The International-Law Trap

Who should decide what obligations the United States owes to the world? Who should determine what measures are necessary to protect the United States from attack? Should it be the American people or the European Commission? The American people or the United Nations? The American people or Human Rights Watch?

These are the questions at the heart of the controversy swirling around interrogation tactics.

In a contentious overseas voyage last week, Secretary of State Condoleezza Rice found herself pelted with questions about torture, coercive interrogation tactics, and “black site” prisons. The pelting was carried out by haughty Eurocrats — the kind who sneer publicly about American behavior even as they pray privately for continued American protection.

Game-face on, Rice embarked, walking a fine but spirited line. She appropriately maintained that the U.S. does not condone torture, but steadfastly refused to give ground on the obsession du jour of Europe, the American Left, and Senator John McCain: civil rights for international terrorists. Specifically, the right of those who lustily butcher, behead, and bomb innocents to be spared upon capture from any measure of physical discomfort or insult to their self-esteem.

Nevertheless, after three days of tendentious grilling, the Secretary of State's resolve seemed to wither. Last Wednesday in Kiev, she gave her hosts what they wanted to hear. In remarks especially noteworthy because State Department officials reportedly egged inquiring journalists on, Rice asserted without qualification that the United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) “prohibits, of course, cruel, inhumane [sic] and degrading treatment.” She further declared that ” [a]s a matter of U.S. policy, [American] obligations under [UNCAT] … extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.” (Italics mine.)

Rice's statements were both wrong and extremely unwise. Policy aside, they are a wholly inaccurate reflection of U.S. law. They do not just inject further confusion into an already profoundly confused debate over prisoner treatment. They also elevate Leftist preferences — i.e., the attitudes of people who accept no adult responsibility for the demands of even their own security — over our Constitution's careful procedure for imposing international obligations on the American people.

Furthermore, by reiterating a policy that buys into Europe's insistence on the purportedly binding force of UNCAT's ever-elastic “cruel, inhuman and degrading” terms, Rice has moved the debate away from U.S. strengths and set us up for additional scurrilous portrayal as an international criminal.

UNCAT AND THE U.S.

UNCAT came open for ratification in 1984. It targets two related but significantly distinct types of conduct: (a) torture, and (b) treatment that is “cruel, inhuman and degrading” (CID). The United States mulled UNCAT for a full decade before finally approving it under our Constitution's treaty procedure (Art. II, Sec. 2) by the required two-thirds super-majority of the Senate. That ratification treated torture and CID very differently.

That torture was the dominant American concern is illustrated by the care taken to define it. As recounted on NRO last Friday by Mark Levin (a Justice Department official during the Reagan administration), President Reagan's transmittal of UNCAT to the Senate expressly provided that the word torture was to be interpreted in a “relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned.” The State Department added that torture was “usually reserved for extreme, deliberate, and unusually cruel practices … [such as] sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging positions that cause extreme pain.” It would not, State elaborated, envelop even such “deplorable” practices as “police brutality.”

The order of the day was narrowness and the avoidance of loose language that could result in the unintended extension of American obligations to conduct that was not egregious enough to be considered torture. Thus UNCAT specifically defined torture as involving the “intentional inflict[ion]” of “severe pain or suffering” to interrogate, punish, or intimidate a person. With that clear, the Senate ratified this part of UNCAT without qualification, and prompted the enactment of federal anti-torture statutes to support and carry out this treaty obligation.

The difference in our treatment of the CID provisions was as stark as night and day. CID terms were vaporous and highly subjective. They were ripe for promiscuous stretching to cover, for example, rough interrogation practices that were not forms of torture, and that were both apt and necessary to protect national security. And plainly, it would have been asinine to stress that torture should not be extended to conduct commonly thought of as police brutality if there had been any intention that the exact same conduct would be reached by CID.

Moreover, CID flew in the face of the American constitutional principle that laws must not be vague. They must, instead, be clear enough to put persons of ordinary intelligence on actual notice of what is being proscribed, so upright people are not trapped into law violations by accident, mistake, good faith ignorance, or arbitrary enforcement judgments.

Consequently, with respect to CID, the Senate adopted a crucial reservation:

[T]he United States considers itself bound by the obligation … to prevent “cruel, inhuman or degrading treatment or punishment,” only insofar as the term “cruel, inhuman or degrading treatment or punishment” means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. [Italics mine.]

“CRUEL, INHUMAN AND DEGRADING” IS IRRELEVANT

Why is this so significant? Because it means CID added nothing new. Domestically, the Fifth, Eighth and Fourteenth Amendments already applied fully, so CID was meaningless. And internationally, CID was, if possible, even less consequential. For it is well established that the Constitution of the United States does not apply outside U.S. territory. The Constitution's Bill of Rights protections are unavailing for aliens who are outside our geographic jurisdiction.

Furthermore, specifically with respect to the Fifth and Fourteenth Amendments, which oblige the government to provide due process of law, the Supreme Court reaffirmed as recently as 2001, in Zadvydas v. Davis, that due-process principles do not protect non-Americans who have not entered U.S. territory.

The Eighth Amendment provides still less solace. For even if it had some extraterritorial application (and, as we've seen, it doesn't), it would provide no substantive protection. In 1977, declining to hold corporal punishment in American schools unconstitutional, the Supreme Court reiterated a “longstanding limitation” on the Eighth Amendment's prohibition of cruel and unusual punishments. To wit, its sole purpose is “to protect those convicted of crimes.” The Eighth Amendment bears only on our domestic criminal justice system. It is irrelevant to wartime detention and interrogation of military prisoners outside our borders.

IT'S AMERICAN LAW THAT GOVERNS AMERICAN OBLIGATIONS

American law is thus clear. Torture is absolutely banned, but the CID prohibitions in UNCAT created no new duties for the United States — only duties that already existed under the Constitution. It is immaterial, as far as American law is concerned, that European and other nations may have ratified UNCAT without caveats. We didn't. And in the United States, international law — regardless of how it is interpreted elsewhere — applies only to the extent that the American people's representatives have made it part of American law.

It is American law that the president takes an oath to uphold.

Therefore, even if European leaders, the U.N., and self-styled human rights activists choose to pretend as if critical American legal caveats never happened, our own secretary of State should not ignore them in construing American duties under UNCAT. Contrary to what Rice said, UNCAT simply does not prohibit the United States from engaging in cruel, inhuman and degrading conduct. It prohibits torture. Conduct arguably falling into the CID categories is prohibited, as far as the U.S. is concerned, only to the extent it is already illegal under our Constitution. The CID terms in UNCAT worked no change in our law or our international obligations.

Legal niceties aside, the policy Rice articulated — viz., that CID applies to the U.S. everywhere on earth — is also strategically foolish. Debating the conditions in which unlawful enemy combatants should be held, as well as the techniques applied in their interrogation, is a very worthwhile endeavor. But allowing unacceptably vague, legally irrelevant standards like CID to control the debate does at least three things that are very bad.

First, it ensures we will be saddled with ambiguous terms that needlessly hamstring interrogators, who will have to ask themselves, for example, “is it 'degrading' — whatever that means — to have a woman question a male Islamic terrorist?” (Rest assured the terrorists themselves regard that as actual torture, so expect dutiful Europe to prohibit this indignity any day now under “international law.”) Instead, we should be having a specific, frank debate about what tactics should be permitted, what tactics should be avoided, under what circumstances, and under the direction of which accountable officials.

Second, stressing CID misses an opportunity to emphasize how well we treat prisoners. CID does not apply to the U.S., so legally we could do virtually anything as long as we avoided torture. Yet, with the vast majority of prisoners, our comportment is not merely civilized but downright solicitous. While al Qaeda decapitates its prisoners, we generally provide ours with, among other amenities, sanitary conditions, halal meals, recreation, and Korans. We have not limited ourselves to a threshold duty to avoid cruel, inhuman and degrading treatment; we treat prisoners better than they are treated anywhere.

Third, with respect to a small subset of captives — high-level terrorists who, for the sake of our citizens and our troops, should be squeezed for whatever information they have — we have almost certainly engaged in conduct that would, by any sensible measure, be considered at least cruel and degrading. Water boarding, for example, may very well avoid the strict legal definition of torture, but it is certainly cruel and degrading. By insisting, contrary to law, that U.S. policy is to consider CID as binding on American personnel overseas, the administration only encourages its critics to portray the United States as an international-law violator — and a dishonest one at that.

It would be far better to be forthright and accurate: torture is against American law, we don't condone it, and we investigate and punish it when it occurs (as it has in every war, and less frequently than usual in the ongoing one); the CID terms of UNCAT are not binding on the United States; our general policy is to treat prisoners far better than simply avoiding CID conduct; and with respect to a limited class of high-level terrorists who sadistically flout international law, we permit coercive interrogation measures that do not amount to torture, and that are limited and closely supervised.

Naturally, that would leave Europe dissatisfied. But, to be blunt, so what? Much of Europe unqualifiedly opposes our use of military force, particularly in Iraq. So do, among others, the U.N. and the agenda-driven human-rights organizations. It's not like anything we do or any concession we make is going to win them over. They are going to call us international law criminals anyway. As this sorry episode shows, cooperation with them is a one-way street — we are supposed to bend to their way of seeing things (a way which, it bears noting, has left them impotent to deal with security challenges), while they regard with utter contempt our sovereign self-determination and the barriers in our Constitution to the imposition of international duties.

Our government's duty is to protect Americans, not to placate the fictional “international community” and its make-it-up-as-you-go-along law.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.