Torturing the Law

WaPo has published, in PDF format, the entire August 2002 memorandum by the Office of Legal Council to Albert Gonzalez on the flexibility of treaty obligations vis-a-vis torture. Kevin Drum notes the Nixonian quality of the presidential supremacy tone of the document and cites Michael Froomkin‘s analysis of the legal merits of the document.

At this point, I tend to view the document as an academic exercise. It doesn’t surprise me that, in the aftermath of 9/11 and the war in Afghanistan, the Administration was looking to figure out where the boundaries were. Further, while I’m not a lawyer, I’m less shocked than Froomkin about this:

It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of ‘torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.

So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo’s attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Indeed, the idea that the executive’s interpretation in matters of international relations, especially during wartime, trumps that of the legislature is virtually axiomatic. I don’t necessarily like it mind you, but I’m not sure how it would be otherwise. Presidents and their plenipotentiaries have operational control and have to make real-time decisions. Legislatures are committees that move slowly. Further, the view of the majority of the Senate at the time of ratification of a treaty may or may not have much relevance a decade hence in an entirely different international milieu (i.e., a war against non-state terrorists rather than a time of peace when we’re trying to rein in bad state actors). Historically, the courts have been extremely loathe to rein in the executive branch during such disputes.

That said, I agree with Andrew Sullivan as a matter of public policy here:

But what if his own Justice Department wrote a memo arguing that, because of the war on terror, torture now is within the law, since the commander-in-chief can determine that law in wartime? That’s very close to Nixon’s statement that if the president does something, that makes it lawful. Look, I don’t think we should treat these prisoners as if they had a parking offense. Some are truly depraved individuals. I appreciate the difficult task any president would have fighting an unnamed enemy capable of terrible atrocities. But neither do I believe it is acceptable to do what we have apparently been doing – while keeping it out of the public domain.

While I don’t think these people deserve to be given de jure prisoner of war status, which should be reserved for honorable opponents, they should, for a variety of practical reasons, be treated humanely according to the basic tenets of international law. I don’t for a minute think it will prevent the torture of Joe Biden’s son, let alone soldiers actually in a war zone. It will, however, make the enemy more likely to surrender rather than fighting to the death. Further, as I’ve argued repeatedly, abuse isn’t a particularly effective means of extracting information. Finally, it becomes difficult to draw the line one blurred. Near-torture quickly becomes torture if an “ends justify the means” rationale is in operation.

FILED UNDER: Terrorism
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.