The liberal dilemma

VICTOR REPPERT SAID:

Where in this definition is the pain defined as physical pain? My point in using the dictionary definition was to point out that I think human beings have a clear idea of what torture is. We don't need a technical definition.

VICTOR REPPERT SAID:

My main point has always been that waterboarding falls nicely within the standard of what we have agreed not to do when we agreed with other nations not to torture prisoners. In other words, we would be doing what we promised not to do.

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i) Unfortunately for him, Reppert continues to advertise his intellectual confusions on the issue at hand. In the first quote, he says we don’t need a “technical” definition. A common sense, man-on-the-street definition will do.

But in the second quote, he indicates that his real concern is with our treaty obligations. Yet, in that event, you would need a technical definition, since you would need a legal definition. In this respect, MERKUR has a somewhat clearer understanding of Reppert’s position than Reppert has of his own position.

ii) Yet both of them are bumping up against the same dilemma. On the one hand, if you go along with mainstream jurisprudence, then no legal definition is definitive. Rather, mainstream jurisprudence operates with the same sort of hermeneutic as deconstruction and reader-response criticism. The text has no invariant meaning. Rather, meaning is supplied by the linguistic community—in this case, the judicial community.

Judges define what a definition means. They define the words and concepts. Judicial interpretation is a Rorschach test in which the judges project their ideological concerns and commitments onto the inkblot of the legal text. The text means whatever the last appellate court says it means.

So, on this view, quoting the Bill of Rights or the Geneva Conventions doesn’t establish a thing. Meaning is in the mind of the judge, not the body of the text.

iii) The only alternative is to take the position of Bork and Scalia on the primacy of original intent. But if you go that route, then you rule out anachronistic reinterpretations of the Geneva Conventions or Bill of Rights that extend their protections beyond the purview of the framers and first-generation signatories.

iv) In addition, there’s a further consideration which Reppert’s simplistic appeal overlooks: the interpretation and application of international law is relative in yet another respect, for there is no supranational Supreme Court. Rather, the national courts of the national signatories individually construe their international legal obligations. As two international lawyers point out:

There is no global power or authority with the ultimate right to establish the meaning of international law for all. Every independent state has the legal right—and the obligation—to consider and interpret international law for itself.

As states are the ultimate authors of international law, they also are the arbiters of its meaning. As suggested above, each nation, as an independent sovereign, has an equal right to interpret international law in general and its own international legal obligations in particular. The interpretation of one state—or group of states—is no better or worse than the interpretation of others. This does not, of course, mean that states can interpret international norms to a point where any actual obligation is illusory. They must act, especially in construing their treaty obligations, in good faith.[32] Moreover, all states must understand and accept that their interpretation of international legal requirements may carry consequences. As a legal matter, however, there is no state, group of states, international organization, or judicial authority with the paramount right—paraphrasing Chief Justice John Marshall’s description of the federal judiciary’s power in Marbury v. Madison—to say what the law is. There is no international Supreme Court.

As an independent and sovereign state, the United States is bound by international law, and it must especially respect its treaty obligations.

International law, however, is fundamentally different, both in its conception and in its application, from domestic law. It is not made by legislation, nor is there any inherent legislative authority in the “international community,” however that term may be defined.

States alone can make international law by their own actions.

Every independent state has an equal right and obligation to interpret and apply international law for itself. This is a fundamental and inherent attribute of sovereignty.

There is no state, group of states, or international institution with the right to determine or adjudicate the legal obligations of states, save to the extent that the relevant state or states consent to be bound.

In determining what a state’s international legal obligations and rights may be, the critical factor is the actual practice of states. This is true both with respect to customary international law (where the practice of states prevails) and in discerning the proper interpretation and application of treaties (where practice can elucidate the treaty’s proper scope and meaning).

In assessing state practice, the key inquiry is whether states have observed a particular rule or norm, in relevant circumstances, out of a feeling of being legally bound to do so. Actions taken based on political or practical expedience, or from considerations of good will or courtesy, are not reliable indicia of what international law requires.

At this time, the most confrontational international law differences between the United States and Europe involve the war on terrorism. By and large, Europe (at least the states of the EU) does not accept that there is a legally cognizable, ongoing armed conflict between the United States and al-Qaeda and its allies. The vast bulk of European opinion, both official and unofficial, views al-Qaeda as a law enforcement issue and (sub silencio) the American reaction to the September 11, 2001, attacks to have been disproportionate. As a result, many of the measures taken by the United States since September 11 are considered illegitimate, if not outright illegal, by much of Europe.

GuantanamoBay. This is especially true of the U.S. detention facilities at Guantanamo Bay, Cuba, which have become a symbol in Europe for alleged U.S. overreaching. These facilities were established to detain the most dangerous individuals captured by U.S. and allied forces in Afghanistan. The United States has classified these prisoners as “unlawful” or “unprivileged” enemy combatants who are not entitled to the rights and privileges of prisoners of war under the Geneva Conventions but who may be held without criminal trial until hostilities are concluded. This classification has a long history in the laws and customs of war (describing individuals who fail to meet certain basic requirements, including a proper command structure, wearing uniforms, bearing arms openly, and eschewing direct attacks on civilians) and is fully recognized by the United States Supreme Court.[56] Nothing in the Court’s 2006 Hamdan v. Rumsfeld decision, which invalidated the rules established for military commission trials, changed this.

Most European states, however, have signed and ratified Protocol I Additional, an addendum to the 1949 Geneva Conventions. This treaty was particularly promoted by the International Committee of the Red Cross, and its provisions attempt to regularize the status of unlawful combatants, especially the guerrilla and irregular fighters who comprised so many of the “national liberation movements” in the post–World War II period. It was, in fact, for this very reason that the United States rejected Protocol I. It is not a party to that instrument and is not bound by Protocol I’s requirements—except to the extent that they represent binding customary norms.

Opponents of American policy in the war on terrorism commonly claim that, in fact, Protocol I does constitute a binding statement of customary law and argue incorrectly that the United States has recognized as much. To support this point, proponents of this claim generally cite the 1987 remarks of Michael Matheson, then serving as Deputy Legal Adviser, Department of State. A careful examination of Mr. Matheson’s remarks, however, reveals that he did not suggest that Protocol I constituted a restatement of customary international law, but merely that a number of its provisions might have that status.[57] In this connection, he noted that, because of the difficulty in determining which rules enjoy sufficient “acceptance and observation” to be considered customary norms, “we have not attempted to reach an agreement on which rules are presently customary law, but instead have focused on which principles are in our common interests and therefore should be observed and in due course recognized as customary law.” This is, of course, a critical distinction between principles and rules in assessing what are the actual legal obligations of the United States. The U.S. has not accepted either that the category of “unlawful enemy combatant” has been abolished or that such individuals must be treated as Geneva POWs or civilian criminal defendants.

The Use of Stressful Interrogation Methods. The EU governments, along with a large portion of European public opinion, reject the use of stressful interrogation methods by the United States, claim_ing that these “amount to torture.” Whether stress_ful interrogation methods are appropriate as a means of obtaining intelligence from captured enemy combatants is a complex question of morality and expedience. As a legal matter, however, stressful interrogation methods are not inherently torture. In the relevant treaties (and U.S. federal statutes), torture is narrowly defined to encompass only the infliction of severe pain and suffering. Thus, the stress methods, such as isolation, sleep interruption, and standing, authorized by the United States for use on captured al-Qaeda and Taliban members are not “torture” unless taken to a degree extreme enough to constitute severe pain and suffering. Signifi_cantly, the European Court of Human Rights itself reached this conclusion in Ireland v. United Kingdom (1978), a decision construing very similar standards under EU human rights conventions.[58]

In fact, Ireland v. United Kingdom involved Britain’s use of five stressful interrogation techniques—hooding, wall standing, subjection to noise, sleep deprivation, and reduced diet—in tandem against Irish Republican Army (IRA) members. The court ruled that these methods, even when used together, did not amount to torture. It did conclude, however, that when used together, these methods constituted cruel and inhuman treatment. This decision is, of course, not binding on the United States, but it does suggest that European claims that the United States has engaged in torture are ill-founded and that the U.S. could meet international standards simply by ensuring that the stressful interrogation methods employed at Guantanamo and elsewhere are not utilized together as done by Britain against the IRA. In any case, generic claims that “coercive” interrogation methods inherently amount to torture and that they are banned by international law are incorrect.

Other Controversial Policies. There are, of course, a number of other American policies in the war on terrorism that have been criticized or openly denounced in Europe. These include the claimed existence of “secret” U.S. detention facilities in Central and/or Eastern European countries, as well as the practice of “rendition”—transferring captured terrorists to other (usually their home) countries. There have obviously been abuses committed by Americans during the war on terrorism—although the U.S. record in this regard compares very favorably with previous conflicts and, especially, with that of other countries. In defending the American legal position, however, the first question must always be: Is the United States actually subject to the norm it has allegedly violated? The second question is whether the U.S. interpretation of applicable norms is simply different from the prevailing view in Europe and/or elsewhere. As explained above, the United States is an independent sovereign with the right and obligation to interpret international law for itself. It does not have to accept the views of any other state or group of states, save in those circumstances where it has consented to do so. That is the essence of sovereignty.

http://www.heritage.org/Research/WorldwideFreedom/bg1961.cfm