31 Aug The Effect of International Law on the President’s Power to Wage War
Via Jon Adler at Volokh, I note that the D.C. Circuit issued a fascinating series of opinions today on the effect of international law on the President’s execution of his warmaking powers. As Steve Vladeck at Balkinization notes, the actual DC Circuit decision was simply a denial of a rehearing en banc of a panel’s earlier decision to reject a Gitmo detainee’s challenge to the legality of his detention under international law. But the three members of the original panel, Judges Brown, Kavanaugh, and Williams, each appended a very long opinion explaining their further views on this case. While it is true none of it seems to be binding precedent, I hardly think the proper course for lower courts is just to ignore these opinions. They plainly represent the views of a substantial number of the court’s judges and may eventually prevail.
The reason these opinions are important is that all are focused on the very important conceptual question of whether and how international law affects the President’s powers to conduct the war on terrorism under the authority granted to him by Congress in the September 11 resolution authorization the use of military force (the AUMF). Two judges argue that customary law cannot limit the interpretation of the AUMF, and one judge suggest that, in some cases, it can. For those of you outside the U.S. who wonder how the Obama Administration believes it has the authority to use targeted killings against Al Qaeda outside of Afghanistan, these opinions really offer the answer. Whether or not international law recognizes an armed conflict against Al Qaeda, Congress plainly has authorized the President to engage in the use of military force against Al Qaeda. On this theory, it really doesn’t matter whether there is an armed conflict as defined by international law. All relevant limitations stem from U.S. treaties and statutes, and not from customary law.
I think this view of how international law impacts the war on terrorism will ultimately prevail. For the Guantanamo detainees (and for those targeted for killing by the Obama Administration), the correct strategy should be to emphasize their constitutional law arguments. I don’t think their international law arguments are likely to prove decisive.
Julian, Not to be hyper-technical but the AUMF does not authorize the President to engage in a (never-ending) military conflict with Al Qaeda, let alone to extend that military conflict to countries like Yemen. Rather, it authorized Bush to use “all necessary and appropriate force” against those who were responsible, or harbored those responsible, for 9/11 in order to prevent such attacks in the future. Obviously the AUMF has been interpreted by the Bush and Obama administrations to allow for all sorts of things (military commissions, warrantless electronic eavesdropping on US citizens, and even assassinations of US citizens like al-Awlaki). But in passing the AUMF, Congress did not consider these issues (and if it did, the legislative history is silent on it). Consequently, it hardly seems controversial that courts, in analyzing the AUMF, should do so in a manner not to conflict with customary international law. See Charming Betsy. Amazingly, in her concurrence, Rogers argues that international law should not even be used as a tool of statutory construction(!). Kavanaugh, for his part, argues that contrary to Paquete Habana and other cases that international law is not part of US law because of the Supreme Court’s decision in Erie. Of course, Erie concerned a… Read more »
The question raised is not whether international law applies to limit the President’s power, but whether the courts can override the decision of the President or Congress about how to define those limitations. From Kavanaugh:
the limited authority of the Judiciary to rely on
international law to restrict the American war effort does not
imply that the political branches should ignore or disregard
international-law norms. The principles of the international
laws of war (and of international law more generally) deserve
the respect of the United States. Violating international-law
norms and breaching international obligations may trigger
serious consequences…
But in our constitutional system of separated powers, it is
for Congress and the President – not the courts – to determine
in the first instance whether and how the United States will
meet its international obligations.
So the jurisdiction to adjudicate considers its role to be not to adjudicate even in a second instance. What a banana republic in which I live. Way too easy.
Best,
Ben
It is clear that our government may set national policy contrary to international law. The later-in-time rule case law establishes that. However, I disagree that the President has independent carte blanch “to determine…whether and how the United States will meet its international obligations.” There is much case law to disprove that view particularly with regard to war powers. Some of it is cited in my earlier OJ post responding to the panel’s original (misguided) opinion. I do acknowledge that the President possesses some limited authority to override applicable international law. It is simply necessary to carefully identify that power, and to distinguish it from the broader congressional power to vitiate international law. As for Judge Kavanaugh’s opinion, I think there is an important distinction between the question of whether or when international law is or becomes domestic law and whether or when it provides an applicable rule of decision in U.S. courts. Given the Supreme Court’s recent reminder that domestic law is generally presumed NOT to apply extraterritorially, I find it odd to frame the issue entirely in terms of whether international law is domestic law. The AUMF is a domestic law applied, in most cases, extraterritorially. As the Court… Read more »
I suspect we are in the “illegality” and “legitimacy” space here.
Best,
Ben
I have read many of the discussions of these topics and cases and am brought back to a discussion we once had in international commercial arbitration with regard to International Standard Annulments and Local Standard Annulments. The basic point was that the New York Convention and the UNCITRAL Model Law laid out international standards for annulment/refusing to recognize and enforce an arbitratl award. Countries then passed domestic law and sometimes those laws provided more restrictive standards for annulments/refusal to enforce-recognize then the international standards. These deviations by countries from their treaty obligations were problematic in destabilizing the mechanism for recognition and enforcement of the foreign arbitral awards. I read these discussions of Al-Birhani opinion, the relationship of the AUMF to the laws of war, the last in time rule, etc as being various US phenomenon for trying to do a Local Standard Annulment of an international legal obligations of the United States. Or, maybe that is a bit strong, but the point is that all the crowing about the President or Congress being able to deviate from international law appears to be more and more of this Local Standard Annulment phenomenon. At the International level, of course, there is this… Read more »