Katherine Graham’s Connections with Harry Hopkins and Edward B. Burling

As the owner and publisher of the Washington Post in the current move, “The Post,” Katherine Graham, as played by Meryl Streep, is an important participant in the real-life drama of the Post’s publication in 1971 of the Pentagon Papers. The film also has glimpses of her involvement in the Washington social scene, including  friendships with John F. Kennedy and Jacqueline Kennedy OnassisRobert F. KennedyLyndon B. JohnsonRobert McNamaraHenry KissingerRonald Reagan, and Nancy Reagan among many others. Below are photographs of Graham herself and of Meryl Street as Graham.

Graham’s memoir, Personal History from 1997, mentions her connections in 1941 with Harry Hopkins (HH) and Edward Burling, both Grinnell College alums.[1] Their photographs are below.

Harry Hopkins
Edward B. Burling

 

 

 

 

 

U.S. Preparation for War, 1941

In or about late May 1941 Katherine’s husband, Phillip (“Phil”) Graham, was finishing clerkships for U.S. Supreme Court Justices Stanley F. Reed (1939-40) and Felix Frankfurter (1940-41) and finding his next position in the midst of the increasing threat of the U.S.’ becoming involved in what became World War Ii. In that search Phil met with Robert Lovett, then Assistant Secretary of War for Air, who suggested Phil see about working for HH, who was President Roosevelt’s principal assistant.

That June Phil met with HH, who was in failing health, at his bedroom/office in the White House. HH immediately asked, “Why the hell aren’t you in the Army?” Phil responded that the Head of Naval Intelligence had advised him to wait a few months before deciding how to become directly involved in the war effort. Eventually HH suggested that Phil talk with Oscar Cox about working for him at the Lend-Lease Administration while spending three days a week with HH.

Phil already had tentative arrangements to work for Cox and did so shortly thereafter. Cox said that working directly for HH probably would not have worked out. According to Cox, “HH was a peculiar cuss, worked very irregularly, and probably would never get a real assistant.”

While at Lend-Lease, apparently in August 1941, Phil (age 26) and Joe Rauh, Jr.,(age 29), the latter of whom later became a prominent civil rights lawyer, sent a memo to President Roosevelt advising immediate and significant increases in U.S. production of bombers for the war. HH immediately responded: “You shouldn’t bother the President with things like this and besides it isn’t true.” Phil and Joe were worried that their Washington careers were over so they went to see Bob Nathan, director of research at the Office of Production Management and learned that U.S. production of bombers was even worse than they had thought.

That same summer, on a Sunday afternoon, Phil and Katherine went for lunch at the Virginia log cabin owned by Burling. Also present was Robert Patterson, the Undersecretary of War, and according to Katherine’s memoir, “the arguments on preparedness were being waged at the top of everyone’s lungs. Of course, I worried that Patterson was unused to this mode of discourse and would think that everyone arguing was insane, and when we got home I told Phil that their manners in front of this august figure had been appalling.” (Emphasis added.) Whose manners was she referencing? The Burlings? Everyone at the gathering except for Mr. Patterson?

Personal Involvement with Mr. Burling

In the Fall of 1959 while attending the Washington Semester at American University  I called Mr. Burling to thank him for his generous donation to Grinnell College for its new library that is named in honor of his mother.  At his invitation, I joined him at his law firm for an enjoyable conversation over coffee and then after being picked up by his personal chauffeur, at his Cabin on a Sunday afternoon. Little did I know at the time that such a Sunday afternoon had become a famous Washington institution. I do not recall our conversations other than my talking about my studies at Grinnell and AU, but I do remember how Burling, then 89 years old and clad in a wool plaid shirt, vigorously chopped wood on a beautiful fall afternoon. (Now I wish I had been journaling to document these meetings.)

 Edward Burling’s Death[2]

On October 3, 1996, Edward B. Burling died at age 96 in Washington Hospital Center. According to an editorial in his honor in the Post that Graham may have helped write,  Burling’s “greatest diversion was a primitive log cabin that he built some 40 years ago on the shore of the Potomac near McLean. During the ‘30s and ‘40’s the cabin served as a meeting place for scores of scholars and diplomats and leaders. ‘They would gather to chop wood, eat well, and settle the problems of the world,’” said one of his law partners.

His obituary in the Post also mentioned that his introduction to politics came when he sat on a rafter at the 1896 Chicago convention of the Democratic Party and heard William Jennings Bryan deliver his famous “Cross of Gold” speech. Later Burling supported Teddy Roosevelt’s presidential candidacy in 1912 for the Progressive Party (a/k/a the Bull Moose Party), and subsequently Burling often described himself as the sole survivor of that Party. A few months after the end of World War I, Burling co-founded what became the prominent Covington & Burling (“C&B”) law firm (n/k/a Covington). He strongly opposed FDR’s New Deal and often joked that the law firm’s success was due to those measures. He was a lifelong Republican yet was a strong supporter of Lyndon Johnson in the 1964 presidential election against Barry Goldwater, the Republican presidential nominee.

The very unusual Post editorial about Burling that was simply entitled “Edward B. Burling” said he was the city’s “grand old man of the law [who from] the days when he was graduated from Harvard Law School in 1894, with one of the best records ever made there, he had been an outstanding legal scholar. And with the law as the base of his operations, he also  exerted a substantial influence in the fields of business, government and community relations.”

The editorial also stated that at the C&B law firm the “scholarly and retiring Mr. Burling, who made a specialty of cultivating and training brilliant young lawyers, was chiefly responsible  for keeping the firm’s performance  at a high level of professional excellence.”

The Burling cabin captured further comment in the editorial.  “For many years his cabin on the Potomac . . . was a center of cerebral ferment on  Sunday afternoons. Following a morning tramp through the woods and a hearty meal he loved to join in lively debate with judges, lawyers, government officials and others in the quiet surroundings of ‘The Cabin.’ These sessions will long be remembered by a vast number of his associates and friends in high places.”  The conclusion of the  editorial stated, “His great achievement was not merely longevity, but a sustained flow of energy and ideas and a passionate interest in the problems of humanity. His monument is already built in the minds of his associates and in the annals of this world observation post.”

Conclusion

Inspired by my brief encounter with Mr. Burling, his generosity to our alma mater Grinnell College and my interest in history, I later conducted research about him and wrote his biographical sketch in The Yale Biographical  Dictionary of American Law (p. 85) and a short article about him for The Grinnell Magazine and a longer essay that is on file with the College’s Archives.[3] These matters will be explored in  subsequent posts.

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[1] Katherine Graham, Personal History at 133-35 (Knopf, 1997).

[2] Obituary, Edward F. [sic] Burling, dies at 96; Founder of District Law Firm, Wash. Post, p. B4 (Oct. 4, 1966); Editorial, Edward B. Burling, Wash. Post (Oct. 5, 1966).

[3]  Edward Burnham Burling, Grinnell’s Quiet Benefactor, Grinnell Magazine, Summer 2009, at 21; Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)( 18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives). The last of these has citations to the sources.

New Examination of the 1980 Rapes and Murders of the Four American Churchwomen in El Salvador

The American Churchwomen
The American Churchwomen

 

The November 10, 2014, edition of the New York Times published a video and textual “RetroReport[1] by Clyde Haberman about the December 1980 rapes and murder in El Salvador of the four American Churchwomen: Maryknoll missionaries Maura Clarke, Ita Ford, Dorothy Kazel and Jean Donovan. The article contains disturbing videos of the exhumation of their bodies that month from shallow graves near the airport in that country along with other contemporaneous videos of the churchwomen and U.S. officials and news reports about this horrible crime.

This “RetroReport” was presented as background for the article’s discussion of the pending U.S. legal proceedings to remove or deport two retired Salvadoran generals for having been responsible for those horrible crimes: “José Guillermo García, now 81, and Carlos Eugenio Vides Casanova, 77, [who] have been living in Florida for a quarter-century. They were allowed to settle there during the presidency of George Bush, who, like his predecessor, Ronald Reagan, considered them allies and bulwarks against a Moscow-backed leftist insurgency.”

“But administrations change, and so do government attitudes. Over the past two and a half years, immigration judges in Florida have ruled that the generals bore responsibility for assassinations and massacres, and deserve now to be ‘removed’ — bureaucratese for deported. Both are appealing the decisions, so for now they are going nowhere. Given their ages, their cases may be, for all parties, a race against time.”

The Times pointed out that the proceedings against these two Salvadoran military officers rely on a 2004 U.S. federal statute “prohibiting human rights abusers from entering or living in this country and that [the U.S. government] has broadened its scope to include violators from all over. Immigration and Customs Enforcement, a branch of the Department of Homeland Security, reported last December that over the previous decade, it had obtained deportation orders for more than 640 people.”

This blog has published the following seven posts about the American Churchwomen:

In addition, this blog has published the following four posts about the U.S. proceedings to remove or deport García and Vides Casanova:

Although Garcia and Casanova escaped civil liability for money damages over the murders of the churchwomen in U.S. federal court under the Torture Victims Protection Act, they were held liable for $54.6 million of money damages in another civil case in U.S. federal court involving other victims as discussed in a prior post.

Maura Clarke, Ita Ford, Dorothy Kazel and Jean Donovan continue to inspire many by their living out Jesus’ Gospel of loving God with all your heart, mind and soul and your neighbor as yourself.

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[1] The Times article states that this RetroReport is part of a documentary series that looks back at major stories that shaped the world using fresh interviews, analysis and compelling archival video footage. This nonprofit project, which was started with a grant from Christopher Buck, has a staff of 13 journalists and 10 contributors.

 

Judging on the U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.

"Sri" Srinivasan
“Sri” Srinivasan

The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.[1]

Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.

On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.

The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.[2]

Perhaps the partisan wrangling over appointments to this Court is overwrought.

Senior Judge David B. Sentelle
Senior Judge David B. Sentelle

Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.[3]

Judge David S. Tatel
Judge David S. Tatel

Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle.  Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.”  Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”

The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”

Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”

In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”


[1] President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post .

[2] If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.

[3] Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.

United States Ratification of the Genocide Convention

On December 11, 1946, the United Nations General Assembly in its first session unanimously adopted a resolution affirming that “genocide is a crime under international law which the civilized world condemns” and requesting the U.N. Economic and Social Council “to undertake the necessary studies, with a view to drawing up a draft convention [treaty] on the crime of genocide.”

John Maktos
John Maktos

Thereafter that Council established a U.N. Committee on Genocide to prepare a draft of such a treaty. The draft that subsequently was approved by that Committee and other U.N. agencies had been prepared at the U.S. Department of State by a U.S. diplomat, John Maktos, who also served as the Chair of the U.N. Committee.

On December 9, 1948, by unanimous action of the U.N. General Assembly that draft was adopted as the Genocide Convention. Two days later (December 11th) President Harry Truman signed the treaty on behalf of the United States.

President Harry Truman
President Harry Truman

Six months later (June 16, 1949) President Truman transmitted the treaty to the U.S. Senate and requested its advice and consent to ratification. In his transmittal message, President Truman said the General Assembly’s approval of the treaty was “one of the important achievements” of its first session and that the U.S. had played “a leading part” in that accomplishment. The Senate’s approval would demonstrate that the U.S. was “prepared to take effective action on its part to contribute to the establishment of principles of law and justice.”

Such Senate action, however, did not happen until early 1986, and it was not ratified by the U.S. until late 1988 or nearly 40 years after its adoption by the U.N. General Assembly and its signature by the U.S.[1]

Here are some of the highlights or lowlights of the Genocide Convention’s journey to U.S. ratification.

In January and February of 1950 a subcommittee of the Senate Foreign Relations Committee held hearings on the treaty and favorably reported it to the full Committee in May 1950. The full Committee, however, took no action on the treaty, and it did not reach the Senate floor. For the next 20 years the treaty apparently gathered dust in the files of the Foreign Relations Committee.

President Richard Nixon
President Richard Nixon

That changed on February 19, 1970, when President Richard Nixon reiterated a presidential request for Senate advice and consent to ratification. His message to the Senate stated that the U.S. had “played a leading role in the negotiation” of the treaty and that “ratification at this time . . . would be in the national interest” of the U.S. and would demonstrate “our country’s desire to participate in the building of international order based on law and justice.”

In response to President Nixon’s request, the Senate Foreign Relations Committee in 1970 held hearings on the treaty and favorably reported the treaty to the entire Senate. The latter, however, took no action.

The Foreign Relations Committee did the same in 1971, 1973, 1976 and 1978, but it was not until February 19, 1986, that the Senate voted, 83 to 11, to give its advice and consent to such ratification.[2]   It did so with two reservations that required specific U.S. consent for the submission of any dispute involving the treaty to the International Court of Justice and that stated the supremacy of the U.S. Constitution over any of the treaty’s provisions. The Senate also imposed five understandings limiting the meaning of certain parts of the treaty. Finally the Senate declared that the instrument of U.S. ratification could not be deposited until after the U.S. adopted implementing legislation required by Article V of the treaty.[3]

President Ronald Reagan
President Ronald Reagan

That implementing legislation was adopted on November 4, 1988, with President Ronald Reagan’s signature of the Genocide Implementation Act of 1987, 18 U.S.C. § 1091. That statue makes genocide a crime for offenses committed within the U.S. or by U.S. nationals. The statute imposes punishment of life imprisonment and a fine of not more than $1 million or both for genocide by killing; imprisonment up to 20 years or a fine of not more than $1 million or both for other acts of genocide; and imprisonment up to five years or a fine up to $500,000 or both for incitement of genocide. There is no statute of limitations for these crimes.

When President Reagan signed the statute, he made a public statement that by this signing the U.S. would “bear witness to the past and learn from its awful example, and to make sure that we’re not condemned to relive its crimes. . . . During the Second World War, mankind witnessed the most heinous of crimes: the Holocaust.” Reagan added that he was “delighted to fulfill the promise made by Harry Truman to all the peoples of the world, and especially the Jewish people. I remember what the Holocaust meant to me as I watched the films of the death camps after the Nazi defeat in World War II. Slavs, Gypsies, and others died in the fires, as well. And we’ve seen other horrors this century — in the Ukraine, in Cambodia, in Ethiopia. They only renew our rage and righteous fury, and make this moment all the more significant for me and all Americans.”

Reagan concluded by saying that the “timing of the enactment is particularly fitting, for we’re commemorating a week of remembrance of the Kristallnacht, the infamous ‘night of broken glass,’ which occurred 50 years ago on November 9, 1938. That night, Nazis in Germany and Austria conducted a pogrom against the Jewish people. By the morning of November 10th, scores of Jews were dead, hundreds bleeding, shops and homes in ruins, and synagogues defiled and debased. And that was the night that began the Holocaust, the night that should have alerted the world of the gruesome design of the Final Solution.”

On November 25, 1988 (three weeks after the adoption of that federal statute), President Ronald Reagan deposited notice of U.S. ratification with the U.N. Secretary-General. This constitutes the actual act of ratification.[4]

The 40 year delay between U.S. signing and ratification apparently was the result of many factors. Many Senators were hostile to approving any treaty that might be deemed to infringe on U.S. sovereignty. Some were concerned, especially during the Korean War and the Vietnam War, that U.S. officials might come under frivolous accusations of genocide. Others worried that if the U.S. ratified, it would be obligated to send military forces to distant countries to enforce it. Others felt the Convention’s definition of genocide was unclear. The American Bar Association opposed it through 1977. Some Southern Senators were concerned that genocide charges might result from the region’s history of segregation, lynching, and Ku Klux Klan activities. In addition, although the treaty was not retroactive, some feared it would be used to define the nineteenth century U.S. treatment of Native Americans as genocide.[5]

The Genocide Convention went into force on January 12, 1951, after 20 states had ratified or acceded to the treaty. Today 142 states are parties thereto.

This tale of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S.  There is a similar history of the U.S. ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.


[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Fran Newman, International Human Rights: Law, Policy, and Process at 139-40 (4th ed. LexisNexis 2009).

[2] In January and February 1974 the Senate debated the treaty, but there were insufficient votes to stop debate and proceed to vote on the treaty itself.

[3] I have not had the opportunity to research the original historical record regarding the U.S. and this treaty during these years. I ask anyone who has knowledge of the details of this record, to share that knowledge with a comment to this post.

[4] In accordance with Article 20 of the Vienna Convention on the Law of Treaties, 12 states thereafter objected to or commented unfavorably on the U.S. reservation regarding the supremacy of the U.S. Constitution while three states objected to the U.S. reservation regarding submission of disputes to the International Court of Justice.

[5] Perhaps a more complete analysis of the historical record on the ratification of this treaty can be found in Lawrence LeBlanc, The United States and the Genocide Convention (Durham, NC; Duke Univ. Press 1991). Again I ask anyone who has knowledge of the details of this record, to share that knowledge with a comment to this post.

Will the U.S. Senate Finally Give Its “Advice and Consent” to U.S. Ratification of the Law of the Sea Treaty?

The United Nations Convention [Treaty] on the Law of the Sea sets out international rules for maritime navigation, territorial waters and countries’ use of offshore areas as exclusive economic zones. It was the result of an international conference that concluded on December 10, 1982 at Montego Bay, Jamaica when the U.S. and 120 other nations adopted the text of the treaty, and it went into force on November 16, 1994. Now 162 of the 193 U.N. member states are parties to the treaty.

The U.S. signed the treaty on July 29, 1994, but it has not been ratified by the U.S. Such ratification, however, is once again on the table as we will see after reviewing what has happened in the U.S. with respect to the treaty in the nearly 30 years since it was adopted. This is another example of the complicated and difficult process of obtaining U.S. Senate advice and consent to ratification of a treaty by a two-thirds vote (67 Senators) under Article II, Section 2(2) of the U.S. Constitution that was examined in a post with respect to the Convention Against Torture.

Background

Although the treaty was concluded during his Administration, President Regan did not sign the treaty. Nor was it signed during the George H.W. Bush Administration.

President Bill Clinton

But on July 29, 1994, President Bill Clinton signed the treaty along with a July 28, 1994, Agreement resolving U.S. and others’ objections to a part of the treaty. On October 7, 1994, Clinton submitted the treaty and the Agreement to the U.S. Senate for its “advice and consent” to ratification by the U.S. In his transmittal message, President Clinton said that since 1982 successive U.S. administrations had not signed the treaty because of flaws in its regime for managing the development of mineral resources of the seabed beyond national jurisdiction, but these provisions had been changed by the just mentioned Agreement.[i] Therefore, according to the President, it was now appropriate for the U.S. to join the treaty. President Clinton also stated:

  • “The United States has basic and enduring national interests in the oceans and has consistently taken the view that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Each succeeding U.S. Administration has recognized this as the cornerstone of U.S. oceans policy. Following adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to traditional uses of the oceans and to encourage other countries to do likewise.”

Furthermore, President Clinton continued, this treaty had the following benefits for the U.S.:

  • “The Convention advances the interests of the United States as a global maritime power. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements and of commercial vessels to carry sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the territorial sea at 12 nautical miles; by setting forth navigation regimes of innocent passage in the territorial sea, transit passage in straits used for international navigation, and archipelagic sea lanes passage; and by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond.”
  • “The Convention advances the interests of the United States as a coastal State. It achieves this, inter alia, by providing for an exclusive economic zone out to 200 nautical miles from shore and by securing our rights regarding resources and artificial islands, installations and structures for economic purposes over the full extent of the continental shelf. These provisions fully comport with U.S. oil and gas leasing practices, domestic management of coastal fishery resources, and international fisheries agreements.”
  • The treaty is “a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution . . . . [It thereby]  promotes continuing improvement in the health of the world’s oceans.”
  • The “Convention sets forth criteria and procedures to promote access to marine areas, including coastal waters, for research activities.”
  • “The Convention facilitates solutions to the increasingly complex problems of the uses of the ocean–solutions that respect the essential balance between our interests as both a coastal and a maritime nation.”
  • “Through its dispute settlement provisions, the Convention provides for mechanisms to enhance compliance by Parties with . . . [its] provisions.”

Nine years later in October 2003, the Senate Committee on Foreign Relations held the first hearings on the treaty, and on February 25, 2004, the Committee unanimously ordered it to be reported favorably without amendments to the full Senate. The treaty went to the Senate floor on March 11, 2004 with a report by Committee Chair, Republican Senator Richard Lugar of Indiana. However, no vote on the resolution of advice and consent had been taken when the congressional session ended in December 2004, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

The George W. Bush Administration had asked for ratification in 2004. In fact, the Law of the Sea was one of only five treaties that the Bush Administration placed in its “urgent” category on its list of treaty priorities. Widespread support for ratification was expressed to the Committee:

  • Representatives from the Department of State, the Office of the Secretary of Defense, the U.S. Navy, the U.S. Coast Guard, and the Commerce Department testified in support of the Convention at various Congressional hearings.
  • Representatives from six Bush Administration Cabinet departments participated in the interagency group that helped write the resolution of advice and consent accompanying the treaty. And the U.S. Commission on Ocean Policy, appointed by President Bush, strongly endorsed U.S. accession to the Law of the Sea.
  • In the private sector, every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies that use underwater cables, supported U.S. accession to the Law of the Sea and are lobbying in favor of it. The National Foreign Trade Council, representing hundreds of exporting companies, also supported ratification.
  • Moreover, a long list of environmental and ocean groups had endorsed the treaty because it would protect and preserve the marine environment and establish a framework for further international action to combat pollution.
  • During the Committee’s consideration of the treaty, it received just one inquiry voicing opposition to the measure and that was from an individual representing himself. Staff offered to receive written testimony from this individual, but none was sent.
Senator                Richard Lugar
Despite this strong support for ratification of the treaty, full Senate consideration of the treaty in 2004 had been held up by vague and unfounded concerns about its effects. Chairman Lugar commented that these concerns had been expressed primarily by those who oppose virtually any multi-lateral agreement. “Various conservative lobbyists have indicated strong objections—they believe our sovereignty will be impugned.” Senator Lugar lamented this inaction. He said, “If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.” Moreover, the Bush Administration was not willing to expend political capital to push for ratification, and Senate Majority Leader Frist was not willing to put it on the Senate calendar in light of a threatened filibuster.
Senator Joe Biden

Nearly three years later, in September and October 2007, that Committee held another set of hearings on the treaty, and on October 31, 2007, ordered it to be reported favorably without amendments to the full Senate by a vote of 17 to 4. The treaty went to the Senate floor on December 19, 2007 with a report by Committee Chair, Democratic Senator Joe Biden of Delaware. However, no vote on the resolution of advice and consent had been taken when the congressional session concluded on January 2, 2009, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

Senator Lugar again reflected on this failure to obtain the Senate’s advice and consent to ratifying this treaty. He said there needed to be a “reinvigorated Senate commitment to the treaty process.” Senate leaders of both parties, he said, had allowed narrow objections to prevent Senate consideration of this and other treaties and had been unwilling to invoke cloture to terminate debate on treaties. For this blogger, this is another example of the abysmal rules of the U.S. Senate.

Renewal of Interest in U.S. Ratification of the Treaty

As previously mentioned, possible U.S. ratification of the treaty is back on the table.

Secretary Leon Panetta

On May 9, 2012, Secretary of Defense Leon Panetta gave a lengthy speech calling for such ratification. He said this treaty is “the bedrock legal instrument underpinning public order across the maritime domain” and yet the U.S. is the only permanent member of the U.N. Security Council and the only industrialized country in the world that is not a party. This puts the U.S. at a distinct disadvantage, particularly when it comes to disputes over maritime rights and responsibilities.

Panetta noted, as detailed above, that the Senate Foreign Relations Committee has held hearings and approved the treaty by large bipartisan majorities and that the treaty is supported among major U.S. industries in order to be able to do their business and to accomplish their goals.

The same is true for national security, Panetta said, as demonstrated in comments by the Chairman of the Joint Chiefs of Staff, the Chief of Naval Operations, the Commandant of the Marine Corps, and the Coast Guard Commandant. Panetta then listed some of the reasons why this treaty is essential to a strong national security.

First, as “the world’s pre-eminent maritime power,” the U.S. with one of the largest coastlines and extended continental shelf in the world “has more to gain from accession to the Convention than any other country because of the interest we have from our coastlines, from our oceans, and from our continental shelves.  By . . .  sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea.  If we’re not there, then . . . [others will] do it, and we won’t have a voice.” Under these circumstances, the U.S. will not be able “to ensure that our rights are not whittled away by the excessive claims and erroneous interpretations of others.” To be a party, on the other hand, “would give us the credibility to support and promote the peaceful resolution of disputes within a rules-based order.”

Second, by joining the Convention, the U.S. “would protect our navigational freedoms and global access for our military, our commercial ships, our aircraft, and our undersea fiber optic cables.  As it currently stands, we are forced to assert our rights to freedom of navigation, asserting hopefully, through customary international law, which can change to our own detriment.” But by joining the Convention, “we would help lock in rules that are favorable to freedom of navigation and our own global mobility.”

Third, “accession [to the treaty] would help lock-in a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad continental shelf beyond that zone.”

Fourth, “accession would ensure our ability to reap the benefits of the opening of the Arctic – a region of increasingly important maritime security and economic interest.  We already see countries that are posturing for new shipping routes and natural resources as Arctic ice cover melts and recedes.  The Convention is the only means for international recognition and acceptance of our extended continental shelf claims in the Arctic, and we are the only Arctic nation that is not party to the Convention.”  Accession would also “preserve our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.”

Finally, the new U.S. “defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia.”  Many countries “sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea.” The U.S. has had a consistent naval presence and engagement in these critical regions.   Becoming a party to the Convention would strengthen the U.S. position in these key areas. By not acceding to the Convention, the U.S, potentially is undercutting “our credibility in a number of Asia-focused multilateral venues – just as we’re pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes.”  Being a party to the treaty is also important for the U.S. efforts to preserve freedom of transit in the Strait of Hormuz in the face of Iranian threats to impose a blockade.

Democratic Senator John Kerry, the Chairman of the Senate Foreign Relations Committee, has said that he is considering holding new hearings on the treaty.

Conclusion

In a presidential election year bipartisan cooperation is even more difficult than normal, especially after Senator Lugar’s loss in the Indiana primary election this past Tuesday. Therefore, it seems unlikely that the Senate this year will give its advice and consent by a two-third’s vote to ratification of this treaty. We will wait and hope that this assessment is proven wrong.


[i]  Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994

U.S. Ratification of the Multilateral Treaty Against Torture

The U.S. procedures for ratification of multilateral treaties are complicated and not widely understood. The following are the steps in that procedure:

  • The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
  • The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
  • The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
  • The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
  • The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
  • The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
  • For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.

For the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), these procedures took 17 to 19 years and five presidencies before the U.S. had ratified the treaty and it went into force for the U.S.

1. U.S. Participation in the Preparation of the Torture Convention.

As we have seen, the U.N.’s preparation of this treaty started in 1975 with its actual drafting by the U.N. Commission on Human Rights from 1978 through early 1984. During this nine-year period the U.S. was one of 53 members of that Commission and in that role participated in the treaty’s preparation.[1]

U.S. diplomats also were active participants in the drafting process with the objective of obtaining an effective treaty on the subject that the U.S. would be able to ratify. As President Reagan said, the U.S. “participated actively and effectively in the negotiation of the Convention.”[2]

Similarly U.S. Secretary of State George Schultz noted that the U.S. “contributed significantly to the development of the final Convention, especially in proposing that [it] focus on torture, rather than on other relatively less abhorrent practices.” In particular, the Secretary reported that the U.S. was a strong supporter for Article 7’s providing that if a State finds someone who committed torture in another country and does not extradite him to that country, the first State “shall . . . submit the case to its competent authorities for t he purpose of prosecution.” This use of the principle of universal jurisdiction was “to prevent a loophole that would create potential safe-havens for torturers.”[3]

An outside observer said, the U.S. “was one of the moving forces in the adoption of the Convention . . . [and] was involved at all stages of the drafting process,” and “the final version . . . is largely consistent with positions taken by [the U.S.] . . . during that process.”[4]

2. U.S. Signing the Torture Convention.

Although the Convention was available for signature by states immediately upon its unanimous approval by the U.N. General Assembly in December 1984, the U.S. did not sign the treaty until over three years later.

During those three-plus years the U.S. Departments of State and Justice were engaged in negotiating a package of reservations and other conditions for U.S. ratification of the treaty. State advocated rapid signature; Justice, caution. Those negotiations apparently were not concluded until April 1988. The Department of State during this period also had discussions with the Senate Foreign Relations Committee staff on the subject of conditions for ratification.[5]

On April 18, 1988, John C. Whitehead, Deputy Secretary of State in the Reagan Administration, signed the Convention at the U.N. Whitehead said at signing that the treaty would be sent to the Senate for advice and consent to ratification with proposed reservations, understanding and declarations to resolve ambiguities and safeguard U.S. interests.[6]

3. U.S. President’s Submission of the Torture Convention to the U.S. Senate.

The next month, May 1988, the Reagan Administration submitted the treaty to the U.S. Senate for its advice and consent to ratification. President Reagan’s accompanying message said that U.S. ratification “will clearly express [U.S.] opposition to torture.”[7]

The accompanying letter from Secretary of State George Schultz said that the Administration would submit proposed legislation to implement the treaty. Such legislation, he said, was “needed only to establish [the Convention’s] Article 5(1)(b) jurisdiction over offenses committed by U.S. nationals outside the [U.S.] and to establish Article 5(2) jurisdiction over foreign offenders committing torture abroad who are later found in territory under U.S. jurisdiction.”[8]

With the treaty were the Administration’s proposed reservations, understandings and declarations for such Senate advice and consent.[9]

4. U.S. Senate Foreign Relations Committee’s Approval of the Torture Convention.

The Reagan Administration’s proposed 19 reservations and other conditions for ratification were criticized by the American Bar Association, human rights groups and others. As a result, nothing happened in the Senate over this treaty during the final months of the Reagan presidency in 1988.[10]

Shortly after President George H.W. Bush took office in January 1989, he indicated that the Convention Against Torture had higher priority for ratification than any other human rights treaty. President Bush then consulted with critics of the prior Administration’s proposed conditions and subsequently submitted a substantially reduced and revised set of proposed reservations and other conditions for the Senate’s advice and consent.[11]

Finally in January 1990 the Senate Foreign Relations Committee held hearings on the treaty. The Administration presented two witnesses: Abraham Soafer, Legal Advisor, Department of State, and Mark Richard, Deputy Attorney General, Criminal Division, Department of Justice. There also were five public witnesses, including Professor David Weissbrodt of the University of Minnesota Law School.[12]

On July 19, 1990, the Committee voted, 10 to 0 (all Democratic Senators), to recommend approval of the treaty by the entire Senate with three reservations, four understandings and two declarations. The nine Republican members of the Committee were not present for that vote due to other Senate business and later complained about the lack of notice of the Committee meeting while simultaneously expressing their support for ratification of the treaty.[13]

The August 30, 1990, Committee report on the treaty said the Convention was “a major step forward in the international community’s efforts to eliminate torture and other cruel, inhuman or degrading treatment or punishment. It “codifies international law as it has evolved . . . on the subject of torture and takes a comprehensive approach. . . .”  Its “strength . . .  lies in the obligation of States Parties to make torture a crime and to prosecute or extradite alleged torturers found in their territory.”[14]

5. U.S. Senate’s Approval of the Torture Convention.

On October 27, 1990, the Senate debated a resolution to approve the treaty. Democratic Senator Clairborne Pell of Rhode Island, the Chairman of the Foreign Relations Committee, introduced the resolution and offered four amendments that had been agreed to by the Republican minority members of the Committee headed by Senator Jesse Helms of North Carolina. These amendments were agreed to by the Senators present and voting. Thereafter a division of the Senate indicated that two-thirds of the Senators present and voting had voted in the affirmative for the resolution of ratification as amended.[15]

The resolution had the following two reservations:[16] (i) the U.S. considered itself bound by Article 16’s ban on “cruel, inhuman or degrading treatment or punishment” only insofar as the phrase means the cruel, unusual and inhumane treatment or punishment prohibited by the U.S. Constitution; and (ii) pursuant to Article 30(2) of the treaty, the U.S. did not regard itself bound by Article 30(1) whereby states agreed to arbitrate any disputes about the treaty while reserving the U.S.’ right to agree to arbitrate a particular dispute.[17]

The resolution had five understandings.[18] The most significant one related to Article 1’s definition of “torture” with the U.S. actually providing the following different definition:

  •  “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; (4) or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”[19]

The resolution also had two declarations.[20] The first stated that CAT was not self-executing, i.e., the treaty was not enforceable in U.S. courts unless there was implementing federal legislation. The second stated that the U.S. recognized the competence of the Committee Against Torture to receive and consider claims by another state that the subject state is not complying with the treaty only if the complaining state had made a similar declaration.

Finally the resolution had a “proviso” that the U.S. President shall notify all present and prospective ratifying parties to the Convention, prior to depositing the instrument of ratification, that the treaty did not require or authorize U.S. legislation or other action prohibited by the U.S. Constitution as interpreted by the U.S. This proviso prompted the most discussion during the Senate debate. It was insisted upon by Senator Helms, who called it the “Sovereignty Amendment.” Democratic Senator Daniel Patrick Moynihan of New York criticized the proviso after pointing out that the U.S. had included similar language in its ratification of the Genocide Convention, but as a reservation, and that various other countries objected to it because it made the U.S. obligations uncertain.[21]

6. U.S. Submission of Ratification Instrument to the U.N. Secretary-General.

As noted above, the Senate’s advice and consent is not the final step in the process of the U.S.’ becoming a party to a treaty. For a multilateral treaty like CAT, the President has to submit U.S. ratification to the U.N. Secretary General.

That did not happen during the George H.W. Bush Administration. The first President Bush said the U.S. could not do so until the U.S. had adopted “implementing legislation” that his Administration had proposed to put torturers “in the same international ‘extradite or prosecute’ regime we have for terrorists.” That legislation, however, was not adopted during that Administration.[22]

In the next Congress, however, such implementing legislation was introduced and enacted into law on April 30, 1994. This legislation added 18 U.S.C. §§ 2340, 230A, which made it a crime for a U.S. national or foreigner present in the U.S. to have committed torture outside the U.S.[23] There is no similar federal criminal law for committing torture within the U.S.; the U.S. has deemed such a law to be unnecessary as such acts would be covered by existing state and federal criminal laws.[24]

In accordance with the previously described “proviso” in the Senate’s approval of the treaty, on June 2, 1994, the Clinton Administration submitted a letter to the Secretary-General giving notice to all present and prospective ratifying Parties to the Convention to the effect that: “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”[25]

The actual U.S. deposit of its instrument of ratification of CAT happened on October 21, 1994, and the treaty went into force for the U.S. on November 20, 1994.[26] Four European states filed objections to some of the U.S. reservations and understandings to its ratification of the treaty.[27]

Conclusion

The seven to nine years it took for the U.N. to develop and approve CAT and the additional 10 years it took for the U.S. to ratify the treaty demonstrate the difficulties of achieving such a treaty, the multitude of opinions and different countries and groups that are involved and the importance of patience and persistence in the development of multilateral human rights treaties. Also significant in light of recent political developments in the U.S., there was consistent, persistent and bipartisan support in the U.S., during the period, 1975 through 1994, for policies to combat, outlaw and punish torture perpetrators.


[1] Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); U.N. High Commissioner for Human Rights, Commission on Human Rights, http://www2.ohchr.org/english/bodies/chr/membership.htm.

[2] U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Cong., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)(containing President Ronald Reagan, Message to the Senate Transmitting the Convention Against Torture and Inhuman Treatment or Punishment (May 20, 1988) [Reagan letter] and letter, Secretary of State Schultz to President Reagan (May 10, 1988)[Schultz letter]); U.S. Senate Comm. on Foreign Relations, Report on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Exec. Rep. 101-30 (101st Cong., 2d Sess. Aug. 30, 1990)[“Senate Comm. Report”]; Senate Debate on Approval of the Convention, 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990)(comments by Senator Pell); Weissbrodt, et al., Prospects for U.S. Ratification of the Convention Against Torture, 83 ASIL Proc 529 (1989)(comments by co-author Paul Hoffman)[“Prospects“].

[3] Id.

[4]  Id.

[5] Prospects (co-author James S. Reynolds discussed his involvement in the State-Justice negotiations; co-author Robert E. Dalton discussed his participation in the State-Senate Committee discussions).

[6] Reuters, U.S. Signs a U.N. Document That Seeks an End to Torture, N.Y. Times (April 19, 1988); U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Conf., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)[containing U.S. Statement Upon Signing Convention].

[7] Reagan letter.

[8]  Schultz letter.

[9]  Id.

[10] Weissbrodt at 140-41; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990) (comments by Senator Pell).

[11] Id.; Senate Comm. Report.

[12] U.S. Senate Foreign Relations Comm., Hearings on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (101st Cong., 2d Sess. Jan. 30, 1990).

[13] Senate Comm. Report.

[14] Id.; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[15] Id.

[16]  The term “reservation” in international law means “the formal declaration by a State, when signing, ratifying, or adhering to a treaty, which modifies or limits the substantive effect of one or more of the treaty provisions as between the reserving Sate and other States party to the treaty.” (14 M. Whitehead, Digest of International Law, § 7, at 137-38 (1970)[“Whitehead”].)  International law has substantial limitations on a state’s use of reservations to a treaty. (Vienna Convention on the Law of Treaties, arts. 19-23.)  See Weissbrodt at 128-32.

[17] Id.; U.S. Senate, Reservations, Understandings and Declarations to U.S. Accession to CAT, 136 Cong. Rec. S17486-92 (Daily ed. Oct. 27, 1990).

[18]  The term “understanding” in international law usually means “a statement when it is not intended to modify of limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or deal with some matter incidental to the operation of the treaty in a manner other than as a substantive reservation.” (Whitehead.) Merely calling something an “understanding,” however, does not make it so; if such a statement would exclude or vary the legal effect of any of a treaty’s provisions it would be a reservation subject to challenge. Indeed, Joan Fitzpatrick, a noted law professor, called the then proposed “understandings” with different definitions of “torture” and “cruel, inhuman or degrading treatment or punishment” as de facto and improper reservations. (Prospects (comments by co-author Fitzpatrick).)

[19] See n.17 supra.

[20] In international law the term “declaration” means a statement by the ratifying state “when it is considered essential or desirable to give notice of certain matters of policy or principle, without an  intention of derogating from the substantive rights or obligations [of the treaty].” (Whitehead.)

[21] 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[22]  George Bush Presidential Library & Museum, Statement on Signing the Torture Victims Protection Act of 1991 (March 12, 1992). The Administration had proposed legislation to implement the Convention by making it a crime for a U.S. national or a foreigner present in the U.S. to have committed torture outside the U.S. It passed the House of Representatives in October 1992, but it did not pass the Senate in this Congress. (1992 H.R. 6017; ProQuestCongressional, Bill Tracking Report, 1992 H.R. 6017.)

[23] Pub. L. 103-236, §506(a), 103rd Cong., 2d Sess. (April 30, 1994).

[24] Schultz letter. U.S. federal law does make it a crime to commit certain acts with “intent to torture” in the special maritime and territorial jurisdiction of the U.S. (18 U.S.C. § 114); to commit “genocide” by “torture” or other means (18 U.S.C. § 1001);to commit “murder”  in various ways, including through  “a pattern or practice of . . . torture against a child or children” (18 U.S.C. § 1111); and to commit “war crimes,”  one of which is “torture” (18 U.S.C. § 2441).

[26]  See n.1 supra.

[27] See n.24 supra. Finland, Germany, the Netherlands and Sweden objected to the U.S. reservation regarding “cruel, inhuman or degrading treatment or punishment” as being incompatible with the objects and purpose of the treaty. Germany, the Netherlands and Sweden also stated that the U.S. understandings did not affect U.S. obligations under the treaty. (Id.)