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Bolton and Yoo on the Treaty Power.

It didn't take long for conservatives to rediscover limits on executive power. You'd think something—if not philosophical consistency, then at least manners—would cause them to hold off until, say, inauguration day.

In this case, it's the wisdom of the framers—the bane of reasonable political and legal debate—that has locked the United States into a supermajority rule for treatymaking. Presidents can enter treaties only with the consent of 2/3 of the Senate. The rule is far too strict to be practical. No other major country has such a strict rule—most European countries, for example, just require a parliamentary majority. Recognizing this problem, over the years the political class of the United States and the judiciary have acquiesced in two subterfuges—the congressional-executive agreement, where consent to a treaty requires a majority of both houses, and the "pure" executive agreement, which requires merely the consent of the president, pursuant to "inherent" constitutional powers or powers delegated by Congress. A complicated set of largely political precedents govern the use of these approaches. In the past, trade treaties have usually resulted from congressional-executive agreements; military alliances and arms control agreements have involved Senate consent; and presidents have often negotiated settlements of international claims on their own. Today, the United States belongs to thousands of treaties—far more than any other country. It is far too late to complain of American being caught in a "dense web of treaties and international bureaucracies."

This evolution made good sense. The framers, acting with little useful precedent, and acting under circumstances entirely different from those that prevail today, took a stab in the dark and missed. The problem is not just that 2/3 is a very high standard for a legislative institution; it is also that senators, unlike members of the House, do not represent equal numbers of people. As a result, senators representing a very small portion of the population—around 15 percent, I think—can block a treaty that reflects the interests of the other 85 percent. And, indeed, typically senators from rural states with small populations do the blocking.

Bolton and Yoo appear to concede that the 2/3 rule is too strong for financial and economic agreements. They just want to preserve it for agreements that touch on national security or that involve delegation to international institutions (however, that is what happens with the WTO dispute settlement mechanism). Certainly, the framers did not make such a distinction, and Bolton and Yoo do not explain why there should be different rules for different types of treaties. If the Obama administration can further erode the Senate's role in treatymaking, this will strengthen the president's hand. John Yoo thinks that the president has the power, and ought to have the power, to make war, control American troops, and dominate American foreign policy; if he can do all that, why shouldn't he also have the power to make the agreements that America's foreign policy requires?

Bolton and Yoo write as though nothing would delight the Obama administration more than "t[ying] one hand behind America's back." Of course, this is the John Yoo who famously (and correctly, in my view) argued that the president can unilaterally, that is, without Senate consent, withdraw the United States from treaties. It may turn out that the Obama administration will enter unwise treaties, but, at least so far, Bolton and Yoo exaggerate the difference between the Bush and Obama administrations—both of which support the Law of the Sea treaty and have agreed that the United States should submit to binding greenhouse gas limits. I expect that the Obama administration will find the old Yoo's views about executive power more compatible with its interests than the new Yoo's views.

_quodlibet_:

Presidents can enter treaties only with the consent of 2/3 of the Senate. The rule is far too strict to be practical. ... Recognizing this problem, over the years the political class of the United States and the judiciary have acquiesced in two subterfuges...

This evolution made good sense. The framers, acting with little useful precedent, and acting under circumstances entirely different from those that prevail today, took a stab in the dark and missed.

Just because it is convenient to violate the Constitution does not make it lawful to do so. If the 2/3 supermajority is too onerous, the requirement can be amended in accordance with Article V of the Constitution.

Disregarding the rule of law may turn out to be beneficial in short-term instances, but in the long term it is detrimental to our system of ordered liberty.
1.5.2009 10:34am
BZ (mail):
Leaving aside the pejorative comments about conservatives and the Bush Administration's position (which might, I think, be more balanced than portrayed here), the constitutional question is an interesting one. Professor Posner is not suggesting that the Constitution be evaded or that it is unclear, only that the choice made then is wrong for our circumstances now.

As a historical matter, however, this argument may overlook a few points:

a) Prof. Posner argues, for example, that the 2/3ds rule empowers the smaller States to veto something of benefit to the larger. But the Senate of the Founders is not the same as today's Senate. Originally designed to represent the States, the Senate was designed to do just that: protect the smaller states from depradations by the larger (a different spin on terms, but the same concept). Changing the Senate to popular election could be seen as addressing just this point, as it relaxes the State-interest intent by including popular will of the State's citizens, rather than just the elected elites. But popular election did not change the fundamental idea that all citizens, from small states and large, should have their interests represented, even if in an out-sized (pun intended) way. What has changed, in a fundamental sense, in the intervening years, to make such a choice inappropriate today? In an age of information management, it probably isn't just the increasing number of international entanglements, nor the simple increase in population (which is still not distributed evenly between large and small states). On a small-State veto, just posing the question does not justify an answer either way. What would be the rationale for changing to a pure numbers test?

b) Prof. Posner also notes the distinctions between different forms of international agreements, but argues that the Founders ("Framers") did not make such distinctions. Actually, if you look back at the institutions of the day, there were numerous examples of financial or other agreements which did not rise to the level of a "treaty." In fact, because the concept of nation-states was different (as were the economic institutions), you often had the nascent governments of the time interacting in economic blocs and financial instruments which were more similar to government contracts than treaties (see, e.g., the Articles of Confederation), and we all know that such purchases today are not subject to Senate approval (but they can be blocked, as in the Dubai Ports question). So it may have been that, given the differences in the time, the Founders intended to reserve a special place for the actual binding agreements which rose to the level of a treaty. And to make such honor- and treasure-bound treaties more difficult for an Executive to procure. Again, why is that an increasing problem? Especially at a time when Executive power is not only increasing, but congressional deference (e.g., bailouts) is decreasing, except in some PR-driven, anecdotal hearings?

There are a few other similar points, but in the interests of brevity, I will just point out that Prof. Posner is correct in his analysis of ratification trends changing over time, and it is appropriate to note when such trends are driven by ideology rather than intellectual honesty. But his concerns raise as many issues as the likely answers resolve.
1.5.2009 10:34am
Abdul Abulbul Amir (mail):

Since treaties have the force of law, having 2/3 of the Senate seems reasonable given the House has no power at all.
1.5.2009 10:36am
Teh Anonymous:
New year, new Yoo - I see what you did there.
1.5.2009 10:43am
Norman Bates (mail):
Treaties don't just have the force of law. The Constitution clearly states that along with the Constitution, they become the supreme law of the land and because of this conservatives have always been leery of true treaty commitments and favored strong restrictions on the government's ability to enter into them. Professor Posner reveals a surprising ignorance of history when suggesting otherwise. This is a consistent thread in American conservative thought and action. Think of Washington's farewell address and it's warning to avoid foreign entanglements, the Senate's refusal to approve the Treaty of Versaille, and more recently the dogged conservative battle to save the US from the repugnantly invasive international sea treaty.
1.5.2009 10:50am
Simon Dodd (mail) (www):
I agree that as a general matter, conservatives are likely to fall in love again with limits on executive power - Orin Kerr noted as much not long ago. But one gets into a generality trap in saying that because a person has argued that the President can do X and Y, that person must also believe they can do Z. I had thought that the idea of Yoo et al being for unlimited Presidential power was just a canard, an imprecise way of criticizing them for disregarding some limits on the Presidency. If Yoo and Bolton had previously argued for a broad treaty power that allowed the President to lock the United States into international agreements unilaterally, inconsistency would be a fair charge. As it is, though, the thrust of the piece seems to be a concern that the executive not be allowed to something that (so far as I know) neither Bolton nor Yoo have suggested it can do in the past.
1.5.2009 10:56am
Pon Raul II:
Nice ad hominem there. Eric, I think that you are smart enough to understand why Yoo's positions are not conflicting.
1.5.2009 10:59am
Duffy Pratt (mail):
Yes, in theory treaties have the force of law. Of course, unless a treaty carries with it something that allows for its domestic enforcement, they will generally be unenforceable in any court. As a result, at least for individuals, most treaties are toothless. And because most treaties are not self-executing, the main mechanism for enforcement will either be diplomacy or war. Since you don't need the treaty to engage in diplomacy or go to war, one wonders what the legal force of the treaty was in the first place.
1.5.2009 11:00am
Simon Dodd (mail) (www):
I'm also left wondering what the problem with the 2/3 rule is. Prof. Posner writes that "[t]he problem is not just that 2/3 is a very high standard for a legislative institution; it is also that senators, unlike members of the House, do not represent equal numbers of people." I suppose that I don't share Prof. Posner's assumptions, because I don't see why either of these features are a "problem." Is it Prof. Posner's position (also ascribed, descriptively, to Justice Scalia by Ralph Rossum) that the 17th Amendment not only abolished the election of the Senate by state legislatures, but transformed the Senate from a body representing the states to representing the undifferentiated electorate in dual-member constituencies with traditionally-defined boundaries?
1.5.2009 11:02am
Charlie (Colorado) (mail):

You'd think something—if not philosophical consistency, then at least manners—would cause them to hold off until, say, inauguration day.


Why? The incoming administration didn't wait until Inauguration Day to discover that maybe the Bush Administration was right about defense policy.
1.5.2009 11:06am
Henry679 (mail):
Yoo has to do something to fill up his time--it's not like he is going to be able to do a lot of world traveling from now on.
1.5.2009 11:15am
Cornellian (mail):
But an administration determined to tie one hand behind America's back

John "torture memo" Woo would be well advised to choose a different figure of speech.
1.5.2009 11:18am
Cornellian (mail):
I like how they save this part for the end:

It is true that some multinational economic agreements, like Bretton Woods, the General Agreement on Tariffs and Trade and the North American Free Trade Agreement, went into effect after approval by majorities of Congress rather than two-thirds of the Senate. But international agreements that go beyond the rules of international trade and finance — that involve significant national-security commitments, or that purport to delegate lawmaking and enforcement functions to international organizations, or that could fundamentally alter the American constitutional system of individual rights — should receive the intense scrutiny of the treaty process, regardless of their policy merits.

In other words "in the case of a trade agreement, forget everything we just said." I guess they just like trade agreements since they cite zero textual or originalist basis for this distinction.
1.5.2009 11:20am
Dave N (mail):
I suspect Yoo could travel just about anywhere he wanted--because the Obama Administration would have every incentive to do everything in its power to have Yoo released (or even issue him a diplomatic passport if there was concern about his arrest).

Why would it do this? Because unlike the Moonbats who make up much of his base, President Obama knows it is in the best interest of the United States (and his own Administration) to fight the "international arrest" of any former government official for that official's government-sponsored actions without America's consent.
1.5.2009 11:23am
martinned (mail) (www):
@Dave N: Which is why many European countries have judges in charge of the investigation. This is not the same judge who will run the trial, but rather a juge d'instruction, who supervises the police and decides on search and arrest warrants. In the Pinochet case, for example, it was exactly such a judge who got the ball rolling. (And since then, we've seen the introduction of the European Arrest Warrant.)

Don't get me wrong, I don't think it is very likely that John Yoo would get arrested, either, but that is more to do with the weakness of the case against him than the fact that he used to work for the US government.

As for the actual topic of this thread, US treaty making law is a mess. There are whole categories of treaties that evade the process, as explained above, but there is similarly the problem of enforceability of treaties. Looking at the US Constitution, it looks like the founders intended a monist system of international law, where treaties have direct effect, unlike the British dualist system, where every treaty has to be followed by an implementing statute. But in practice, this monism has been completely written out of the constitution by the courts. The question is, are these two facts connected?
1.5.2009 11:33am
therut (mail):
Some people want to make way for a UN arms treaty to wipe out the 2nd amendment. I think that would be a VERY bad and dangerous thing for the elite politicians to do. It might just be the "shot heard around the world" repeated.
1.5.2009 11:39am
Anderson (mail):
Since you don't need the treaty to engage in diplomacy or go to war, one wonders what the legal force of the treaty was in the first place.

Given that the Framers evidently imagined that treaties *would* have the force of law, the above pinpoints a problem with the "self-executing language required" tactic employed by judges to evade the force of treaties.

As for other branches' undoing of treaties, I am less concerned by Presidential revocation than by a majority vote of Congress's having the power to repeal a treaty in whole or in part. What is the point of excluding the House from the treaty process, and requiring a 2/3 vote in the Senate, if the treaty can be repealed by simple majorities and a complaisant president?

(True, if the President is willing to sign the bill, then he could undo the treaty unilaterally ....)
1.5.2009 11:57am
Cornellian (mail):
Some people want to make way for a UN arms treaty to wipe out the 2nd amendment. I think that would be a VERY bad and dangerous thing for the elite politicians to do.

But if you're a non-elite politician, then go right ahead.
1.5.2009 11:58am
sputnik (mail):
I would really love it if Obama imprisoned Yoo for the rest of his life without charges. For the irony, if nothing else.
1.5.2009 12:21pm
Ming the Merciless Siamese Cat (mail):
If one of the Professor Posner's students turned in a Contracts' exam answer as poorly reasoned as this, I doubt seriously doubt he'd pass.

I certainly hope he wouldn't, or else I'm pissing away $40K a year on my wife's Chicago Law tuition.
1.5.2009 12:29pm
Sarcastro (www):
Cornellian non elite politicians are all Conservative, and so lurve their guns, like real Americans should. Sometimes twice a day!

And why is the Supreme Court deceiving America about the true extent of Treaty Power when it says "This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty?" Reid v. Covert, 354 U.S. 1, at pg 17. I think it's cause they hate America.
1.5.2009 12:29pm
Samual:
"Treaties don't just have the force of law. The Constitution clearly states that along with the Constitution, they become the supreme law of the land and because of this conservatives have always been leery of true treaty commitments and favored strong restrictions on the government's ability to enter into them. Professor Posner reveals a surprising ignorance of history when suggesting otherwise. This is a consistent thread in American conservative thought and action. Think of Washington's farewell address and it's warning to avoid foreign entanglements"

It's exactly this aspect of the treaty power that Washington embraced in his very first treaty, the Treaty of New York, with the Creek nation. He wanted to get around Georgia's obtructionism, concerning realtions with the Creek nation. Washington also was unsure what advice and consent required, so before sending commissioners he personally went to the Senate chamber to discuss teh Treaty. The meeting was largely a disaster and Washington vowed never to do it again (and no president has since). At any rate, the Treaty ultimately negotiated was ratified over the objections of both Georgia senators.
1.5.2009 12:49pm
Simon Dodd (mail) (www):
Sarcastro - a treaty is a promise to do something, not the doing of it. The United States can, in the literal sense, sign a treaty promising to do something that it has no authority to do, but it won't by doing so gain the power to undertake that action. (That's the point of Reid, and also the recent Medellin case.) So in that sense, the Constitution does limit the treaty power.
1.5.2009 12:57pm
martinned (mail) (www):
@Simon Dodd: You're confusing two things. On the one hand, constitution trumps treaty, but on the other hand for many treaties the ratification of the treaty automatically achieves its performance, at least in a monist system. The WTO agreement being a case in point. As of the ratification of such a treaty, all trade barriers inconsistent with it are, or at least should be, null and void.
1.5.2009 1:01pm
Dilan Esper (mail) (www):
I suspect Yoo could travel just about anywhere he wanted--because the Obama Administration would have every incentive to do everything in its power to have Yoo released (or even issue him a diplomatic passport if there was concern about his arrest).

It's worth noting that diplomatic immunity depends on one's actual status as a diplomat. Carrying a diplomatic passport is EVIDENCE of that status, but there are many cases (including Pinochet's) of countries refusing to grant immunity to someone carrying a diplomatic passport who did not in fact have a diplomatic portfolio.
1.5.2009 1:16pm
ed (mail) (www):
Hmmm.

"No other major country has such a strict rule—most European countries, for example, just require a parliamentary majority."

Oh yeah.

Nothing to make an crackpot argument than to point out European countries are not America -and- to try and position it that, compared to ridiculous European systems, America's Constitution is wrong.

Perhaps the various admonishments to avoid foreign entanglements, significant distrust of meddling foreigners and mistrust of foreign governments held by our Founding Fathers should make an appearance?

As for any of this being the result of "conservatives" precisely who is for an unfettered President? Not any conservative I know, or see in a mirror. The very --last-- thing I want in America is an unfettered President. Particularly a President unfettered by Constitutional requirements.

Frankly this whole thing is such complete nonsense I find it hard to credit it's on this blog.

Perhaps this is an early April Fools?
1.5.2009 1:58pm
ed (mail) (www):
Hmmm.

@ sputnik

"I would really love it if Obama imprisoned Yoo for the rest of his life without charges. For the irony, if nothing else."

And I would really love it if just a few of you people who don't seem to understand the necessity of indefinitely holding terrorists would spend a weekend locked in a house with a few of these worthy gentlemen. No interior locks, no restraints and plenty of cutlery available for experimentation.

Maybe afterward, should you survive, you'd understand why people aren't exactly enthused about releasing them.
1.5.2009 2:05pm
Thorley Winston (mail) (www):


I agree with Simon Dodd that what Bolton and Yoo have actually said before with regards to executive authority isn't necessarily inconsistent with the argument they made in the op-ed piece regarding the Senate's authority regarding treaty ratification. One thing struck me in particular from this post:

Of course, this is the John Yoo who famously (and correctly, in my view) argued that the president can unilaterally, that is, without Senate consent, withdraw the United States from treaties.


I'm not sure what this is in reference to specifically but in the op-ed piece, Bolton and Yoo refer to the Bush administration's "unsigning" the Kyoto accords which while signed by then President Clinton was never actually ratified by the Senate. If the Senate hasn't ratified a treaty, I don't see why the President would need the Senate's consent to "unsign" a treaty. AFAIK Yoo hasn't argued (and someone can correct me if I'm wrong) that barring a provision in the treaty to the contrary, that a President can unilaterally withdraw from a treaty that was ratified by the Senate.
1.5.2009 2:16pm
Sarcastro (www):
One must admire the simplicity of ed's logic. If you're detained, you're a terrorist. Therefore, if you let them out they will totally cut you! Be afraid America!

The logic is flawless!
1.5.2009 2:17pm
martinned (mail) (www):
@Thorley Winston: I don't have it handy, but the statement that the President can withdraw from treaties that have already been ratified without "permission" from the Senate was in the famous torture memo somewhere. Even though I think this is a strange rule, there seems to be some SCOTUS case law on point.
1.5.2009 2:20pm
zz1x1 (mail):
Funny how foreign legal systems suddenly become relevant when it helps the far right's position, but if used by SCOTUS judges to argue other positions, it's treated as quasi-treasonous.

Prof. Posner's sharp insights into Yoo's inconsistency almost make you wonder why he felt it felicitous to link his own name to Yoo's in so many joint publications.

Prof. Posner has archly opined that an Obama administration will be loathe to give up many of the new executive powers claimed with Yoo's help. Any comments from Prof. Posner on appointment of Johnsen?
1.5.2009 2:34pm
Thomas_Holsinger:
I defy ANYONE to read all of the chapter on the treaty power in John Yoo's The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. My chin hit my chest within ten minutes every time I tried to read it. It's a sure cure for insomnia.

Duffy Pratt and Marinned got to the heart of their matter with these comments, respectively:
"Yes, in theory treaties have the force of law. Of course, unless a treaty carries with it something that allows for its domestic enforcement, they will generally be unenforceable in any court."

"... there is similarly the problem of enforceability of treaties. Looking at the US Constitution, it looks like the founders intended a monist system of international law, where treaties have direct effect, unlike the British dualist system, where every treaty has to be followed by an implementing statute. But in practice, this monism has been completely written out of the constitution by the courts."

I agree with them that the 2/3 Senate confirmation rule adds little additional burden to America's treaty process given the mammoth issues about enforceability of treaties.

Judge Posner's disagreement with with Bolton and Yoo about the President's unilateral power to abrogate treaties directly conflicts with his past posts about the cavalier European Union attitude towards government observance of treaties. IMO this is a general European practice - it is not confined to the EU.

Basically treaties are observed and honored until they aren't, and lots of them never are because they are mere genuflections towards domestic public opinion which the governments involved never intended to honor.

The exception is in America when there is Congressional legislation providing an enforcement mechanism. I believe there is a Supreme Court decision holding that treaties are not self-enforcing and may be violated, or outright abrogated, by the Executive branch at will absent Congressional legislation enforcing them.
1.5.2009 2:37pm
Cornellian (mail):
"I would really love it if Obama imprisoned Yoo for the rest of his life without charges. For the irony, if nothing else."

And I would really love it if just a few of you people who don't seem to understand the necessity of indefinitely holding terrorists would spend a weekend locked in a house with a few of these worthy gentlemen.


Simple solution, the President can just label John Woo a terrorist. Problem solved. You couldn't possibly have any objection to that, could you? It's not like you'd support John Woo contesting his designation as a terrorist before some neutral third party, such as a judge. Only liberals who hate America would support something like that.
1.5.2009 2:39pm
Cornellian (mail):
I suspect Yoo could travel just about anywhere he wanted--because the Obama Administration would have every incentive to do everything in its power to have Yoo released (or even issue him a diplomatic passport if there was concern about his arrest).

If Yoo gets arrested in some foreign country he'll have only himself to blame. It's not like no one could see that coming. He can't count on any administration being able to get him out of that situation. Even if the administration were willing, that doesn't mean it would be able to do anything for him.
1.5.2009 2:42pm
martinned (mail) (www):
@Cornellian: Well, in Yoo's universe, the President is the next best thing to the allmighty, so one can see the source of the error. In any case, Obama could send the marines.

BTW, what did John Woo do? Didn't you like Face/Off?
1.5.2009 2:50pm
Cornellian (mail):

BTW, what did John Woo do? Didn't you like Face/Off?


OK, my bad, I meant Yoo, not Woo, but your example is a bad one - Face/Off was also a criminal offense.
1.5.2009 3:33pm
Greg Q (mail) (www):
Wah, wah, wah.

Get used to it, lefty whiners. If it was ok to do it to America while Bush was President, then it's ok to do it to America when Obama is President. Payback's a bitch, get redy for yours.

Yes, it was wrong when you did it while Bush was President. So? It's wrong to steal from people, but we see nothing wrong with hitting someone with a large fine as punishment for stealing from someone. Every wrong you lefties did for the last eight years, you deserve to have happen to you.

You weren't willing to think ahead. You weren't willing to ask "gee, what about when we have the Presidency and a Congressional majority?" Well, now you do. And now you will get to pay for your lack of forethought.

Enjoy.
1.5.2009 3:47pm
Sarcastro (www):
Greg Q:

If it was ok to do it to America while Bush was President, then it's ok to do it to America when Obama is President.


"It" being being a total dick, I presume.
1.5.2009 3:50pm
D.R.M.:
Hmm. While the Framers did not make such a distinction between treaty types when writing the Constitution, the early, Founder-era Congress did distinguish between trade treaties that touched on tariffs and other sorts of treaties. Trade treaties that touched on tariffs have been held by Congress to require House approval, given the House's special Constitutional authority in the matter of revenue bills. There is accordingly over two centuries of precedent in distinguishing the two classes.

So the argument works out that for the class of treaties that require House approval, it is reasonable to only require a simple majority of the Senate, while for other treaties the 2/3rds requirement of the Constitution is retained.

That is procedurally sensible; why should tariff treaties have a higher burden than either tariff laws and treaties?

It also is consistent with the general outlines of the Senate's role. As quasi-sovereign entities (who, for example, controlled their own militias), the states were given maximal influence over matters directly affecting American sovereignty (through their appointed Senators), while national taxation was deliberately isolated from the Senate by putting it in the purview of the House.

Then, finally, this system, both logical on its own merits and flowing from the general scheme of powers in the Constitution (if not explicitly called out in the text), has been firmly established by long precedent and convention.

It is not, of course, a direct imperative of the written Constitution to separate the classes this way, but it certainly looks to be a well-established distinction in the customary Constitution.
1.5.2009 5:45pm
Oren:

What has changed, in a fundamental sense, in the intervening years, to make such a choice inappropriate today?

In the first Congress, VA had 10 representatives, DE had 1. Today, California has 55 reps, WY has 1.

Our population is far more concentrated in a handful of states than the founders could have anticipated. For instance, you can make a popular majority out of CA, TX, FL, NY, IL, GA, PA, OH and MI with a few million to spare.

Meanwhile, on the other end, you can elect 34 Senators from less than 8% of the population. That 8% is empowered by Art V to veto any constitutional amendment that would remedy their unprecedented power.
1.5.2009 5:50pm
Oren:
Correction: CA has 53 reps in the House (making for 55 EVs, which is the figure I remember).
1.5.2009 5:56pm
Thomas_Holsinger:
D.R.M.

Very good point.

This issue seems to be immaterial.
1.5.2009 6:24pm
AGBates:
D.R.M.: "While the Framers did not make such a distinction between treaty types when writing the Constitution ..."

Well, the constitution distinguishes between treaties, alliances, and confederations, on the one hand, and agreements and compacts on the other. See Article I, Section 10. In light of this provision, it has long been argued that the Treaty Clause (and advice/consent requirement) is best read to apply only to "treaties," properly understood, and not other sorts of international agreements.

For Story's discussion of the different types of agreements, see here.
1.5.2009 11:01pm
BGates:
"It" being being a total dick, I presume.
That's more introspection than I thought you could manage, Sarcastro.
1.6.2009 12:02am
John Steele (mail):
I see nothing wrong with the Framers' decision to set a very high bar. Considering that treaties take their place alongside the Constitution itself as the law of the land I think a very high bar, the highest practical, is indeed appropriate. After all they set, appropriately I believe, an even higher bar to amending the Constitution and treaties have the potential to modify the way the Constitution applies to the citizenry.
1.6.2009 12:09am
Ryan Waxx (mail):
"It" being being a total dick, I presume


I defer to the voice of experience.
1.6.2009 12:09am
GatoRat:
My guess is that the 2/3 senate majority rule was based on the following premises:

1) Treaties are between governments

2) The United States is a union of states

3) The president represents the US government

4) Senators represent the various state governments

5) Representatives represent the people (and thus, while the people may be affected by a treaty, they are not parties of it.)

Posner's makes a compelling argument of why we should return to a system where Senators represent states by getting rid of the popular vote for senators.
1.6.2009 1:33am
Public_Defender (mail):

Some people want to make way for a UN arms treaty to wipe out the 2nd amendment. I think that would be a VERY bad and dangerous thing for the elite politicians to do. It might just be the "shot heard around the world" repeated.

Can't happen. Treaties have the power of federal statute. They can't "wipe out" constitutional rights.
1.6.2009 6:45am
ucfengr (mail):
I'm just curious; what exactly did John Yoo do to deserve imprisonment? My understanding is that he offered a legal opinion on the rights of captured enemy combatants that some people disagree with; is that illegal now?
1.6.2009 9:10am
UofAZGrad (mail):
Ucfengr,

Yoo issued memos through the OLC giving legal cover to the executive branch for past and future acts of torture as well as justification for open-ended, non-reviewable detention of anyone the president designates as an enemy combatant (up to and including American citizens arrested on American soil). He did so by concocting legal arguments that were laughable. For instance, he cherry picked legal cases and doctrines that were presented out-of-context while steadfastly ignoring a mountain of contradictory authority. This isn't a matter of "some people disagreeing" with his legal reasoning. A lawyer in a routine lawsuit can be sanctioned for failing to address on-point, adverse authority.

As officers of the court, attorneys are not permitted to distort the strength of a legal argument by omitting relevant adverse authorities. Granted, this is a high bar and the violation has to be egregious (like say arguing federal common law is supreme in all circumstances by ignoring the Erie doctrine in favor of the dead law that preceded it). In Yoo's case, he managed to write legal opinions concluding the president had unfettered powers to conduct war without bothering to discuss Youngstown in any meaningful manner. This Supreme Court decision couldn't be more on point and its holding absolutely shreds his conclusions.

Moreover, Yoo narrowed the definition of torture to include only things that caused severe physical injury and organ failure. This, again, is a laughable argument in light of hundreds of years of jurisprudence. There are a lot of things that qualify as torture which do not cause organ failure or even permanent injury or marks. Let's just take one, waterboarding. Waterboarding is not a close call, it is torture even though the most suffers escape significant or longstanding physical trauma. This isn't an abstract point, we executed Japanese officers for ordering this specific technique in WWII. The fact that waterboarding was authorized by our government and determined to be legal by Yoo as head of the OLC is truly surreal. Even putting aside Japanese war crime trials, waterboarding has been unequivocably accepted as torture in the U.S. for over 100 years. U.S. soldiers were court martialed for using it on insurgents in the Phillipine.

Any further doubt is removed by reading the eye-opening cases of Fisher v. State, 110 So. 361, 362 (Miss. 1926) and White v. State, 182, 91 So. 903, 904 (Miss. 1922)where the Mississippi Supreme Court overturned convictions because the defendants' confessions were obtained through waterboarding. The high court of 1920s Mississippi recognized like every other modern, democratic legal authority of the day that this was torture plain and simple. It was such an uncontroversial legal point that the conviction of White was overturned even though he was a black man jailed for murdering a white man in 1922 Mississippi. The freaking Gestapo officially banned waterboarding even while it adopted other "enhanced interrogation techniques".

Yoo ignored clear, longstanding law and as a government official authorized the use of torture on suspects and the illegal detainment of American citizens without due process. Thus, he has culpability for criminal actions he had no reasonable basis to certify as legal. This is not a novel theory in the least, the Nuremberg Judges Trial is settled law.
1.6.2009 11:15am
Thomas_Holsinger:
ucfengr,

Lefties are allergic to John Yoo. His name is a magic incantation which brings any conversation involving lefties to a halt while they rip off their clothes, paint themselves blue and howl at the moon. This is their required ritual cleansing ceremony. His name makes them incapable of rationality.

You are seeing that behavior here.
1.6.2009 11:20am
ed (mail) (www):
Hmmmm.

@ Sarcastro

"One must admire the simplicity of ed's logic. If you're detained, you're a terrorist. Therefore, if you let them out they will totally cut you! Be afraid America!"

Don't waste my time with strawmen. I did -not- state that anybody that was detained was automatically a terrorist. But the clear fact is that many, if not most, of the long-term detainees are in fact terrorists.

Perhaps the fact that 50+ of those released so far have been either captured again or killed in fighting Coalition forces.

You utter dumbass.

"The logic is flawless!"

The day you employ logic is one that I shall note in my diary.
1.6.2009 12:07pm
ed (mail) (www):
Hmmm.

@ Cornellian

"Simple solution, the President can just label John Woo a terrorist. Problem solved. You couldn't possibly have any objection to that, could you? It's not like you'd support John Woo contesting his designation as a terrorist before some neutral third party, such as a judge. Only liberals who hate America would support something like that."

Read much? Perhaps if you'd like to read what I wrote it might help with comprehension.
1.6.2009 12:10pm
ed (mail) (www):
Hmmm.

@ UofAZGrad

"Thus, he has culpability for criminal actions he had no reasonable basis to certify as legal. This is not a novel theory in the least, the Nuremberg Judges Trial is settled law."

So in your opinion would either President Clinton and/or Vice President Gore be criminally culpable for setting up -rendition-?

Since in your opinion Yoo is criminally culpable for writing bad opinion (your conclusion) then wouldn't actually handing suspects over to foreign professional torturers be even worse?
1.6.2009 12:17pm
UofAZGrad (mail):
Ed,

Yoo didn't write "bad" opinions, he wrote fraudulent ones by any measure of legal, scholastic or historical reading. I don't think this is a difficult concept to separate from a government lawyer that adopts a legal position that might be self-serving and weak but at least has some basis in merit. Yoo's memos are on par with a state attorney general issuing a legal opinion that concludes state officials and employees are immune to prosecution for violating the state law prohibiting child molestation. No matter what gimmicks the AG used in the opinion to reach that result, the conclusion is not simply flawed or weak but ridiculous on its face. The prohibitions against torture and the detention of Americans in America without due process are no less rigid than prohibitions against sexual molestation (and in fact they are more rigid because the Constitution refers specifically to unlawful detention and cruel treatment).

Any American official who authorized or facilitated extraordinary rendition should absolutely be in the same legal jeopardy that I wish on Yoo. Rendition isn't attractive because it converts the illegal into the legal, it's attractive because it provides deniability to the officials handing over suspects to another sovereign. In reality, everyone knows the guy will be tortured and the intelligence gathered will be shared with the U.S. but proving the violation of criminal law is made much more difficult through rendition. So to answer your question, I would happily see Clinton, Gore and anyone else be tried for torture if they ordered rendition. However, the fact that one bank robber avoids prosecution cause he struck at night and wore a mask does not argue in favor of giving a pass to another robber caught smiling on security monitors while he stole cash in front of everyone.

I just can't see how torture as official American policy isn't a fundamental abandonment of the rule of law. Yoo and Bush aren't the first American officials to permit torture (I think the circumstantial evidence clearly damns the Clinton administration on rendition). But Clinton and others maintained official prohibitions while they did dirty deeds in the dark. Bush, Cheney, et al. decided to adopt unambiguous torture and indefinite detainment as official policy based on Yoo's Twilight Zone legal reasoning. If the rule of law means anything, it means the President does not have the power to torture and it means that U.S. citizens cannot be arrested on U.S. soil and held without charge for years at the pleasure of the president. Both of these things happened to Jose Padilla, a citizen arrested in Chicago who was tortured until he broken and held without charge for years until federal court review became unavoidable and Bush gave him back his rights as a criminal defendant to avoid having Yoo's ridiculous arguments reviewed by another Branch.
1.6.2009 9:23pm
ucfengr (mail):
I'm an engineer, not a lawyer, but what I'm getting from this is some are of the opinion that John Yoo should be convicted and imprisoned for having and disseminating illegal legal opinions. Sounds rather like a "thought crime" to me, but then again, I'm just an engineer.
1.7.2009 8:35am

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