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The Bush administration's original (and now superseded) "torture memos" strain contemporary understandings of the United States' obligations under the Convention Against Torture.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.
This Note argues that because human rights are fundamental in nature, and because the exercise of constitutional rights is predicated on the enjoyment of more basic human rights, courts should treat human rights treaties differently than other international agreements the United States has signed or ratified. Part I of this Note reviews the judiciary's understanding of the relationship between international and domestic law. It then presents a brief overview of jus cogens norms in international law and demonstrates that torture has entered the canon of such norms. Part II begins with a discussion of the function and interpretation of treaties under U.S. law and argues that human rights treaties should be categorically distinguished from those dealing with other subjects. It then argues that equating human rights with constitutional rights is both appropriate and necessary if human rights treaties are to achieve their full potential. Part III suggests a limit for the executive's treaty interpretation power and specifically demonstrates that executive power to terminate treaties unilaterally does not extend to human rights treaties. Part III then argues that recognizing human rights treaties as a distinct category offers the judiciary a way to restrain the executive without running afoul of the political question doctrine.
I. INTERNATIONAL LAW, PEREMPTORY NORMS, AND TORTURE
This Part examines the relationship between international law, peremptory norms, and torture. Section A describes the history of U.S. courts' recognition of international law and the Supreme Court's understanding of the relationship between domestic and international law. Section B defines jus cogens (peremptory) norms and their place in the international law hierarchy and establishes torture as a jus cogens norm.
A. Recognition of International Law by U.S. Courts
International law "consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations ... [including] some of their relations with persons." (11) These rules are derived from treaties, customs, and principles common to major world legal systems. (12) This definition, however, does not explain how U.S. courts have traditionally treated international law in general, and customary international law and jus cogens specifically. This Section briefly describes U.S. jurisprudence regarding international law. The Framers assumed that the American government would be based on a common law legal system similar to England's. (13) According to Professor Michael Glennon, because the English law embraced principles of both natural and international law, the Framers intended that the U.S. legal system would embrace these same principles. (14) Courts have generally reached a similar conclusion. An early case supporting this contention is The Paquete Habana, (15) which dealt with whether fishing boats caught during the Spanish American War should be exempt from capture as a prize of war. (16) Speaking for a six-Justice majority of the Supreme Court, Justice Gray first noted that "[b]y an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law," boats captured in the course of fishing were exempt from capture. (17) After a comprehensive review of the rule's history, including a review of English and French law, Justice Gray declared that this rule "has been familiar to the United States from the time of the War of Independence." (18) Recounting adherence to the rule in the "modern" era (19) (including by Japan, described as "the last State admitted into the rank of civilized nations"), Justice Gray wrote:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.... For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators ... not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. (20)
Concluding that a court (21) "administering the law of nations" must, in the absence of a treaty on the same subject, judicially discern and apply international law, the court found in favor of the ship owners. (22)
Interestingly, the dissent in The Paquete Habana did not deny the existence of the international rule cited by the majority. Instead, it disputed the force of the rule, downgrading it from a law to a mere matter of comity between nations, "an act of grace, and not a matter of right." (23) The dissent, however, misconstrued the Court's earlier opinion in Brown v. United States, (24) on which it relied. (25) Contrary to the dissent's reading, in Brown, which dealt with confiscation of enemy property during the War of 1812, Chief Justice Marshall questioned only the legitimacy and implications of a specific rule of international law, but did not deny the persuasive authority of international law in general. (26) In fact, the Chief Justice did not abandon the notion of international law's persuasive authority on U.S. courts at all. Earlier in the Brown opinion, he cited international law for the proposition that "tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated." (27) Marshall also warned the Court against interpreting the Constitution to permit what would be generally prohibited under international law. (28)
More than one hundred years later, U.S. courts are still citing The Paquete Habana. For example, a federal district court recently cited the case when holding that the court could "not ignore the precepts of customary international law." (29) Indeed, even the conservative Rehnquist Court acknowledged that "the domestic law of the United States recognizes the law of nations." (30) The next Section of this Note turns to the concept of jus cogens norms--norms considered to be uniformly binding under international law--and demonstrates that torture has achieved jus cogens status.
B. Jus Cogens Norms and Torture
Certain norms under international law are deemed to be ]us cogens, or "[c]ompelling law which is binding on parties regardless of their will and [that does] not yield to other laws." (31) As such, jus cogens norms should be, and usually are, accorded greater protection than other rights. A norm cannot be jus cogens unless both the principle and its universal, binding character are accepted by the international community. (32) Although there is some disagreement at the margins, prohibitions on genocide, slavery, and apartheid are generally conceded to be examples of jus cogens norms. (33) Torture is recognized as such a jus cogens norm under both international and U.S. domestic law. (34) Torture is prohibited in all major legal systems and by almost all international human rights instruments. (35)
Domestically, the U.S. Senate acknowledged that torture is prohibited under international law when it gave its advice and consent to ratifying the Convention Against Torture. (36) The Senate Committee on Foreign Relations described the Convention as a codification of international law and indicated that "[r]atification ... [would] demonstrate clearly and unequivocally U.S. opposition to torture." (37) The Committee believed ratification was "consistent with long-standing U.S. efforts to promote and protect basic human rights and fundamental freedoms throughout the world." (38) The Committee's comments also suggested that regardless of torture's peremptory-norm status at the time of the hearing, most of the obligations the United States assumed when acceding to the Convention were "already covered by existing law." (39)
At the Senate hearing, substantial evidence was presented that the Convention Against Torture recognized, rather than created, international law. For example, Judge Abraham D. Sofaer indicated that "[i]nternational law already condemns torture [,and i]n that sense, the Convention breaks little new ground." (40) Testimony before the Committee also acknowledged that the United States was the only permanent member of the U.N. Security Council not to have ratified the Convention. (41)
Furthermore, U.S. courts have also recognized torture as a peremptory norm and not just as a domestically legislated prohibition. In the seminal case of Filartiga v. Pena-Irala, (42) the United States Court of Appeals for the Second Circuit held that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights." (43) Recognizing that "courts must interpret international law not as it was in 1789, but as it has evolved and exists ... today," the court acknowledged that there were "few, if any, issues in international law ... on which opinion seems to be so united as the limitations on a state's power to torture." (44) And, in discussing whether the United Nations Charter conveyed individual rights to citizens of member countries, the court added that "the guaranties include, at a bare minimum, the right to be free from torture." (45) Interestingly, Filartiga was decided almost fifteen years prior to the United States' accession to the Convention Against Torture, supporting the contention that torture had already achieved the status of a peremptory, binding norm prior to the Convention. (46)
As a jus cogens norm, torture deserves greater protection than other rights--perhaps even greater protection than other constitutional rights. As discussed in Part II, this heightened protection suggests a way to distinguish treaties by subject matter.
II. DISTINGUISHING HUMAN RIGHTS TREATIES
The previous Part established that the U.S. is bound by international law and that torture is widely recognized as a jus cogens norm under international law. This Part discusses the relationship between international and domestic law, focusing on treaties, which bridge the two legal planes. Section A examines the concept of treaties and seeks to distinguish between those treaties that are contractual in nature and those that reflect international law, focusing on differentiating treaties dealing with international human rights law. Section A also reviews U.S. courts' traditional understanding of treaties and the relationship between treaties, international law, and domestic law. Section B equates the substantive rights delineated in human rights treaties, especially jus cogens norms, with constitutional rights.
At the outset, the looming presence of Goldwater v. Carter (47) should be acknowledged. In Goldwater, a plurality of the Court held that a challenge to President Carter's unilateral termination of a commercial treaty with Taiwan was a nonjusticiable political question. (48) Although Goldwater has precedential value, its reasoning should apply only to certain types of treaties. Specifically, this Note argues that Goldwater's nonjusticiability rule should apply only to commercial treaties and should not apply to human rights treaties. As this Note explains in Section A and further develops in Part III. A, commercial and human rights treaties can be distinguished on the basis of purpose (contractual vs. codification) and subject matter (commercial vs. human rights). These distinctions are crucial in determining whether nonjusticiability should apply.
A. Methods for Distinguishing Treaties
A treaty is "[a]n agreement formally signed, ratified, or adhered to between two nations or sovereigns; an international agreement concluded between two or more states in written form and governed by international law." (49) A treaty is, essentially, a "contract between nations" and is usually treated like a contract rather than a legislative act. (50) Madison commented that "[t]he object of treaties is the regulation of intercourse with foreign nations and is external." (51) However, although treaties often resemble contracts in form, they can sometimes perform statutory or legislative functions. (52) Such is the case in the United States, where treaties are considered to be the law of the land. (53) Both contractual and lawmaking treaties are, in general, considered sources of international law; neither international nor U.S. domestic law, however, accords all laws equal standing. (54) For example, the consequence of breaching a contract (damages) is quite different from the consequence for breaking a law (often, incarceration). In the second half of the twentieth century, U.S. international agreements typically focused on economic, transportation-communication, cultural-technical, diplomatic, and military issues. (55)
Historically, U.S. courts have interpreted treaties "in the manner and to the extent [to] which the parties have declared, and not otherwise." (56) The Supreme Court has no power "to alter, amend, or add to any treaty, by inserting any clause" because that "would be to make, and not to construe a treaty." (57) Treaties generally are deemed to have the same weight as federal law but are not superior to the Constitution. (58)
The remainder of this Section describes the traditional classification scheme for treaties and suggests an alternate methodology. The Section concludes by asserting that human rights treaties can be clearly distinguished from other treaties based on their subject matter and applies the proposed methodology to prove the argument. Some treaties that seek to achieve multiple objectives or that take a comprehensive approach to problem-solving might be difficult to classify, but this Note is not concerned with such borderline cases. The classification scheme described in this Note will distinguish the majority of treaties--and can be applied easily to the Convention Against Torture and most other human rights treaties.
1. Self-Executing vs. Non-Self-Executing Treaties. Article II treaties--those negotiated by the president and ratified by the Senate--are sometimes said to have the force of law only once they are executed. A treaty can be either self-executing--meaning it has the force of law once ratified--or non-self-executing--meaning separate "implementing legislation" must be passed before the treaty has force. (59) Chief Justice Marshall elegantly explained that a treaty "is ... to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." (60) At times, distinguishing a self-executing treaty from one that is not self-executing can be difficult. A four-part test is often used to distinguish the two, focusing on: (1) the purpose and objectives of the treaty; (2) the existence of domestic procedures for direct implementation; (3) the availability of alternative enforcement mechanisms; and (4) the social consequences flowing from a court's decision whether the treaty is self-executing. (61)
When no implementing legislation has been passed, non-self-executing treaties do not create a private right of action under which a plaintiff can state a claim. (62) To avoid infringing on the political branches' authority to define crimes and to conduct foreign relations, courts have invoked non-self-execution to deny claims under international human rights treaties ratified by the United States. (63) Ostensibly, courts' construction and delineation of treaties in this fashion serves the purpose of deferring as much as possible to the express will of the legislative branch and to the executive's interpretations of statutes and international commitments.
Yet, it is not at all clear that the self-executing and non-self-executing dichotomy was intended to apply to international agreements dealing with subjects like human rights. Although Chief Justice Marshall's comments in Foster v. Neilson (64) are the source of this dichotomy, those comments may have been intended to apply only to "contractual" treaties. (65) Marshall stated that "when either of the parties engages to perform a particular act, the treaty addresses itself to the political ... department; and the legislature must execute the contract before it can become a rule for the Court." (66) Although Marshall emphasized that an international agreement remains inchoate until enacted by Congress, he prefaced that statement with the phrase "when the terms of the stipulation import a contract." (67) Foster involved two claimants to the same tract of land: one traced ownership to a grant when the land was under Spanish possession; the other to a grant once the land came under U.S. control. (68) The former claimed that the United States was bound by treaty to honor Spain's grant to the title holder. (69) Marshall parsed the treaty's language, holding that it did not automatically confer property rights on those who received grants when the land was under Spanish control; rather, such grants were only valid once confirmed by Congress. (70)
Chief Justice Marshall, ever the savvy diplomat, primarily sought to avoid a dispute with the political branches that might have been caused by the Court's support for a foreign nation. (71) Adopting a treaty construction that would invalidate actions the federal government had taken in reliance on a claim of sovereignty over the territory in question would have been "an anomaly in the history and practice of nations." (72) Marshall's decision strengthened the early republic by consolidating control over what would eventually become a significant portion of the United States (73)--and possibly anticipated and enabled the Manifest Destiny movement which would flourish in the 1840s. (74)
Marshall's distinction between self-executing and non-self-executing treaties, then, might not reflect an overarching judicial philosophy so much as a convenient fix for exigent circumstances. (75) Indeed, the Court itself has on occasion rejected Marshall's dichotomy. For example, in the Head Money Cases, (76) the Court distinguished between contractual treaties, which conferred no individual rights, and statutory treaties, which did. (77) The Head Money Cases dealt with the validity of an excise tax on immigrants--a tax that the plaintiffs claimed conflicted with various bilateral treaties. (78) The Court distinguished between treaties