Balkinization: The CIA Interrogation Executive Order: Well, Did You Really Expect Anything Better?

Comments:

So, I take it you wouldn't buy into "torture warrants" proposed by Professor Dershowitz either?

# posted by

Charles : 4:21 PM

And, from the GC, unpriveleged (or unlawful, if you prefer that bent)does not mean that they are not covered under the GC, because you are still required to treat them no worse than the lowest priveleged level therein, and try them under your established civil or military justice systems.

# posted by

Fraud Guy : 4:21 PM

Remember the short-lived resistance that Sens. McCain, Warner and Graham staged last fall over the MCA? They were not objecting to torture or inhumane treatment per se, but supposedly making a principled stand against watering down U.S. interpretation of Geneva.

Now Bush's executive order, based upon the permissive language of the MCA, comes full circle and openly limits U.S. support for the full Geneva Convention to the MCA's permissive definition of war crimes.

It will be interesting to see how McCain, who wanted White House approval (and the Republican nomination) a little too much not to cave in and support the MCA last year, will react now.

# posted by

JaO : 4:35 PM

In a similar vein, anyone notice this EO regarding "Property Blocking"? I've described it elsewhere as Looking Glass law from miscreants who only aspire to be Humpty Dumpties, for certainly by the letter of it the U.S. must block its own assets for committing acts which continue to destabilize Iraq. The response of course, is that "The Constitution is no longer worth the paper its printed on...no one with
the power to enforce it cares to do so." (from a friend on a listserv.)

To answer Professor Lederman's rhetorical question, no, I certainly didn't expect any better, not from these thugs.

# posted by

Robert Link : 4:55 PM

So, I take it you wouldn't buy into "torture warrants" proposed by Professor Dershowitz either?

# posted by Charles : 4:21 PM

Torture is a war crime that cannot be made legal, Charles, not even by your evil hero Bushit. That's the law, not the loophall you call "faith" but which is a flat-out lie.

Christ is said to have said, "Turn the other cheek." Not, "Turn the other cheek -- except torture is okay." And: "Do unto others as you would have them do unto you" -- not "Do unto others whatever the fuck you want."

When you claim a "religious" "reason" for any of your views, you are a liar. What doesn't surprise is that you, like most cowards who hide their drive to bully others behind "religion," are a weasel. You lie as much when you claim to be a Christian as when you claim you don't lie.

Again: the war crime of torture cannot be bmade legal.

# posted by

JNagarya : 5:04 PM

Ouch, JNagarya. Obviously, you as a "legal professional" should know, ANYTHING can be made legal. Was your rant some sort of "pre-emptive" attack? I did not bring up "religion" at all -- although, I guess, Alan Dershowitz is Jewish but that's beside the point since even an atheist could advocate "torture warrants" -- perhaps you meant to post on the "Religion As Conversation-Starter" (or, in your case, Conversation-Ender)?

# posted by

Charles : 5:13 PM

Again: the war crime of torture cannot be bmade legal.

# posted by jnagarya : 5:04 PM

There is a strong international ethical norm against torture, but that doesn't mean that Bush hasn't made it legal (that happened in 2002). The problem with this exec order is that, as Prof. Lederman states, Bush's definitions of 'serious' and 'severe' punishments are notoriously difficult to pin down. If I had to hazard a guess, I'd say that waterboarding and such are still available for use. What the EO does specifically stop are the deprivation tortures that were often alleged to come out of Iraq: things like putting people in a cell so small they had to stand in uncomfortable positions while taking away thier clothes, food, and water.

I am disturbed that the CIA director gets to appoint the medical oversight system, rather than the EO simply stating that some well-known impartial organization (most nations use the Red Cross) would take care of that function. I supposed that the section mentioned about 'safe for each detainnee' are meant to solve problems like very old men being subjected to treatments designed to coerce much younger people. I think they had a problem with that at Guantanamo.

The sudden inclusion of 'unlawful' is indeed puzzling, particularly in light of Bush's refusal to allow most of these 'enemy combantants' to go to trial. How do you determine someone is unlawfully doing something when they are not allowed contact with any sort of court system? I wonder if that word was a rhetorical flourish that someone didn't realize might have legal implications, or if its inclusion was intentional.

# posted by

Joye : 5:25 PM

Garth:

Did you see my posts to you about the Sergeant at Arms "arresting" the President of the United States, and your case cite not being about the Postmaster General? Here's also a full list of Postmasters General:

http://www.usps.com/postalhistory/pmhistory.htm

# posted by

Charles : 5:59 PM

Last month I surmised that the E.O. would be "very cryptic and uninformative, and that the public will not learn of what techniques our government is using and deeming not to be 'cruel treatment and torture.'"

Bingo.

It is an interesting coincidence that the E.O. was issued just days after Vanity Fair published an article which reveals a great deal about what techniques CIA is using inside the black sites.

According to Katherine Eban's article, SERE techniques were in use at the black sites by spring of 2002 and were allegedly standard operating procedure in Gitmo later the same year--long before Abu Ghraib.

Eban reports:

On December 2, 2002, Secretary of Defense Donald Rumsfeld granted JTF-GTMO 170’s request to apply coercive tactics in interrogations. The only techniques he rejected were waterboarding and death threats. Within a week, the task force had drafted a five-page, typo-ridden document entitled “JTF GTMO ‘SERE’ Interrogation Standard Operating Procedure.”

The document, which has never before been made public, states, “The premise behind this is that the interrogation tactics used at US military sere schools are appropriate for use in real-world interrogations” and “can be used to break real detainees.”

The document is divided into four categories: “Degradation,” “Physical Debilitation,” “Isolation and Monopoliztion [sic] of Perception,” and “Demonstrated Omnipotence.” The tactics include “slaps,” “forceful removal of detainees’ clothing,” “stress positions,” “hooding,” “manhandling,” and “walling,” which entails grabbing the detainee by his shirt and hoisting him against a specially constructed wall.

“Note that all tactics are strictly non-lethal,” the memo states, adding, “it is critical that interrogators do ‘cross the line’ when utilizing the tactics.” The word “not” was presumably omitted by accident.

# posted by

Ben Greenberg : 6:07 PM

All this EO states is that the President is not exercising his prerogative under the MCA to add anything to the statutory definitions of prohibited torture already on the books.

Did anyone seriously expect him to?

# posted by

Bart DePalma : 6:34 PM

# posted by

Dilan : 6:39 PM

Charles,

You raise some fascinating questions: Can anything really be made legal? Is it really a defense to war crimes/crimes against humanity charges that the allegedly criminal acts were legal under internal laws or were approved by authoritative interpretations of domestic and international laws published by the government?

One of the charges, brought against Wilhelm Keitel and Joachim von Ribbentrop at Nuremberg was conspiracy to commit aggression against Poland in 1939. Would the existence of a formal “Hitler Doctrine” of pre-emptive war have saved them? Would the existence of a series of “national security findings” that the conquest of Poland was vital to German national security have prevented them from hanging? Would it have been all right to invade Poland if the correct paperwork had been undertaken?

Did we make a mistake in hanging Ernst Kaltenbrunner? He too was hanged at Nuremberg after being convicted of war crimes. Is it possible that his real crime was not the sending of millions of Jews, POWs and other political enemies of the Nazi regime to their deaths in the concentration camps but rather was his lacking the foresight to hire the German 1930’s equivalent of John Yoo to write memos dismissing international law and redefining crimes against humanity so as to justify genocide, aggressive war, and the mistreatment of POWs and civilians? Do we now owe him an apology?

Do we also owe the doctors and judges convicted at Nuremberg of enforcing illegitimate laws an apology?

Would the Gestapo’s use of "Verschärfte Vernehmung" (“Enhanced Interrogation Methods”) have been okay if it had been blessed by the German equivalent of John Yoo?

Are we American the only ones exempt from international law? Former Nuremberg prosecutor said this: "What the United States is saying is that we don't want the rule of law. I think that is dangerous, very dangerous. Because we cannot lay down a law for the United States and not for the rest of the world. That doesn't fly. Justice Jackson made that clear at Nuremberg. Law must apply to everyone equally or it's not law at all. Those who are pushing the other view have a misguided idea of what law is all about. They also have a misguided conception of how to safeguard the welfare and justice and rights for citizens everywhere."

There was a time when I thought I knew the answers to these questions. Nuremberg chief prosecutor Robert Jackson, a former U.S. Supreme Court justice, said in his opening statement to the tribunal “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.” Are we are the same people who in 1949 raised our voices to condemn genocide, to condemn aggressive war and to condemn crimes against humanity? Or did 9/11 really change everything?

# posted by

Mitch Guthman : 7:18 PM

So, if I write on my "official" web site that I that the authority to arrest the President of the United States, you would believe that as well?

# posted by

Charles : 7:20 PM

9/11 changed everything AND the United States is not the one engaging in genocide or other crimes against humanity. Regardless, if everyone agreed, even "crimes against humanity" can be made legal. Next question?

# posted by

Charles : 7:25 PM

Charles: Regardless, if everyone agreed, even "crimes against humanity" can be made legal.

Interesting position for one who argues by citing scripture, "chapter-and-verse". Hmm. Maybe "interesting" isn't the right word? Hypocritical? Sinful? Even if we stipulate the validity of an analytical lens under which what you say it true, are you sure that's the lens you want folks using? Might not leave as much room for your tiny sect of generally Abrahamic worshipers as you would like.

As for nine-one-one "changing everything," yep, all that new technology really did us in; them hi-tech box cutters and that totally unprecedented tactic of throwing perfectly good planes at strategic targets. What an inexplicable novelty, how can we hope to cope unless we adopt the PNAC party line of domestic depotism with all due haste. You've finally sold me, Chuck.

# posted by

Robert Link : 7:31 PM

I have never, once, confused "legal" with "sinful". Plenty of sinful activity has been made perfectly legal, see e.g. Lawrence v. Texas. All have fallen short of the Glory of God.

I'm glad I can move on to my next victim, though, Rob.

# posted by

Charles : 7:37 PM

Charles: I have never, once, confused "legal" with "sinful".

Yet you argue for the sin of torture again and again. Strange. I pity your victims, indeed, and those of your God if he supports such heinous acts.

# posted by

Robert Link : 7:43 PM

# posted by

Charles : 7:46 PM

Interesting position for one who argues by citing scripture, "chapter-and-verse". Hmm. Maybe "interesting" isn't the right word? Hypocritical? Sinful?

Actually the Old Testament (say, the Book of Joshua) endorses quite a few crimes against humanity. And Charles eagerly reads the Book of Revalations, in which God will commit quite a few.

# posted by

Essayist-Laywer : 9:49 PM

Charles,

I think you are confusing “legal” and “popular” with “moral” and “right”. Atrocities like genocide are no less monstrous or evil simply because their perpetrators are popular enough or powerful so that they cannot be brought to justice at the present time. Evil remains evil, and atrocities and war crimes (such as torture) will always violate international law because international law is the conscience of humanity made manifest.

Also, you certainly don’t seem to be honestly addressing the political-moral-legal issues raised by the question of whether a nation can “legalize” it's war crimes and crimes against humanity by tactics such as redefining the elements of those crimes under it’s internal law so as to make the Geneva and Hague accords and the Nuremberg Principles meaningless. (The "Yoo approach").

After World War II there was a strong desire to prosecute the Nazi and Japanese war criminals for their various monstrous atrocities against humanity. Many people, including Winston Churchill, thought the Nazi leadership should simply be shot because their crimes and their guilt were self-evident even if it did not violate a specific treaty. Oddly enough, before 9/11, the United States was the chief proponent of the view that such evil conduct must be punishable even in the absence of existing international law because such conduct is simply unacceptable among civilized nations. It was the United States that sought, however imperfectly, to go beyond the traditional victor’s justice and promote accountability within the framework of international law, which, in this almost uniquely American conception, would represent the conscience of humanity.

Prior to the time when George W. Bush took power, this was the view to which every American president subscribed. Yes, sometimes we have strayed but I don’t think many Americans stopped believing in the concept of international law as outlined by The Hague and Geneva Conventions and especially we believed in the Nuremberg Principles.

Finally, I would take issue with your claim that we do not commit war crimes. This is surely a matter for proof at trial. If the Yoo approach is invalid then I would say we have probably been committing war crimes and crimes against humanity, blatantly, from at least 2003 onward.

For example, George Bush might well be in violation of principles of international law forbidding the waging of an aggressive war. I would also point very strongly to the treatment of innocent civilians and others who have fallen into the hands of the American government. I refer, of course, to their torture and murder while in our custody.

Returning to the point of my original post, I would like to recommend a book called Nuremberg and Vietnam: An American Tragedy, by Telford Taylor that I read as an undergraduate. In it, he asks the same question which I raised with you----namely, whether “the people of the United States [are] able to face the proposition that [Mr. Justice] Jackson put forth in their name, and examine their own conduct under the same principles that they applied to the Germans and Japanese at the Nuremberg and other war crimes trials”. I do not accept that 9/11 changed everything but if it did then I fear we may be finished as a people.

# posted by

Mitch Guthman : 9:59 PM

Professor Lederman:

2. The E.O. states that the President "hereby reaffirm[s] [his] determination," allegedly made on February 7, 2002, that all members of Al Qaeda and "associated forces" are "unlawful enemy combatants." In fact, the President has never made such a determination before now with respect to Al Qaeda. Moreover, insofar as it suggests that members of Al Qaeda have necessarily acted unlawfully, this "reaffirmation" is also probably wrong. Being a member of Al Qaeda might make one an unprivileged enemy combatant, in the sense of not being entitled to certain privileges afforded most combatants under the laws of war. But it does not, without more, mean that someone has acted "unlawfully."

One of the reasons al Qaeda members are unprivileged is because al Qaeda does not "conduct[] their operations in accordance with the laws and customs of war" as required under GC4, Article 4, Sec. A(2)(d). Thus, the proper term "unlawful enemy combatants."

# posted by

Bart DePalma : 10:19 PM

"Ouch, JNagarya. Obviously, you as a "legal professional" should know, ANYTHING can be made legal."

I'll explain it to you one more time, asshole:

1. The US is a signatory to treaties which define and prohibit torture as being a war crime.

2. Those treaties are part of the law of the land.

3. The law of the land is the Constitution.

4. The Constitution cannot be altered by Congress, Executive, or even both together with the approval of the judiciary. It can only be altered by amendment, and it has not been amended to make the war crime of torture legal.

5. Torture is defined and prohibited also by international law, which was largely authored by the US, and expressly applied to the US also by the US. The US cannot unilaterally alter international law.

Bushit's efforts to "legalize" torture are, therefore, unconstitutional, and a violation of international law. Those efforts are nothing more than fig leaves giving the appearance of legality to that which cannot be made legal, for the reasons detailed above, for the benefit of fake Christians such as you who seek intellectually dishonest rationalizations for your anti-Christian and anti-American hatreds.

"Was your rant some sort of "pre-emptive" attack? I did not bring up "religion" at all . . . ."

I bring up "religion" with your because it's the only thing you (falsely) believe you know something about. I do it deliberately to blow your self-serving fake Christian poppycock out of the water. You may be too thick -- or simply dishonest -- for it to penetrate, but at the least it may persuade those who are contemplating adopting your poppycock not to do so.

"-- although, I guess, Alan Dershowitz is Jewish but that's beside the point since even an atheist could advocate "torture warrants" . . . ."

Except that he would oppose them if they authorized torture of Jews. That's an additional problem with Dershowitz's hypocrisy.

"-- perhaps you meant to post on the "Religion As Conversation-Starter" (or, in your case, Conversation-Ender)?"

You needn't guess at what I meant: I make it clear. That it is usually over your head, or you weasel and lie in order to avoid it, being a sniggering fool.

# posted by Charles : 5:13 PM

Torture is a war crime which, despite false appearances, cannot be made legal. Only liars, "Christian" hypocrites, and ignoramouses, would insist otherwise. Torture by any other name is torture.

Only fools would insist that such as Tojo and Hitler, Mao and Stalin, Saddam Hussein and George Bush, were and are within their rights to impose torture because they falsely made it appear to be legal, or lied that torture wasn't and isn't torture. Torture is actions which are prohibited, regardless what those actions are labeled.

# posted by

JNagarya : 10:51 PM

Believe it or not, I am not as pessimistic as Marty Lederman is. I agree, the Executive Order is going to mean whatever the Bush Administration says it means.

But even under the amended War Crimes Act, waterboarding, induced hypothermia, long-time standing, and withholding of needed painkillers cause severe pain or mental suffering. They are torture. And anyone with any doubt of this should take into account that under the Charming Betsy principle, the War Crimes Act will be interpreted consistent with customary international law on torture and cruel, inhuman, and degrading treatment.

The only question is when we will get a case into court that will adjudicate this.

# posted by Dilan : 6:39 PM

You miss the point. Changing the name/s of that which is torture only means it isn't torture to those gullible enough to believe it, or deceitful enough to pretend otherwise.

Keep in mind that the definition of torture underlying Biushit's surface statements was first so narrowed as to essentially mean "anything goes".

None of which alters acts which are by definition torture, regardless in what ways or how often one changes what one calls those acts.

# posted by

JNagarya : 11:01 PM

Read the Old Testament some time if you really think "torture" is necessarily sinful -- in fact, even putting a human being to death (as punishment for murder) is not "sinful" but a divine command in Genesis 9:6 -- no "pity" needed.

# posted by Charles : 7:46 PM

Again, ass: the Old Testament is pre-Christian; it is irrelevant to genuine Christianity for numerous reasons, but the tehmatic shift is sufficient to illustrate the point even to the most dense of bullshiting weasels, such as you:

The Old Testament portrays -- by human writers making unevidenced claims as to their sources -- "God" as wrathful, vengeful, hateful. The themse was eye-for-an-eye. None of that, in terms of the New Testament, is "Glorious".

The New Testament, with which begins Christianty, portrays a loving "God," and the theme is "Turn the other cheek".

It doesn't surprise that hateful bigots wallow in the Old Testament as justification for their hatreds, and as means to silently circumvent the New Testament.

Christ was the Prince of Peace; not the Prince of Hatred and Torture. The prohibitions against torture are grounded, if you will, on the tenor of the New Testament; a rejection of the self-righteous Old Testament which invokes "God' as excuse for every sort of heinous action.

Is "God" perfect? Then "God" doesn't need torture, and therefore does not authorize it. Take responsibility for your views, and your expressions of them, instead of trying to blame them on an unevidenced figment which you invoke as excuse for actions and views which are anything but Christian.

As for the provenance of the "bible": it was written by Jews -- which you are not -- in a Jewish context -- which you do not inhabit -- with Jewish symbolism -- which you are utterly clueless about as to meanings. Christ was not an American. And he was a dark-skinned black-haired Semite who was born, and lived and died, in the Middle East. Genuine Christianity is not an excuse to hate, bully, and abuse others; it is the exact opposite.

# posted by

JNagarya : 11:19 PM

JNagarya said...

I'll explain it to you one more time, asshole:

1. The US is a signatory to treaties which define and prohibit torture as being a war crime.

2. Those treaties are part of the law of the land.

3. The law of the land is the Constitution.

4. The Constitution cannot be altered by Congress, Executive, or even both together with the approval of the judiciary. It can only be altered by amendment, and it has not been amended to make the war crime of torture legal.

You are completely wrong.

The Constitution is the preeminent law of the land.

Treaties are not part of the Constitution, do not have the force of the Constitution and in no way trump the Constitution.

Treaties can and have been withdrawn from by the President (see the ABA) and Congress (see the MCA defining the GC).

# posted by

Bart DePalma : 12:18 AM

Bart:

1. The definition of lawful combatants is combatant specific. Thus Bush is violating international law when he defines any member of Al Qaeda or the Taliban as unlawful. They have to get a status hearing, and Bush can't define them as a class.

2. You are being woefully sloppy when you refer to the MCA as withdrawing the US from Geneva. It does no such thing.

It is true that the US can withdraw from treaties; the form of that withdrawal depends on the language of the treaty. But part of the reason whe are going through these shenanigans is neither the Republican Congress of 2006 nor the President wanted to take the political heat of withdrawing from Geneva, so they didn't do so. Since they have not done so, the treaty remains "the Supreme law of the land" under the express terms of the Constitution.

And treaties that have not been withdrawn from BIND the President. Indeed, MANY treaties govern the activities of the executive branch, whether they be human rights treaties that deal with the treatment of detainees or combtatants, or economic treaties that regulate trade and customs matters, or treaties that regulate the diplomatic corps.

Thus, there is no doubt that Geneva is binding. The Republican Congress of 2006 had the chance to put in language abrogating or withdrawing the US from it; they didn't.

# posted by

Dilan : 2:21 AM

You are completely wrong.

The Constitution is the preeminent law of the land.

Treaties are not part of the Constitution, do not have the force of the Constitution and in no way trump the Constitution.

I think a certain textualist needs to reread Article VI.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;...

# posted by

PMS_CC : 3:25 AM

I've not been here all that long; but very early in my being here I expressed skepticism in the claim that you're a lawyer. (A liar, yes; but the two are not to be confused, one for the other, except by the unethical -- the liar.)

Again -- in your face -- "Bart":

I'll explain it to you one more time, asshole:

1. The US is a signatory to treaties which define and prohibit torture as being a war crime.

2. Those treaties are part of the law of the land.

3. The law of the land is the Constitution.

4. The Constitution cannot be altered by Congress, Executive, or even both together with the approval of the judiciary. It can only be altered by amendment, and it has not been amended to make the war crime of torture legal.

If you're going to presume to talk law, "Bart," you might try sticking to the law, instead of substituting therefor your constantly and consistenly shredded anti-American idiotology.

Now go to another thread and assert the same anti-Constitutional bullshit, anti-American liar.

# posted by

JNagarya : 5:14 AM

You guys sound like a bunch of lawyers...I'm no lawyer...all I know if that if we can legally torture foreign prisoners (and maybe American citizens also) then it could be legal for other countries to detain our citizens and torture them. As Gandhi said "An eye for an eye makes the whole world blind"

# posted by

Marcella : 7:22 AM

marcella:

You guys sound like a bunch of lawyers...I'm no lawyer...all I know if that if we can legally torture foreign prisoners (and maybe American citizens also) then it could be legal for other countries to detain our citizens and torture them. As Gandhi said "An eye for an eye makes the whole world blind"

Gandhi also opined, when asked what he thought of Western civilsation, "I think it would be a good idea."

Not "Bart"'s favourite author, I'm sure.

Cheers,

# posted by

Arne Langsetmo : 8:10 AM

"Bart" DePalma:

One of the reasons al Qaeda members are unprivileged is because al Qaeda does not "conduct[] their operations in accordance with the laws and customs of war" as required under GC4, Article 4, Sec. A(2)(d). Thus, the proper term "unlawful enemy combatants."

Gotta love the concept of de jure 'criminality'. Just making an edict that proclaims an entire group of people 'unlawful' before they ever set foot in court -- or are even known -- is soooooooo..... Well, you might guess who it reminds me of. Group guilt is tres chic.

Cheers,

# posted by

Arne Langsetmo : 8:15 AM

"Bart" DePalma:

You are completely wrong.

The Constitution is the preeminent law of the land.

Treaties are not part of the Constitution, do not have the force of the Constitution and in no way trump the Constitution.

"Bart" didn't honour my request, IC.

U.S. Constitution, Article V:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Treaties do have the force of "the supreme law of the land". While within the hierarchy of these three sources of "supreme law", the Constitition is generally considered the preeminent one and in case of conflict of law, would prevail, I'd note a textual curiosity here: While there's an implicit hierarchy putting the Constitution above (federal) "laws of the United States, because of the inclusion of the caveat "which shall be made in pursuance thereof", there is no similar text for treaties.

Cheers,

# posted by

Arne Langsetmo : 8:27 AM

arne:

"Supreme" in the context of this provision of the Constitution simply means that it is a national law which trumps statutes, not that it is actually the supreme law of the land. As we both noted, the Constitution is actually the supreme law of the land.

Treaties are also an inferior law in that both Congress and the President can and have withdrawn the Nation from treaties.

However, because treaties can be withdrawn from at will by either Congress or the President, they are also lesser law than statutes, which must be reversed

# posted by

Bart DePalma : 9:36 AM

Dilan said...

The definition of lawful combatants is combatant specific. Thus Bush is violating international law when he defines any member of Al Qaeda or the Taliban as unlawful. They have to get a status hearing, and Bush can't define them as a class.

The GC4 defines combatants by whether their military is one of the parties to the GC or is a non member following international law. Go check it out.

You are being woefully sloppy when you refer to the MCA as withdrawing the US from Geneva. It does no such thing.

I never said that it did. Rather, the MCA purports to define the GC, which would constitute rewriting and abbreviating it for most here with an expansive view of the GC.

It is true that the US can withdraw from treaties; the form of that withdrawal depends on the language of the treaty. But part of the reason whe are going through these shenanigans is neither the Republican Congress of 2006 nor the President wanted to take the political heat of withdrawing from Geneva, so they didn't do so. Since they have not done so, the treaty remains "the Supreme law of the land" under the express terms of the Constitution.

No one wanted to withdraw from the GC. Rather, Congress sought to correct yet another Supreme Court revision of the law of war concerning enemy combatants by enacting the MCA to more precisely define the GC.

The MCA has effectively withdrawn from the GC to the extent that its terms actually exceed those of the MCA. You do not have to completely withdraw from a treaty to change its terms.

# posted by

Bart DePalma : 9:44 AM

We finally agree on something, JNagarya -- although it's kinda off topic -- Christ was definitely NOT an American citizen. Congratulations. I knew it had to happen someday, proving I guess that a bunch of monkeys typing long enough would indeed produce a Shakespeare play.

As for said Christ "refuting" the Old Testament, and making it somehow "irrelevant" to Christianity, I simply quote Him from Matthew 5:17-18:

"Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil. For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled."

Maybe, if you ask real nice, Enlightened Layperson will explain that one to you too.

# posted by

Charles : 10:10 AM

"The MCA has effectively withdrawn from the GC to the extent that its terms actually exceed those of the MCA. You do not have to completely withdraw from a treaty to change its terms."

Bart:

I don't know how to say this delicately, but you are just completely wrong here. A state-party to a treaty has no right to unilaterally "change its terms". It can negotiate to change the terms. It can withdraw from the treaty as the treaty provides (i.e., if the treaty specifically permits a "partial" withdrawal, then and only then the state-party can withdraw according to its terms). But once a state-party is bound, it can't change the meaning of the treaty. All it can do is change the implementing legislation and leave parts of the treaty unimplemented. That's what the MCA did.

I should note that this is different from the process of reservation and understanding. AT THE TIME THAT A STATE PARTY ENTERS INTO A TREATY, that party can decide to refuse to enter into certain parts, or condition its entry. That happens all the time. But once the treaty has been entered into, there's no such thing as a retroactive reservation. It's like George Clooney said-- you're either in or you're out. Since the MCA did not pull the US out, the US is in.

What does this mean? It means that the provisions of Geneva still bind the President in full force. Further, the interpretation in Hamdan that you claim was "corrected" by Congress STILL remains the authoritative judicial determination of the meaning of the document. All Congress has done is take away the implementing legislation that would attach penalties to a violation of Geneva. Under Foster v. Nielson, the treaty is not self-executing and Congress can do this. But the treaty itself is still the Supreme Law of the Land and it binds the President.

If you have authority for your position that Congress has the right to "partially withdraw" from treaties that do not contain any provision permitting such a partial withdrawal, I'd like to see it. More likely, you are arguing in an area where you don't really know as much as you think you do.

"The GC4 defines combatants by whether their military is one of the parties to the GC or is a non member following international law. Go check it out."

That's not true. Article 4 of the Fourth Geneva Convention defines protected persons as nationals of any country that is a signatory to the GC's, which includes Afghanistan. This guarantees them humane treatment.

What you are probably thinking of is Article 4 of the Third Geneva Convention, which deals with whether a person gets POW status. This is a four part test-- that the person has a responsible commander, that person has a fixed sign recognizable at a distance, that the person carries arms openly, and that the person conducts his or her operations consistent with the laws of war.

You will notice that all four of these things are combatant-specific-- even the fourth one, that you allude to. Thus, Bush has NO power to say that ALL members of any group are unlawful enemy combatants. Under Article 5 of the Third Geneva Convention, if there is any doubt about the person's status, they are entitled to a competent tribunal's determination. Bush is NOT a competent tribunal.

Simply put, he is in clear violation of international law when he makes this group determination.

# posted by

Dilan : 12:27 PM

Dilan said...

BD: "The MCA has effectively withdrawn from the GC to the extent that its terms actually exceed those of the MCA. You do not have to completely withdraw from a treaty to change its terms."

A state-party to a treaty has no right to unilaterally "change its terms". It can negotiate to change the terms. It can withdraw from the treaty as the treaty provides (i.e., if the treaty specifically permits a "partial" withdrawal, then and only then the state-party can withdraw according to its terms). But once a state-party is bound, it can't change the meaning of the treaty. All it can do is change the implementing legislation and leave parts of the treaty unimplemented. That's what the MCA did...It's like George Clooney said-- you're either in or you're out. Since the MCA did not pull the US out, the US is in.

Do you have any authority at all for these propositions? George Clooney is not legal authority.

The Constitution does not state that the President or Congress may not withdraw in whole or in part from a treaty regardless of the terms of that treaty.

International law in no way trumps our Constitution.

But once a state-party is bound, it can't change the meaning of the treaty. All it can do is change the implementing legislation and leave parts of the treaty unimplemented. That's what the MCA did.

You make a distinction without a difference.

Under the Constitution, the President is only subject to US law. The MCA and previous statutes set forth the extent to which the GC are enforceable under US law and expressly exclude foreign interpretations of the GC from being used as US law.

To the extent that you believe that the GCs bar any actions not prohibited under US law, US law has effectively withdrawn from those treaty requirements.

Further, the Constitution grants only the President and Congress the power to enter into and withdraw from treaties. Therefore, the Supremes may not constitutionally change the scope of the GCs from something other than that defined by Congress in the MCA and other statutes.

# posted by

Bart DePalma : 2:58 PM

Don't you just love the headline announcing this EO in my local newspaper, "Bush bars CIA from using torture."

# posted by

Essayist-Laywer : 4:36 PM

"Bart" DePalma:

"Supreme" in the context of this provision of the Constitution simply means that it is a national law which trumps statutes, not that it is actually the supreme law of the land. As we both noted, the Constitution is actually the supreme law of the land.

WTF are you trying to say here? Howzabout starting drinking a little bit later if you're going to try to post during the day?

And how do you come to the conclusion that I think that the Constitution is the sole "supreme law of the land" when I quoted verbatim the very language that lists it as being only one of three sources of such?!?!?

Treaties are also an inferior law in that both Congress and the President can and have withdrawn the Nation from treaties.

Assuming arguendo that the rescission is valid, then they're not treaties any more. There is, I will admit, a bit less than crystal clarity within the text of the Constitution as to what needs to be done to validly rescind or abrogate a treaty. One may assume that, from pragmatic perspective, the Founders intended that treaties could be broken, but a good 'textualist' like yourself ought to say that if the Constitution doesn't say a treaty can be abrogated or rescinded, it can't....

However, because treaties can be withdrawn from at will by either Congress or the President, they are also lesser law than statutes, which must be reversed

Huh? What does the (asserted, but hardly supported) claim about the ease of reversal have to do with the legal 'authority' of that law in the absence of such reversal? If some local municipality said that local ordinances could only be rescinded/repealed by a unanimous consensus of all one-eyed witches bearing a token lock of hair from the Pope on moonless Fridays, would that make such local ordinances any more the "supreme law of the land"?

But no matter, "Bart". treaties are nonetheless still the "supreme law of the land". It's in the Constitution, "Bart", you can look it up! ;-)

Say, JOOC, "Bart": Has Dubya repealed the Geneva Conventions yet? Because until he does.....

Cheers,

# posted by

Arne Langsetmo : 5:02 PM

Treaty Law 101:

The GC4 defines combatants by whether their military is one of the parties to the GC or is a non member following international law. Go check it out.

No. Parties to the GC are those paties that have signed and ratified it. Nothing about whether "their military is one of the parties"; that's pure BartSpeak™ Gobbledygook.

GC4:

Article 2

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: ...

Cheers,

# posted by

Arne Langsetmo : 5:21 PM

"Bart" DePalma:

Compare and contrast:

You do not have to completely withdraw from a treaty to change its terms.....

but, according to "Bart", Congress's only recourse if they don't approve of Dubya's actions is to defund the military. No "chang[ing] its terms" allowed.

Cheers,

# posted by

Arne Langsetmo : 5:25 PM

"Bart" DePalma clearly didn't anticipate my post above:

The Constitution does not state that the President or Congress may not withdraw in whole or in part from a treaty regardless of the terms of that treaty.

IOW, according to "BART", anything the Constitution doesn't explicitly prohibit is Constitutional. OK.... So, since the Constitution doesn't prohibit Dubya from ordering us all to stand on one leg and whistle the Mickey Mouse theme song while wearing pirates' uniforms, Dubya can do this any time he wants, then. Oh, and Congress can set quotas on grain production even for personal use too, I suppose....

Cheers,

# posted by

Arne Langsetmo : 5:34 PM

"Bart" slides into bad habits again:

International law in no way trumps our Constitution.

<*sigh*> Too much to hope that he could stay on the bandwagon for a day, I guess.

Cheers,

# posted by

Arne Langsetmo : 5:38 PM

"Bart" DePalma:

Under the Constitution, the President is only subject to US law.

... which works wonders in a regime in which it is "emphatically the province and duty of the preznit to say what the law is" and the duty and obligation of the judiciary and Congress to sit down and STFU when he does....

Cheers,

# posted by

Arne Langsetmo : 8:24 PM

"Bart" DePalma:

The MCA and previous statutes set forth the extent to which the GC are enforceable under US law and expressly exclude foreign interpretations of the GC from being used as US law.

And interesting assertion and one that begs the question I've been alluding to above: If the interpretation is one a U.S. Supreme COurt justice elucidates at a seminar in Switzerland, is such a "foreign interpretation"? How about if it's the interpretation agrued by the alien lawyer of an alien in U.S. courts? When it comes to "Good ol', made in the 'effin Yoo Ess of Aye" interpretations, which (or whose) U.S. interpretation should control? This little Rethuglican/Bircher/OWG dead horse was flogged by the usual foamers over another case where the U.S. Supreme Court had the temerity to mention foreign legal theory as persuasive authority (but who issues their own opinion carrying mandatory authority). Isn't it then U.S. law (thus escaping these silly provisions the Rethuglicans put it to feed the red-meat crowd)? Are we really to shut ourselves off from the thinking of such as Locke and Rosseau because they're furriners? That's what the Rethuglicans seem to be saying.

I'm curious as to "Bart"'s 'opinions' on such conundrums ... if he actually has an original, 'Merkun, thought to his brain, that is.....

Cheers,

# posted by

Arne Langsetmo : 8:39 PM

OK, it ate my response to Bart. I'll try and do a shorter version of it.

"Do you have any authority at all for these propositions? George Clooney is not legal authority."

The Vienna Convention on the Law of Treaties permits reservations but states that they must be made "when signing, ratifying, accepting, approving or acceding to a treaty". This permits other state parties to object to the reservation and negate the effect of the treaty if those state parties believe that the reservations alter the bargain that they made.

The Vienna Convention further provides that treaties are amended by agreement of the parties.

Finally, the Vienna Convention provides that "A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree."

So, a state party can ratify a treaty in toto or with reservations. It can later drop the reservations, and it can withdraw from a treaty. What it can't do is purport to withdraw from part of a treaty.

"The Constitution does not state that the President or Congress may not withdraw in whole or in part from a treaty regardless of the terms of that treaty."

Correct. The Constitution is silent. But treaties not inconsistent with the Constitution are the supreme law of the land. (See Ried v. Covert.) Thus, the Vienna Convention appliees here, and holds that there can't be a partial withdrawal from a treaty unless the treaty specifically permits it.

"International law in no way trumps our Constitution."

True enough. But since the Constitution is silent on the issue, there's nothing to trump.

"You make a distinction without a difference."

You need to read Foster v. Nielson, in which Chief Justice John Marshall spoke for the Court in holding that treaties are not self-executing and require implementing legislation to be enforced (other than by diplomatic protest), but they bind the government as the supreme law of the land whether or not they are implemented.

Seriously, this has been black letter law for 200 years.

So, we ratified the Convention Against Torture. Under the CAT, we are required to prohibit torture, and to not deport people to countries where they are likely to be tortured. However, after ratification, a prosecutor couldn't bring a prosecution for torture under the CAT, a person couldn't sue under the CAT if he was tortured, and an immigrant could not prevent deportation on the basis of the CAT's prohibition on deportations to countries where torture is likely to occur. In Chief Justice Marshall's phrase, the treaty was not self-executing.

Rather, Congress had to pass implementing legislation. Which it did. It criminalized torture, permitted civil suits under the Torture Victim Protection Act, and permitted withholding of deportation where a deportable alien is likely to be tortured.

All the MCA did is cut back on this. Indeed, if you look at the legislative history, withrdawal from treaties was considered and Cognress was very careful to NOT do that, but rather simply cut back on the implementing legislation.

Thus, we are now back to a situation where there may be some conduct that is prohibited by treaty but which is not remediable. That's exactly what Foster v. Nielson held could happen.

"Under the Constitution, the President is only subject to US law."

This is not true. The President is clearly subject to treaties. Treaties are the supreme law of the land, and many treaties specifically ban executive action.

For instance, the President cannot decide to ignore treaties that prohibit atmospheric nuclear testing or that prohibit more than a certain number of nuclear ICBM's to be deployed.

These treaties clearly bind the President. He may be able to withdraw from the treaty, as was de facto permitted by Goldwater v. Carter. But it is clear that the treaty binds the President.

The case of The Paquete Habana did hold that a "controlling executive act" could supersede the government's obligation to follow CUSTOMARY (i.e., uncodified) international law. But that case was explicit that this only applied to customary international law. Subject only to the proviso that in the case of a DIRECT conflict between an express provision of the Constitution and a treaty provision, see Ried v. Covert, a President must follow the Constitution, the President is clearly required to follow treaties.

"To the extent that you believe that the GCs bar any actions not prohibited under US law, US law has effectively withdrawn from those treaty requirements."

You are relying on "effectively" to do a lot of work in that sentence. In fact, the US has not withdrawn. As noted above, there is no such thing as a partial withdrawal from a treaty unless expressly permitted therein. What Congress did may "effectively" result in the same result, because the treaty will be unenforceable except by diplomatic protest. But Congress did not withdraw from the treaty, partially or otherwise. It simply trimmed back the implementing legislation.

"Further, the Constitution grants only the President and Congress the power to enter into and withdraw from treaties. Therefore, the Supremes may not constitutionally change the scope of the GCs from something other than that defined by Congress in the MCA and other statutes."

As noted above, Congress can certainly pass implementing legislation. It can leave portions of treaties unexecuted, or deny particular remedies under treaties. If Congress does this, the Court is bound by this (although it is subject to a "clear statement" rule under The Charming Betsy case). But the Court retains its normal role to resolve ambiguities in the statute.

More importantly, though, whether or not Congress has implemented all of the treaty, the President is still bound to follow it. There is a big difference between the scope of the law and the scope of available judicial remedies.

Now, Bart, you have seen plenty of authority supporting my position. I am still waiting for ANY authority from you supporting your contention that Congress or the President can "partially withdraw" from a treaty absent an express provision of the treaty permitting it.

# posted by

Dilan : 9:01 PM

THAT was the shorter version?!

# posted by

Charles : 11:25 PM

THAT was the shorter version?!

I think Dilan did a great job of it. Sometimes providing support for your arguments causes them to be a bit longer than the typical one-liner response.

"Next question?" :)

# posted by

PMS_CC : 3:44 AM

Just to add a point, a fundamental rule of international law is that no state can extract itself from its international obligations through its internal law. This is enshrined also in the Vienna Convention on the Law of Treaties and in customary international law.

So, for the world, the Constitution is not the end of the deal. Just like the Uzbekistan or Russian or French Constitutions are not the be all and end all as regards the international obligations that each of those states owe to us.

Thinking that the Constitution is the end of it is one of the basic errors of the U.S. foreign relations law approach to international law that most of us are taught erroneously in U.S. law schools.

If the President decides to commit murder or the President decides to commit genocide, the bottom line is not that it is legal under international law because the President says so invoking some part of the Constitution. The President's acts may be illegal as a matter of international law - the question that remains is whether there is anyone in a position to pursue a prosecution of the President during (which appears doubtful) or after the President leaves office (which is possible) in the domestic system. This leaves to the side the impeachment process.

We would also look to see if there were international fora in which the President would stand trial (a la Milosevic).

We also look to the reaction of other states to the illegal act as part of what is sometimes called horizontal enforcement of the international law obligation. That reaction of other states can give the President's illegal act legitimacy through their acquiescence or give the act illegitimacy through their resistance. Of course, the President can use all kinds of pressure to get the acquiescence of other states. For example, there was the pressure to get the withdrawal of the German criminal complaint against Rumsfeld.

The President with Congressional approval and a Supreme Court torture warrant would still be doing something illegal as a matter of international law if the President was to torture someone. The internal allocations of power in our country are of little interest to international law and on the international plane. It is the legal obligation upon the United States that is the essence of the international obligation.

This is international law 101 and should be available in any nutshell on international law.

Best,
Ben

# posted by

Benjamin Davis : 5:24 PM

"Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil. For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled."

Maybe, if you ask real nice, Enlightened Layperson will explain that one to you too.

# posted by Charles : 10:10 AM

False. None of the New Testament writings about Christ were written until some 40 years after his death. It is not Christ who said that, because Christ's name is not Matthew.

The attribution by a foggy memory -- hearsay -- is not a statement by the person to whom attributed.

And before you blather the self-serving claims by the so-called "Disciples" that they were "divinely inspired": "God" talks to me. In fact, he just talked to me five minutes ago, and he said that not only did he not talk to them, but also it isn't he that is talking to you.

# posted by

JNagarya : 7:05 AM

The my statement of the core principle is less easily avoided by such as "Charles" and "Bet," Dilon, Arne, and Ben Davis said it more elegantly than I.

A pleasurable read, you three guys.

# posted by

JNagarya : 7:27 AM

JNagarya:

Since neither the New nor Old Testament are part of the CIA Interrogation Executive Order (you know, the TOPIC of this thread), I would be glad to leave your post as the last word on that side issue. Have a nice week.

# posted by

Charles : 10:43 AM

dilan said: But treaties not inconsistent with the Constitution are the supreme law of the land. (See Ried v. Covert.)... I am still waiting for ANY authority from you supporting your contention that Congress or the President can "partially withdraw" from a treaty absent an express provision of the treaty permitting it.

You are correct that the President cannot unilaterally declare treaty provisions null and void by Executive Order. However, courts have consistently found that international treaties are equal in legal effect to domestic legislation and therefore subject to the "last-in-time" rule. That is, subsequent legislation supercedes the domestic effect of prior inconsistent treaty provisions. See, e.g., this law review article http://www.law.indiana.edu/ilj/volumes/v80/no2/ku.pdf

# posted by

Adam : 12:09 PM

Torture, however one wishes to define it or upon whatever basis one wishes to justify it, is an effective way to lose in a struggle against something like organized international terrorism.

Snubbing international law and treaties, for whatever reason, lessens in no small way the cooperation that leaders of other countries are disposed to offer. They have a vested desire to be re-elected by their own constituency and have to deal with the politics of their own backyards. They will only be able to offer cooperation to the degree that it will avoid sanctions or excessive backlash from the US, rather than a fully embraced alliance. That is, if they offer it at all.

So as the torture rolls rise, the degree of international cooperation drops, and terrorists find it easier and easier to disperse and reorganize. We're already re-learning the lesson that it takes more than twice the resources to fight successfully on two fronts as on one.

Such an open embrace of torture is a case of winning a battle for losing a war.

# posted by

John : 1:56 PM

Adam:

We are talking past each other. Yes, subject to the Charming Betsy "clear statement" rule, Congress can vitiate the domestic effect of even a self-executing treaty by passing a law thereafter.

But, again, that isn't the same thing as withdrawing from the treaty. Rather, that is putting the US in violation of the treaty, which Congress has the power to do.

# posted by

Dilan : 2:23 PM

dilan:

I appreciate your lengthy response above. However, you still appear to be missing the point I am making.

We agree that treaties are not self executing and require enabling legislation to go into effect.

Then you claim that treaties somehow bind the President beyond the requirements of Congressional enabling legislation.

My point is that these are mutually exclusive positions.

It does not matter what treaties purport to require. All that matters is what the enabling legislation in fact requires.

Furthermore, even if the treaty purports to limit executive action such as arms control treaties, the President may simply withdraw from the treaty as Mr. Bush did with the ABM Treaty.

When I asked you for citation to legal authority beyond George Clooney that treaties may not partially withdrawn from, you offered yet another treaty - the Vienna Convention.

The Constitution trumps treaty law, not the other way around. You admitted that treaties not inconsistent with the Constitution are the law of the land. The President and Congress derive their powers to withdraw in whole or in part from a treaty from the Constitution. Consequently, the constitutional power to withdraw from a treaty trumps any contrary requirements of the VC.

The provision in the Constitution calling treaties the supreme law of the land is a reference to the national effect of an enabled treaty, not that it is actually the supreme law of the land trumping the exercise of the constitutional powers of the President and Congress. In the end, a treaty is a scrap of paper which only has the force of law which the President and Congress choose to grant it.

# posted by

Bart DePalma : 2:53 PM

JNagarya:

The my statement of the core principle is less easily avoided by such as "Charles" and "Bet," Dilon, Arne, and Ben Davis said it more elegantly than I.

Thanks, but I definitely need to doff my chapeau to Ben and Dilan here.

Thanks, Dilan. I'll bookmark this page and look up the cites. And thanks too to Ben Davis. Helps to have some legal authority and real theory introduced to bring the conversation back down to reality.

Cheers,

# posted by

Arne Langsetmo : 3:47 PM

FWIW:

[I said]: Isn't it then U.S. law (thus escaping these silly provisions the Rethuglicans put [out] to feed the red-meat crowd)? Are we really to shut ourselves off from the thinking of such as Locke and Rosseau because they're furriners? That's what the Rethuglicans seem to be saying.

And if we're to eliminate foreign interpretations, I guess we can kiss goodbye to "tort", "suit", "fee simple", etc. as well. Just cheese-eating-surrender-monkey -invented imaginary constructs, and we got good ol' 'Merkun ways to deal with those confoozing concepts: "Guns".

Cheers,

# posted by

Arne Langsetmo : 3:51 PM

"Bart" DePalma:

We agree that treaties are not self executing and require enabling legislation to go into effect.

Then you claim that treaties somehow bind the President beyond the requirements of Congressional enabling legislation.

My point is that these are mutually exclusive positions.

Why?!?!?

FWIW, I think one effect you might find of a treaty that lacks enabling legislation is that the treaty provisions may still be binding in the realm of international judicial forums. See Ben Davis's comment above.

It does not matter what treaties purport to require. All that matters is what the enabling legislation in fact requires.

Well ... I guess, not to a preznit and maladministration that ignores the law as well.... ;-)

Cheers,

# posted by

Arne Langsetmo : 3:57 PM

"Bart" DePalma continues tilting at windmills:

When I asked you for citation to legal authority beyond George Clooney that treaties may not partially withdrawn from, you offered yet another treaty - the Vienna Convention.

The Constitution trumps treaty law, not the other way around.

No one claimed the latter. Go find some blog where they do, if you want to argue against that assertion.

As for the first assertion ("The Constitution trumps treaty law"); feel free to point out where in the Constitution it says this. I will agree that, as a practical matter, it does, but to a "textualist" like yourself, I'd think you'd have a passage from the Constitution ready at hand to back up this assertion.

Then there are the cases where there is no actual conflict between the Constitution and a treaty provision (as would seem to be the case here). What pertains then?

Cheers,

# posted by

Arne Langsetmo : 4:04 PM

"Bart" DePalma:

In the end, a treaty is a scrap of paper which only has the force of law which the President and Congress choose to grant it.

Ummm, didn't you misspell "constitution" there?!?!?

Cheers,

# posted by

Arne Langsetmo : 4:07 PM

Arne Langsetmo said...

"Bart" DePalma: We agree that treaties are not self executing and require enabling legislation to go into effect.

Then you claim that treaties somehow bind the President beyond the requirements of Congressional enabling legislation.

My point is that these are mutually exclusive positions.

arne: Why?!?!?

Once again, it matters not what treaties purport to require, it only matters what US law enabling the treaties in fact requires. If treaties were self executing, then enabling legislation would not be required. Consequently, the President is only required by US law to do what US law requires - nothing more and nothing less.

FWIW, I think one effect you might find of a treaty that lacks enabling legislation is that the treaty provisions may still be binding in the realm of international judicial forums. See Ben Davis's comment above.

I was expecting that Dilan would take this next step in the argument after realizing the mutually exclusive nature of his arguments. Now that you bring it up, I will be glad to address the question.

The Constitution is the supreme law of the United States and defines the power and responsibilities of the President and Congress. The Constitution does not provide that any branch of government is subject to international law or any prosecutions brought thereunder.

There is no constitutional provision for another branch nevertheless an international body to prosecute and remove Congress.

The Constitution provides only one method to prosecute and remove a President - impeachment. The courts have held that a sitting President may not be criminally prosecuted by US courts. Consequently, I doubt they would hold that foreign tribunals have jurisdiction to prosecute a President.

It is quite simply unconstitutional to submit a President or Congress to an international tribunal.

# posted by

Bart DePalma : 5:03 PM

Dilan said: But, again, that isn't the same thing as withdrawing from the treaty. Rather, that is putting the US in violation of the treaty, which Congress has the power to do.

You are right again as a matter of international law. As you suggest, violating international treaty obligations (especially norms that are as firmly entrenched as the Geneva Conventions) would certainly hurt US standing internationally. But the practical effect domestcally (and that is what matters most b/c that is where the treaty may be enforced) is the same as partially withdrawing, and US courts would be bound to respect the latter-in-time law, no matter how unwise the policy underlying it may be. As a litigator, you would have no viable argument that your detainee client is entitled to the protections of the GC.

# posted by

Adam : 5:03 PM

Then you claim that treaties somehow bind the President beyond the requirements of Congressional enabling legislation.

My point is that these are mutually exclusive positions.

It does not matter what treaties purport to require. All that matters is what the enabling legislation in fact requires.

It depends on what you are saying by "does not matter". What you seem to be claiming is that other than Constitutional restraints (and perhaps statutes enacted pursuant to Constitutional powers and treaties the President chooses not to withdraw from), there can be no law that binds the President. But that fundamentally misapprehends the effect of international law.

The US government is bound by certain obligations to the international community. Many of these obligations are completely unenforceable in US courts. For instance, if Bush-- without withdrawing from a treaty-- simply deploys ICBM's that are not permitted under relevant treaties, he would be violating the treaties. But it would not be enforceable except by diplomatic protest.

Furthermore, even if the treaty purports to limit executive action such as arms control treaties, the President may simply withdraw from the treaty as Mr. Bush did with the ABM Treaty.

Bart, look at your language here! "Purports" to limit executive action. Treaties don't PURPORT to limit executive action. They limit it! Indeed, nobody would ever sign them if they didn't.

You think that other governments would be willing to enter into agreements with the United States if they understood our position to be that the President is not bound by them?

I understand, again, that as a pratical matter, the President or Congress can commit the US to VIOLATE treaties-- with applicable international law sanctions, if any-- but that's TOTALLY different from saying that the treaties don't BIND the President. They surely do.

Again, you seem to misunderstand how international law works. International law is often toothless. Strong nations that don't want to obey it can get away with violating it. But that's NOT the same thing as saying that if the President does it, it's not illegal under international law.

When I asked you for citation to legal authority beyond George Clooney that treaties may not partially withdrawn from, you offered yet another treaty - the Vienna Convention.

That's not all I cited. I also cited Foster v. Nielson. And I cited The Paquete Habana. Those are US Supreme Court cases.

The Constitution trumps treaty law, not the other way around. You admitted that treaties not inconsistent with the Constitution are the law of the land. The President and Congress derive their powers to withdraw in whole or in part from a treaty from the Constitution.

No, Bart. What provision of the Constitution explicitly says that any organ of the goverment can withdraw from treaties?

Here's how it works. The President and the Congress surely have the power to violate treaties. Further, they can clearly withdraw from treaties that expressly permit such a withdraw.

Finally-- and this is the most controversial part-- when the President or Congress withdraws from a treaty where there is no withdrawal provision in the treaty, under Goldwater v. Carter, this is a nonjusticiable political question. In other words, the courts haven't said this is legal-- they have just said that if the political branches do it, they aren't going to interfere.

Consequently, the constitutional power to withdraw from a treaty trumps any contrary requirements of the VC.

Even if you were right that there was a constitutional power to withdraw from a treaty-- a point that the Supreme Court expressly REFUSED TO DECIDE AS A NONJUSTICIABLE POLITICAL QUESTION-- what is the support for the argument that this power extends to purporting to PARTIALLY withdraw from a treaty? That was the proposition I asked for authority in support of. You gave me none, and instead, asked for my authority. I gave it to you and asked again for yours. You again gave me none. I now ask a third time: WHAT IN THE BLAZES IS YOUR AUTHORITY FOR THE PROPOSITION THAT THE CONSTITUTION EXPRESSLY PERMITS "PARTIAL" WITHDRAWALS FROM TREATIES BY THE POLITICAL BRANCHES?

The provision in the Constitution calling treaties the supreme law of the land is a reference to the national effect of an enabled treaty, not that it is actually the supreme law of the land trumping the exercise of the constitutional powers of the President and Congress. In the end, a treaty is a scrap of paper which only has the force of law which the President and Congress choose to grant it.

No, Bart. Your view of the Supremacy Clause is inconsistent with Murray v. The Charming Betsy, another opinion of John Marshall, which holds that acts of Congress must never be construed to violate international law unless it makes a clear statement that it intends to do so. The Charming Betsy case has been cited by the Supreme Court with approval as late as 2004. Most importantly, in Sale v. Hatian Centers Council, Inc., in 1993, the Court cited The Charming Betsy in indicating that if a treaty obligation appears broader than its implementing statute, it can supply the governing rule of law to harmonize the two provisions. In doing so, the Court expressly rejected your interpretation of the Supremacy Clause. (The Court ended up holding that in the particular factual circumstances of Sale, the treaty obligation was not broader than the statute.)

But I might add, the broader point, which you seem to have conceded, is that the MCA did not withdraw from anything. It amended the implementing legislation. It did not contain a clear statement abrogating any treaty obligations. See Weinberger v. Rossi (Supreme Court holding clear statement of Congressional intent required before antidiscrimination laws with express extraterritorial effect would be interpreted to override US' treaty obligations to give preference to local workers in foreign posts). And indeed, the drafting history shows that Congress clearly intended NOT to withdraw from any treaties.

The fact of the matter is, subject only to the limits of the Constitution, Congress and even the President may be able to permit all sorts of violations of the Geneva Conventions, the Convention Against Torture, or many other treaties. But what you want to claim is that this action not only makes it legal under federal law, but that it vitiates the effect of the treaties. It does not. Like much international law, these treaties have limited means of enforcement. But they rely on state parties understanding that they have an obligation to obey them.

Congress may have decided to disobey the Geneva Conventions to the extent inconsistent with the MCA. But they did not withdraw; we are still bound, and we are still subject to diplomatic protest (and possible remedies within the legal systems of other countries) for violating them.

# posted by

Dilan : 5:05 PM

I should add that while in general, Bart is right that the sanctions for violating treaties are pretty toothless, there are some exceptions.

An excellent example of this is trade treaties. There is absolutely no doubt that Congress and/or the President could order the violation of a trade treaty (I realize that many of these are executive agreements, but this would be true even with an Article II treaty).

But there is also absolutely no doubt that multilateral governance mechanisms-- principally the WTO-- can impose sanctions against the United States. And it would be no defense to those sanctions that the violation of the treaty was constitutionally permitted under US law.

There is a lack of similar sanctions with respect to international human rights law. Basically, other nations are limited to diplomatic protest (and, perhaps, a theoretical power to arrest and prosecute persons found within their jurisdiction). But that doesn't make a violation of a treaty legal; it merely means that there is no meaningful redress.

Where there is meaningful redress, as there is in many trade agreements, the Constitution doesn't stand in the way.

# posted by

Dilan : 6:44 PM

Dilan said...

BD: The Constitution trumps treaty law, not the other way around. You admitted that treaties not inconsistent with the Constitution are the law of the land. The President and Congress derive their powers to withdraw in whole or in part from a treaty from the Constitution.

No, Bart. What provision of the Constitution explicitly says that any organ of the goverment can withdraw from treaties?

This is implied from the constitutional ability to enter into treaties.

Finally-- and this is the most controversial part-- when the President or Congress withdraws from a treaty where there is no withdrawal provision in the treaty, under Goldwater v. Carter, this is a nonjusticiable political question. In other words, the courts haven't said this is legal-- they have just said that if the political branches do it, they aren't going to interfere.

If withdrawal from a treaty was unconstitutional in some way, Goldwater would have argued this and the Court would have granted cert. Either no one has thought of your argument or it was considered and rejected. I tend to think the latter was the case.

The argument offered by Goldwater was not that the President could not withdraw from a treaty, but rather than he needed Senate approval to do so just as he needed approval to enter into a treaty.

It was on this argument that the Court dismissed the suit, reasoning that the argument raised a non-justiciable political issue. There was no hint that the Court thought that it was illegal for the President or Congress to withdraw from a treaty.

The provision in the Constitution calling treaties the supreme law of the land is a reference to the national effect of an enabled treaty, not that it is actually the supreme law of the land trumping the exercise of the constitutional powers of the President and Congress. In the end, a treaty is a scrap of paper which only has the force of law which the President and Congress choose to grant it.

No, Bart. Your view of the Supremacy Clause is inconsistent with Murray v. The Charming Betsy, another opinion of John Marshall, which holds that acts of Congress must never be construed to violate international law unless it makes a clear statement that it intends to do so.

Charming Betsy creates a standard for determining whether Congress intended to address a treaty through statute, not whether Congress has the power to do so. My point is that Congress the power to partially withdraw from a treaty by limiting its enforcement.

BD: Furthermore, even if the treaty purports to limit executive action such as arms control treaties, the President may simply withdraw from the treaty as Mr. Bush did with the ABM Treaty.

Bart, look at your language here! "Purports" to limit executive action. Treaties don't PURPORT to limit executive action. They limit it! Indeed, nobody would ever sign them if they didn't.

You think that other governments would be willing to enter into agreements with the United States if they understood our position to be that the President is not bound by them?

I used the term "purports" purposefully to reflect that fact that treaties themselves provide no legal limitation at all on the Executive except what the Executive concedes or the Congress enacts through enabling legislation.

Your point that other nations will not enter into treaties with the US if we keep withdrawing from them is a very valid policy, but not legal, consideration.

# posted by

Bart DePalma : 7:50 PM

Bart, I am now going to repeat for the FOURTH TIME, and I thought the caps were sufficient before. WHAT IS THE SOURCE OF YOUR AUTHORITY FOR THE PROPOSITION THAT CONGRESS OR THE PRESIDENT CAN "PARTIALLY" WITHDRAW FROM TREATIES?

3 times, you have ducked the question. Will it be a fourth?

Now, as for what you did write.

This is implied from the constitutional ability to enter into treaties.

Do you have any case authority for this? In fact, many of the treaties that Presidents have signed and Congress has ratified contain express provisions REQUIRING a particular procedure for withdrawal, such as notice provisions. Since those provisions, once ratified, are the supreme law of the land, it would seem at least debatable whether the Constitution nonetheless provides as a necessary implication of the power to enter into treaties that there is a power to withdraw from them. Or are all these treaties unconstitutional?

Look, as a general matter, I accept that the President or Congress can withdraw the United States from a treaty, because the political question holding of Goldwater v. Carter certainly leaves the political branches in a place where this can't be challenged.

But it certainly doesn't NECESSARILY follow that because the Congress has the power to enter into a treaty, that it can withdraw from one. Further, under a textual analysis, that would leave the President without any power at all to withdraw from a treaty on his or her own, because treaties require Senate ratification.

Charming Betsy creates a standard for determining whether Congress intended to address a treaty through statute, not whether Congress has the power to do so. My point is that Congress the power to partially withdraw from a treaty by limiting its enforcement.

No, Bart, Charming Betsy involves a recognition that because US obligations under international law are particularly important, statutes will be construed in a way so as not to violate international law unless there is no reasonable construction that avoids the conflict.

Now, if treaties absent implementing legislation were as non-binding as you seem to think they are, why would you have such a rule? Remember, this is the same rule that is applied in CONSTITUTIONAL cases to ensure that the Constitution is not violated!

Obviously, the Supreme Court has, for 200 years, felt international law is a lot more important than you think it is. So important that they want to make absolutely sure that Congress intends to violate it, even in situations where there is no implementing legislation. In other words, the treaty BINDS the government, even when the implementing legislation has not been passed.

That is completely contrary to your theory of the Supremacy Clause.

You also ignored the other Supreme Court cases I cited which also reject your interpretation of the Supremacy Clause.

I used the term "purports" purposefully to reflect that fact that treaties themselves provide no legal limitation at all on the Executive except what the Executive concedes or the Congress enacts through enabling legislation.

So, then, all those WTO sanctions are illegal, then? Seriously, Bart, you just don't know the difference between "not judicially enforceable" and "legal", do you? This is a simple concept. States are required to guarantee us a republican form of government. If they don't, can we sue? No. But does that mean that a state that switches to a non-republican form of government is acting legally? No it doesn't.

Similarly, Congress and the President can certainly do whatever they want within the strictures of the Constitution. But when they violate treaties, the treaties don't go away. Rather, they have violated international law.

And as I said, even though international law is usually toothless, it isn't always. The US has, for instance, repeatedly been sanctioned by the WTO in trade matters, including, for instance, based on Congress' passage of a law (the Byrd Amendment) that amended US anti-dumping laws and was found to violate the GATT.

In other words, Congress did something, it was constitutional, but it didn't withdraw us from the GATT and it certainly wasn't legal under international law.

Just because the Geneva Conventions are enforceable by diplomatic protest doesn't mean the principles are any different.

Your point that other nations will not enter into treaties with the US if we keep withdrawing from them is a very valid policy, but not legal, consideration.

It's only not a "legal" consideration if you don't believe there's such a thing as international law.

You need to understand, treaties are effectively contracts between states. Like any contracts, they are enforceable because each party understands that the other side is binding itself to the agreement. If one side is purporting to agree while reserving its right not to be bound, the whole regime unravels. For that reason, international law requires that each state party is bound. And nothing in the Constitution precludes this. All the Constitution does (besides impose some substantive limitations on the subject matter of treaties) is provide that if the political branches make themselves very clear about it, they can go ahead and breach the contract. The underlying obligation remains.

Again, the only way out of this is to just say that there's no such thing as international law apart from what the domestic political branches choose to recognize. But, again, you can certainly ponder that question while the US is subjected to trade sanctions by the WTO.

# posted by

Dilan : 8:26 PM

Dilan, you've made a series of excellent posts. Let me just supplement with a quote from James Wilson which confirms your point about the attitude of the Founders towards treaties:

“Nations … ought to preserve inviolably their treaties and engagements. [B]y not preserving them, they subject themselves to all the consequences of violating the perfect right of those to whom they were made. This great truth is generally acknowledged, but too frequently an irreligious disregard is shown to it in the conduct of princes and states. [S]uch a disregard is weak as well as wicked. In public as in private life, among sovereigns as among individuals, honesty is the best policy....

A state which violates the sacred faith of treaties violates … the natural and necessary law of nations; … the fulfillment of promises is a duty as much incumbent upon states as upon men. Indeed, it is more incumbent on the former … [because] the consequences of performing and of violating [them] are generally more important….” The Papers of the Honorable James Wilson, Vol. I, p. 176; Cite.

# posted by

Mark Field : 9:04 PM

"Bart" DePalma:

["Bart"]: We agree that treaties are not self executing and require enabling legislation to go into effect.

Then you claim that treaties somehow bind the President beyond the requirements of Congressional enabling legislation.

My point is that these are mutually exclusive positions.

arne: Why?!?!?

Once again, it matters not what treaties purport to require, it only matters what US law enabling the treaties in fact requires.

Non-responsive to my comment: Why are they "mutually exclusive"?

But I disagree with your assertion here. As others have pointed out, treaties are U.S. law, in fact the "supreme law of the land", and preznits are bound by them. The effect of the implementing legislation is more to create a cause of action and/or criminal penalties for redress of breaches in U.S courts (in other venues, the treaty alone may well be sufficient for such).

Cheers,

# posted by

Arne Langsetmo : 10:49 PM

Dilan said...

Bart, I am now going to repeat for the FOURTH TIME, and I thought the caps were sufficient before. WHAT IS THE SOURCE OF YOUR AUTHORITY FOR THE PROPOSITION THAT CONGRESS OR THE PRESIDENT CAN "PARTIALLY" WITHDRAW FROM TREATIES?

Once again, if Congress or the President can withdraw completely from a treaty, they can take the lesser step of withdrawing partially from a treaty.

This is no different from Congress having the power to completely or partially change any other law.

BD: This is implied from the constitutional ability to enter into treaties.

Do you have any case authority for this?

Both Congress and various Presidents have withdrawn from treaties and the Courts never got involved.

Further, under a textual analysis, that would leave the President without any power at all to withdraw from a treaty on his or her own, because treaties require Senate ratification.

That is an interesting question which the Court left unanswered.

Charming Betsy creates a standard for determining whether Congress intended to address a treaty through statute, not whether Congress has the power to do so. My point is that Congress the power to partially withdraw from a treaty by limiting its enforcement.

No, Bart, Charming Betsy involves a recognition that because US obligations under international law are particularly important, statutes will be construed in a way so as not to violate international law unless there is no reasonable construction that avoids the conflict.

I do not disagree. However, as I posted above, this is still a decision establishing a rule of interpretation, not a decision on the powers of Congress or the President.

Now, if treaties absent implementing legislation were as non-binding as you seem to think they are, why would you have such a rule?

Believing that treaties are important enough to make sure that Congress intended to address them in legislation is NOT a commentary on Congress' power to do so.

Obviously, the Supreme Court has, for 200 years, felt international law is a lot more important than you think it is.

I have not made a single comment on the importance of international law, merely the power of Congress and the President to affect it, so you have no idea what I think.

BD: I used the term "purports" purposefully to reflect that fact that treaties themselves provide no legal limitation at all on the Executive except what the Executive concedes or the Congress enacts through enabling legislation.

So, then, all those WTO sanctions are illegal, then?

The fact that Congress or the President have the power to withdraw from the various trade treaties which recognize the WTO does not mean that the WTO or its rulings are in any way illegal. The parties to these treaties voluntarily agree to be bound by WTO rulings because the benefits of free trade outweigh the setbacks of adverse WTO rulings.

Congress and the President can certainly do whatever they want within the strictures of the Constitution. But when they violate treaties, the treaties don't go away. Rather, they have violated international law.

Laws require enforcement and consequences. Without enforcement, you have a meaningless resolution. Acting contrary to a resolution is not a violation of law.

If you want to note that we are now acting contrary to the ABM treaty from which we withdrew, you would be correct. However, we are not violating international law because the old ABM treaty no longer has the force of law.

You need to understand, treaties are effectively contracts between states. Like any contracts, they are enforceable because each party understands that the other side is binding itself to the agreement.

No, treaties are definitely not contracts. Contracts have the force of law because their terms are enforced by the government, not by the good will of the parties. There is no world government to enforce treaties. Rather, they are simply agreements of convenience between the party nations which last so long as they are useful to the party nations.

A large part of my practice is seeking to enforce contracts in courts of law after one party breaches and attempts to avoid performing his or her duties under the agreement. If there were no mechanism to enforce these contracts, they would not be worth the paper on which they were written.

# posted by

Bart DePalma : 11:51 PM

"Bart" DePalma:

The Constitution does not provide that any branch of government is subject to international law...

Well, except this:

U.S. Constitution:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

You're a good "textualist", "Bart". Read 'em and weep.

Cheers,

# posted by

Arne Langsetmo : 12:24 AM

"Bart" DePalma:

The Constitution provides only one method to prosecute and remove a President - impeachment.

Another claim, that while possibly 'correct' in contemporary legal thinking, is not with any support from the text of the Constitution itself. I'd even note that while Congress is specifically exempted from prosecution for certain acts related to business, or while in the course of Congressional business, the founders did not see fit to put in such for the preznit. I'm sure a 'textualist' like "Bart" should immediately conclude that since it's not there, and in addition it is there for Congress, there is no such Constitutional prohibition for prosecution of the preznit, express or implied.

Cheers,

# posted by

Arne Langsetmo : 12:31 AM

"Bart" DePalma:

Consequently, I doubt they [U.S. courts] would hold that foreign tribunals have jurisdiction to prosecute a President.

SFW? They don't hold any authority over foreign or international courts.

Cheers,

# posted by

Arne Langsetmo : 12:34 AM

Most of the rest of Bart's post is answered above, i.e., there is plenty of positive law out there that exists despite the fact that there is no sanction attached to its violation.

I do note, however, that Bart's only response to my question as to what authority exists for a partial withdrawal from a treaty is that Congress has the power to withdraw in toto.

First, that position is not supported by the text of the Constitution. Bart is implying a power from another implied power here. He is saying that first, the power to enter into includes the power to withdraw, and second, the power to withdraw includes the power to partially withdraw.

But second, he is ignoring the effect of international law. That Vienna Convention didn't come out of nowhere. It enshrines a common sense principle, one which the US government-- EVEN THE CURRENT ADMINISTRATION-- accepts as binding customary international law.

That common sense principle is that the expectations of parties who enter into treaties is that the other parties will be bound in toto and that any reservations will be stated up front when the other parties have a chance to get out of the deal-- not that the parties will later pick and choose what parts of the deal they will be bound by.

There's a reason the Bush Administration, and every previous administration, recognizes this as a binding principle of customary international law. It is because there are treaty obligations we have secured from other countries and we don't want them to withdraw from portions of them. For instance, we don't want China to purport to withdraw from portions of the GATT requiring them to open certain markets. We don't want Great Britain to decide that it won't abide by provisions of an extradition treaty requiring due process for Americans arrested abroad. We don't want Venezuela to declare that it will not respect Americans' right to request a consular visit upon arrest if they are accused of a serious crime.

Of course, you will just say that this is international law and the President can override it like everything else. But you miss that the issue of partial withdrawal from a treaty cannot simply be dependent on US law. The reason for this is because the other state parties bargained for our full adherence to the treaty. So, if we purport to partially withdraw, they are now stuck with a bargain that they never made. So there has to be a rule of international law that prevents this. It happens that the rule that the international community, including the US, has assented to is that unless the treaty provides otherwise, withdrawal is all or nothing.

At bottom, the only thing you have going for your provision is that the US can get away with a lot of things because international law doesn't have any teeth in this area. But what you WANT to do-- and can't-- is declare the actions of Bush and the 2006 Republican Congress LEGAL. The actions of the US government simply do not define the content of international law. At most, we may withdraw from the regime entirely. But since we didn't-- and you have ignored, during this entire discussion, the fact that THE LEGISLATIVE HISTORY OF THE MILITARY COMMISSIONS ACT MAKES IT CLEAR THAT CONGRESS WAS NOT WITHDRAWING FROM THE GENEVA CONVENTIONS, PARTIALLY OR OTHERWISE. So, you are advancing a theory that not even the Republicans who supported the MCA advanced.

The Republican Congress of 2006 and the President deliberately placed the country in violation of international treaty obligations.

# posted by

Dilan : 2:01 AM

Oh, and by the way, Bart. You said: No, treaties are definitely not contracts. Contracts have the force of law because their terms are enforced by the government, not by the good will of the parties. There is no world government to enforce treaties.

But Chief Justice Marshall, in Foster v. Nielson, said: "a treaty is in its nature a contract between two nations". Our current Chief Justice, John Roberts, quoted that with approval in Sanchez-Llamas v. Oregon.

So you may not think that treaties are contracts, but the Supreme Court does and has for over 200 years.

# posted by

Dilan : 2:16 AM

If there were no mechanism to enforce these contracts, they would not be worth the paper on which they were written.

But there are mechanisms to enforce such contracts. We used violations of UN resolutions as a reason to invade Iraq--did we fail to enforce the contract? We may disagree about the propriety of that action, but neither of us can deny that the former regime of Iraq was penalized in some way for its violations.

Those who argue that the US should uphold its international obligations seek to shelter its government and its population from such actions in the future. Those who argue that the the buck stops at Washington are no different than the despot hoping to balance negative international opinion with the weight of his military.

# posted by

PMS_CC : 12:11 PM

Dilan [to "Bart"]:

At bottom, the only thing you have going for your provision is that the US can get away with a lot of things because international law doesn't have any teeth in this area. But what you WANT to do-- and can't-- is declare the actions of Bush and the 2006 Republican Congress LEGAL.

I think you misapprehend the situation. I think "Bart" is of the opinion that Nixon was right when he said, "If the president does it, it's not illegal" and all the corrollaries of said philosophy, such as, "if you can get away with it, murder is OK", "if the effin' U.S. of Aye wants to do something, it's their Gawd-given right", "might makes right", "bring 'em on", and last but not least, "Bart"'s favourite: "Make me!"

But we're delving into the realm of psychology here, and perhaps we should stick to matters of law.

Cheers,

# posted by

Arne Langsetmo : 5:33 PM

"If there were no mechanism to enforce these contracts, they would not be worth the paper on which they were written."

The same could be said about the Constitution. And in the end (as I'd pointed out to Jesse Choper), there is no fool-proof way to "enforce the Constitution" under all circumstances; the Constitution -- as well as treaties -- relies to some great extent on the good will and integrity of the various parties to any dispute; should any of these parties not agree to some binding outside authority ... oh, say, like saying that they refuse to order the Justice Department to bring contempt charges against their own underlings and/or to submit the dispute to a Article III tribunal ... the while thing falls apart.

Cheers,

# posted by

Arne Langsetmo : 7:24 PM

Arne: But we're delving into the realm of psychology here, and perhaps we should stick to matters of law.

I don't know if there's anyone still watching this thread, but I wanted to point out that while you've offered a set of lay-person or colloquial "make me" examples, there are powerful voices in the legal academic community giving aid and comfort to this kind of right-makes-might thinking, most notably Posner and Coase, the former, I believe, being on record as saying if it's cheaper to pay the fine than to obey the law then a corporation has a duty to break the law, the latter being on record as trying to equate wrongdoing with redress of that wrongdoing. As long as the academy produces this kind of power apologetics we will have scum like Yoo treated as credible...and their ideological ground troops mouthing the nonsense you quote.

$.02

# posted by

Robert Link : 10:44 AM

Robert Link:

I don't know if there's anyone still watching this thread, but I wanted to point out that while you've offered a set of lay-person or colloquial "make me" examples, there are powerful voices in the legal academic community giving aid and comfort to this kind of right-makes-might thinking, most notably Posner and Coase, the former, I believe, being on record as saying if it's cheaper to pay the fine than to obey the law then a corporation has a duty to break the law, the latter being on record as trying to equate wrongdoing with redress of that wrongdoing.

My big complaint with Posner's 'logic' is not that he recommends paying the fine if it's cheaper to do so than breaking the law. That makes some kind of twisted "might makes right"/"it's only economics" sense. He goes beyond this and states that you should not only not do what's necessary to avoid the tort, but rather that -- should the expected bad thing happen (which by assumption in his argument will happen, but which is less costly than the remedial measures) -- you shouldn't even have to pay for the tort because you're blameless, having taken the "appropriate steps" (which is to say 'nothing', because they were too expensive), and the injured party be damned. That just doesn't make any sense to me. To my mind, if you're going to say it's more efficient economically to pay for the torts than prevent them, well and fine, but at least make them pay for the friggin' torts that do occur, then. I wish I'd pursued this criticism a bit harder when I was in school....

Cheers,

# posted by

Arne Langsetmo : 12:19 PM

@Arne, any chance of a decent link for this? My fly-by-night school doesn't really cover such matters. My guess is that Posner builds on Coase, who, in turn rests an awful lot on the fallacy that wrongdoing and redress of same can be reasonably equated under the label "harm".

# posted by

Robert Link : 12:33 PM

Robert Link:

@Arne, any chance of a decent link for this? [Posner]

Prolly not. I think that my sweetie demanded I purge my books, and I think I gave away my copy of Posner's book on torts. But I think the essence of his formulation for liability in tort law (you know, getting rid of these unscientific, archaic, and nebulous concepts such as "due care", "reasonably forseeable", "negligent", etc., and grounding tort law on a modern scientific basis) was to assume that people did know enough about the forseeable risks, but that the problem was that ameliorative or preventative measures could interfere with the efficient conduct of Business.

Obviously, if you don't know about a hazard, you can't make any rational economic determination of the risks. But in such a case, why would you spend a cent to eliminate the risk you didn't even know about? But someone ought (at least in retrospect) to be able to figure out the risk and the costs of prevention. At that point, according to Posner, you're OK as long as you paid in prevention at least as much as the expected cost of the tort (times the expected frequency of such), evaluated dispassionately on the evidence (even evaluated ex post facto; the actual numbers oughtn't change). You've then paid your "share", and you shouldn't be further liable. For obvious reasons, you shouldn't pay more for prevention than the expected cost of the tort; that would be inefficient, and Psner cares about "efficiency" and believes that free markets determine such things with precision. Thus market forces will keep the level of prevention at the precise level needed to compensate efficiently for the torts prevented by such. But ... and here's the rub ... what happens when the tort occurs anyway? Well, you, the injured party, are just SOL!!! Where did Posner's pointy little laissez faire head fail? Isn't his logic about "efficiency" sterling? Well, it happened because his "efficiency" assumption was that the prevention would keep the tort from occuring the the first place, and says nothing about what should happen if the efficiency calculation happens to be wrong. Probabilities of a act occuring change dramatically once the act occurs. At that point, it's silly to talk about a priori probabilities ... and rather heartless to do so as well.

He insists that as long as you had met the a priori probabilities calculation and put in at least as much protection as was warranted by the potential damage, you ought to get off scott-free (as I said above, you'd paid your "dues"), and the injured party is just SOL. But!!!!: This assumes that the prevention actually prevents the tort (or at least some proportion of them), and to my mind, the tortfeasor gets their money back for their "prevention" from the lack of such tort cases, and they shouldn't get off the hook when the tortsd nonetheless occur. In his simplified hypothetical, there shouldn't be any torts where the tortfeasor would be liable if they put in the prevention, so it shouldn't matter whether they are still held liable (in such nonexistent cases) having put in the proper amount of protection.

Someone else feel free to chime in and correct me if I'm getting Posner on torts wrong; it's been a while.....

Cheers,

# posted by

Arne Langsetmo : 2:21 PM

Arne: Where did Posner's pointy little laissez faire head fail?

Although I sometimes strive for a more measured prose, in my secret heart most observations about certain folks start with a similar tone. And it's not like I'm ever gonna have to face him as judge of a case I'm on and have him recognize me as the pip-squeak who called him a "right makes might apologist" or "PNAC enabler". :)

I'm not clear on the timing, but it seems to me that Posner's arguments, if they come after Coase's "The Problem of Social Cost" rest nicely on some cards palmed therein. In particular there's a nice digression about the cost to fence out cattle thereby protecting a farm versus the cost of paying for losses to the farm where the cattle destroy crops. There's also discussion of spark arresters on trains with the idea that "all things being equal" (i.e., given "zero transaction costs") then the matter of forcing the railroad to install the spark arresters should be evaluated next to the value to the owners of the timber at risk from train sparks.

Both example sets accept as axiom a simple error from the beginning paragraphs of the paper, in which the economic interference to a physician by a confectioner next door is equated with a hypothetical injunction granted to said physician against the confectioner; that is, wrongdoing is equated with redress of wrongdoing on the, incorrect, notion that there is a "reciprocal" relationship of "harm" at issue.

I know scientism prevails, but, seriously, I'd like to someday see a good explanation for how "efficiency" became the substitute for "justice" in legal analysis. I suspect socio-economic forces, much the same as those which trick the GOP "base" into voting against their clear class interests to keep our PNAC overlords in charge.

Always a pleasure!

# posted by

Robert Link : 3:55 PM