What's Law Got To Do With It?

What's Law Got To Do With It?

Slate's blog on legal issues.
April 7 2008 1:51 PM

What's Law Got To Do With It?

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?

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.

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