07 Sep Why Congress Can Override the Supreme Court’s Interpretation of International Law
As I predicted, the blogosphere (at least Marty Lederman at Balkinization) is hard at work dissecting (and attacking) the latest Administration proposal to authorize military commissions (a copy of the bill is here). Marty’s initial reaction is that the bill would authorize all sorts of terrible things that are inconsistent with the Geneva Conventions. But even if the bill is inconsistent with Geneva (and I’m not sure about that), does Congress have the constitutional authority to adopt this bill? I think the legal answer is an unqualified yes.
Does Congress have the legal authority to override the Supreme Court’s interpretation of the Geneva Conventions?
This comes up because the Hamdan decision interpreted the Geneva Convention Common Article 3 to limit the conduct of U.S. treatment of detainees in the war with Al Qaeda. The proposed bill doesn’t reverse that holding, but it does reverse the Supreme Court’s suggestion that military commissions violate Common Article 3.
The bill simply declares that a military commission established by this chapter satisfies the obligations of Common Article 3 (see s. 4, p. 15).
It further states that the existing statutory prohibitions on cruel and inhuman treatment satisfy the U.S. treaty obligations under Common Article 3 that prohibit “outrages upon personal dignity, in particular humiliating and degrading treatment”. (see p. 79-80, s. 6).
I am not aware of other examples where Congress has reversed a Court’s interpretation of a treaty, but there is zero doubt in my mind that this move is constitutional. Congress has the authority to nullify the domestic effect of treaties via the “last in time rule” and this authority almost certainly includes the power to adopt a binding interpretation of a treaty for domestic purposes as well. In other words, Congress might be adopting an incorrect interpretation of Common Article 3, but its “incorrect” interpretation is still binding as a matter of domestic U.S. law.
Can Congress eliminate the judicial enforceability of the Geneva Conventions?
Although the Supreme Court did not hold that the Geneva Conventions were “self-executing”, it did find that they had been incorporated via the phrase “law of war” in the Uniform Code of Military Justice. The proposed bill makes clear that the Geneva Conventions and its protocols are not self-executing and that they cannot be used as a “source of rights” to challenge the legality of a military commission (see s. 6, p. 79).
This also may be a bad idea, but it is clearly constitutional for Congress to eliminate the domestic judicial enforceability of the Geneva Conventions in this way.
Can Congress override the Supreme Court’s interpretation of customary international law?
Four members of the Hamdan court held that the customary international law of war does not permit a defendant to be convicted of conspiracy. Four members also appeared to find that the “right to be present and privy to evidence against him” is a right that is also guaranteed by customary international law.
The proposed bill would authorize military commission trials for conspiracy, whether or not that charge is recognized by the customary international law of war (s. 4 p. 75). It would also plainly authorize judges to exclude detainee-defendants from a military commission trial (s. 4, p. 32) and withhold classified evidence from detainee-defendants (s. 4, p. 33).
Here again, I am pretty confident that Congress can make this stick. While the Court may believe it has the right to reject presidential interpretations of CIL, I think it is pretty clear that Congress has the last word on CIL. Even if, as four members of the Court believe, customary international law guarantees a defendant the right to be present and privy to evidence against him, Congress has the authority to override this interpretation.
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There are, of course, other constitutional claims that can be brought to challenge the commissions. The Due Process Clause claim is still lurking out there, for instance. But with respect the issues reached by the Supreme Court in Hamdan, I think it is clear that Congress has the constitutional authority to take the actions in the proposed bill. Which means the debate should shift away from “can Congress do this” to “should Congress do this.” I am not prepared to answer that question right now, but I’m sure our commenters will!
With respect to Julian’s principal point — that Congress can effectively “overrule” a Supreme Court interpretation of a treaty by passing a later-enacted statute that can supersede the domestic-law effect of the treaty — I not only agree, but have previously said so in print: See Myth No. 10, here: If Congress passes a statute merely declaring that it disagrees with the Court on the interpretation of CA3, the Court’s interpretation presumably will continue to be binding, at least as a matter of domestic law as applied by U.S. courts. Congress, however, can pass a statute authorizing interrogation techniques (and/or other conduct) that Common Article 3 forbids. If it does so, such a later-enacted statute would supersede the authority of Common Article 3, at least for purposes of domestic law (just as a later-enacted statute trumps an earlier one when the two irreconciably conflict). This is presumably what Senator Graham has in mind when he says that he would like to “rein in” Common Article 3 by “restrict[ing] the application of Common Article III to terrorists.” There are, however, several significant obstacles to such a legislative initiative. Most importantly, if we enact such a statute, it will mean authorizing U.S.… Read more »
I completely agree with Marty. There is a subtantial difference between legal interpretation and legislation – I even thought that was what the conservative critique of the US courts was all about. Admittedly, that can be a fine line in constitutional matters which deal with abstract notions, but it’s still there.
Even though I admit my lack of knowledge in this field, I don’t see you citing any authority, Julian. I personally don’t know of examples of Congress adopting new authoritative interpretations of a law after it has passed it. This parliamentary authority actually exists in certain European countries, and is done (rarely) pursuant to explicit constitutional authorization.
Again, I also don’t see why Congress would have the last word on CIL. After all, Congress DOES NOT create customary international law – all states in the world do. CIL is an objective legal order, not what the Congress or the President say it is. If Congress wishes to pass a law which would eliminate the direct effect of CIL in US law, if any, the fine, but it cannot ‘interpret’ it out of existance.
I agree that with Marty that if Congress were simply to provide a different interpretation of a treaty (or an Act) from that already reached by the Supreme Courts, the courts should not feel bound to follow Congress’ interpretation. Congress has authority to legislate but the courts have the final say on what the law means. However, as Marty also points out Congress’ power to legislate coupled with the last in time rule means that Congress is able to get around the Supreme’s Court interpretation by passing legislation which clearly permits what the Supreme Court has held that a previous law or treaty forbids. On a related note, is legislation which forecloses judicial application of preexisting and otherwise self executing treaties constitutional? A treaty is either self-executing and directly applicable or not. One may argue that the intent of the executive and of the Senate (as well the language of the treaty) have a bearing on whether the treaty is self executing but shouldnt’ that be restricted to the intent at the time the treaty was negotiated and ratified. Once a treaty is deemed self-executing and directly applicable can later intent deny it that quality? The US constitution declares that… Read more »
I think they can override even self-executing treaties through a subsequent enactment – the last in time rule, no?
I am a bit startled by the way international law is treated here. Surely interpretation of international law is not for a single country to decide. It is primarily a matter of states and international bodies. If I suppose that the interpretation by the Supreme Court was correct (which is very likely given the similar views of the international community) then how can the Congress adopt a different interpretation that is wrong? Surely, the Congress as a legislative organ of the USA is obliged to carry out international obligations of the USA in good faith, or not?
I think this is where the cultural differences between the US and Europe really take hold. From my understanding, American organs of government can define the meaning of international law inasmuch as it is to be applied in American domestic legal systems, although not in America’s interaction with other states. I was always under the impression that it was the President who interpreted treaties so I’m a little confused about Congress’ role there, but one thing I’m definitely not confused about is that as Europeans we will never quite grasp the cultural treatment of international law in American political and legal discourses. Remember American courts have told the ICJ that their interpretation of the VCCR is basically wrong and they wouldn’t apply it; jealous possession of interpretive functions is de rigeur Stateside. International law is just any other kind of law – subject to domestic interpretation and overriding. it is not seen as having any normative superiority or true controlling force.
Unfortunately for those of us who would wish it otherwise, a subsequent act of Congress can in fact override international law, or at least insofar as its domestic application. This stems from the different way it is treated here versus in continental Europe: dualism v. monism. Generally, the United States’ international obligations only have domestic effect if Congress passes legislation to do so (other than self-executing treaties, or trade agreements for the time being).
It can be helpful to have Congress pass enacting legislation as treaty terms are often vague. I agree though, that its ability to reject application of the Geneva Conventions is disturbing to say the least.
I don’t think Congress can “interpret” the law (though it can direct application and interpretation via pleading requirements, standards of review, etc.) but its power here is actually much greater. It can tell the Court what the law is.
I disagree with Prof. Julian Ku’s opinion on the Congress’s right to “override” Supreme Court’s interpretation of GC.
If Congress “nullifies” the domestic effect of GC, Then it has in fact VOIDED or Terminated the Treaty.
Granted Congress could legally pass a law to terminate any or all treaties’ effect in the US.
YET, this Congress does NOT express any intention of withdrawing from the Geneva Convention.
Then, this NEW law, which has the effect of terminating the effects of GC in US, and yet does not expressly state the intent of termination, is in itself, “Constitutionally vague”. (Indeed, its justification states it’s compliance with GC in spirit).
Subsequently, it cannot be enforced.
Treaties are like international Contracts.
One cannot justify violation of a Contract by claiming that one fulfilled the “spirit of the Contract”, if one is cleared of the contractual meaning, (in this case, the Supreme Court has spoken on the meaning).
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