Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land

Let’s set aside for now the apparent reliance on the “unwilling or unable” exception to justify the U.S. invasion of Pakistan without that country’s consent – even without having asked the country for its consent. Let’s also set aside the apparent designation of the bin Laden operation as a “covert action” under U.S. law – when it’s not at all clear the operation was intended “to influence political, economic, or military conditions abroad,” as the U.S. law of covert action requires (as opposed to, for example, just killing or capturing bin Laden). The most troubling sentence in Charlie Savage’s new New York Times piece on the legal theory underlying the United States’ 2011 incursion into Pakistan to kill or capture Osama bin Laden is this: “While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a ‘covert’ action, officials said.”

The Times piece very helpfully links directly to the basis of its statement that administration lawyers believed the President could disregard international law in covert actions – a set of written answers for the record that now CIA General Counsel Carolyn Krass prepared in response to questions surrounding her congressional confirmation hearing. Here’s the relevant exchange:

Q: In your answers to the Committee’s pre-hearing questions about the UN Charter and the Geneva Conventions, you wrote, ‘As a general matter, and including with respect to the use of force, the United States respects international law and complies with it to the extent possible in the execution of covert action activities.’ You also wrote that the U.N. Charter and the Geneva Conventions are NOT self-executing treaties, and therefore they are NOT legally binding upon actions carried out by the U.S. government, including covert actions. If, as you wrote in your answers to the Committee’s pre-hearing questions, the U.S. respects international law and complies with it to the extent possible in the execution of covert action activities, how does the U.S. decide when to abide by international law and when it does not apply?

A: When reviewing covert action activities, the CIA General Counsel works with senior lawyers from the other departments and agencies, … both to ensure that the proposed covert action activity does not violate U.S. domestic law and to identify any potential violations of international law. This review also considers whether there is a domestic legal requirement to follow provisions of international law in the execution of covert action activities—for example, if there are any relevant treaty provisions or principles of customary international law that have been implemented in a domestic statute. If there is such a domestic legal requirement, that requirement must be complied with. As the question indicates, I earlier stated that, as a general matter, the United States respects international law and complies with it to the extent possible in the execution of covert action activities. If confirmed, I would ensure that the Director is informed of the international law implications of proposed covert action activities to enable policy discussions regarding whether to recommend that the President nonetheless authorize the covert action activity.

Savage’s article describes this understanding of the inapplicability of international law to covert actions as a “trump card” in the lawyers’ pre-raid analysis – meaning that even if one did not buy the “unwilling or unable” theory, or anything else about the raid, it wouldn’t have mattered. The UN Charter and the Geneva Conventions are non-self-executing treaties under U.S. law, the theory is, so the President is not legally bound.

This view embraces a fundamental misunderstanding of the doctrine of self-execution, before and even after the Supreme Court’s 2008 decision in Medellin. A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without implementing legislation. Non-self-executing does not mean non-binding as law, nor could it. The Supremacy Clause is clear: “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made … shall be the supreme law of the land.” The President would never suggest, for example, that because Bivens actions are not available to enforce some violations of the Constitution against the federal government – that the Constitution itself is not binding on the President. Quite the contrary, the President is legally bound by his obligations under the Constitution, and under “all treaties made,” no matter what subsequent enforcement mechanisms may be available.

That the CIA has a deeply troubling view of its duty to comply with U.S. treaty law signed by the President and ratified by the Senate is not exactly news. As I discussed here in commenting on former CIA General Counsel Stephen Preston’s 2012 speech on U.S. drone strikes, agency lawyers have bent over backwards to say they embrace practices “consistent with” U.S. legal obligations under the Geneva Conventions and the like – not that CIA actually, simply, complies with them. But it should. Covert action or no, treaties remain the supreme law of the land.