On the U.S. Duty to Prosecute War Crimes (Part II)

(For part one of this article, please click here.)

The most common objection made to those who proclaim a duty to prosecute torture crimes under the UN Convention Against Torture (CAT) treaty concerns the treaty's non-self-executing status. A typical discussion occurred at The Volokh Conspiracy website a few weeks ago:

For 200 years, the supreme court has recognized a distinction between “self-executing” treaties and “non-self-executing” treaties. Self-executing treaties have the force of domestic law; non-self-executing treaties do not. The Convention Against Torture is a non-self-executing treaty, according to a Senate reservation. The president and the Senate chose to incorporate the treaty through domestic law, and Congress duly enacted the anti-torture statute. That statute incorporates, in modified form, the CAT’s ban on torture but does not incorporate section 7, and thus does not try to constrain prosecutorial discretion (and it is not clear that it could).

Section 7 of the Convention Against Torture thus is not judicially enforceable.

But, even in a decision by the Roberts court, it was found that non-self-executing treaties "still constitute international obligations." The quote comes from Medellin v. Texas, where the court ruled that the President could not enforce by himself, minus any implementing federal law, the provisions of the Vienna Convention/World Court. Let's look at one particularly relevant passage, however, in the majority opinion in the case, which proponents of weakening the CAT treaty's requirement to prosecute torture might want to ponder (emphasis added):

... under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” See post, at 17; cf. post, at 11 (describing the British system in which treaties “virtually always requir[e] parliamentary legislation”). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases, 112 U. S., at 598. (Majority Opinion, p. 24-25)

Yoo vs. the Supremacy Clause of the Constitution

The dissent in Medillin, by Justice Breyer, and joined by Justices Souter and Ginsburg, describes some of the underlying case law that supports the idea that the Supremacy Clause of the Constitution is in effect for all approved treaties:

The Clause means that the “courts” must regard “a treaty . . . as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” Foster v. Neilson, 2 Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.)....

... by 1840, instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that “it would be a bold proposition” to assert “that an act of Congress must be first passed” in order to give a treaty effect as “a supreme law of the land.” Lessee of Pollard’s Heirs v. Kibbe, 14 Pet. 353, 388 (1840) (Baldwin,J., concurring).

Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more.See Appendix A, infra (listing, as examples, 29 such cases,including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence).

Not surprisingly, we see John Yoo quoted in Medellin as a legal expert on the issue of non-self-executing treaties. Yoo is an ideologue who helped write a series of memos that justified the use of interrogation techniques that amount to torture. In his essay, "Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding," Yoo argues:

This Article considers whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation.... It concludes that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution’s creation of a national legislature that could independently execute treaty obligations. The Framers also anticipated that Congress’s control over treaty implementation through legislation would constitute an important check on the executive branch’s power in foreign affairs.

How strange that Yoo argues here for a check on the executive branch, he who has argued elsewhere for a powerful executive with massive wartime powers. But not strange when you realize that all these legal opinions are meant to cynically promote a particular political agenda in which U.S. foreign policy is free of international constraints. If in the case of treaty law this means eviscerating the executive's power to enforce the law of the land, so be it, all the better to eliminate the constraints of international law upon mighty America.

As to Yoo's contention that "Congress’s control over treaty implementation through legislation" was important issue for the Framers, Breyer references Ware v. Hylton (1796) (emphases in original):

The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) “self-executing.” Justice Iredell, a member of North Carolina’s Ratifying Convention, addressed the matter specifically....

Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were “executed,” taking effect automatically upon ratification. 3 Dall., at 272. Other provisions were “executory,” in the sense that they were “to be carried into execution” by each signatory nation “in the manner which the Constitution of that nation prescribes.” Ibid. Before adoption of the U.S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. Id., at 274–277.

But, Justice Iredell adds, after the Constitution’s adoption, while further parliamentary action remained necessary in Britain (where the “practice” of the need for an “act of parliament” in respect to “any thing of a legislative nature” had “been constantly observed,” id., at 275–276), further legislative action in respect to the treaty’s debt-collection provision was no longer necessary in the United States. Id., at 276–277. (Dissent, p. 6)

As one last point, let's look once more at the language of the Convention Against Torture, or rather the U.S. Reservations to CAT, Section II (5)(emphasis added):

5. That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

So the U.S. is obligated to implement sections 4,5, and 7. One cannot take the fact that it mentioned specifically that it would implement Articles 10-14 and 16 as any limitation upon what articles it would implement. If for some reason these articles are not implemented yet, then they should be, and prosecutions can proceed.

One can argue that lacking legislative implementation, that the overwhelming intention of the treaty demands, as Justice Roberts wrote, that the U.S. fulfill its "international obligations". If the Democratic Party-led Congress wants to make matters even more clear, it can pass laws to specifically implement Sections 4, 5, and 7 of CAT.

Law, Politics, and the Fight Against Torture

At bottom, the legal questions are subsidiary to the political issues and intent. As Yoo's seeming apostasy regarding executive power makes clear, the argument about the various Federal powers comes down to supporting those policies that allow the U.S. to pursue untrammeled a free hand to intervene and act any way it wants anywhere in the world. Arguments about strict constructionism, or judicial activism, or the intent of the Framers is really an argument about how the U.S. should operate in the world today.

We reap today the failures of our society and its legal and governmental systems to address massive violations of international law for decades now. The greatest violator is the CIA (and sometimes the U.S. military), who countenanced and/or engaged in torture in Guatemala, Greece, Brazil, and South Vietnam (the Phoenix Program), and now, in Afghanistan, Iraq, and putative U.S. soil at the Guantanamo Naval Base and also undeniable U.S. territory, the U.S. Navy brig at Charleston (Jose Padilla). For decades, human rights and international law has been violated by the U.S. government, which has done its best to hide the fact via "plausible deniability", legalistic loopholes, and reliance on "state secrets" claims of national security (such as the Obama administration has now claimed in more than one instance).

A key instance of this point is the recent finding by the Justice Department’s Office of Professional Responsibility that the memos justifying torture written by Yoo and others were, as Jason Leopold reports in a current article, "tainted by political influence":

OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

Moreover, it seems, according to a Newsweek report, that Bush Attorney General Michael Mukasey tried to squelch the OPR report. These kinds of intrusions into how the law operates, or rather the institutions of the law, are not aberrations. They are the direct consequences of political programs and societal conflicts in action. They will never totally go away, and they call for political action -- legislative, judicial, and actions by the members of civil society, that is, by citizens -- to redress the wrongs implemented by reactionary sections of the society.

The duty to prosecute the war crimes of the past administration is not only about fulfilling international obligations, or rendering justice to victims, it is about deciding the very direction this country is headed. It is not hyperbole to say that the existence of whatever is left of democracy in this country is at stake. We must prosecute and punish Bush, Cheney, et al. for their war crimes. To fail yet again, as after the Vietnam War, is unthinkable. It would mean a further degeneration of U.S. democracy into something unrecognizable, into out and out tyranny.