Can the President Change the Laws of War?
This exchange between John Bellinger and our terrific group of guests and commenters has been so fascinating that I hesitate to intervene. But the last few posts have moved me to pose a fundamental domestic U.S. law question to John and our readers. Who has the authority to interpret or re-interpret the laws of war on behalf of the United States?
John and many of our commentators seem to have found some common ground: the existing law of war framework, especially as defined in the Four Geneva Conventions, doesn’t quite fit the type of conflict that the U.S. is fighting against Al-Qaida.
Let’s assume for now that this view is correct: that the Geneva Conventions don’t technically apply, and that the traditional customary law of war doesn’t make sense when applied to the U.S.-Al Qaida conflict. How should the U.S. government go about trying to change or adapt the customary law of war to deal with this new kind of conflict? And, as a U.S. law matter, which branch of the U.S. government should go about defining and developing this new type of law of war?
In a comment to Mike Ramsey’s post below, Marty Lederman denigrates John Yoo’s advice to the White House that the President should contest the application of Common Article 3 to Al-Qaida and Taliban detainees. But it doesn’t seem that odd to me.
After all, what if, for some of the reasons advanced by Professors Anderson and Garraway, the President decided to take a position at odds with prevailing customary law principles because he believed this was a new type of conflict to which traditional customary law did not properly apply? Doesn’t he have the domestic authority to adopt a new interpretation of customary law, at least for those matters within his constitutional authority that do not conflict with existing treaties and statutes?
And if he does not have such authority, who does within the U.S. system? Congress? The Courts? But even if those branches do have that authority, why can’t the President adopt a new interpretation of customary law unless and until the other branches overrule him? Given that, as Eric Posner notes, the Executive Branch itself is deeply divided and multi-headed animal, why shouldn’t that branch get to take the first cut at developing an new interpretation of customary law? And if much of international law is explained as bargaining between states over compliance, as Eric also suggests, isn’t the President the best-positioned institution to administer this bargaining process?
There is another possibility, of course, which some of our readers might support. It is possible that the President is bound by customary law so strictly that he does not have the domestic legal authority to adopt any interpretation that departs from other countries’ understanding of customary law. Indeed, some might even say that Congress cannot ever depart from customary law as well. But I seriously doubt this is correct as a matter of U.S. law. And I think it is fair to say that there is no academic consensus on this question, and that there is at least some jurisprudence pointing the other way.
So I would be curious if John has any views on this domestic law debate? Is the executive branch adequately equipped to develop and define a new type of law to fit a new kind of conflict? Is that how, in part, he sees his duties as State’s top Legal Adviser? And if not, who or what institution in the U.S. system should play that role?