engagement. He said it is a tough matter to judge soldiers who made decisions while in a firefight, "but we have to do that. We have to train them to react instinctively."
Adherence to rules of engagement may cause more American casualties in the short run, he said, "but it will win the hearts and minds of the population."
As an example, he cited the account of a U.S. Navy SEALs team from the book, "Lone Survivor." While searching for a notorious al Qaeda leader in the mountainous Afghanistan-Pakistan border region, the team came across some civilians. The SEALs knew that if they let them go, they would report the team's whereabouts. But they couldn't kill them or take them with them. So they let them go.
Sure enough, the civilians reported the presence of the team, and the SEALs were attacked. Three of the SEALs were killed, along with 16 soldiers attempting a rescue. One SEAL survived.
"So we lose 19 Americans in order to comply with rules of engagement," Hutson said, "and to win the hearts and minds of the population."
He was dismayed that President Obama only devoted two sentences in his State of the Union speech to Afghanistan and Iraq. "The standing ovation lasted longer than his comments on what's going on," he said. "We must uphold the law. That's more important than anything."
Professor Fox asked about the difficulty in fighting a defensive war when the enemy was indistinguishable from the civilians.
"It's difficult to fight a defensive, reactionary war," Hutson agreed, "because you have to be smart and fast, and we are. The enemy has a huge tactical advantage."
Still, he said, America has to take the high ground. "We want them to like us more, or hate us less, than the enemy."
Hutson recalled how shocked he was when he read the Torture Memos. He said he scribbled in the margin, "I can't believe they're saying this" and "I can't believe they are putting this in writing."
"It was a big mistake, and we're still paying the price," he said. "It will take a long, long time to get over this."
Hutson said he is on an amicus brief calling for the investigation and indictment of former Defense Secretary Donald Rumsfeld.
"I think the lack of accountability is a big problem," he said, "and not just in the court of public opinion. We still have indefinite detentions.
"I think using military commissions is a huge mistake. We have a first-rate federal judicial system. It is the gold standard in the world."
Federal courts have prosecuted 400 terrorists, Hutson said, versus the military commissions' seven.
"We should be shouting it from the rooftops," he said, "rather than worrying someone might be acquitted."
One student asked about the situation in Libya and the justification of the population there to topple the legitimate government of Muammar Gaddafi.
"He's not making much more sense than Charlie Sheen's making," Hutson said of Gaddafi. "It's one of those situations where there's not a good solution, but just letting it blow up is not a good solution either."
Published: Thu, Mar 10, 2011
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