Footnote Filching and other Unsavory Practices in the US Supreme Court, Part I

by Marko Milanovic

The Court’s holding and reasoning in Hamdan are unclear on one crucial issue: whether the United States is legally engaged in an armed conflict with the al Qaeda terrorist organization. Why is this issue so important? Well, the entire legal strategy of the Bush administration depends on it, both internationally and domestically, as vastly different rules of international and constitutional law apply in war and outside of it. The fundamental nature of this question has been noted, among others, by John Bellinger, the State Department Legal Adviser, during his guest-blogging stint here on Opinio Juris.

In Hamdan the Bush administration argued that the ‘war on terror’ is legally an international armed conflict, yet a conflict which falls outside the scope of Common Article 2 of the 1949 Geneva Conventions, which applies only to conflicts between states. To briefly summarize the Court’s judgment, it first said on page 66 of its slip Opinion that it ‘need not decide the merits of this argument’, as at least one provision of the Geneva Conventions, Common Article 3, applies to this conflict. The administration disputed the applicability of CA3, asserting that it, according to the ordinary language of the Geneva Conventions, applies only in non-international, internal armed conflicts, which the ‘war on terror’ plainly is not. To that the Court appears to say that non-international armed conflicts are not just internal armed conflicts, but encompass all armed conflicts which do not take place between two sovereign states (Hamdan at 67-68). In other words, the Court seems to rule that the ‘war on terror’ is a global non-international armed conflict. (I say ‘seems to rule’ because there are other possible interpretations of the judgment, which I will explain later, though this one seems to be the textually most plausible).

For the purposes of this post it is beside the point whether the Court’s ruling is correct or not – I believe it is not, as the scope of CA3, which speaks of ‘conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties,’ is clearly territorially limited. Non-international armed conflicts, as they have been defined by the drafters of the 1949 Geneva Conventions, are synonymous with internal armed conflicts. It is not enough that a state is engaged in some sort of abstract struggle with a non-state actor: it must do so on a defined piece of territory and on a protracted basis. The basic problem with Hamdan which I am addressing in this post, however, is not that the Court got it wrong, but that practically all citations to authority it provides plainly do not support the propositions for which they are being cited. One specific citation and quotation is a particularly egregious example of unsound academic and judicial practice.

Namely, on page 68 of its Opinion, the Court cites the Commentary to the 1977 Additional Protocols edited by Yves Sandoz and published by the ICRC, apparently supporting its main thesis, quoting it is saying that ‘a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States’, with a reference to page 1351 of the Commentary. When I checked this citation I discovered that, in fact, the quoted text is located not on the page cited by the Court, but on page 1319, para. 4339 of the Commentary. More importantly, the sentence quoted is incomplete, as it in full says that

‘a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory.’ (emphasis on the part omitted by the Court)

The full quote is therefore completely contrary to the Court’s apparent position that non-international armed conflicts can somehow be transnational in scope, as it says that for the purposes of AP2 a non-international armed conflict can take place only between a state and a rebel group within its territory (that of course makes perfect sense, since the scope of application of AP2 is much narrower than that of CA3).

Did the Court engage in a deliberate manipulation or distortion of authorities, as it seem to be the case? Well, no, but that actually doesn’t make things any better. To my surprise, I found out that the Court’s miscitation and misquotation of the Commentary in fact fully reproduces the exact same error in citation and the exact same incomplete quotation in an amicus brief on IHL submitted to the Court by Professors Jinks, Goodman and Slaughter (Hamdan at p. 68, amicus brief at p. 19 – please do look for yourself).

This shows beyond any doubt that the Justices (and, worse, their clerks) DID NOT EVEN READ the Commentary on the Additional Protocols which they cited, certainly one of the most authoritative works on the issue in question. To make things even worse, all of these Commentaries are fully available online, free of charge and with original pagination, and could have been consulted for cite-checking (if not for anything more profound) in just a minute or two. This also casts doubt on whether the Justices actually read the ICRC Commentary on the Third Geneva Convention on which they rely afterwards – if not one, why not the other? Even if they did read it, they did not understand it, as is indicated by the Court’s misinterpretation of these Commentaries to which I will turn later on.

So, to sum up – the Court (1) cites an authority in support of a proposition to which it is actually contrary; (2) quotes that authority selectively; and (3) ‘borrows’ both the citation and the quotation from the Jinks, Goodman and Slaughter amicus brief. The story doesn’t end here, however, as the Justices did not only filch citations from the brief but also relied on it substantively. Yet, as I’ll show in my next post, they did so while failing to distinguish between the several alternative arguments presented in that brief. Instead of opting for one of them, they made an unintelligible mish-mash of all of them, leading to contradictions within the Opinion of the Court itself.

12 Responses

  1. And to think I’m always lamenting to whoever will listen (small group, that) that my students are unable to read and cite material with the diligence due it. Often they do not even read with care the one or two sentence instructions atop their exams. Presumably here this is not simply an instance of ineptitude but rather tantamount to jurisprudential negligence or judicial irresponsibility (in the sense of not answerable to a higher authority), even if fairly isolated or infrequent. I hope you’ll discuss whether or not this may be a consequence of some sort of structural liability or is a result of perhaps darker, subconscious or conscious motivations (or perhaps a combination thereof).

    That’s some inaugural post: you’ve certainly whet my appetite for more!

  2. Marko

    Your point about the citation is completely correct, but my question is whether or not we should care. Isn’t there any argument to be made that the Court’s approach to non-international armed conflict is simply an imaginative and dynamic one inkeeping with the dynamism of modern ‘warfare’?

  3. Fiona,

    Please tell me I’ve misread your comment that ‘the question is whether or not we should care.’ Oh my goodness. Even if one believes the ‘Court’s approach to non-international armed conflict is simply an imaginative and dynamic one in keeping with the dynamism of modern “warfare,”‘ one should at least keep the pretense of or show deference to proper legal practice, statutory construction, constitutional interpretation, judicial review, etc. Imagination and dynamism of any sort need a touchstone in reality, particularly when we’re speaking of something as important and hallowed as ‘the law.’ I trust your legal education hasn’t made you as cynical as the above remark would suggest.

  4. Patrick,

    In spite of my intense cynicism I don’t mean that we ought not to care at all, but rather that perhaps we ought not to care too much. I understand, of course, the dangers that come with that, and yes, I too would ‘go nuclear’ on my students for similar practices, however in this case the substance of the decision reached by the court is more important to me. They could even have arguably reached the decision without recourse to the source at all – perhaps through dynamic interpretation or principles or ‘object and purpose’ approaches. Of course, Marko’s point is well taken – if you’re going to use something as the main basis for your decision you should make sure you use it properly (and, btw, I absolutely agree), however I wouldn’t like to haul the Justices to the gallows over it in this particular instance. I’d probably strongly consider firing some of those overpaid clerks they have (or at least rap them sharply across the fingers) but that’s all.

    I guess my main point is – how important is this to Marko? Does this completely undermine the Court’s decision or is there still merit to the decision? What is the point of Marko’s analysis, beyond pointing out a mistake. If it’s a point about distortion of authorities then that’s very intersting, but shouldn’t stop with Hamdan and should go on to look at the distortion of Braden and Ahrens in Rasul. For me, the obvious lengths to which the US Supreme Court went in both Rasul and Hamdan are indicative of their interest in rights-protection in relation to suspected terrorists as opposed to sloppy researching….

  5. Thanks for the clarification/explanation Fiona. I suspect Marko will be answering some of your questions in posts to come.

    All good wishes,


  6. Fiona,

    Your point is well taken – my principal purpose here is not to criticize the Court for its cite-checking. And I of course agree that the substantive end result that the Court has reached is important, yet I think that the road it took to get there is just as important. As you’ll see from my next few posts, my general claim is that the Court is far from engaging into imaginative and dynamic interpretation of international law to keep up with modern ‘warfare.’ They just have no idea what they’re doing, as their reliance on the amicus brief, which I’ll examine tomorrow, amply demonstrates.

  7. Marko,

    Its great to you’ll be adding your own posts. What an illuminating first post! One of the things your post reveals is how reliant courts are on counsels arguments. However, one would have thought that in a system that makes such extensive use of law clerks (unlike most English courts) there would less reliance on counsel for turning up and checking relevant authority.

    But to address a related point which your post does not address, the Court did not rule that the war on terror was a non-international armed conflict. All it was saying was that at least Common Art. 3 applies to the conflict with Al-Qaeda. The court did not preclude coming to the conclusion that the conflict was international law and that the entire Geneva Convention (as customary law) applies.

  8. Marko

    I look forward to tomorrow’s mail then!!


  9. Is it really correct to say a judicial opinion “filched” a footnote from a party/amicus brief? Whenever my briefs get “filched” from by judges, I feel quite pleased. Of course, there’s “filching because it’s on point” and then there’s “filching without citechecking”…

  10. Please pardon my ignorance, but was the Court here asked to define the scope of the ‘war on terror’? It seems that most of the arguments emerging from Hamdan, et al, are what rights he has, not the conflict in which they occurred. It would seem, and this is so especially considering the Roberts’ Court’s penchant for narrowly defining argument, that, a hypothetical foreign national would have to sue the US for violation of sovereignty claimed in the ‘war on terror’ for a rendition. I’m no expert, but it seems the Court hasn’t been asked to define what the ‘war on terror’ was, only what the rights were of those captured by the US. What it boils down to, it seems, is the use of military forces to capture suspected trans-national criminals. It would be no different than capturing a mafia boss. What is different, and to me this is the larger picture, is that the US prosecutes terrorism outside of what was previously used; RICO. It seems the question we should be asking is why the US is reluctant to use civilian courts on these.

  11. Special guest – there is in principle nothing wrong with a Court adopting an argument from a brief; that’s what briefs are for. The problem here is that the citation error made in the brief (probably made in all good faith) was reproduced by the Court, meaning that the Court did not consult the primary source.

    Daniel – the Court did indeed have to say something about the scope of the ‘war on terror’, because under international law the rights of a detainee depend on his status, and on in what kind of an armed conflict he was captured. There was one way to avoid this issue, but the Court did not use it (see my next post).

  12. Marko – human rights law doesn’t care about the individual’s status of course…only IHL….

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