The President and the Interpretation of International Law– A Reply to Ku

[Opinio Juris welcomes Professor David Golove of New York University School of Law as a guest respondent. Professor Golove’s teaching and scholarship is focused on the foreign relations law of the United States and on constituional law.]

In his recent post, Julian asks whether the President has domestic constitutional authority to adopt a “new” interpretation of the laws of war. Even if Congress and the Judiciary have some countervailing authority in this respect, Julian suggests that the President should, at least, get a first crack at offering his own approach.

Of course, it couldn’t be more obvious that the President does have a first crack, at least as a practical matter, though he may be and indeed has been overruled by both Congress and the Judiciary from time to time (frequently in recent years). The President’s duty faithfully to execute the laws presumably gives him substantial authority, at least in the first instance, to adopt new good faith interpretations of customary international law. As Commander-in-Chief, he interprets the laws of war and makes those interpretations binding on U.S. military personnel by, inter alia, issuing military manuals. I can’t imagine why Julian thinks that this question is up for grabs.

Probably, though, Julian is contemplating a case where the President is actually violating the existing laws of war, offering not a good faith “interpretation” but a new (and presumably, from the President’s perspective, preferable) rule altogether. So, the real question is whether the President has domestic constitutional authority to violate existing customary international law. But Julian is actually not putting the question quite so broadly. Rather, he asks more narrowly whether the President can violate the laws of war in an effort to change the content of the law, which, of course, is an accepted method for changing customary international law. It seems that Julian thinks that the President should have this power. Julian may also believe that the judiciary ought to be bound by the President’s legislative choices and even, perhaps, that Congress ought to be as well (since the laws of war govern “the conduct of campaigns” in John Yoo’s expansive sense).

Of course, as anyone who has looked at the 18th and 19th century history on this point will easily recognize, Julian is wise to avoid making the broader claim that the President has constitutional authority simply to violate customary international law for any reason at all. That view would be radically out of step with original understandings and with constitutional developments over most of U.S. history. For those who think original understandings and/or historical practice are to be given great weight, this stubborn fact seems to present a large obstacle to embracing such a view.

Julian’s narrower claim, however, is more complicated. As an initial matter, it is worth noting that in recent years the President has not generally acted in a way designed to change “customary international law.” The process of customary international law formation, at a minimum, requires some degree of transparency and public justification. The Bush Administration has often preferred to act on the basis of secret legal memoranda and to offer persistent denials and obfuscation about the conduct in which it is engaging and which, if we take Julian seriously, the President is seeking to legitimize from a legal point of view. If the Administration is unwilling to acknowledge its behavior and justify its actions publicly and forthrightly, then the President is not genuinely seeking to change the law. He is just flouting it.

But returning to Julian’s main claim, it would seem that the most plausible basis for his view which he doesn’t really seek to justify only to suggest builds from the substantial role that the President actually and inevitably plays in the development of customary international law principles. If the President may play such a role when existing law is uncertain or legitimately contested, why shouldn’t he have authority simply to violate the laws of war altogether, at least if he is seeking to establish a new rule in its place?

The reason, I believe, is that this argument, instead of seeking to make a virtue out of a vice, seeks to make a bigger vice out of a smaller one. One of the most problematic aspects of the international legal system is the “democracy deficit” it creates by enhancing the law-making role played by executive officers. This feature of international relations is at the core of many critiques of international law, used as a ground for opposing, for example, expansive conceptions of the treaty power and the permissibility of international delegations. Although the problem is indeed pervasive, it is also, I believe, to a some extent inevitable. That is hardly a reason, however, to push executive power to its logical limit. Rather, doing the opposite makes far more sense. We ought to try to find ways to limit the damage to democratic values that this anomaly produces. Placing the power to violate the law in order to change it in the hands of the executive will further reduce transparency, democratic deliberation, and accountability on issues of great public importance. If the President believes that we need a new paradigm for the laws of war suited to the circumstances of international terrorism, he can bring forward a proposal to Congress, which in turn will deliberate upon it against the backdrop of a wider public debate. Why isn’t that a superior approach from a democratic point of view? Indeed, from every point of view?