Tinkering with Torture in the Aftermath of Hamdan: Testing the Relationship between Internationalism and Constitutionalism

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition -- and international law generally -- poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within the context of the broader debate over the relationship between internationalism and constitutionalism. The author demonstrates how we can understand varying positions taken in this debate as reflecting different perspectives on the meaning of democracy. Since the September 11, 2001 terrorist attacks, critics of domestic incorporation of international law have made two central arguments about the role of the democratic process in negotiating the relationship between international law and our Constitution. In one arena -- federal courts -- these critics have argued for greater democratic process before courts can be permitted to resort to international and comparative law in interpreting the Constitution. They argue that without greater democratic deliberation, reliance on international law -- even binding ratified treaties -- is not true to our constitutional ideals of democratic accountability, self-governance, and popular sovereignty. In another arena -- the executive branch -- some of the same critics have argued for less democratic process in the treatment of international law in President George W. Bush\u27s War on Terror. A weak version of this claim is that the President should have maximum flexibility in interpreting legislation implementing treaty obligations requiring humane treatment of people detained in the War on Terror. The stronger version of this claim is that application of international law constraints -- even treaties that are not only ratified but implemented into legislation by both houses of Congress -- would unconstitutionally encroach on the President\u27s power to wage war as Commander-in-Chief. With the revelation of abusive treatment of detainees at the Abu Ghraib detention facility in Iraq, as well as allegations of abuse at facilities in Afghanistan, Guantanamo, and at secret prisons elsewhere, these calls for executive unilateralism warrant close examination. Critics\u27 arguments in these two arenas turn on fundamental separation of powers questions raised by domestic incorporation of international law. In a sense, these two positions relate to two separate issues and so are not inherently contradictory. In the War on Terror context, the issue is the scope of the Commander-in-Chief power. In the constitutional interpretation context, the issue is what constitutes law under the Constitution. The author demonstrates, that the two claims turn on different conceptions about the requirements and meaning of democracy. In analyzing these claims, the author asks why critics are quick to challenge international law as lacking a democratic foundation even as they are eager to dismiss the democratic legitimacy bestowed by Congressional sharing of war power. Viewed side by side, the two positions regarding the role of the democratic process are in tension. If, at the end of the day, the President can simply ignore international and even domestic law when he deems it necessary, the democracy question is beside the point. Is the democratic deficit critique in the context of constitutional interpretation simply opportunistic, given this disregard for democratic participation in the context of presidential power