The United Nations Special Rapporteur on Torture, Manfred Nowak, told reporters at UN headquarters during his October 20th press briefing that criminal detainees are “vulnerable” people who need to be protected by a new UN treaty devoted just to the rights of detainees. He said that detainees deserved as much protection by the international community as children and the disabled do — which those groups already receive under the separate UN Conventions devoted just to them.
Presumably, terrorist suspect detainees would also be covered under this new treaty that Nowak is proposing. In fact, he reiterated his opinion – based, he said, on his experience as an international jurist – that the “victims” of rendition and detention are entitled to “adequate reparations”.
But that is not all. In response to my question whether the United Nations’ view of international law would trump a contrary decision by the highest court of a functioning democracy with an independent judiciary such as the United States, Nowak said that international law has “absolute priority.” His rationale was that a UN member state that voluntarily decides to sign and ratify a treaty is bound by the obligations of that treaty.
But what if a member state includes specific “reservations” or carve-outs from its treaty obligations as conditions to its ratification? For example, when the U.S. Senate ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994, the treaty which Nowak often cites in criticizing our treatment of alien enemy detainees, the Senate stated its understanding of torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” This also happens to be the definition of torture in the UN Convention itself. However, the Senate went on to define mental pain and suffering as “prolonged mental harm” resulting from such causes as “the intentional infliction or threatened infliction of severe physical pain or suffering or the threat of imminent death.” Nowak believes that psychological pressure exerted on a detainee that is well short of this definition should still qualify as torture.
The Senate also included the reservation that the U.S. would understand “cruel, inhuman, or degrading treatment or punishment” to mean “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States”.
Nowak declared that if the appropriate United Nations human rights organizations and monitoring committees found reservations like these to violate the purpose of the treaty, they would be illegal. In other words, he believes, along with much of the UN establishment, that neither the U.S. Senate nor our judiciary has the final say as to how the United States’ treaty obligations should be interpreted and administered if the United Nations has a different opinion!
What if, I asked Nowak, the U.S. Supreme Court were to decide that a coerced confession from a high-level al Qaeda suspect was admissible at trial because the coercion, while psychologically intense, did not amount to torture in the Court’s view and the suspect was not entitled to all of the constitutional protections afforded in ordinary criminal trials? His answer was that the UN’s “monitoring bodies have the power to decide whether a member state is in compliance.” Again, in his view, the Constitution as interpreted by the Supreme Court cannot be used to justify an action that is at variance with international law as interpreted by the relevant UN bodies.
Here is the problem. The United States cannot be forced into surrendering its own sovereignty to some global governance body unless we look the other way and let it happen. Even if our political leaders decided to enter into a treaty that started us down this slippery path, treaties can neither override nor amend the Constitution under the Constitution’s “Supremacy Clause.” As the Supreme Court concluded years ago, it would simply make no sense for a treaty, once in effect as a result of the exercise of the President’s and the Senate’s constitutional powers, to become the instrument for usurping the legal authority of the Constitution that established those powers in the first place.
Thus, the United States Constitution by definition trumps the United Nations Charter, and all other treaties we may enter into under the UN Charter or otherwise, as the governing instrument for the American people.
However, the danger to this constitutional protection for America’s self-governance lurks within our own judiciary. UN officials are filing so-called friend-of-court briefs with the Supreme Court on human rights issues and the Court is increasingly deferring to their views.
For example, when the Court decided that alien terrorist suspect detainees must be granted full habeas corpus rights to have the lawfulness of their detentions evaluated, and that the procedures established by the military trial law which Congress passed and President Bush signed were insufficient, it took the advice of Louise Arbour, who at the time was the United Nations’ High Commissioner for Human Rights. Her friend-of-court brief mentioned habeas corpus five times.
The former UN High Commissioner took it upon herself while in office to advise the Supreme Court that the United Nations International Covenant on Civil and Political Rights required the Court to reverse the decision of the Court of Appeals denying the detainees’ petition for habeas corpus and ensure a full habeas corpus proceeding:
“In exercise of the mandate entrusted to her by the international community, the High Commissioner calls on this Court to give full effect to the United States’s international obligations in adjudicating the questions presented… the obligation of the United States arising from Article 9(4) [of the UN Covenant] is neither fully defined by nor dependent on constitutional provisions or federal statutes affording access to habeas relief per se. Hence, in order to ensure compliance by the United States with its obligations under the Covenant, the judicial access afforded by the United States to persons it has detained must be assessed for compliance with each of the requirements set forth in Article 9(4)…If United States law were as construed by the Court of Appeals to preclude habeas corpus, however, the United States would be in breach of its obligations under the Covenant.”
The Supreme Court listened to the UN High Commissioner for Human Rights. It incorporated her notion of international law into its decision interpreting what was required under the United States Constitution, over the legislation supported by the two elected branches of our government.
With President Barack Obama expected to increase the number of Supreme Court justices who believe that international and foreign law should be reflected in their interpretations of the U.S. Constitution, Mr. Novak may get his way after all by default.