"At the Highest Levels"

"At the Highest Levels"

"At the Highest Levels"

Slate's blog on legal issues.
April 7 2008 3:47 PM

"At the Highest Levels"

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).

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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?

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel 2009–10 and an attorney advisor in OLC 1994–2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.