September 24, 2006
Torture Debate: Leg History?
Here's a fun thought experiment.
According to this article in the Boston Globe, only a handful of members of the House and Senate know what the CIA is doing, and know what is, or isn't "torture" under the Geneva Convention. ``I don't know what the CIA has been doing, nor should I know," said Senator Jeff Sessions, an Alabama Republican. (There's a bumber sticker to be made.)
According to many, the language of the Convention is vague. Yet, from what I've seen of the bill, often the convention language is tracked in the bill. (More to come about that, once we don't have a moving target.)
So, how does a court interpret it? Does it rely on statements from legislative history, which (if the Globe is correct) are not based upon any understanding of the facts? If the language is vague (no plain meaning), and if there is no legislative history that means anything...? Do we just end up with a vague criminal statute, so it can't be enforced anyway? Hmmm...
Just a Sunday morning musing.
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This doesn't strike me as anything unusual. Legislators rarely understand anything more than the broad outlines of the bills which they vote on. They may have no idea what this bill says; and they surely have no idea what the tax bill enacted earlier this year (modifying, among other things, the active business and holding company requirements of IRC section 355 divisive transactions). There certainly is no requirement that the legislators understand anything about what they enact, only that they positively or negatively vote on the bill. If that weren't the case, much of the U.S. Code would be invalid. If the legislators do not examine every provision, that just tends to lead to a bad bill, rather than an inavlid one.
On the other hand, perhaps a handful of congressional staffers can whip up a committee report that can control a court's interpretation of the act? Who cares about the fact that the President is negotiating the provisions of the actual bill very carefully-- a committee report, unseen by and unpresented to the President, is just as good as a statute.
If a handful of congressional staffers don't decide to do the judiciary's job for it, and there is no legislative history, then I think courts are quite capable of interpreting a vague statute-- not every vague statute has leg history on point, and courts nonetheless construe those statutes every day.
Posted by: andy | Sep 24, 2006 1:39:40 PM
Yeah, you may be right in that it's not that unusual. What, though, of the fact that the legislators are precluded from knowing what effect the bill will have?
Posted by: David Hricik | Sep 24, 2006 1:46:28 PM
"What, though, of the fact that the legislators are precluded from knowing what effect the bill will have?"
Is that not always the case whenever rulemaking/interpretation is delegated to the executive branch? Here, they are deferring the interpretation of torture to the executive.
Sometimes, they defer the interpretation of what is "income" or what is a "reorganization" or what is a "stationary source" to the executive. On thousands of occasions, Congress cannot forecast the results of its legislation because it has deferred interpretation to the executive. This is simply a formalization of that occurence-- rather than the Executive deciding what he will implement 5 years out, he is stating that he will not tell all of them now. Like any other delegation of authority, the legislators know that the Executive will have final say (within the scope of his authority).
Posted by: andy | Sep 24, 2006 2:56:47 PM
There's a difference, I think, with not being able to predict how the language will be applied to all future fact patterns, and having no idea what present fact patterns it is making legal, or not. I think -- think -- that's where we're headed (now).
I'm going to leave the torture stuff until we have a real bill.
Posted by: email@example.com | Sep 25, 2006 3:11:40 AM