Torture convention

Eric Posner posts at the Volokh Conspiracy, addressing rebuttals to his position on Section 7 of the Torture Convention.

Bottom line:

Section 7 of the Convention Against Torture thus is not judicially enforceable. Could it not still be a "law" that binds the president? It could be; no court has resolved this question, no doubt because the question could never appear before a court in the first place. However, there are strong reasons for doubting that the president, and hence, the attorney general, have any constitutional obligation to "take care" that a non-self-executing treaty be enforced. It is a generally accepted proposition in foreign relations law that the president has the authority to terminate international treaties. President Carter did just that when he terminated a treaty with Taiwan, an act that led to a famous Supreme Court non-decision in 1979 that left his act undisturbed. Such a power cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Presidents also violate treaties. Consider President Clinton's military intervention in Serbia in 1999, in violation of the UN Charter. Treaty violations at the orders of the president—and the U.S. has a long history of them—also cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Perhaps one might argue that President Carter and President Clinton violated their constitutional duties and hence their oaths as well, as did many of their predecessors and successors. But given the long history of presidential discretion in this area, it is a bit late to make this argument.