Congress’s Constitutional Power to Establish National War Policy in Violation of International Law – A (Belated) Response to Professors Golove & Kent

Please forgive the recent interruption to my guest blogging tenure.  I currently live in New Jersey.  We sought refuge from Hurricane Irene in a cabin in the Adirondacks – sans internet access.  Interesting times.

Earlier this summer, Opinio Juris hosted an excellent discussion of an important new book, International Law in the U.S. Supreme Court, a well-edited collection of essays about the Supreme Court’s approach to international law. Professor David Golove’s contribution asserting that post-9/11 Supreme Court “War on Terror” decisions are consistent with what he called our “Just War constitutional tradition” drew significant attention.  In Professor Golove’s view, both the President and Congress are constitutionally required to comply with at least some international laws of war. Professor Andrew Kent critiqued the essay here, arguing that Golove’s claims, particularly those involving Congress, are inconsistent with Supreme Court precedent recognizing Congress’s power to set national policy in violation of international law.

I agree with Golove’s assertion that the executive branch must generally comply with any applicable international laws of war.  Like Professor Kent, I am quite circumspect of the claim that Congress must as well.  Harlan Cohen responded to Professor Kent’s post, suggesting that Professor Golove and Professor William Dodge (one of the book’s editors) may believe that all nations, including ours, are “absolutely bound” by certain rules of international law, those that the well-known (to the Framers and to academics) and influential Eighteenth Century international law commentator Emmerich de Vattel categorized “voluntary law.”  Professor Golove didn’t express his views on Cohen’s comment in his response to Professor Kent.  The only clue he provided to support his conclusion was this.

“It may be that the Court would have been wary about its own authority to strike down legislation as in conflict with the laws of war, but that says nothing about the “Constitution outside the Courts” and the longstanding understandings in Congress and among leading constitutional authorities about the limits on its constitutional powers over war.”

After reading Professor Golove’s contribution to the book, Professor Ramsey’s response, and Professor Dodge’s related essay, I think there may be confusion regarding the obligatory nature of what Vattel denominated “voluntary law” and its relationship to both the contemporary laws of war and the war powers of Congress.

I believe Congress possesses the constitutional power (in conjunction with the executive, when necessary) to establish national war policy contrary to relevant international law so long as it does not violate the text of the Constitution.  To the extent that Professor Golove’s unpublished research may have uncovered “longstanding understandings in Congress” that it must follow certain international laws of war, I suspect those understandings to be based in morality or wise policy, not necessarily constitutional law. Golove has to date given only scant evidence of what seems an elegant argument in favor of granting constitutional status to any such congressional understandings.

I agree that there are (and were) rules of international law that nations were believed “absolutely bound” to observe.  They included what Vattel denominated the “perfect rights” of nations.  Perfect rights were those “accompanied by the right of compelling those who refuse to fulfill the correspondent obligation” through armed force. However, the absolute “bindingness” of these rules existed only in international law.  Particularly in dualist countries, international law said nothing about whether national lawmakers possessed domestic authority to establish national policy in direct conflict with international law. As the Court said in Brown v. U.S.,

“Th[e modern] usage [of civilized nations] is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign, and although it cannot be disregarded by him without obloquy, yet it may be disregarded.” (emphasis added)

This basically says what international lawyers already know: a national policy, even one properly established under domestic law, may permit a violation of international law.   But it cannot excuse that violation from the perspective of international law.  In such cases, the policy is lawful in the domestic (municipal) legal system, but remains a violation of international law.

In my view, the key question is not whether the U.S. has ‘the power but not the right’ (to paraphrase Louis Henkin) to violate international law; it does.  The key question is: which branch(es) of the U.S. government may constitutionally establish national policy contrary to international law?  My research leads me to believe that in most contexts, including war, Congress does.  In some very narrow circumstances it has been (and may still be) the executive alone.  Let me add three reasons for my views to Professor Kent’s response.

First, the bulk of the contemporary international law of war (both jus ad bellum and jus in bello or international humanitarian law (IHL)) consists of customary and conventional constraints on conduct the natural law-based law of nations permitted.  Therefore, contemporary IHL is not properly equated with Vattel’s “voluntary” law, which is law evidenced in or derived from natural law principles, generally observed for its utility, and obligatory on civilized states through their presumed (rather than express or implied) consent.

Vattel identifies three other categories of international law, (1) necessary, (2) customary and (3) conventional.  Only necessary law, which consisted of the direct application of natural law to nations, was immutable or absolute.  Vattel classified the other three types, including voluntary law, as composing the “positive law of nations” because “they proceed from the will of nations.”  It defies logic to say that any species positive law cannot be altered at the will of the same nations that establish it.  It isn’t “absolutely” binding in the strictest sense of that term.  (I gave an example of what seems to me a contemporary alteration of one aspect of Vattel’s voluntary law in this earlier comment thread — partly addressed in Julian’s post yesterday. There are others I would be happy to discuss in the comments if there is interest.)

Second, to the extent that any rules in the contemporary law of war might be properly categorized “voluntary” law, the Constitution expressly assigns Congress the power to derogate from or abrogate such law.  Importantly, this includes the power to infringe the “perfect rights” of other nations.  Nothing in the constitutional text expressly requires Congress to exercise its powers to declare war or grant letters of marque (or reprisal, see below) in a manner consistent with relevant international law.  This is why the Court did not, in its early decisions, review a congressionally established general or partial war for compliance with the law of nations.  In Talbot v. Seeman (1801), Chief Justice Marshall, speaking for the Court, said,

“The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry [into whether France was properly deemed an enemy].” (emphasis added)

The Court took the same approach in the seriatim opinions of Bas v. Tingy (1800), and in many other cases.

Finally, and closely related to the last point, the Court has repeatedly stated its opinion that only the elected branches exercise this nation’s reprisal powers.  The authority to engage in these reciprocal actions necessarily includes the power to infringe rights recognized by Vattel’s voluntary law, and the exclusive judgment over whether such actions were necessary and appropriate in the elected branches.  As the Court stated in The Schooner Exchange v. McFaddon (1812),

“the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention. But the argument has already been drawn to a length, which forbids a particular [judicial] examination of these points.”

Of course, none of these observations directly addresses Golove’s claim: that Congress believed itself to be limited by the law of nations when exercising its powers, and that this sense of obligation had a constitutional dimension or basis.  There are, quite obviously, many reasons why members of Congress or Congress as a body might have boisterously made such claims.  Chief among them would be to claim the legitimacy of law for proposed or adopted legislation infringing the perfect rights of other nations.  Given the widely accepted origins of the natural law, some might also have felt morally obligated to observe it in spite of having constitutional discretion not to do so.  It will be interesting to see how Golove addresses these possibilities and others in his completed work.  I look forward to reading it.