09 Aug A Fair and Balanced Discussion of the Military Commission Act of 2006?
The American Journal of International Law has posted a continuation of its “Agora” on the legal validity of the Military Commissions Act of 2006. It continues an earlier Agora which was interesting and intelligent, but predictably one-sided in its relentless criticism of the MCA (thanks to the Chron of Higher Education blog for the pointer).
In its continuation, the AJIL editors provide a little balance by publishing an essay by Duke lawprof Curtis Bradley defending the legality of the MCA (mostly). It also includes a well-done, but (in my opinion), somewhat overwrought analogy between the MCA regime and Latin American disappearances in the 1970s and 1980s by Professor Tom Farer of University of Denver, and a typically fairminded essay by Professor David Martin of UVA.
Bradley is no kneejerk defender of the Administration or the MCA. Indeed, he seems very doubtful that the MCA will be interpreted to eliminate habeas review of constitutional rights in Guantanamo and I think he is right that the MCA will almost certainly interpreted to provide a limited review of constitutional claims made by the detainees in Guantanamo. This will be a close call, but there seem to be five solid votes for this proposition.
What will not be a close call for the Court, he thinks (and I agree), is the MCA’s elimination of the right to raise treaty claims under the Geneva Convention in federal district court or in the court of appeals. His analysis of this seems very sound and I would be very surprised if the Court departed substantially from his analytical approach.
Indeed, I would recommend Bradley’s analysis of the Geneva Conventions to newbie Supreme Court clerks currently preparing for next year’s term. You can’t do much better.
Prof. Bradley’s argument in support of the MCA’s elimination of the right to raise GC claims is based primarily on two false presumptions: (i) the constitutionality of the last-in-time rule and (ii) the meaning of the GCs rely on the parties’ intent. First, as I have argued previously on this blog and in several publications, the last-in-time rule is unconstitutional because, inter alia, it violates constitutional text and incorrectly incorporates the notion of Congressional supremacy that was rejected by the Framers. Prof. Bradley does not address any of these arguments. Second, the Vienna Convention on the Law of Treaties only allows the parties’ intent to be used to interpret treaties when a special meaning is given to a treaty’s term. This is not the case with the GCs. Rather, the meaning of treaty provisions often evolves in order to ensure compliance with the parties’ other subsequent international legal obligations. Indeed, such an evolving meaning is required under international law. Such other subsequent international legal obligations include the right to national judicial review guaranteed by international human rights law. Prof. Bradley does not address any of this. Furthermore, it is difficult to see how diplomatic measures alone could ensure GC compliance… Read more »
The Supreme Court has been consistenly applying the last-in-time rule for well over a century. Even if one could formulate a coherent constitutional objection to it (and I, for one, don’t see how it violates the “constitutional text,” since Article VI makes both Treaties and statutes the supreme law of the land without purporting to rank them, see also Ahkil Amar’s argument that even previously enacted statutes should trump treaties to the extent of any conflict), that ship has long since sailed. As for the second argument, can you point to anything in the text of the GCs (which I take it is an accepted basis on which to determine their meaning) that establishes an indefeasible right to judicial review of Geneva Convention claims?
First, the Supreme Court has NOT been consistently applying the last-in-time rule. See, e.g., U.S. v. Macintosh, 283 U.S. 605, 622 (1931)(“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.”). With the exception of the Chinese Exclusion Cases, when SCOTUS does use the last-in-time rule, it uses is without any reasoned justification (except as precedent). And, when SCOTUS did provide a purportedly reasoned justification of the last-in-time rule in the Chinese Exclusion Cases, it justified its use by characterizing Chinese immigration as an “Oriental invasion” — a racist characterization that should shame anyone who approvingly cites the case in support of the rule. Second, according to the texts of Articles III and VI, federal statutes are only made in pursuance of the Constitution; whereas treaties are made under the authority of the United States. The authority of federal statutes is derivative of the Contitution. The legal authority of treaties comes from the United States itself. Therefore, treaties have greater legal authority than federal statututes. Furthermore, by your Article VI argument, federal statutes would have equal legal authority to the… Read more »
1. I have no idea what Macintosh has to do with the last-in-time rule. It’s a case about whether an alien had met the statutory criteria for naturalization, despite his statments that he would fight only in wars he considered morally justified. No treaty was relevant to the decision or discussed by the court. Certainly, there was no conflict between any treaty and the naturalization statute. Nor does Justice Sutherland’s quote about Congress’ war power at all relevant to the last-in-time rule. Furthermore, it is quite misleading to try to taint that rule by associating with judicial racism. Well before the Chinese Exclusion Cases, the Supreme Court had established (and justified) the last-in-time doctrine in the Head Money Cases and again in Whitney v. Robinson. 2. The text of Article VI clearly makes the Constitution superior to statutes (which must made “in pursuance of the Constitution”). What it does not clearly do is make treaties superior to statutes. To be sure, Article VI says that treaties made under the “Authority of the United States” are supreme law, but I fail to see what the difference in language here has to do with the last-in-time question. (Why does it follow from… Read more »
I should have been more clear. The language from Macintosh is dictum. However, the language clearly extends to treaties and Congress’ inability to violate such international law. Are not “principles of international law” found and reflected in treaties — especially humanitarian treaties that cannot be suspended during war, whereas other treaties PER INTERNATIONAL LAW ITSELF sometimes can? But, I do stand corrected. Both Whitney and Head Money did give reasons — albeit incorrect reasons as I have argued here and elsewhere in my publications. As for why “made under the authority of the United States gives treaties more legal authority that federal statutes, I already addressed this in a previous posting to this blog. Both the Constitution and other treaties are made under the authority of the United States. The only reason why the Constitution “trumps” post-Constitution treaties is because (i) it came first and (ii) international law itself allows the invalidation of treaties that conflict with fundamental national law. Federal statutes only have authority derivative of the Constitution and treaties. Think of it this way: federal statutes generally can only address those areas covered by Congress’ enumerated powers. However, treaties (and the rest of the law of nations) have… Read more »
1. What Justice Sutherland is saying (in dictum) is that the scope of Congress’ war powers under the Constitution should be determined by reference to principles of international law. That seems quite plausible. But it’s quite a leap from that to the conclusion that, in the exercise of all of its enumerated powers, Congress lacks the authority to violate international law. (The courts have consistently held otherwise, of course. E.g., United States v. Yousef, 327 F.3d 56, 93 (2d Cir. 2003)). It’s an even greater leap to say that Congress may not, by enacting legislation that conflicts with the terms of a treaty, render that treaty inoperable as a matter of domestic law to the extent of the conflict. Forced to choose between the Supreme Court’s clear and consistent holding that the last-in-time rule is part of our constitutional structure and an isolated dictum that requires two highly implausible inferences to even begin to cast doubt on that holding, I’ll stick with the former. 2. You seem to be conflating the source of authority to enact legislation with the force and effect of that legislation once enacted. You may be right that there are no subject-matter limitations on treaties (though,… Read more »
Madisonian, 1. I cited SCOTUS’ Macintosh decision just to point out that SCOTUS has not been consistent. This should be no surprise given that federal court decisions — including SCOTUS’ — are often inconsistent and/or wrong. I have not relied solely on federal court decisions interpreting arguably vague constitutional text for rejecting the constitutionality of the last-in-time rule. My argument relies also on the Constitution’s travaux preparatoires and circumstances surrounding its conclusion, and the U.S.’ other international legal obligations (e.g., pacta sunt servanda) — which are the proper controlling authorities under international law for construing a treaty, which is what the Constitution is. Your approach isolates the Constitution from any international legal construction, instead relying on arguably vague constitutional text and federal court decisions interpreting such text. I guess that you don’t think that the Constitution is a treaty whose arguably vague provisions must be construed in conformity with the U.S.’ other international legal obligations. If so, I suggest that we address this more fundamental issue of what kind of legal instrument the Constitution is. 2. Yes, I am conflating the authority to make law with the force and effect of the law. Although, e.g., Congress can make a diversity… Read more »
MESSAGE
1. But Macintosh doesn’t show that the Supreme Court has been inconsistent. The case has nothing to do with the last-in-time rule and even Justice Sutherland’s dictum is not at all at odds with that rule. As for your broader point, you are absolutely right: I do not think that the U.S. Constitution is a treaty or that it should be interpreted as such. Arguably, the Articles of Confederation was a treaty among the several States, but the Constitution self-consciously followed a different path. The Constitution is a fundamental charter of the government of a single nation, executed in the name and for the benefit of the “People” of that nation. 2. You seem to have missed my point, which is that the subject-matter limitations on lawmaking authority should not be equated with limitations on the force of the laws ultimately enacted pursuant to that authority. Even if the United States had the constitutional power to enact treaties on any subject under the sun, and even even Congress’ Article I, section 8 authority was strictly construed, it would not follow that treaties trump statutes in the event of a conflict between them. If you want to argue against the last-in-time… Read more »
Madisonian: 1. I agree that Macintosh does not expressly address the last-in-time rule, but its dictum says that Congress cannot violate principles of international law — which, of course, are incorporated and reflected by treaties. Therefore, SCOTUS has been inconsistent. I might also add that SCOTUS in The Schooner Exchange v. McFaddon also stated that civilized nations could not retract treaty obligations. Assuming that SCOTUS thought that the U.S. was a civilized nation, then the U.S. also could not retract its treaty obligations. The Constitution is a treaty. A treaty is defined as a (i) written agreement (ii) between two or more states (iii) governed by international law. First, the Constitution is a written legal instrument. Second, Article VII states that the Constitution is between the states. (It is also “ratified,” which is how treaties come into force.) Third, the Constitution is governed by international law in that the Constitution’s establishment was governed by the law of treaties, and the Constitution incorporates several fundamental international law principles (most noticeably that treaties are law). Therefore, it is a treaty. For more, see Martin, Our Constitution as Federal Treaty, 31 Hastings Const. L. Quart. 269 (2004); Martin, The Constitution as Treaty (Cambridge… Read more »
And just to add a little spice, no state can exclude itself from its international obligations through its internal law. That would be constitution on down. A very basic rule of VCLT and customary international law.
Best,
Ben
I believe in another place Jordan Paust has argued against the last in time rule based on the doctrine of vested rights which were noted in some of the cases. See his International Law as United States law. Also, Bradley does what I have come to call the U.S. Foreign Relations Law tap dance on the Geneva Conventions in a very excellent manner. One concern with Bradley is that the MCA restriction of the full effect of the Common Article 3 might be a subject of even greater scrutiny by the Supreme Court in the current posture (Congressional and Presidential agreement) because the MCA and the DTA appear to be thinly veiled attempt at limiting liability of high level civilians (Congressional and Executive in particular) for the GC violative orders that they made/acquieced in during the period between the January 7, 2002 Presidential order and the Hamdan decision. The cases showing horrendous treatment that keep coming are taking their toll. The evidence of the CSRT’s and Mil Commissions being sham procedures also take their toll. Second, the attitude of the home country of the detainee may be significant in determining the process and punishment the person gets in the military… Read more »