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Eric: "I agree with you that these decisions [whether the U.S. should breach its treaty obligations] should be made by politically responsible officials at the highest levels."
Of course I agree with Eric that if Congress authorized the CIA to engage in cruel treatment, such a later-enacted statute would, for domestic-law purposes, supersede the executive obligation not to breach the treaties. But it's not an accident that even in the wake of Hamdan, and with the enactment of the MCA, no one in Washington—not even Dick Cheney and David Addington or any member of Congress—has proposed a law that would permit cruel treatment and torture or that would otherwise place the U.S. in breach of the CAT and the Geneva Conventions. And that's because everyone in Washington agrees—at least publicly—that a public and conspicuous national decision to breach those treaties would have disastrous international consequences (not to mention that it would undermine the moral authority that we worked decades to build). To the extent that Eric or Ben is proposing such a statute (and I don't quite read Ben to be advocating that, except perhaps in his hypothesized emergency "exception"), it's simply a political nonstarter (for which I am thankful).
And so the question remains: If Congress does not authorize breaches of the treaties—and it won't—is the president one of the "politically responsible officials at the higest levels" who can unilaterally decide to breach? If so, on what theory?
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Morally relevant, Marty, not legally relevant. That a law exists does not mean that it is a good law. On the second point: not "two wrongs make a right," but "historic practice has been to balance security and other values," and one shouldn't be fooled by absolutist rhetoric. To the contrary, indeed, one should consider the possibility that the decisionmakers in question—Lincoln, FDR, et al.—may have had good reasons for acting as they did. I was simply agreeing with Ben that moral argument should be brought to bear on policy problems; I was adding that nothing in history suggests that the moral starting point has been resolved. The tricky problem, as you note, is how to modify international law when it no longer reflects good policy and bars actions that may be justified under current conditions. Sometimes, states are able to renegotiate it, but this is an extremely cumbersome process; usually, they assert aggressive legal interpretations that other states either resist or acquiesce in. As for your question, I think rule of law values should be considered along with other values, but—I have a feeling that here is source of much of our disagreement-I don't think they should be decisive. That's what makes me a living constitutionalist like your co-blogger Jack. But I agree with you that these decisions should be made by politically responsible officials at the highest levels.
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Eric makes at least two arguments in response to my claim the CIA's enhanced interrogation techniques would violate the Geneva Conventions and the Convention Against Torture. First, he claims that "treaties are only as good as the underlying logic of reciprocity on which they depend. The best case for refusing to extend law of war protections to al-Qaida never rested on the legalisms of the Bush Justice Department; it was that we could never expect this group to act in reciprocal fashion in its treatment of Americans. So whatever the right approach to al-Qaida as a matter of policy and morality, there is no reason to think that the standards in the Geneva Conventions are relevant."
This is simply wrong—the protections of Common Article 3 (not to mention of the CAT) are simply not dependent on a "logic of recipocity." Everyone, for example—even the Bush Administration—agrees that Common Article 3 governs the treatment of detainees in a civil war, even though the insurgent forces are not signatories to the treaties. So this is simply a misreading of the relevant agreements.
Second, Eric's more substantial argument appears to be that the U.S. has frequently breached treaties for national security purposes, so why start complaining now?
Now, not all of Eric's historical examples are good analogies, because in some cases the conduct in question was not authorized by the President or Congress (i.e., the breaches were unauthorized), and in others there was a plausible claim that the treaty was not violated. But of course some of his examples are analogous: The U.S., like most nations, has occasionally engaged in presidentially sanctioned conduct that breached our treaty obligations.
And ... what, exactly? I'm not quite sure how to respond to such a "two wrongs make a right" argument.
There is no statute, or any treaty, that has enjoyed universal compliance. Murders occur despite murder statutes. Tax fraud is rampant despite laws to the contrary. Etc., etc. And presidents themselves sometimes violate the law.
It remains the case that the president is constitutionally obligated to take care to faithfully execute treaties, i.e., not to intentionally breach them. And it is therefore noteworthy, I think, that until John Yoo entered the government, the executive branch had never (to my knowledge, anyway) expressed the view that it was at liberty to disregard treaty obligations. The government has never claimed the right to torture—not in the Civil War, not in Vietnam; not even in the (post-Yoo) Bush Administration. (Interesting that you should bring up the matter of Sherman, Eric. Even as to the customary laws of war—not treaty obligations—Sherman was resolute in thinking that he could not violate them; and he and Halleck were insistent on establishing a legal basis for the most controversial of his actions, the evacuation of the residents of Atlanta. See note 199.)
If your point is simply that there are historical examples where treaty breaches have been accomplished "in the shadows"—well, who could argue with that? The question, however, is whether it's acceptable constitutional behavior, and, in particular, whether OLC should construct arguments in its favor. And, I suppose, whether leading academics should encourage it. If I understand you, Eric, you appear to think that is equals ought, and that the president should breach treaties whenever the "stakes" are, in the president's own (unilateral and unreviewable) view, "high enough." I hesitate to ask this because I fear your answer, but ... shouldn't the Rule of Law and the Take Care Clause have any role to play in this consequentialist calculus?
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In his first post in response to my recent column, Marty declares me “simply incorrect” for arguing that there is, as I put it, “considerable space between what the [Army] field manual [on interrogations] permits and what the law might reasonably tolerate.” In his second post, he spends some thoughtful paragraphs articulating what interrogation tactics do and do not fall within that space, demonstrating, I think, that his first post was, well, simply incorrect.
The truth is that the gap that separates us on the merits here is not large. We both agree that the military should be governed by the Army Field Manual, which should have, and now does have, the force of law. We both agree that the Bush administration’s rejection of additional legal constraints on the CIA is wrong. We both agree that the CIA should be bound, like the military, to some additional, publicly articulated set of procedures that falls within the broad prohibitions of Common Article 3, the Convention on Torture, and America’s other international obligations. And we both agree—at least, we do after Marty’s second post—that this set of procedures could lawfully include procedures denied the military under the Field Manual.
We disagree, as best I can tell, on two things:
The first is the precise legal structure that should embody our areas of agreement. Marty believes the CIA should be bound to the Army Field Manual plus whatever additional tactics Congress chooses to specify. I believe, rather, that the CIA should have its own field manual and that a provision of law parallel to the McCain Amendment should bind the agency to it. This would give the agency the flexibility to adopt and change interrogation tactics within the boundaries of international and domestic law, giving it the ability to design policy suited to its particular needs, which may well deviate from those of the military.
The second and probably more serious area of dispute is that Marty does not, as I understand his position, contemplate the need for ever deviating from the prescribed procedures. I, by contrast, suspect there are extreme situations in which the rules will be breached—and should be breached. And I believe the law needs to somehow come to grips with that reality—that is, in a fashion that law almost never does, to contemplate the circumstances of its own violation. This is why I believe the problem of interrogation is exceptionally hard, and not—as Marty rather breezily declares it—an easy one. The careful reader of Marty’s posts will, I suspect, realize that Marty, beneath that breezy declaration, understands it as hard as well.
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Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at NYU Law School. His thoughts on the torture memo and Guantanamo, below:
John Yoo’s recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo’s memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo’s ideas through the Military Commissions Act of 2006.
The prisoners condemned to legal limbo as “enemy combatants” are the first casualties of Yoo’s War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions’ legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo’s earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.
Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo’s discredited assertion that the Bill of Rights does not apply to the president’s conduct of the “war on terror” inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as “enemy combatants” even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt.
Criticisms of Yoo often overlook his unthinking conflation of terrorism with war. Yoo is right that a state of war gives the president broad powers, even if he is wrong that those powers are unlimited and beyond regulation by Congress. But Yoo never critically examines the legal consequences of extending his too-robust vision of the executive’s war powers to terrorism. It is this leap that makes many of Yoo’s bolder assertions so terrifying. For example, Yoo’s assertion that the Fourth Amendment has “no application to domestic military operations” uses the rhetorical trope of the “war on terror” to mask the creation of a police state that can seize, interrogate, and indefinitely detain individuals on mere suspicion. It effectively sanctions a permanent state of emergency in which executive say-so swallows the traditional protections of criminal law upon which the Constitution’s guarantees of individual liberty were founded.
Restoring justice in America requires more than exposing and repudiating John Yoo’s legal thinking. It requires restoring the system that Yoo’s discredited ideas have helped to undermine and destroy.
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Marty criticized Ben for arguing in a column that the rules governing CIA interrogation should be different from those governing the Army. Marty says that America's "core values," embodied in administrative regulations, statutes, and policies going back hundreds of years, reject any type of interrogation policy harsher than that now in place for the Army and that, in any event, treaties settle the matter. Ben responds that treaty law does allow for harsher interrogation techniques than those adopted by the Army. But the matter of core values remains.
The problem with Marty's argument is not just that the military law that was good enough for George Washington or Abraham Lincoln is no more likely to be appropriate for security challenges today than the environmental laws of those eras are for global warming. The problem goes deeper than that. At the risk again of being Dr. Evil to Marty's Austin Powers, I should point out that Marty's version of history—according to which our core values had been established by the time of the Civil War, if not the Revolutionary War, and have settled all controversies about security policy since then—is altogether too sunny. Though not usually a matter of formal policy at the presidential level, American governments have tolerated and often advanced torture, the killing of civilians and destruction of civilian property, and other atrocities in the pursuit of ends deemed necessary to the national interest. The Civil War produced the Lieber Code but also Sherman's scorched-earth campaign in Georgia and South Carolina; I believe that torture was also common in prison camps on both sides. American forces also committed atrocities in the wars against Indian tribes and in the lengthy engagement in the Philippines, where Americans used torture and other aggressive tactics to subdue an insurgency. In World War II, U.S. forces fire-bombed civilians in Europe, committed atrocities against Japanese soldiers, and fire- and nuclear-bombed Japanese cities. The Korean War was also a brutal affair. Vietnam featured torture, assassination programs, and massacres. Throughout the entire Cold War, American military policy was to exterminate tens of millions of Russians and people living in other countries if the Soviet government launched a first strike. Meanwhile, the CIA was also very busy with, among other things, apparently developing psychological torture techniques and disseminating them to foreign security agencies, and the U.S. government supported foreign governments that committed atrocities against their populations, even providing assistance to their security agencies.
This is not to deny that we have values embodied in laws and treaty obligations; it's just that these values have always yielded to national security when political leaders believed that the stakes were high enough. America's traditional approach has been to use the rhetoric of moral absolutism but to act pragmatically, while the rest of the world gazes at our hypocrisy with slack-jawed astonishment. If history shows anything, it is that American governments balance values and security needs, that the calculus is being constantly revised, and that if it is not done explicitly, it will be done in the shadows.
Treaties don't settle the matter, either. Treaties are only as good as the underlying logic of reciprocity on which they depend. The best case for refusing to extend law of war protections to al-Qaida never rested on the legalisms of the Bush Justice Department; it was that we could never expect this group to act in reciprocal fashion in its treatment of Americans. So whatever the right approach to al-Qaida as a matter of policy and morality, there is no reason to think that the standards in the Geneva Conventions are relevant. It is often said that if we violate the Geneva Conventions in our treatment of al-Qaida, other countries will violate the Geneva Conventions when at war with the United States, but there is no evidence for this claim. Reciprocity of this sort clearly does, sometimes, occur between two belligerents at war (the United States and Germany during World War II, for example), but no one has shown that a nation's treatment of enemy soldiers depends on how those soldiers' military acted in prior or independent wars with other nations. In any event, whatever the empirical validity of this conjecture, it is just one factor that enters the complex moral calculus that Ben wants us to undertake.
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America's version of banal evil lurks in the bloodless abstractions of mid-level lawyers, rather than in the gray efficiency of faceless bureaucrats.
The reference, of course, is to a term coined fully 45 years ago, in the trial reportage compiled into the book
Eichmann in Jerusalem: A Report on the Banality of Evil. As described in this
post,
Banality was philosopher
Hannah Arendt's account of that early effort by a nation-state, Israel, to prosecute an individual in its national courts for internationally condemned crimes. In describing actions "so obscene in their nature and consequences" as "'banal,'" it's explained
here, Arendt
meant to contest the prevalent depictions of the Nazi's inexplicable atrocities as having emanated from a malevolent will to do evil, a delight in murder. As far as Arendt could discern, Eichmann came to his willing involvement with the program of genocide through a failure or absence of the faculties of sound thinking and judgement. ...
Eradicating abusive policies and, at least as importantly, the institutional structures within which they found root, indeed must be a priority item on the next president's to-do list.
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In the Washington Post yesterday, Bruce Ackerman and Oona Hathaway argued, not without some force, that when the current U.N. Iraq Resolution expires on December 31, there will no longer be any factual predicate for the president's use of military force in Iraq pursuant to the 2002 statute that authorized such force.
Although the Bush administration does not concede that congressional authorization will expire on New Year's Eve, it understands the strength of the argument, and therefore it is planning to establish new authorization—not by way of a treaty or law approved by Congress, but instead through a "sole executive agreement" with Iraq that would commit the U.S. to provide military support there for the foreseeable future.
As I understand them, Bruce and Oona argue that such a unilateral presidential agreement would be unlawful for one or both of two reasons: i) the President does not have independent power to enter into such an agreement because he would not have the constitutional authority to unilaterally introduce troops into present-day Iraq in the first place; and/or ii) such an agreement would violate implied statutory limitations—"conditions"—placed on the president in the 2002 law.
I tend to think although the recent Medellin decision gives some support to the first argument against the sole executive agreement, the second of these arguments (that the agreement would transgress limits implicit in the 2002 statute) is the stronger one. Nevertheless, both arguments are certainly contestable and, more to the point, President Bush will in fact reject both arguments, will sign the agreement with Iraq, and will keep troops in Iraq in 2009, without specific congressional authorization. As will the next president, come January 20, 2009.
Continue reading at Balkinization . . .