Of Treaties and Torture: How the Supreme Court Can Restrain the Executive
Goldman, Jeffrey C., Duke Law Journal
The Bush administration's original (and now superseded) "torture memos" strain contemporary understandings of the United States' obligations under the Convention Against Torture. (2) These documents also mock traditional understandings of the relationship between international law and treaties and of the executive's power to interpret and apply them. (3) Perhaps most alarming are the administration's attempts to undermine the spirit of both domestic legislation and international law by employing a "strict constructionist" interpretive methodology while embracing an expansive view of executive power. The Bush administration's approach weakens American law's carefully constructed system of checks and balances by aggrandizing power to the executive branch at the expense of both coordinate branches.
Short of impeaching the president and removing him from office--a drastic step that is likely to be both politically unpopular and ineffective in restoring the country's reputation as a leader in human rights issues--what other avenues exist for restraining the executive? This Note argues that the Supreme Court should take a far more activist approach in reviewing executive interpretation of international law and that it may do so while remaining consistent with judicial precedent. In particular, this Note focuses on the administration's conduct of the War on Terror and specifically on its application of, or threats to use, torture. It concludes that the president does not, in fact, have the power to terminate unilaterally the Convention Against Torture because treaties that embody human rights norms (especially peremptory norms like torture) are fundamentally different from other sorts of treaties. (4)
The interplay of traditional and contemporary understandings of international law--especially customary international law and peremptory norms--combined with well-established interpretations of the treaty power suggest that the balance of power between the executive and judicial branches should vary with the subject matter of a treaty. True, the United States Court of Appeals for the District of Columbia Circuit did state, in Goldwater v. Carter, (5) that "[t]here is no judicially ascertainable and manageable method of making any distinction among treaties on the basis of their substance." (6) However, the development of international humanitarian and human rights law in the twentieth century, and especially in the twenty-five years since Goldwater was decided, suggests otherwise.
The recognition of some rules of international law as peremptory norms from which no derogation is permitted (jus cogens) provides a "judicially ascertainable and manageable method" (7) of distinguishing treaties based on subject matter. These treaties provide the Supreme Court with legitimate, constitutional reasons to overrule congressional and executive treaty interpretations. Although U.S. courts long ago adopted a rule of construction that accorded treaties and statutes equal weight, (8) jurists added a caveat: "[u]nless it is for some reason distinguishable from other laws, the rule which [a treaty] gives may be displaced by the legislative power, at its pleasure." (9)
Treaties dealing with peremptory norms are categorically different from other treaties. Human rights treaties, and related implementing legislation, grant specific and far-reaching rights directly to individuals. These rights, by virtue of reason, should be held by courts as equal to constitutional freedoms and rights; like those freedoms and rights, neither the executive nor the legislative branch should be able to alter or infringe them in any but the most compelling circumstances (and certainly not unilaterally, as by executive order). The Supreme Court's recognition of this equivalence would give it an axe to wield that it cannot carry into interpretative battles regarding other treaties. (10) This axe can restore the balance of power between the executive, legislative, and judicial branches and ensure that the United States, which has led the world in recognizing and promoting human rights, retains its high moral ground. …