December 12, 2005

THE CONSTITUTION SUFFICES:

In wartime, this lawyer has got Bush's back (Anne-Marie O'connor, December 12, 2005, LA Times)

As Secretary of State Condoleezza Rice attempts to lessen anger in Europe over reports that the CIA has operated secret prisons in European countries, it might not be the best time for [UC Berkeley law professor John Yoo, the author of a new book, "The Powers of War and Peace,"] to argue his contention that the Bush administration has the right to hold "enemy combatants" indefinitely without charges, and question them without a lawyer present, in wartime. Although even Rice seemed to reverse her administration's contention that the prohibition on cruel or inhumane prisoner interrogations didn't apply overseas, Yoo is still ardently opposed to such a ban, saying it could cripple the effectiveness of coercive interrogations abroad.

And even some of Yoo's fellow conservative intellectuals are disturbed by his contention that President Bush has the constitutional power to unilaterally start a war. [...]

Yoo doesn't employ the usual rationale for a strong Bush presidency. He says in his book that it is not the 9/11 terrorist attacks that justify the extraordinary presidential powers he advocates. In Yoo's view, the constitution itself gives the president lots of leeway, allowing him to invade Iraq without congressional permission and to disregard such treaties as the Geneva Convention, which governs the moral code of conduct of war.

"I'm pretty sure that's an argument no one has ever made before," Yoo, 38, said recently with evident pride. Most people, he said, "say the world's too dangerous and the Constitution's obsolete."


While he's unquestionably right that detainees have no constitutional rights, the fact that the Constitution itself expressly makes Treaties the law of the land makes just ignoring the Geneva Convention problematic. Rather we should break the treaty and any other that may infringe on our sovereignty, not least GATT.


MORE:
The International-Law Trap: What Europe thinks is “cruel, inhuman, and degrading” doesn’t govern us. (Andrew McCarthy, 12/12/05, National Review)

Who should decide what obligations the United States owes to the world? Who should determine what measures are necessary to protect the United States from attack? Should it be the American people or the European Commission? The American people or the United Nations? The American people or Human Rights Watch?

These are the questions at the heart of the controversy swirling around interrogation tactics. [...]

In remarks especially noteworthy because State Department officials reportedly egged inquiring journalists on, Rice asserted without qualification that the United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) "prohibits, of course, cruel, inhumane [sic] and degrading treatment." She further declared that " [a]s a matter of U.S. policy, [American] obligations under [UNCAT] ... extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States." (Italics mine.)

Rice's statements were both wrong and extremely unwise. [...]

UNCAT came open for ratification in 1984. It targets two related but significantly distinct types of conduct: (a) torture, and (b) treatment that is "cruel, inhuman and degrading" (CID). The United States mulled UNCAT for a full decade before finally approving it under our Constitution's treaty procedure (Art. II, Sec. 2) by the required two-thirds super-majority of the Senate. That ratification treated torture and CID very differently.

That torture was the dominant American concern is illustrated by the care taken to define it. As recounted on NRO last Friday by Mark Levin (a Justice Department official during the Reagan administration), President Reagan's transmittal of UNCAT to the Senate expressly provided that the word torture was to be interpreted in a "relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned." The State Department added that torture was "usually reserved for extreme, deliberate, and unusually cruel practices ... [such as] sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging positions that cause extreme pain." It would not, State elaborated, envelop even such "deplorable" practices as "police brutality."

The order of the day was narrowness and the avoidance of loose language that could result in the unintended extension of American obligations to conduct that was not egregious enough to be considered torture. Thus UNCAT' specifically defined torture as involving the "intentional inflict[ion]" of "severe pain or suffering" to interrogate, punish, or intimidate a person. With that clear, the Senate ratified this part of UNCAT without qualification, and prompted the enactment of federal anti-torture statutes to support and carry out this treaty obligation.

Posted by Orrin Judd at December 12, 2005 12:02 AM
Comments

The geneva conventions say we can shoot these scumbags on sight as they're violating the rules of war, not us.

Posted by: JAB at December 12, 2005 9:03 AM

JAB:

The problem arises when we don't.

Posted by: oj at December 12, 2005 9:10 AM

G. Gordon Liddy advises that when you're in a fight, make sure your adversary is dead, so yours is the only version of the event available to historians. Sounds like sage advice.

Posted by: erp at December 12, 2005 9:49 AM

My point is that the Geneva Conventions are not a bad treaty, we just need to follow them.

Posted by: JAB at December 12, 2005 10:05 AM

And mine is that we oughtn't follow any transnational agreement.

Posted by: oj at December 12, 2005 10:13 AM
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