Washington Post: Government Considering Torturing Terror Suspects

[Francisco Forrest Martin]

Prof. Volokh wrote: I must admit that if the choice were simply between losing thousands to millions of my countrymen in a nuclear or biological attack and complying with international law, or saving those lives by violating international law, I would strongly be disposed in favor of the former.  "Let international law be followed, though the heavens fall" is not a slogan that appeals deeply to me.  I say this even as to treaties that we have subscribed to; yes, "great nations, like great men, should keep their word" -- but this only takes one so far."

I agree with you, but blind absolute obedience to any law -- international or federal statutory law -- could arguably produce such horrible consequences.

Prof. Volokh continues: "Of course, if someone could argue that complying with international law, even in such a situation, is in the long-run interests of the country, even if it seems strikingly against the short-run interests, that would be a powerful argument.  But a naked appeal to international law does not persuade me, nor do I think it will persuade most Americans.  And while government officials have at least sworn an oath to uphold the Constitution, and might feel an obligation along those lines, they have not sworn an oath to uphold international law."

Why do you insist on bifurcating U.S. federal statutory law and international law?  Both are federal law.

Prof. Volokh continues:  "Also, just in case people are curious about the Macintosh opinion to which Prof. Martin refers, here is the sum and substance of the Court's discussion of international law, mentioned in the course of a decision that was completely unrelated to international law (the question was whether Macintosh could be denied citizenship for refusing to swear the applicable oath).  This extract, I think, suggests that Prof. Martin is quite correct to acknowlege that the statement is dictum.  Not wanting to rehash an earlier thread, I leave it to readers to decide how persuasive they find this authority, and how likely they think the Court is to (1) decline to hold unconstitutional a Congressionally authorized ban on torture, but (2) nonetheless strike it down on the grounds that it violates international law.

'For its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.  In the words of John Quincy Adams, 'This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.'  To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation a!
!
nd without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.  These are but illustrations of the breadth of the power; and it necessarily results from their consideration that whether any citizen shall be exempt from serving in the armed forces of the nation in time of war is dependent upon the will of Congress and not upon the scruples of the individual, except as Congress provides. . . .'"

I cite the dicta in Macintosh case because it is the only U.S. Supreme Court case that addresses whether a federal statute can trump customary international law, and the case happens to say that a statute cannot.  I cite the case to demonstrate that at AT THE VERY LEAST the issue is still open to debate.  For reasons discussed on this listserv -- but more comprehensively addressed in my book, CHALLENGING HUMAN RIGHTS VIOLATIONS, I believe that it makes no legal (but more importantly, operational) sense for federal statutes to trump conventional customary international law.

As for the extreme governmental license that the Macintosh case notes is constitutional under the war powers authority, it does not include the government's right to torture among its list of constitutionally permissible acts.

Francisco Forrest Martin
Ariel F. Sallows Professor of Human Rights
University of Saskatchewan College of Law