Judicial Review of Geneva Convention Claims: Commentary on the Military Commissions Act by David Sloss

by Peggy McGuinness

Professor David Sloss of Saint Louis University has provided this commentary on the Military Commissions Act. David has published widely in the area of foreign relations law. We are pleased to welcome his comments here:

The Military Commissions Act of 2006 contains a number of provisions that raise intriguing constitutional and statutory interpretation questions. This comment will focus on issues pertaining to judicial review of individual claims based on the Geneva Conventions.

There is no doubt that Congress has the constitutional authority to enact legislation superseding the Geneva Conventions. Thus, for example, Congress could have added language to the Military Commissions Act of 2006 along the following lines: “In the event of a conflict between the Geneva Conventions and the procedures specified herein, courts shall apply the procedures embodied in this Act.” Such language would preclude courts from applying the Geneva Conventions by making clear that Congress intended to supersede the Conventions as a matter of domestic law. However, the Military Commissions Act of 2006 does not contain any such provision. Section 3 of the Act creates a new Chapter 47A in Title 10 of the U.S. Code. Section 948b(f) of the new Chapter 47A declares that “[a] military commission established under this chapter” satisfies the requirements “of common Article 3 of the Geneva Conventions.” Thus, section 948b(f) clearly expresses Congress’ intention to comply with common Article 3, not to supersede that provision. The question whether the procedures adopted by Congress actually do comply with the requirements of Common Article 3 is arguably a judicial question, not a legislative question. Insofar as section 948b(f) expresses Congress’ opinion about that judicial question, it is doubtful whether that opinion is binding on U.S. courts. Whether, and to what extent, the courts will or should defer to Congress’ opinion is a separate issue.


2 Responses

  1. Recently we had a panel discussion on the constitutionality of the Military Commissions Act at UC Hastings. Excerpts and a summary of the discussion can be found here.

  2. Therefore, as a matter of statutory interpretation, Section 5(a) may not preclude a criminal defendant convicted by a military commission from invoking the Geneva Conventions in an appeal to the D.C. Circuit and the Supreme Court.

    Professor Sloss: I think you may have missed section 948b(g) of the MCA, which expressly provides that no alien unlawful enemy combatant subject to trial by military commission “may invoke the Geneva Conventions as a source of rights.”

    As for your due process argument, it seems like a loser to me. Section 948b(g) is little more than a congressional determination that the Geneva Conventions are not judicially enforcebable. But, even before the MCA was enacted, that was likely true. After all, it has been the consistent position of the USG — one accepted by the DC Circuit in Hamdan (in reliance on Johnson v. Eisentrager) — that the 1949 Conventions are not judicially enforceable by private parties. (The Supreme Court, alas, sidestepped that question.) The MCA simply removes any ambiguity about judicial enforceability, effectively endorsing the DC Circuit’s result. How does that violate due process? The situation is not materially different from an ordinary treaty reservation that makes a treaty non-self-executing. It seems quite implausible that the entire doctrine of non-self-executing treaties, which of course goes back to Chief Justice Marshall, violates the Due Process Clause, but that seems the implication of your argument. To take another example, do you think it would be unconstitutional for the Supreme Court to hold (as it came close to holding last Term) that the Vienna Convention on Consular Relations may not be enforced by criminal defendants?

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