Can the President Change the Laws of War?

by Julian Ku

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?

6 Responses

  1. Julian: I apologize that I don’t have time now to respond in full to your provocative post. And in any event others are much more qualified than I to explain how customary law becomes customary (and what the role of the legislature is in that process).

    But I would urge that in that discussion, we should try to refrain from overuse of euphemism.

    In his memo, John Y. writes of the Presient “develop[ing] new rules of customary international law that address . . . new circumstances.” Similarly, you ask about the Preisdent’s power to “adopt a new interpretation of customary law.”

    Let’s be clear what we’re talking about here. In this case, the “development” of the laws of war — the “adopting” of a “new interpretation” — of which we’re speaking, consists of, e.g., an intelligence agency systematically using techniques such as forcing prisoners to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours, or forcing prisoners to stand naked in a cell kept near 50 degrees while being doused with cold water.

    And doing so in secret locations, without any oversight or review from the public and other branches of government, let alone public acknowledgement.

    Whatever else may be the case, if the “custom” of the customary laws of war can be developed or “re-interpreted” merely by the fact of a powerful nation secretly using hypothermia, threats and other forms of quasi-torture on prisoners, all the while publicly professing adherence to the norms of humane treatment that it’s been strenuously advocating around the globe for 200 years (see, of course, Lieber and Lincoln), then the laws of war wouldn’t be worth very much, would they? (Which is, I suppose, the whole point of that section of the Yoo memo to Taft . . . . )

  2. I’m afraid that I am failing to see the relevance of trying to develop new rules of customary international law. If we all would agree (which is not the case by the way) that the Geneva Conventions would not apply to terrorists, wouldn’t it be better to try to come to a new treaty that would apply to terrorists?

    I think that can’t be done: I don’t think that there will be sufficient international agreement to come to a treaty relating to these matters. The first insurmountable problem would be the definition of “terrorist”. The second problem would be who gets to determine whether a detainee is a terrorist. The third, what rights a detainee properly classified as a terrorist would have.

    The chance of such treaty seems to be non-existent. I don’t think that if the will to come to a treaty banning terrorism (whatever that might be) is non-existent, there is any chance that the US can force the development of a new rule of customary law or a new interpretation of new customary law.

  3. President’s actions on the domestic front are of no moment. The US actions to change practices of states on the international plane are of no moment unless they become accepted by law. The President has some initiative because of the Executive’s potential to act more quickly with aggregated power. However, Congress, the Judiciary, the States and the People have aspects of US sovereignty also and it would seem may take the initiatives that they see fit (write to your Congressperson, demonstrate, represent a detainee, vote them out of office, whatever) to counter the President’s view and resist untoward attempts modification of customary international law by introducing and encouraging changes of practices of states and have them accept these changes as law. This can go as far as the anti-landmine treaty process.

    And Mart’s point on euphemism is precisely the point. We can not dress up what is being talked about which of course brings us into the area of peremptory norms – extremely stubborn and hard to change. Have to teach class.



  4. Maybe I am missing something, but I think that the answers to Prof. Ku’s questions are pretty straightforward. Anyone can give a new interpretation to an extant customary international legal norm; that does not mean that this interpretation is controlling, final, and conclusive. As James Wilson said, “[t]o pretend to define the law of nations which depended on the authority of all the Civilized Nations of the World, would have a look of arrogance that would make us ridiculous.” Max Farrand, 2 The Records of the Federal Convention of 1787 61 (1911). A controlling interpretation usually is given by a court or other body to which a party contesting the new interpretation has recognized its competence. Therefore, the President’s or Congress’, or the U.S. Supreme Court’s interpretation of an extant customary international legal norm is not controlling on foreign states unless the foreign state has recognized the competence of these offices/bodies to do so. Certainly Congress has explicit constitutional authority to clarify (not create) offenses against the law of nations and the President has implicit constitutional authority through through his/her, e.g., Commander-in-Chief authority to clarify customary international legal norms subject to Congress’ explicit authority (which is controlling on the President). But these interpretations are not controlling, final, and conclusive. Only the U.S. Supreme Court in certain cases (e.g., prize and interstate cases) and certain international courts with final and conclusive authority can make controlling interpretations.

    Certainly the U.S. (or any foreign state) can unilaterally create a norm that represents an emerging customary international legal norm. However, the crystallization of a customary international law only takes place when more than one state has accepted norm as legally binding — either explicitly (through, e.g., a treaty signature, domestic law) or implicitly (through, e.g., the acceptance of the benefit bestowed by another state’s compliance with the norm per the Acquiescence Principle).

    Of course, whether the GCs are arguably inapplicable or unsuitable to Al Qaida members is a moot issue. International tribunals for many years before 9-11 effectively have been applying the customary international law reflected in widely-adopted multilateral human rights treaties governing national emergencies in terrorist cases. State-respondents in such cases have accepted the decisions of these tribunals and complied with orders of these tribunals. The U.S. is still bound by those customary international legal norms governing terrorists that it has effectively accepted in, e.g., ICCPR and ACHR.

    Finally, Prof. Ku states that there is no academic consensus regarding the authority of Congress to depart from customary international law and that there is some jurisprudence pointing to Congress’ authority to depart from customary international law. Prof. Ku is correct on both points. However, The U.S. Supreme Court in United States v. Macintosh has noted that Congress under its war powers authority cannot violate the laws of war: “From its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.” 283 U.S. 605, 622 (1931) (dictum). If Congress cannot violate the customary laws of war, I even more seriously doubt that the President can.

  5. Francisco quotes Justice Sutherland’s statement in Macintosh, which I think is a very frail reed on which to hang the aggressive claim that Congress has no power to violate the customary laws of war. For one, the remark is pure dicta, having nothing at all to do with issue at hand, which was whether consciencious objectors have a constitutional right to avoid military service. Moreover, even taking the aside seriously, it seems clear from the rest of the passage that Justice Sutherland (who was well known for his expansive views of federal power when it comes to foreign relations and national security) didn’t think that even the express provisions of the Constitution do much to limit the Congress’ war powers: “This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life. To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.” If the war power means that, contra the express language of the First Amendment, that Congress can curtail the freedom of speech, it’s hard to imagine that the (unwritten) customary laws of armed conflict would provide much of a substantive constraint on legislative authority.

  6. As a Constitutional matter and in internal law under the War Powers Congress may be able to put in place awful things. That does not prevent those laws from being violations of customary international law and a breach of US international obligations in that regard and thus engaging US responsibility. So Congress does not have a license – it just either takes US customary international law obligations seriously and complies with them or does not and then breaches them. And the rest of the world reacts in kind through whatever tools of horizontal enforcement are available (assuming no internal redress can be found in the United States). Watch the MCA as an example of that.



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