Rachel Browning’s Legal Blog

There has been a lot of discussion in the media recently about the issues of torture, “enhanced interrogation techniques” and other detention policies undertaken by the Bush Administration to deal with suspected al Qaida terrorists.  While the debate has centered on whether those who allegedly participated in torture should face prosecution, there is a larger issue emerging as to the ultimate scope of U.S. obligations to international treaties and compliance with customary international law. 

Last week, the Obama administration released four legal memos drafted by Bush Administration lawyers describing various techniques that CIA interrogators could legally use on certain terrorism detainees.  The techniques in question, of course, are what other legal and military experts have referred to as “torture,” and thus, their legality has been called into question.  At the same time, however, Attorney General Holder has assured CIA officials that they would not be prosecuted for following the legal guidance in the memos.  The memos, drafted between 2002 and 2005, document what President Obama has called “a dark and painful chapter in our history.” But apparently, they also represent a chapter the President and many in the House and Senate would like to forget, rather than explore further.  And so the debate begins.

Attorney General Holder’s reasoning for not pursuing prosecutions is that “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” To me that sounds an awful lot like the “but I was only following orders” defense, which I believe went out with the Nuremburg Trials.  I also don’t recall that particular defense working too well for the soldiers convicted, in 2005, for torture and prisoner abuse at the Abu Ghraib prison in Baghdad.   Did they not engage in such abuse under the same pretext of legal authority?

So what exactly are the U.S. government’s legal obligations under international treaty law, and if such laws are broken, what should be the consequences?  Are there any subsequent consequences if no action is taken by the current administration?  Under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of which the U.S. is a signatory, Article 2 states that: 

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

(My emphasis).   While these provisions sound clear enough, the source of debate has to do with whether these obligations, (which have been implemented domestically under the U.S. Criminal Code Sections 2340 and 2340A), should apply to the precise techniques taken by CIA interrogators against the would-be terrorists.  (i.e., is water boarding torture?) And if a CIA interrogator rendered such techniques under the presumption that they were legally authorized, should he nevertheless face prosecution?  Or should the lawyers who gave the legal justification have to answer for their part?

            This and many other issues of international law and policy took center stage at the confirmation hearing of Harold Koh for the position of Department of State Legal Advisor, held today before the Senate Foreign Relations Committee.  Koh, who is currently the Dean of Yale Law School and has worked for both the Reagan and Clinton Administrations, answered questions an all the hot topics of the day:  from the legality of torture and the detention of al Qaida terror suspects to the legality of the U.S. invasion of Iraq. 

The questions Koh faced most frequently, however, had to do with the force, effect and general influence of foreign laws and international law on the laws of the U.S.  President Obama’s nomination of Koh sparked intense debate throughout the blogosphere, as pundits from both political parties parsed and analyzed Koh’s numerous writings on international law in an effort to distill and pronounce his true legal philosophy.  While some praised Koh as a thoughtful and disciplined advocate of the rule of law, others vilified him as an unpatriotic academic willing to allow Islamic Sharia law to subvert that of the Constitution.

            Thankfully, the hearing reflected a more refined analysis of Koh’s knowledge and experience with issues of international law and its potential impact on the laws of the United States.  Koh’s critics cite his “transnationalist” ideas as dangerous to U.S. interests and the sovereignty of the Constitution, so this issue dominated the tone of the hearing.  But I believe the conclusions of Koh’s critics distort his actual views and misunderstand the meaning of transnationalism, especially as it relates to U.S. laws and interests.  Transnationalism does not work to undermine our constitutional principals.  Rather, it is a concept that recognizes our existence in an interdependent world in which diverse countries with sometimes competing interests must work together to achieve global consensus on issues of global importance.  The U.S. Constitution, in fact, endorses this very approach in Article VI where it states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…” (My emphasis).  The founding fathers recognized the importance of treaty law to the interests of the United States, which is why their declaration of it as the supreme law of the land, affirms their rejection of isolationist policies that fail to recognize the interests and legal principals the U.S. ultimately shares with other countries.   

Whether our world is facing an unpredictable economic recession, or the threat of pirates off the coast of Somalia, or the threat of an international health crisis, global challenges must be met with solutions that are equally global in scope.  Koh remarked in his hearing (and I’m paraphrasing) that sovereignty in an age of interdependence does not require that the U.S. disengage from international law.  Instead, it demands that we find global solutions to global problems, precisely because it will protect, not undermine U.S. sovereignty.  It also means that if the U.S. wants other nations to follow its lead on issues pertaining to the global economy, the war on terror or human rights, it will retain such moral authority only if it too adheres to those principles for which it seeks to hold others accountable.