Mark’s point is a great one – and it’s at the heart of the controversies over renditions, interrogations, etc. That is, sometimes – in order to show how high-minded we are but without thinking through all the consequences – we sign onto dumb treaty commitments and then are forced to the uncomfortable position of having either to honor them or disingenuously lawyer our way around them.

We are a member, since 1994, of the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“UNCAT” – which I’ve written about here). Article 3 of UNCAT says quite clearly: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Notice, there are no exceptions here to give a party the right to send a person back to his own country.

The value determination made here is that it is more important to condemn the practice of torture than it is to keep dangerous people out of your country (and at the cost of giving those people – some of whom are terrorists – an incentive to come to your country since they know the law ties your hands as far as extraditing them goes). Now, no one wants to be portrayed as favoring torture – which is how it would be spun if we either hadn’t signed onto, or ever tried to opt out of, UNCAT. But in the real world, condemnation of torture does not exist in a vacuum; it’s a value that has to be weighed against other values – like protecting your citizens.

In my mind, we made the wrong judgment call here. But we also place a very high value on honoring our commitments. UNCAT, to the extent we’ve adopted it, is the law. So we have to do the kind of nutty things Mark is talking about. It we want to be able to get around UNCAT, we should forthrightly say so and opt out of the provisions that don’t make national security sense. If we don’t have the courage to do that, then we shouldn’t send a person to a country which is on the State Department’s list of torture regimes and then mumble about how we got a promise that this time the regime, cross-its-heart, would not torture that person.