Comments on: Sorting Out the Torture Memo Issues, Part I: The Devaluation of Non-Penal International Norms http://www.ejiltalk.org/sorting-out-the-torture-memo-issues-part-i-the-devaluation-of-non-penal-international-norms/ Blog of the European Journal of International Law Mon, 06 Sep 2010 11:35:59 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Dapo Akande http://www.ejiltalk.org/sorting-out-the-torture-memo-issues-part-i-the-devaluation-of-non-penal-international-norms/comment-page-1/#comment-405 Dapo Akande Wed, 16 Sep 2009 12:56:35 +0000 http://www.ejiltalk.org/?p=1496#comment-405 Brad, Thanks for a great post. I wonder if there isn't a difference between the failure to discuss (in the memos) international human rights law and the failure to discuss non-penal int. humanitarian law. As you note in your answer to Jamie, the failure to discuss human rights law is perhaps attributable to a long held US position that human rights treaties do not apply extraterritorially and perhaps a view, not clearly expressed, but always beneath the surface, that human rights law does not apply in time of armed conflict. So there its not so much a disregard of non-penal norms but just a view that these norms don't apply to the issue being discussed. Brad,

Thanks for a great post. I wonder if there isn’t a difference between the failure to discuss (in the memos) international human rights law and the failure to discuss non-penal int. humanitarian law. As you note in your answer to Jamie, the failure to discuss human rights law is perhaps attributable to a long held US position that human rights treaties do not apply extraterritorially and perhaps a view, not clearly expressed, but always beneath the surface, that human rights law does not apply in time of armed conflict. So there its not so much a disregard of non-penal norms but just a view that these norms don’t apply to the issue being discussed.

]]> By: Brad Roth http://www.ejiltalk.org/sorting-out-the-torture-memo-issues-part-i-the-devaluation-of-non-penal-international-norms/comment-page-1/#comment-403 Brad Roth Wed, 16 Sep 2009 12:02:45 +0000 http://www.ejiltalk.org/?p=1496#comment-403 I take your point, Jamie. As I note in the post, some arguments were made about consistency with international obligations, but largely perfunctory ones. Thus, John Yoo's brief August 1, 2002 letter on the Torture Convention neglected cruel, inhuman, and degrading treatment altogether, because (as Yoo once confirmed to me) of an unexpressed view about geographical inapplicability. That view was based on an interpretation of a U.S. reservation that the reservation's drafter (Abraham Sofaer) has rejected, and that I regard as beneath refutation. The first treatment that I can find of CIDT on the merits is Bradbury's memo of May 30, 2005, which (while maintaining the moribund inapplicability stance) makes arguments about the "shocks the conscience" threshold that you and I both regard as risible. Overall, I find it both more generous and more plausible to attribute this performance to disregard than to abject incompetence. Meanwhile, memos on the law of war (e.g., the January 9, 2002 Yoo-Delahunty memo, the January 22, 2003 Bybee memo, and the April 4, 2003 Working Group Report) stressed the Executive's authority to breach customary international law -- law that, not coincidentally, was not incorporated into the War Crimes Act. I take your point, Jamie. As I note in the post, some arguments were made about consistency with international obligations, but largely perfunctory ones. Thus, John Yoo’s brief August 1, 2002 letter on the Torture Convention neglected cruel, inhuman, and degrading treatment altogether, because (as Yoo once confirmed to me) of an unexpressed view about geographical inapplicability. That view was based on an interpretation of a U.S. reservation that the reservation’s drafter (Abraham Sofaer) has rejected, and that I regard as beneath refutation. The first treatment that I can find of CIDT on the merits is Bradbury’s memo of May 30, 2005, which (while maintaining the moribund inapplicability stance) makes arguments about the “shocks the conscience” threshold that you and I both regard as risible. Overall, I find it both more generous and more plausible to attribute this performance to disregard than to abject incompetence. Meanwhile, memos on the law of war (e.g., the January 9, 2002 Yoo-Delahunty memo, the January 22, 2003 Bybee memo, and the April 4, 2003 Working Group Report) stressed the Executive’s authority to breach customary international law — law that, not coincidentally, was not incorporated into the War Crimes Act.

]]> By: Jamie Mayerfeld http://www.ejiltalk.org/sorting-out-the-torture-memo-issues-part-i-the-devaluation-of-non-penal-international-norms/comment-page-1/#comment-400 Jamie Mayerfeld Tue, 15 Sep 2009 14:54:42 +0000 http://www.ejiltalk.org/?p=1496#comment-400 Brad, This is a nice post, but I wonder if you mischaracterize the position of the Bush DOJ lawyers somewhat. In other memos and in letters to Congress, they went to great length to argue that the Bush administration was in compliance with all US obligations under international human rights law, not just those subject to criminal sanctions. For example, Steve Bradbury wrote a lengthy memo that the United States was in compliance with Article 16 of the Torture Convention prohibiting cruel, inhuman, or degrading treatment or punishment. It is an absurd memo, to be sure, but he makes the point of arguing that the US is not inflicting cruel, inhuman, or degrading treatment. Brad,

This is a nice post, but I wonder if you mischaracterize the position of the Bush DOJ lawyers somewhat. In other memos and in letters to Congress, they went to great length to argue that the Bush administration was in compliance with all US obligations under international human rights law, not just those subject to criminal sanctions. For example, Steve Bradbury wrote a lengthy memo that the United States was in compliance with Article 16 of the Torture Convention prohibiting cruel, inhuman, or degrading treatment or punishment. It is an absurd memo, to be sure, but he makes the point of arguing that the US is not inflicting cruel, inhuman, or degrading treatment.

]]> By: Brad Roth http://www.ejiltalk.org/sorting-out-the-torture-memo-issues-part-i-the-devaluation-of-non-penal-international-norms/comment-page-1/#comment-399 Brad Roth Tue, 15 Sep 2009 12:34:32 +0000 http://www.ejiltalk.org/?p=1496#comment-399 Thanks much, Kevin. Yes, in speaking of narrow construction of the scope of criminal liability, I meant liability under existing norms; I agree that there is no inherent limit on what conduct international law may eventually criminalize. Thanks much, Kevin. Yes, in speaking of narrow construction of the scope of criminal liability, I meant liability under existing norms; I agree that there is no inherent limit on what conduct international law may eventually criminalize.

]]> By: Kevin Jon Heller http://www.ejiltalk.org/sorting-out-the-torture-memo-issues-part-i-the-devaluation-of-non-penal-international-norms/comment-page-1/#comment-397 Kevin Jon Heller Tue, 15 Sep 2009 08:53:49 +0000 http://www.ejiltalk.org/?p=1496#comment-397 Brad, My thanks for the fascinating post -- I look forward to the sequels. I agree with nearly everything you have to say, but I would ask you to clarify your claim that "international penal standards must be read against the backdrop of a general principle that the scope of criminal liability be construed narrowly in the defendant’s favor." The principles to which I assume you refer -- favor rei and its evidentiary cousin, in dubio pro re -- deal with the proper interpretation of specific rules of criminal liability, not the scope of criminal liability itself. There is no reason that international law cannot criminalize an extremely wide range of conduct, as long as its liability rules satisfy the basic requirements of nullum crimen sine lege (specificity and non-retroactivity) and the judges that apply those rules do not extend them by analogy, favor the defendant when faced with equally-plausible conflicting interpretations of a particular rule (favor rei), and give the defendant the benefit of the doubt when drawing evidentiary inferences (in dubio pro re). Do you agree? Brad,

My thanks for the fascinating post — I look forward to the sequels. I agree with nearly everything you have to say, but I would ask you to clarify your claim that “international penal standards must be read against the backdrop of a general principle that the scope of criminal liability be construed narrowly in the defendant’s favor.” The principles to which I assume you refer — favor rei and its evidentiary cousin, in dubio pro re — deal with the proper interpretation of specific rules of criminal liability, not the scope of criminal liability itself. There is no reason that international law cannot criminalize an extremely wide range of conduct, as long as its liability rules satisfy the basic requirements of nullum crimen sine lege (specificity and non-retroactivity) and the judges that apply those rules do not extend them by analogy, favor the defendant when faced with equally-plausible conflicting interpretations of a particular rule (favor rei), and give the defendant the benefit of the doubt when drawing evidentiary inferences (in dubio pro re).

Do you agree?

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